Case 3:12-cv-00125-CAR Document 27-1 Filed 01/07/13 Page 1 of 33

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
PRISON LEGAL NEWS, a project of
the HUMAN RIGHTS DEFENSE
CENTER, a Not for Profit Corporation,
Incorporated in the State of Washington,

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Plaintiff,
v.
JOE CHAPMAN, the
Sheriff of Walton County, Georgia,
And WADE HARRIS, the Jail Commander
For Walton County Jail, in their official and
Individual capacities
Defendants.

Case No.: 3:12-cv-00125-CAR

Chad M. Brock (357719)
Chara F. Jackson (386101)
Michael Mears (500494)
American Civil Liberties Union
Foundation of Georgia
1900 The Exchange
Suite 425
Atlanta, Georgia 30339
(770) 303-8111
cfjackson@acluga.org
mmears@johnmarshall.edu
AMICUS CURIAE BRIEF
OF THE AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF GEORGIA IN
SUPPORT OF PLAINTIFF PRISON LEGAL NEWS’ MOTION FOR INJUNCTIVE
RELIEF

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TABLE OF CONTENTS
I. INTEREST OF AMICUS……………………………….……………………………………..1
II. STATEMENT OF FACTS……………………….…………………………………………...3
III. ARGUMENT……………….……………………….………………………………….........6
A. Defendants’ Mail Policy Infringes upon the First Amendment Right to Send and Receive
Mail…………………………………..…………………....…………….……….…………..6
1. Defendants’ Mail Policy Violates the Right of Publishers to Send Their
Publications to Inmates, Places Unconstitutional Restrictions on Inmates’ Access
to All Incoming Publications, and Violates Inmates’ Right to Receive
Publications………………………………………………...………………….....9
a. Defendants’ Revised Mail Policy Governing Inmates’ Access to
Periodicals and Books is Unconstitutional……………………….……...12
b. Defendants’ Original Mail Policy Prohibiting Inmates From Accessing
Virtually All Publications is Unconstitutional………………………...…17
2. Defendants’ Postcard-Only Mail Policy Violates the First Amendment Right to Send
and Receive Mail……………………………………………...…..……………....…...19
a. Defendants’ Postcard-Only Mail Policy is Unconstitutional as Applied to
Inmates’ Outgoing Mail………….………………………………………...….…20
b. Defendants’ Postcard-Only Mail Policy is Unconstitutional as Applied to
Inmates’ Incoming Mail………………….…………………………………..…..22
IV. CONCLUSION………………….……………………………………..……………………27

