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Eighth Circuit Reverses Dismissal of HRDC Postcard-Only Suit Against Arkansas Jail

by David M. Reutter

The Eighth Circuit Court of Appeals ruled that the postcard only policy of the Baxter County, Arkansas Jail and Detention Center (BCJ) constituted a de facto permanent ban on the First Amendment rights of publishers.

The Court’s June 8, 2021 opinion was issued in an appeal by the Human Rights Defense Center (HRDC), publisher of Prison Legal News. BCJ in January 2012 initiated a policy to limit incoming detainee mail, except legal or privileged mail, to postcards. Between August 2016 and May 2017, HRDC sent three batches of materials to multiple BCJ detainees. Pursuant to its policy, BCJ  censored the materials.

HRDC sued, claiming the postcard-only policy violates its First Amendment rights to communicate with BCJ detainees and that BCJ violated its due process rights under the Fourteenth Amendment to notice an opportunity to appeal BCJ’s decisions. The district court granted partial summary judgment to HRDC, concluding the rejections were a “technical violation” of HRDC’s due process rights. It awarded $4 in nominal damages. The court also found there was no First Amendment violation. HRDC appealed both rulings.

The BCJ has one of the most draconian mail policies HRDC has encountered. Prisoners are not allowed to receive books, newspapers, magazines or letters, nor to watch television. The jail plays the radio 20 minutes a day. The jail has no books or magazines and the “law library” consists of a milk crate with a few old, tattered court rules and statute books in it. The district court found this perfectly acceptable under the First Amendment.

The Eighth Circuit found error on the First Amendment claim. Its focus was on the alternative means prong of the Turner v. Safely, 482 U.S. 78, 107 S. Ct. 2254 (1987) factors. The district court found that HRDC could communicate with detainees via “postcards, in-person visitation, and donating materials to BCJ’s law library.” For a distant publisher like HRDC, these alternative means are not practicable, the Eighth Circuit said.

“A key consideration in this case is that, even if HRDC could be required to use only postcards to solicit inmate subscribers, the postcard-only policy appears to prohibit [BCJ] inmates from receiving any of HRDC’s publications, as subscribers or otherwise,” the Court said. HRDC contended this constituted a de facto total ban on publishers communicating with detainees. As evidence was the fact that no prisoner in the jail had received or read any publications in years.

The Eighth Circuit agreed. The evidence at trial showed that BCJ detainees may not order or receive books or magazines. There was also evidence that BCJ “has no electronic reading kiosk and that it stopped maintaining a book cart for the inmates to use.” As HRDC had no alternative means to exercise its “First Amendment interest in access to prisoners,” the district court’s order dismissing that claim was vacated.

The Eighth Circuit then turned to the Fourteenth Amendment claim. It agreed with the district court’s conclusion that only a “technical violation” occurred. A distinction was drawn in that the rejection was not based on censorship but upon enforcement of a rule with general applicability. The court noted HRDC was sending outreach mail to test BCJ’s mail policies after it had learned of the postcard-only policy being implemented.

In addition to upholding the district court’s legal conclusion, it affirmed the $4 nominal damage award. It noted that HRDC would have incurred the costs of mailing from its investigation in any event. Thus, it was proper to award $1 for reach of the four types of mailings HRDC sent to BCJ. HRDC is represented in the case by Paul James of Little Rock, Bruce Johnson and Caesar Kalinowski IV of the Seattle law firm Davis Wright Tremaine and Dan Marshall, HRDC’s general counsel. The case has been remanded for further proceedings.

A number of organizations joined the case on appeal with two amicus curiae briefs on behalf of HRDC. These organizations were the Roderick and Solange Macarthur Justice Center, Americans for Prosperity, Arch City Defenders, the Rutherford Institute, R Street Institute, Center for Appellate Litigation, Free Minds Book Club, Just Detention International, the Michigan State University College of Law Civil Rights Clinic and the Uptown People’s Law Center. They were represented by Devi Rao and Emily Savner of Jenner Block and David Shapiro of the Macarthur Justice Center in one brief and by John Whitehead of the Rutherford Institute and Mark Sableman, Michael Nepple and Anthony Blum at the St Louis firm of Thomson Coburn. HRDC is grateful to the amicus and their counsel for their support. See: Human. Rights Def. Ctr. v. Baxter County. Ark., 999 F.3d 1160 (8th Cir. 2021). 

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