by David M. Reutter

On March 31, 2023, the federal court for the Western District of Arkansas concluded that a “postcard-only” policy at the Baxter County Correctional Center (BCCC) constituted a de facto blanket ban on publications, in violation of the First Amendment rights of the Human Rights Defense Center (HRDC), publisher of PLN.

HRDC sued Baxter County in 2017 to enjoin the jail’s policy prohibiting all detainee mail except for legal mail and postcards. When the nonprofit attempted to send copies of PLN or its sister publication, Criminal Legal News (CLN), jail officials refused them– though they helpfully offered to deliver the issues if they were reprinted on postcards.

That “postcard-only” policy prevented HRDC from sending its publications and informational packets to anyone held at BCCC. After a three-day trial in April 2019, the district court found the policy was reasonably related to legitimate penological interests and did not violate HRDC’s First Amendment rights. HRDC appealed.

On June 8, 2021, the U.S. Court of Appeals for the Eighth Circuit reversed. It remanded for the district court to more broadly assess the second factor under Turner v. Safely, 482 U.S. 78 (1987), to determine “whether HRDC proved its assertion that the postcard-only policy results in ‘a de facto total ban’ on Jail inmates accessing HRDC’s materials.”

As the Court noted, the “unrebutted testimony at trial was that no publisher can send books into the Jail; that no magazines of any type are allowed in the Jail; and that the Jail does not accept books.” A request for rehearing before the full Eighth Circuit en banc was denied on July 14, 2021. See: Human Rights Def. Ctr. v. Baxter Cty. Ark., 999 F.3d 1160 (8th Cir. 2021); and 2021 U.S. App. LEXIS 20866 (8th Cir.).

On remand, the district court held a contested evidentiary hearing on September 19, 2022, at which new evidence was presented and the parties stipulated to admission of all evidence entered at the 2019 trial. The district court then examined the jail’s policy both in 2017 and currently, to determine whether HRDC was or still is harmed.

It was “undisputed that donations [of reading material] directed to individual inmates were barred,” the district court found, and “the jail did not accept donations in 2017.” Thus “the County’s 2017 policies and practices de facto barred HRDC’s publications in the Jail.”

Analyzing this under the factors outlined in Turner, the district court drew a distinction between HRDC’s right to send correspondence and its right to send publications. The nonprofit’s “ability to send postcards and speak by telephone or during visitation provided adequate alternatives to letter writing.” However, the “policy of rejecting publications for failure to be placed on postcards,” the district court continued, “restricted far more First Amendment-protected activity than necessary to achieve the County’s stated objectives.”

It noted that in many jurisdictions, courts have upheld policies restricting books to those sent directly by publishers, “on the premise that publications sent directly by a publisher or distributor are unlikely to contain contraband . . . and pose little risk of drug smuggling.” So the district court wasn’t buying the Jail’s suggestion that HRDC place the text of its publication on postcards; that not only amounted to overkill but also would lead to “an enormous influx in postcards,” undermining the purpose of the postcard-only policy.

The district court further found that the ability of third-party publishers to communicate by postcard, phone call or visitation did not provide an adequate alternative to books, magazines, and newspapers. “[E]xempting publications sent directly by publishers or distributors from the postcard-only policy would have had a de minimus impact on the [Jail] in 2017,” the district court found. Having concluded that HRDC’s First Amendment rights were violated under the 2017 policy, it awarded $1.00 in nominal damages.

Turning to the current postcard-only policy, the district court noted that it was under review, but still in effect, leaving different materials treated unevenly. The Jail “accepts Bibles sent to individual detainees through the mail yet refuses all other publications sent in the same manner”; moreover, it made “no attempt to justify or explain this differential treatment.” Books are permitted solely in the Sheriff’s discretion, with no formal policies as to content admissibility. The Jail “itself provides inmates with an enormous amount of paper,” the district court observed, which refuted any argument concerning hazards from books.

The Jail’s “refusal to accept publications mailed directly by a neutral third-party publisher or distributor – with the exception of Bibles mailed by religious organizations – is not reasonable,” the district court concluded. The rejection of HRDC publications in 2017 and the continued policy preventing third-party publishers from sending publications to those incarcerated at the Jail was declared unconstitutional. As a result, the Jail was permanently enjoined “from enforcing any incoming mail policy that prohibits publications mailed by HRDC because the publication was not placed on postcards.” See: Human Rights Def. Ctr. v. Baxter Cty., 2023 U.S. Dist. LEXIS 57360 (W.D. Ark.).

That decision arrived in Baxter County just over three weeks after another handed down in the same court in a similar case HRDC filed against Union County, Arkansas. There the jail also has a postcard-only policy, but it was modified in 2017 to allow detainee mail to be electronically scanned and made available on tablets.

Under the Eighth Circuit’s direction to examine such restrictions on a case-by-case basis, the district court empaneled a jury to determine whether Union County had enacted a de facto ban on publications. On March 8, 2023, that jury agreed with Defendant jailers that HRDC had other means of communicating with jail detainees. HRDC then moved for judgment notwithstanding the verdict, but that motion was denied on May 1, 2023. See: Hum. Rights Def. Ctr. v. Union Cty., 2023 U.S. Dist. LEXIS 75399 (W.D. Ark.).

That leaves two jails with postcard-only policies in the same federal judicial district under diametrically opposed orders. HRDC has appealed the Union County decision to the Eighth Circuit, while Baxter County has done the same for the decision there. PLN will update developments as they are available.

HRDC has published PLN since 1990 and CLN since 2017. It is represented in both cases by in-house counsel, including Litigation Director E.J. Hurst II, along with attorneys from James & Carter PLC in Little Rock and Davis Wright Tremaine LLP in Seattle. See: Hum. Rights Def. Ctr. v. Union Cty., USCA (8th Cir.), Case No. 23-1677; and Hum. Rights Def. Ctr. v. Baxter Cty., USCA (8th Cir.), Case No. 23-1888. 

Additional source: KTLO, Ozark Radio News