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TABLE OF AUTHORITIES
Amatel v. Reno, 156 F.3d 192 (D.C. Cir. 1998)…………….……………………..……………16
Arizona Free Enterprise Club’s Freedom Club PAC, et al. v. Bennett, ___ U.S. ___; 131 S.Ct.
2806 (2011)………………………………………………………………………………….… 21
Beard v. Banks, 548 U.S. 521 (2006)……………………….….……………..……….…… 8, 26
Beerheide v. Suthers, 286 F.3d 1179, 1189 (10th Cir. 2002) ………………….…………. 17, 23
Bell v. Wolfish, 441 U.S. 520 (1979) …………………………………………………….…9, 15
Blount v. Rizzi, 400 U.S. 410 (1971) …………………………...……..……………………..…6
Clay v. Pelle, Case No. 10-CV-01840-WYD-BNB, 2011 WL 843920 (D. Colo. March 8,
2011)………………………………………...………………………………………………….. 2
Crafton v. Roe, 170 F.3d 957 (9th Cir. 1999)……………………….………………………… 10
Fortner v. Thomas, 983 F.2d 1024, 1029 (11th Cir. 1993) …………………………..…………7
Green v. Ferrell, 801 F.2d 765 (5th Cir. 1986)………………………..………………………. 10
Griswold v. Connecticut, 381 U.S. 479 (1965) …………………….…….…………………..… 6
Jacklovich v. Simmons, 392 F.3d 420 (10th Cir. 2004) .………………………..……..…… 8, 11
Johnson v. Forrest County Sherriff’s Dep’t, No. 98-60556, 2000 WL 290118
(5th Cir. Feb. 15, 2000) .…………………………….………………………………………… 10
Johnson v. Smith, 2011 WL 344085 (N.D. Ga. 2011)………………………………………… 22
Jones v. Caruso, 569 F.3d 158 (6th Cir. 2009) ……...…………………….……………….16, 23
Mann v. Smith, 796 F.2d 79 (5th Cir. 1986) …………………………….………………….10, 14
Miniken v. Walter, 978 F. Supp. 1356 (E.D. Wash. 1997)……………………….……………. 11
Mitchell v. Untreiner, 421 F.Supp. 886 (N.D. Fla. 1976)…….……………….…………... 10, 25
Montcalm Publishing Co. v. Beck, 80 F.3d 105 (4th Cir. 1996)…………………….………… 10
O’Bryan, et al. v. Saginaw Cty, Mich., 437 F. Supp. 582 (E.D. Mich. 1977)…………………. 21
Overton v. Bazzetta, 539 U.S. 126 (2003) ………………………………………………… 24, 26
Palko v. State of Connecticut, 302 U.S. 319 (1937)…………………………………….………. 6
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Parnell v. Waldrep, 511 F.Supp. 764 (W.D.N.C. 1981)………………….………..………….. 10
Payne v. Whitemore, 325 F.Supp. 1191 (N.D. Cal. 1971)………………………….….……… 11
Pell v. Procurier, 417 U.S. 817 (1974)………………………….…………….………………. 24
Prison Legal News, et al. v. Berkeley County Sheriff, et al., Case No. 2:10-CV-02954-MBS
(D.S.C. Jan. 10, 2012)…………………………………..………………….…………….. 1, 2, 11
Prison Legal News v. Columbia County, No. 3:12-CV-00071-SI, 2012 WL 1936108 (D. Or. May
29, 2012) ……………………………………………………….………….………….……..… 19
Prison Legal News v. Cook, 238 F.3d 1145 (9th Cir. 2001)……..……………………..……… 11
Prison Legal News v. Fulton County, No. 1:07-CV-2618-CAP (N.D.Ga. Feb. 4, 2008)
…………………………….………………………………………………………….……….… 8
Prison Legal News v. Lehman, 397 F.3d 692 (9th Cir. 2005)…….………………..…..……….. 8
Prison Legal News v. Livingston County Sheriff Bob Bezotte, Case No. 2:11-CV-13460 (E.D.
Mich. filed Aug. 9, 2011) ………………….……………………………….…….…………..… 2
Prison Legal News v. Spokane County, Case No. CV-11-029-RHW, 2011 WL 4073615 (E.D.
Wash. August 3, 2011)……………………………………………….……….………………… 2
Procunier v. Martinez, 416 U.S. 396 (1974)…………………..………. 6, 7, 8, 19, 20, 21, 22, 25
Sizemore v. Williford, 829 F.2d 608 (7th Cir. 1987)………………..…………………….…… 10
Spellman v. Hopper, 95 F.Supp.2d 1267, 1287 (M.D. Ala. 1999)…………………….……14, 15
Thomas v. Leslie, Nos. 97-3346, 97-3361, 1999 WL 281416……………...……………….…. 10
Thornburgh v. Abbott, 490 U.S. 401 (1989) ……………………….……………… 6, 8, 9, 20, 22
Turner, et al. v. Safley, et al., 482 U.S. 78 (1987)………..…… 8, 9, 12, 14, 15, 16, 17, 18, 19,
20, 22, 23, 25, 27
Walker v. Summer, 917 F.2d 382, (9th Cir. 1990)……………………………………………… 8

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I.

INTEREST OF AMICUS

The American Civil Liberties Union (“ACLU”) Foundation of Georgia is the Georgia
affiliate of a nationwide non-partisan organization with more than 500,000 members dedicated to
the principles of liberty and equality embodied in the Constitution and this nation’s civil rights
laws. In 1972, the ACLU founded the National Prison Project (“NPP”) to ensure that our
nation’s prisons, jails, and detention facilities comply with the Constitution and federal law. The
NPP has found that prisons and jails often impose arbitrary rules that interfere with prisoners’
ability to communicate with the outside world. The ACLU works to ensure that prisoners retain
all First Amendment rights that are not inconsistent with incarceration.
This case involves a significant violation of the First Amendment rights of anyone
wishing to communicate with an inmate at the Walton County Jail (“the Jail”). The ACLU
believes that the Jail’s mail policies represent a serious threat to the constitutional rights of
persons detained therein as well as those groups or individuals who wish to communicate with
the Jail’s inmates. Specifically, the Jail’s complete prohibition on publications of any kind and
its postcard-only mail policy infringes upon the First Amendment rights of groups like Prison
Legal News (PLN) and the inmates themselves.
The ACLU has challenged jail mail policies that seek to ban virtually all publications
from being received via incoming mail. See Prison Legal News, et al. v. Berkeley County
Sheriff, et al., Case No. 2:10-CV-02954-MBS (D.S.C. Jan. 10, 2012).1 In that case, the ACLU
challenged a mail policy at the Berkeley County Detention Center (BCDC) in Moncks Corner,
South Carolina, which barred virtually all incoming books, magazines and newspapers. In
January 2012, the parties entered into a consent injunction in which BCDC officials agreed to
1

