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Comment to CDCR on proposed censorship policy revisions June 2014

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Human Rights Defense Center

June 16, 2014

Timothy M. Lockwood, Chief
Regulation and Policy Management Branch
P.O. Box 942883
Sacramento CA 94283-0001

Comment on California Code of Regulations and the Proposed
Changes to Regulations Sections 3006, 3134 and 3135, titled “Obscene
Material Regulations”

Dear Mr. Lockwood:
I write to comment on the proposed changes to sections 3006, 3134 and 3135 of
the California Code of Regulations as they relate to the California Department of
Corrections and Rehabilitation (CDCR) generally.
Our organization, Human Rights Defense Center (HRDC), publishes Prison Legal
News, a monthly publication that has reported on criminal justice-related issues,
including litigation, legislation and reform efforts, since 1990. HRDC is the foremost
advocate on behalf of the free speech rights of publishers to communicate with prisoners
and the right of prisoners to receive publications and communications from outside
sources. Accordingly, our experience in this area leads us to make the following
comments regarding the aforementioned regulations.
1. Sections 3006 and 3134 are subject to abuse and arbitrary enforcement
Upon rejection from a penal institution, the censored material is forwarded to the
Division of Adult Institutions (DAI). The DAI subsequently determines what material is
deemed “obscene” under Section 3006 of the regulations. If the DAI find that said
material is obscene, it will be permanently included on a Centralized List of Disapproved
Publications as provided for in Section 3134.
Government “is not free to adopt whatever procedures it pleases for dealing with
obscenity . . . without regard to the possible consequences for constitutionally protected
speech.” Marcus v. Search Warrant, 367 U.S. 717, 731 (1961). Rather, the First
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Amendment requires that procedures be incorporated that “ensure against the curtailment
of constitutionally protected expression, which is often separated from obscenity only by
a dim and uncertain line. . . . insistence that regulations of obscenity scrupulously
embody the most rigorous procedural safeguards . . . is . . . but a special instance of the
larger principle that the freedoms of expression must be ringed about with adequate
bulwarks. . . .” Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 66 (1963). Courts have
consistently recognized that “the line between speech unconditionally guaranteed
[speech] and speech which may legitimately be regulated . . . is finely drawn. . . . the
separation of legitimate from illegitimate speech calls for . . . sensitive tools. . . .” Speiser
v. Randall, 357 U.S. 513, 525 (1958).
The procedure outlined in sections 3006 and 3134 omit those “sensitive tools”
essential to satisfy the requirements of the First Amendment.
A. The regulations fail to provide clear criteria and other safeguards to prevent
arbitrary censorship of material designated as “obscene”
While Section 3134 purports to allow the publisher notice and an opportunity to
appeal, the underlying process to determine if the material is “obscene” is flawed.
Specifically, there is no reference to the qualifications of the persons within the DAI who
make censorship decisions, how they are chosen, or who will be ultimately responsible
for censorship decisions. There is also no information on the process by which the
material is reviewed by the DAI. Consequently, the determination of what constitutes
“obscenity” is potentially subject to arbitrary enforcement. If “prison officials censor
simply by indulging their personal prejudices and opinions, while purporting to apply
constitutional standards,” federal courts have found this to be an unconstitutional
practice. Jones v. Caruso, 569 F.3d 258, 267 (6th Cir. 2009)(internal quotation marks and
citations omitted). Without some direction about the determinative process that must be
employed, the regulation suffers from constitutional infirmity.
B. The regulations are inherently contradictory and potentially risk arbitrary
censorship of material not intended to be designated as “obscene”
The risk of arbitrary enforcement is especially problematic given the proposed
amendment to Section 3006(c)(15)(D), which reads: “Text-only material shall not be
considered obscene unless designated by the Division of Adult Institutions (DAI). DAI
shall then place the designated text-only material on the Centralized List of Disapproved
Publications.…” This section contradicts Section 3135(b), which reads: “Disagreement
with the sender’s or receiver’s morals, values, attitudes, veracity or choice of words will
not be cause for correctional staff to disallow mail. Correctional staff shall not challenge
or confront the sender or receiver with such value judgments.” It is accepted that

