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Eleventh Circuit Addresses First Amendment, Due Process Interests in Georgia Prisoner Emails

New communications technology introduced in prisons and jails has raised questions as to how prisoners’ First Amendment rights are implicated. Such concerns were addressed by the U.S. Court of Appeals for the Eleventh Circuit on June 23, 2023, in a lawsuit filed by Georgia prisoner Ralph H. Benning, after emails he sent through prison communications systems were intercepted and withheld by officials with the state Department of Corrections (DOC).

DOC allows prisoners to send monitored emails through JPay kiosks and Georgia Offender Alternative Learning (GOAL) devices. Each email costs $.37, and the prison system receives 15% of the revenue. The email system is governed by various policies, including one that makes all emails subject to inspection and review, and those that violate the rules “will be intercepted without explanation and no refund will be provided to the sender.”

In 2017, Benning sent two emails to his sister that were censored by DOC staff and never delivered; the messages discussed gang problems, fraud and corruption in the prison system. But they were withheld because Benning had asked them to be forwarded to a third party, in violation of the mail system rules. A third email he sent in 2018, to a religious organization, also was censored because it “contained information about” another prisoner, which also violated the email policy. Benning was not notified of the non-delivery of his emails nor given an opportunity to appeal to a prison employee not involved in the censorship decisions.

In his suit filed in federal court for the Middle District of Georgia, Benning argued his emails had been unconstitutionally intercepted and withheld by prison officials without notice, in violation of his First Amendment and due process rights. Defendants moved for summary judgment, which was granted, and he appealed.

The Eleventh Circuit affirmed in part and reversed in part. In regard to the due process claim, the district court had held Benning did not have a protected liberty interest in his emails because they should not be treated like physical mail. The appellate court disagreed, expressly finding that prisoners have a protected liberty interest in the emails they send, thus are “entitled to notice and other procedural safeguards” that apply to mailed letters. Citing Procunier v. Martinez, 416 U.S. 396 (1974), overruled on other grounds by Thornburgh v. Abbott, 490 U.S. 401 (1989), the Court explained that emails “undoubtedly” constitute speech under the First Amendment, and that Martinez “is concerned with correspondence from inmates, regardless of the form (or medium) the correspondence takes.” Notably, prison officials treated emails sent by prisoners as the “functional equivalent” of physical letters in terms of screening and reviewing them for security purposes. Nor did it matter that DOC’s email system was a privilege rather than a right.

Because Benning was not provided notice his emails had been withheld and was not allowed to appeal to a neutral official who had not made the censorship decision, there was a genuine issue of fact as to whether his due process rights had been violated, the Court said, which required a jury trial to resolve. However, because the law regarding the censorship of prisoners’ emails was not clearly established in 2017 and 2018, Defendants were entitled to qualified immunity (QI).

Even so, QI did not prevent Benning from obtaining declaratory relief against Defendants in their official capacity, which he had requested in his complaint. On remand, the district court was directed to address the declaratory relief request should Benning prevail on his due process claim, the Eleventh Circuit wrote.

Benning also alleged First Amendment violations under Martinez with respect to DOC’s email policies, including the prohibitions against requests to forward messages to third parties and against sending information about other prisoners. Defendants argued that their policies were constitutional under Turner v. Safley, 482 U.S. 78 (1987), as they were rationally related to the prison system’s “security and safety interests.” The Eleventh Circuit again found Defendants were entitled to QI, since the law regarding prison email policies had not been clearly established at the time. It did not reach the issue of whether Martinez or Turner applied to such claims.

In summary, Benning’s due process claims were remanded for a jury trial on his request for declaratory relief, while dismissal of his First Amendment claims related to DOC’s email policies was affirmed. Judge Harvey E. Schlesinger issued a concurring opinion, arguing that Turner rather than Martinez should control as to Benning’s First Amendment claim. On appeal, Benning was represented by attorneys with the Roderick and Solange MacArthur Justice Center in San Francisco and Arnold & Porter Kaye Scholer, LLP, in Washington, DC. See: Benning v. Comm’r, Ga. Dep’t of Corr., 71 F.4th 1324 (11th Cir. 2023).

District Court Calls Out DOC for “Suspicious” Timing

Back at the district court, Benning filed a motion for relief under Fed. R. Civ. Proc. 60(b). As that court summarized, “when he filed this case there were no requirements for anyone wanting to communicate with him through email to be cleared through the security procedures and background checks like those in place for physical entry into the prison.”

But after he filed his lawsuit, Benning said “Defendants only instituted those requirements for email in response,” the Court continued, “‘In an attempt to justify’ email censorship.” Then Defendants “lifted those requirements which mooted any claim for relief that Plaintiff may have had regarding them.” Taking them in good faith, though, Benning “did not challenge the security requirements for email throughout the duration of the proceedings in the District Court or on appeal.” Benning also recalled that Defendants “unequivocally averred” to the Eleventh Circuit “that the security requirements for email ‘no longer existed.’”

But that turned out not to be true. So, he told the district court “that Defendants ‘have now reinstated’ the security-clearance requirements for email to ‘evade judicial review,’” and this was the basis “for seeking relief under Rule 60(b)(3) for ‘fraud, misrepresentation, or an adverse party’s misconduct.’” The district court said “this undeniably suspicious reinstatement of a previously removed policy—the removal which, of course, constituted the [district court’s] basis for denying injunctive relief certainly merits that Plaintiff be allowed to fully litigate the policy that is apparently now being reinforced again.” Accordingly, Benning was relieved of that part of the district court’s earlier order on October 30, 2023. See: Benning v. Dozier,2023 U.S. Dist. LEXIS 194384 (M.D. Ga).

The case remains open, with a trial currently set for January 8, 2024. PLN will update developments as they are available. See: Benning v. Dozier, USDC (M.D. Ga.), Case No. 5:18-cv-00087.  

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Related legal cases

Benning v. Comm’r, Ga. Dep’t of Corr.

Benning v. Dozier