Available at http://www.aclu.org/files/assets/partially_executed_injunction_1-10-2012.pdf (last
downloaded Oct. 8, 2012)
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“ensure that BCDC detainees are able to exercise the rights guaranteed to them by the First
Amendment . . . [and] BCDC detainees shall be permitted to receive and retain any and all
publications which do not threaten BCDC safety or security . . . [including] Prison Legal News,
soft cover books, news magazines, sports and entertainment magazines, other general interest
publications, and newspapers of general circulation.” Berkeley County Sheriff, at ¶¶ 21, 23.
The ACLU has challenged postcard-only mail policies throughout the country. See
Hamilton v. Hall, 790 F.Supp.2d 1368 (N.D. Fla. June 10, 2011) (finding that inmate stated a
claim under § 1983 for violation of her First Amendment right to freedom of speech); Clay v.
Pelle, Case No. 10-CV-01840-WYD-BNB, 2011 WL 843920 (D. Colo. March 8, 2011)
(granting class certification for inmates’ challenging a postcard-only mail policy). The ACLU
Fund of Michigan submitted an amicus brief supporting PLN’s challenge to a postcard-only
policy in the Livingston County Jail, see Prison Legal News v. Livingston County Sheriff Bob
Bezotte, Case No. 2:11-CV-13460 (E.D. Mich. filed Aug. 9, 2011). The ACLU of Washington
submitted an amicus brief supporting PLN’s challenge to a postcard-only mail policy in the
Spokane County Jail, see Prison Legal News v. Spokane County, Case No. CV-11-029-RHW,
2011 WL 4073615 (E.D. Wash. August 3, 2011). In that case, the parties entered into a Consent
Decree in which it was noted that “Defendants have not articulated a legitimate penological
interest” for their postcard-only mail policy and “Defendants believe there is a substantial risk
that a court may find that Defendants’ postcard policy violates inmates’ or others’ First
Amendment rights” and “Defendants agree . . . that an injunction is appropriate in that it lessens
risk and clearly protects such rights.” Id. at ¶¶ 15, 20.
Defendants’ unconstitutional mail restrictions are an example of a disturbing national
trend in which correctional facilities are exaggerating security risks and the need to preserve

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scarce resources to justify policies that trample on the First Amendment rights of inmates and
those with whom they correspond. Plaintiff PLN challenges Defendants’ mail policies as
violative of the First and Fourteenth Amendments and has moved the Court for a preliminary
and/or permanent injunction. Amicus agrees that Defendants’ mail policies are overly restrictive
and unconstitutional because they deprive inmates of any meaningful communication with the
outside world and fail to survive constitutional scrutiny
The ACLU Foundation of Georgia submits this amicus curiae brief in support of
Plaintiff’s motion for injunctive relief and to ensure that this Court is fully briefed on this case of
significant constitutional importance. For the following reasons, this Court should preliminarily
and permanently enjoin Defendants from enforcing the unconstitutional mail policies at the
Walton County Jail.
II.

STATEMENT OF FACTS

PLN is an advocacy organization that publishes Prison Legal News, a monthly,
subscriber-based publication discussing prisoners’ issues. (Declaration of Paul Wright, founder
of PLN ¶¶ 1-3 (“Wright Decl.”)). PLN has approximately 7,000 subscribers in the United States
and abroad, including prisoners at about 2,200 correctional facilities nationwide. (Id. ¶ 7). It
communicates with prisoners throughout the country on prison conditions, investigates claims
pertaining to alleged constitutional violations, educates prisoners on their legal rights, and
participates in litigation to assert prisoners’ rights and as a form of political expression.
(Declaration of Lance Weber, Esq. ¶¶ 7-8 (“Weber Decl.”)).
PLN has been unable to communicate with Walton County inmates due to the Jail’s
onerous mail restrictions. Since January 2012, PLN estimates that it has sent Walton County
inmates approximately 222 separate issues of its Prison Legal News monthly journal, 41 copies