“[i]nmates have no right to receive materials that constitute obscenity.” Miller v.
California, 413 U.S. 15, 23 (1973) (Obscene material is unprotected under the First
Amendment). However, the Supreme Court has “made it perfectly clear that sexual
expression which is indecent but not obscene is protected by the First Amendment.”
Reno v. American Civil Liberties Union, 521 U.S. 844, 874-75 (1997)(internal quotation
and citations omitted). Accordingly, text-only material requires specific safeguards from
censorship because its objectionable character may not be as readily apparent as a
photograph or picture. Without specific safeguards, there is an unnecessary risk of abuse
or arbitrary enforcement.
Moreover, the ban on all “obscene” materials could run afoul of the First
Amendment by excluding sexually suggestive, non-explicit content. See Aiello v.
Litscher, 104 F.Supp.2d 1068, 1081 (W.D. Wis. 2000) (prison regulation overbroad
where it banned “magazines that contain the occasional advertisement showing a portion
of the breast of an otherwise fully-clothed woman”). Publications that contain non-nude
suggestive images in their advertising content are protected by the First Amendment.
See Reno v. ACLU, 521 U.S. 844, 874 (1997) (quoting Sable Commc’ns of Cal., Inc. v.
FCC, 492 U.S. 115, 126 (1989)) (“[W]e have made it perfectly clear that ‘sexual
expression which is indecent but not obscene is protected by the First Amendment’”); see
also Carey v. Population Serv. Int’l, 431 U.S. 678, 701 (1977) (“[W]here obscenity is not
involved, we have consistently held that the fact that protected speech may be offensive
to some does not justify its suppression”). The regulations, however, do not provide
clear guidance to jail administrators on evaluating whether an advertisement is sexually
suggestive versus obscene.
For these reasons, the regulations need to be amended or modified to allow for this
2. Section 3135(d) is overly broad in restricting prisoners from possessing
materials that contain “information concerning where, how, or from whom
obscene material may be obtained.”
Section 3135(d) states that “Inmates shall not possess or have under their control
obscene material and/or mail containing information concerning where, how, or from
whom obscene material may be obtained.
Obscene material means catalogs,
advertisements, brochures, and/or material taken as a whole, which to the average person,
applying contemporary statewide standards, appeals to the prurient interest. It is material
which taken as a whole, depicts or describes sexual conduct, and lacks serious literary,
artistic, political, or scientific value.”
However, this section further states that “Material subject to the test of the above
includes, but is not limited to, pictures or images that depict: (1) Sexually explicit

materials, which are defined as materials that show frontal nudity including personal
photographs, drawings, and magazines and pictorials that show frontal nudity.”
(emphasis added). Thus, Section 3135(d), which purports to restrict prisoners’ access to
information concerning where obscene materials may be obtained, conflates obscene
materials with sexually explicit materials. As such, this section makes no exclusions for
publications, as discussed supra, which contain ads for material that may be considered
sexually explicit or obscene when such ads are incidental to the overall content of the
publication. Comparably, many publications contain ads for things that are forbidden in
prisons, such as advertisements for cigarettes, alcohol, guns, cars, etc. That does not, of
course, justify the unilateral censorship of such publications.
3. Section 3006(c)(19) disallowing prisoners to possess or have under their
control material associated with a Security Threat Group (STG) seeks to
exclude an entire class of person(s) from exercising their First Amendment
rights without confirming that said speech actually threatens the safety and
security of the penal institution.
Subsection 3006(c)(19) reads as follows:
Written materials or photographs that indicate an association with validated
STG members or associates, as described in subsections 3378(c)(8)(C)-(D).
The section excludes any person from possessing material associated with an STG.
The text of Section 3378, subdivision (c)(4), moreover, provides: “An associate is an
inmate/parolee or any person who is involved periodically or regularly with members or
associates of a gang.” It further lists thirteen (13) different categories of source items
indicative of association with validated gang affiliates, including an inmate’s admission
of involvement with the gang, tattoos and symbols distinctive to the gang, written
material or communications evidencing gang activity, the inmate’s association with
validated gang affiliates, and offenses reflecting gang affiliation. See Section 3378(c)(8).
This potentially encompasses any prisoner who, regardless of intellectual curiosity or
other non-threatening reason, possesses a publication that has even a tangential
association with an STG – including, for example, biographical works on historical
figures such as Malcolm X (e.g., The Autobiography of Malcolm X: As Told to Alex
A restriction that furthers a legitimate interest may still be unconstitutional if the
restriction is an “exaggerated response” to that interest. Turner v. Safley, 482 U.S. 78, 87
(1987). Here, it is an exaggerated response to deny a prisoner any material that includes a
reference to an alleged STG absent a particularized finding that the material poses an
actual security threat. To impose a censorship regime under which any written materials
referencing an STG are prohibited is an overly broad restriction that is not
constitutionally permissible. Thornburgh v. Abbott, 490 U.S. 401, 403 n.1 (1989)