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of the book, Protecting Your Health and Safety, 41 copies of its informational brochure pack,
and 9 subscription renewal letters. (Wright Decl. ¶¶ 15-16). The Jail rejected many of these
materials and sent back at least 59 issues of Prison Legal News, 36 copies of the informational
brochures and subscription renewal letters, and rejected numerous other materials that it failed to
return to PLN. (Id.).
From April 8, 2011, to October 12, 2012, the Jail’s mail policy stated: “NO publications
of any kind are to be accepted through the mail. Books are available on a regular basis from the
facility library.” (Policy No. 5.16.II.E (effective April 8, 2011)). On October 12, 2012,
Defendants modified this policy, which now provides:
Only books sent directly from a bookstore/publisher or retail outlet are to be accepted through
the mail, nothing can be written in or added to the book. Hardback books are not accepted.
Books are also available on a regular basis from the facility library. (See policy 5.25).
Packages, magazines, newspapers or periodicals will not be accepted. These items will be
provided by Inmate Services on a regular schedule.
From April 8, 2011, to October 1, 2012, the Jail’s library policy simply read: “The
general library in the Walton County Detention Facility includes a collection of books and
magazines.” (Policy No. 5.25.E (effective date April 8, 2011)). On October 1, 2012, Defendants
revised its library policy, which now reads:
The general library in the Walton County Detention Facility includes a collection
of books and magazines. Approved magazines are provided on a monthly basis to
each housing area of the detention center. Inmates may order books to be sent
directly from the bookstore/publisher. These books will be inspected and
approved by Inmate Services before being delivered to the inmate, nothing may
be written in or added to the book. Inmates may only have one book other than
religious materials in their possession. Inmates may order an additional book
once they complete a book, however, they must have a family member pick up the
old book or donate it to the facility library.
(Policy No. 5.25.E (effective date Oct. 1, 2012)).

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These policy changes were presumably made to address the constitutional problems with
the Jail’s previous prohibition on virtually all publications. However, the revised policies
governing access to publications like Prison Legal News does not alleviate the constitutional
concerns expressed by Plaintiff. The new policy continues to prohibit PLN from sending its
monthly newsletter to inmates through subscription service, and there is no guarantee that those
periodicals will be made available to inmates through the library, even if inmates request that
they be made available. In addition, while the new policy allows publishers to send books
directly to the library upon the request of an inmate, Defendants have yet to recognize PLN as a
legitimate publisher under its new policy so it is uncertain as to whether PLN will have the
ability to send its books to the Jail. (Defs.’ Response Brief at 18-19).
Defendants have adopted, and continue to maintain, unconstitutional restrictions
governing all outgoing and incoming mail. On October 7, 2010, Defendant Harris circulated a
memorandum stating: “Effective November 1, 2010, all written communications between
inmates and citizens will be done on a post card. All outgoing and incoming mail must be done
on a post card except legal mail . . . .” (Memorandum from Major Wade Harris to Walton
County Inmates, Oct. 7, 2010). This memorandum is consistent with the Jail’s official mail
policy, which had been in place since at least April 8, 2011, and provides, in pertinent part:
Inmates in the Walton County Detention Facility are allowed to send and receive mail by
non-personal photo post card only unless it is for the receipt of a money order for
commissary purposes … or there is documented justification for a limitation of mail
privileges.
(Policy No.5.16.I).
While the ACLU Foundation of Georgia finds other aspects of the Jail’s mail policy
troubling and likely unconstitutional, the focus of this amicus brief will be on the
constitutionality of the Jail’s complete ban on publications received via incoming mail and the
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postcard-only restriction on incoming and outgoing mail. If this Court so desires, Amicus will
provide a supplemental brief analyzing the constitutionality of Defendants’ other mail policies.
III.

ARGUMENT

A. Defendants’ Mail Policy Infringes upon the First Amendment Right to Send and
Receive Mail.
The First Amendment to the United States Constitution guarantees the right of
individuals to freedom of speech, religion and assembly. See U.S. CONST. amend. I. These
freedoms are the foundation of each individual’s broader right to freedom of expression. The
Supreme Court has found that “[Freedom of expression] is the matrix, the indispensable
condition, of nearly every other form of freedom.” Palko v. State of Connecticut, 302 U.S. 319,
327 (1937). “[T]he State may not, consistently with the spirit of the First Amendment, contract
the spectrum of available knowledge. The right to distribute, the right to receive, the right to
read and freedom of inquiry, freedom of thought . . . .” Griswold v. Connecticut, 381 U.S. 479,
482 (1965).
It has been established that the right to receive and send mail is protected by the First
Amendment. Blount v. Rizzi, 400 U.S. 410 (1971). The Supreme Court has also found that
incarcerated persons generally retain their First Amendment right to send and receive mail. See,
e.g., Thornburgh v. Abbott, 490 U.S. 401, 407 (1989); Procunier v. Martinez, 416 U.S. 396
(1974), overruled in part on other grounds, Thornburgh (finding that correspondence between a
prisoner and outsider implicates First and Fourteenth Amendment protections).
In Thornburgh, the Supreme Court held that “prison walls do not form a barrier
separating prison inmates from the protections of the Constitution nor do they bar free citizens
from exercising their own constitutional rights by reaching out to those on the
‘inside.’” Thornburgh, 490 U.S. at 407 (citations omitted). In Martinez, Justice Thurgood
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Marshall eloquently articulated the importance of preserving First Amendment rights for
incarcerated persons: “When the prison gates slam behind an inmate, he does not lose his human
quality; his mind does not become closed to ideas; his intellect does not cease to feed on a free
and open interchange of opinions . . . It is the role of the First Amendment and this Court to
protect those precious personal rights by which we satisfy such basic yearnings of the human
spirit.” Martinez, 416 U.S. at 428 (Marshall, J., concurring).
“[E]ven though this court engages in a deferential review of the administrative decisions
of prison authorities, the traditional deference does not mean that courts have abdicated their
duty to protect those constitutional rights that a prisoner retains.” Fortner v. Thomas, 983 F.2d
1024, 1029 (11th Cir. 1993). The First and Fourteenth Amendments protect the rights of both
inmates and those with whom they correspond from unjustified government interference with
their correspondence. Id. at 408-09, 418 (“Communication by letter is not accomplished by the
act of writing words on paper. Rather, it is effected only when the letter is read by the addressee.
Both parties to the correspondence have an interest in securing that result, and censorship of
communication between them necessarily impinges on the interest of each . . . The interest of
prisoners and their correspondents in uncensored communication by letter, grounded as it is in
the First Amendment, is plainly a ‘liberty’ interest within the meaning of the Fourteenth
Amendment . . . .”).
It is clear that by severely limiting inmates’ access to publications via incoming mail,
prohibiting outside publishers from communicating with inmates through subscription service
and direct mail, and by severely constraining the information an inmate is allowed to send and
receive through the implementation of a postcard-only mail policy, Defendants have infringed

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upon the inmates’ First Amendment right to send, receive and read mail, as well as Plaintiff’s
First Amendment right to distribute mail.
Groups like PLN have the First Amendment right to correspond with prisoners by
mail. Thornburgh, 490 U.S. at 408 (“In this case, there is no question that publishers who wish
to communicate with those who, through subscription, willingly seek their point of view have a
legitimate First Amendment interest in access to prisoners.”); see also, Prison Legal News v.
Lehman, 397 F.3d 692, 699 (9th Cir. 2005); Jacklovich v. Simmons, 392 F.3d 420, 426 (10th Cir.
2004); Prison Legal News v. Fulton County, No. 1:07-CV-2618-CAP, 2007 WL 4712494
(N.D.Ga. Feb. 4, 2008) (action challenging constitutionality of Fulton County Jail ban on
publications; motion for preliminary injunction granted).
While the Court does allow for greater regulation of prisoners’ speech, such regulations
must be “reasonably related to legitimate penological interests,” Turner v. Safley, 482 U.S. 78,
89 (1987), and the prison authorities must “show more than a formalistic logical connection
between a regulation and a penological objective,” Beard v. Banks, 548 U.S. 521, 535 (2006).
Prison authorities are not allowed to “rely on general or conclusory assertions to support their
policies. Rather, they must first identify the specific penological interests involved and then
demonstrate both that those specific interests are the actual bases for their policies and that the
policies are reasonably related to the furtherance of the identified interests. An evidentiary
hearing is required as to each point.” Walker v. Summer, 917 F.2d 382, 386 (9th Cir. 1990).
Correctional policies regulating outgoing mail are to receive greater constitutional
scrutiny as outlined in Martinez, 416 U.S. at 413-414; see also Thornburgh, 490 U.S. at 413
(upholding the strict scrutiny standard articulated under Martinez as applied to outgoing mail
because “[t]he implications of outgoing correspondence for prison security are of a categorically