(upholding prison policy that permitted censorship of publications “only if it is
determined detrimental to the security, good order, or discipline of the institution or if it
might facilitate criminal activity”). See also Shakur v. Selsky, 391 F.3d 106, 115 (2d Cir.
2004) (reversing decision dismissing case for failure to state claim, stating, “we are not
sure how a complete ban on the materials of ‘unauthorized organizations’ is rationally
related to that goal [of prison security]. The district court articulated no such relationship,
and none appears to us on the face of the regulation”).
Admittedly, the importance of suppressing gang activity, which ostensibly falls
within the gambit of “STG,” within a prison, is obvious. See e.g., Wilkinson v. Austin,
545 U.S. 209, 227 (2005). However, STG, which replaces the word “gang,” is a loaded
term. Although courts generally defer to the reasoned judgment of prison officials on
gang-related matters, prison officials cannot avoid scrutiny for restricting prisoners’
constitutional rights simply by incanting the word “gang.” “[D]eference does not imply
abandonment or abdication of judicial review.” Miller-El v. Cockrell, 537 U.S. 322, 340
(2003). Officials must support their policies with facts, not conjecture. The invocation
of the term gang or STG in this context would result in an actual constitutional
deprivation – the receipt of a publication. Accordingly, a blanket ban against receipt of
any material that mentions an STG is an exaggerated response and will not survive
constitutional muster, absent a particularized finding that the material constitutes an
actual security threat. Despite the claim that the regulations seek to prohibit materials or
publications that “indicate an association with groups that are oppositional to authority
and society,” the practical effect will be a ban on publications containing political speech
and/or speech that in any way questions or criticizes the California prison system. See
Initial Statement of Reasons; Obscene Material Regulations (“ISOR”) 3-25-14 at 4.
“Prison walls do not form a barrier separating prison inmates from the protections
of the Constitution,” Turner v. Safley, 482 U.S. 78, 84 (1987), nor do they bar others
“from exercising their own constitutional rights by reaching out to those on the ‘inside,’”
Thornburgh v. Abbott, 490 U.S. 401, 407 (1989). A publisher’s right to send publications
and other correspondence is clearly established. “[T]here is no question that publishers
who wish to communicate with those who…willingly seek their point of view have a
legitimate First Amendment interest in access to prisoners.” Id. at 408. The Ninth Circuit
recently affirmed this principle. See Hrdlicka v. Reniff, 631 F.3d 1044, 1049 (9th Cir.
2011) (“We have repeatedly recognized that publishers and inmates have a First
Amendment interest in communicating with each other.”). PLN’s speech covers topics of
great public concern and therefore “occupies the highest rung of the hierarchy of First
Amendment values, and is entitled to special protection.” Connick v. Myers, 461 U.S.
138, 145 (1983) (internal quotation marks omitted); see also Pell v. Procunier, 417 U.S.
817, 830 n.7 (1974) (“[T]he conditions in this Nation’s prisons are a matter that is both

newsworthy and of great public importance”). Thus, under this regulatory scheme, Prison
Legal News could be impermissibly banned from within California state prison system.

Thank you for your time and attention in considering our comments concerning
the proposed changes to sections 3006, 3134 and 3135 of the California Code of
Regulations. Please feel free to contact us should you require any additional information.
Very Truly Yours,


Lance T. Weber
General Counsel