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lesser magnitude than the implications of incoming materials.”). Policies that regulate incoming
mail are to be reviewed under the constitutional standard articulated in Turner. Id. In Turner,
the Court articulated a four factor test to determine whether a prison regulation infringes upon a
constitutionally protected right:
(1) whether there is a valid, rational connection between Defendants’ postcardonly policy and the security and costs interests upon which Defendants rely to
justify the regulation;
(2) whether there are alternative means of exercising the asserted constitutional
right that remain open to inmates and those with whom they correspond;
(3) whether and to what extent accommodating the asserted right will have an
impact on prison staff, on inmates’ liberty and on the allocation of limited
prison resources; and
(4) whether there exists ready alternatives that fully accommodate the prisoners’
rights at de minimis costs to valid penological interests. [Turner, 482 U.S. at
89-90].
The Turner test applies to convicted prisoners, and thus pretrial detainees held in jails like
Walton County Jail may enjoy greater constitutional protections. See Bell v. Wolfish, 441 U.S.
520, 545 (1979) (“[P]retrial detainees, who have not been convicted of any crimes, retain at least
those constitutional rights that we have held are enjoyed by convicted prisoners.”). Even if the
Jail’s inmates are only afforded the constitutional protections guaranteed to convicted prisoners,
Defendants’ mail policies fail to satisfy constitutional scrutiny and Plaintiff’s motion for a
preliminary and a permanent injunction should be granted.
1. Defendants’ Mail Policy Violates the Right of Publishers to Send Their
Publications to Inmates, Places Unconstitutional Restrictions on Inmates’
Access to All Incoming Publications, and Violates Inmates’ Right to Receive
Publications.
The First Amendment right of a publisher to send books and magazines to prisoners is
well settled. Thornburgh, 490 U.S. at 408; see also Perry v. Sec. of Fla. Dep’t of Corrections,

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664 F.3d 1359, 1363 (11th Cir. 2011) (“The Supreme Court [has] held that both inmates and
noninmates have a First Amendment interest in correspondence sent to one another.”). The
Fourth Circuit has found that a magazine publisher “indeed has a constitutional interest in
communicating with its inmate subscribers.” Montcalm Publishing Co. v. Beck, 80 F.3d 105,
108 (4th Cir. 1996).
Federal courts throughout the country have recognized that publishers have a First
Amendment right to mail their publications to incarcerated persons, and those courts have
rejected unreasonable restrictions on the right to send and receive publications. See Mann v.
Smith, 796 F.2d 79, 82 (5th Cir. 1986) (finding that a jail’s “policy that forbade inmates to
receive or possess newspapers and magazines” violated the First Amendment); Green v. Ferrell,
801 F.2d 765, 772 (5th Cir. 1986) (finding a jail’s prohibition on newspapers violates the First
Amendment); Johnson v. Forrest County Sherriff’s Dep’t, No. 98-60556, 2000 WL 290118, at
*1 (5th Cir. Feb. 15, 2000) (“A blanket ban on newspapers and magazines…violates the First
Amendment); Sizemore v. Williford, 829 F.2d 608, 610 (7th Cir. 1987) (acknowledging
prisoners’ “First Amendment right to receive and to read newspapers and periodicals”); Crafton
v. Roe, 170 F.3d 957, 960-61 (9th Cir. 1999) (striking down prison ban on gift publications);
Thomas v. Leslie, Nos. 97-3346, 97-3361, 1999 WL 281416, at *7 (10th Cir. Apr. 21, 1999)
(holding that an “absolute ban on newspapers” violates the First Amendment); Parnell v.
Waldrep, 511 F.Supp. 764, 768 (W.D.N.C. 1981) (striking down publications ban at a jail and
holding that “prohibition of virtually all reading materials deprives the inmates of their First
Amendment right to receive information and ideas.”); Mitchell v. Untreiner, 421 F.Supp. 886,
895 (N.D. Fla. 1976) (holding that the failure to permit inmates to read the daily newspaper
denied First Amendment freedom of speech, association, and right to be informed citizens in a

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democratic society); Payne v. Whitemore, 325 F.Supp. 1191, 1993 (N.D. Cal. 1971) (striking
down a publications ban at a jail and holding “[t]hat the right to receive newspapers and
magazines is part of the First Amendment is beyond question.”).
Specifically, the right of PLN to mail its publication to incarcerated persons has been
well established. “The speech at issue [consisting of Prison Legal News and other publications]
is core protected speech . . . receipt of such unobjectionable mail implicate penological
interests.” Prison Legal News v. Cook, 238 F.3d 1145, 1149 (9th Cir. 2001) (striking down
prison mail rule that prevented delivery of Prison Legal News); Miniken v. Walter, 978 F. Supp.
1356, 1363 (E.D. Wash. 1997) (granting prisoner’s motion for summary judgment and stating
“Plaintiffs’ First Amendment right to receive his personal subscription to Prison Legal News has
been violated”); Simmons, 392 F.3d at 433 (reversing grant of summary judgment for Defendants
in case involving Prison Legal News).
Last year, the U.S. Department of Justice joined Plaintiff PLN in challenging the
constitutionality of an incoming publication ban at Berkeley County Detention Center in Moncks
Corner, South Carolina.2 The U.S. Department of Justice decried the jail’s policy of restricting
inmates’ access “to a breathtaking array of books, publications, and religious and educational
materials, including the Washington Post, [and] USA Today . . .” and determined that the ban
was facially unconstitutional because it prohibited “a significant amount of core First
Amendment speech” and was “not reasonably connected to any legitimate penological interest.”3

2

David Fathi, U.S. Department of Justice Says Jail Policy Banning All Books and Magazines
Except Bible is Unconstitutional, April 12, 2011, available at http://www.aclu.org/prisonersrights/us-department-justice-says-jail-policy-banning-all-books-and-magazines-except-bible (last
downloaded Oct. 9, 2012).
3
See United States’ Brief in Support of Plaintiff Prison Legal News’ and Human Rights Defense
Center’s Motion for Preliminary Injunction in Prison Legal News, et. al., v. Berekely County
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The U.S. Department of Justice reasoned that the publication ban lacked a legitimate penological
interest since the “the majority of correctional institutions in the United States, including the
Federal Bureau of Prisons” do not impose a similar ban.4
a. Defendants’ Revised Mail Policy Governing Inmates’ Access to
Periodicals and Books is Unconstitutional
Defendants’ revised policy governing publications fails to satisfy the four factors that
courts must consider under Turner, 482 U.S. at 89-91. Defendants will argue that the revised
policy expands inmates’ access to publications because it allows publishers to send books via
incoming mail and intends to make other publications available through the library. However,
the policy still amounts to a publication ban because it prohibits inmates from receiving most
publications directly, including all newspapers, magazines, and periodicals. In addition, there is
no guarantee that inmates will have access to the publications they request under the new policy.
This de facto publication ban fails each factor of the Turner test.
The revised policy fails the first factor of the Turner test because there is no valid,
rational connection between the ban and a legitimate government objective. No penological
interest is served by denying inmates’ access to unobjectional publications like such as Prison
Legal News, TIME Magazine, The New York Times, or numerous religious publications like
Sojourners Magazine. As the U.S. Department of Justice argued in its brief cited above the
majority of correctional facilities do not impose a ban on all incoming newspapers, magazines
and periodicals, and thus it seems dubious as to whether this publication ban serves a valid,
penological interest. Indeed, a publication ban is inconsistent with the policies of most other

Sheriff’s Office, No. 2:10-cv-02594-MBS, available at
http://www.justice.gov/crt/about/spl/documents/prisonlegalnews_briefinsupportPI_05-23-11.pdf
4
Fathi, U.S. Department of Justice Says Jail Policy Banning All Books and Magazines Except
Bible is Unconstitutional.
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Case 3:12-cv-00125-CAR Document 27-1 Filed 01/07/13 Page 17 of 33

correctional facilities in Georgia because the Georgia Department of Corrections allows inmates
in state-run prisons to receive “a limited number of individual books, periodicals, or newspapers
. . . ” via incoming mail.5
Defendants claim that the restrictive policies regarding access to publications are
necessary in order to maintain sanitary conditions, limit fire hazards, and reduce the likelihood of
weapons and contraband from being smuggled into the facility. (Harris Aff. ¶ 16). It is unclear,
however, as to how the implementation of this de facto publication ban furthers these objectives.
Without offering any evidence in support, Defendants express concern that “individually
mailed periodicals, brochures, newspapers and journals” may be used to “stop up toilets or sinks”
and would thus lead to unsanitary conditions. (Defs.’ Response Brief at 14). Defendants also
argue that allowing individually mailed reading materials presents a fire hazard by increasing the
amount of “flammable material that is available to fuel a fire.” (Id.) Defendants also contend
that the increased amount of reading materials will make it easier for inmates to conceal weapons
and contraband. (Id.) While maintaining sanitary living conditions, reducing fire hazards, and
preventing inmates from concealing weapons and contraband are all legitimate objectives,
banning individually mailed publications is not reasonably related to those penological interests
and the policy constitutes an exaggerated response to those concerns.
Defendants fail to explain why individually mailed newspapers, magazines and
periodicals present a greater threat to the security and safety of the Jail as compared to the other
reading materials that inmates are allowed to possess. An inmate could certainly conceal
contraband within one of the permitted religious texts, and he could foreseeably use one of the
permitted library books to start a fire. This new policy is underinclusive because it arbitrarily
5

Georgia Department of Corrections, Orientation Handbook for Offenders, Section I.A(2),
available at http://www.dcor.state.ga.us/pdf/GDC_Inmate_Handbook.pdf
13

Case 3:12-cv-00125-CAR Document 27-1 Filed 01/07/13 Page 18 of 33

prohibits certain publications even though it is evident that those reading materials present no
greater risks than materials currently available to inmates. Thus, this Court should find that the
new policy is an “exaggerated response” and prohibited under Turner. See Turner, 482 U.S. at
95-97; Mann, 796 F.2d at 82 (striking down jail’s ban on newspapers and magazines where
“[t]he patently underinclusive nature of the regulation strongly suggests that it is indeed an
exaggerated response”); see also Spellman v. Hopper, 95 F.Supp.2d 1267, 1287 (M.D. Ala.
1999) (“The under-inclusiveness of defendant's prohibition on subscription magazines with
regard to contraband further suggests that the connection between the regulation and its stated
objective is weak.”); Cf. Jackson v. Elrod, 671 F.Supp. 1508, 1511 (N.D.Ill.1987) (finding that
hard cover books are no greater a risk to conceal contraband than, e.g., clothing, paperbacks,
mattresses, light fixtures, and ceilings “disproves defendant's assertion of a rational connection
between their hardcover book ban and a governmental interest.”).
It is not necessary to prohibit individually mailed publications in order to address the
legitimate concerns articulated by Defendants. In fact, the Jail already has adequate policies in
place that address those concerns. First, inmates are required to clean their housing and common
areas each day. (Walton County Jail Inmate Handbook at 6). Second, the Jail is authorized to
seize any items, including reading materials that inmates are allowed to possess, if jail officials
believe that their “accumulation” is “excessive and constitute[es] a safety, security or health
hazard.” (Id. at 5-6). Third, the Jail prohibits the possession of any “smoking accessories,”
including lighters, which should prevent inmates from lighting fires with their reading materials.
(Id. at 3). These regulations are reasonable and are logically related to the legitimate penological
interests asserted by Defendants.

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Case 3:12-cv-00125-CAR Document 27-1 Filed 01/07/13 Page 19 of 33

Defendants legitimate concerns with maintaining jail security can also be addressed by
other means. In addition to exercising their discretion to confiscate material that is deemed a
security threat, jail officials can, and should, screen incoming publications and restrict those
publications that could create a genuine threat to security. Officials can also expand the
“publishers-only” mail policy that they recently adopted for incoming books and extend that
policy to other incoming publications. This policy is constitutional and it addresses concerns
over both security and economic allocation of jail resources. Items sent directly from a publisher
are more trustworthy, less likely to contain contraband and will not necessitate an intense and
time-consuming screening process by jail staff. See Bell, 441 U.S. 520 (1979) (upholding a
“publishers-only” regulation based on prison officials’ security concerns that “hardback books
are especially serviceable for smuggling contraband into an institution” and that it was a
“rational response by prison officials to an obvious security problem.”); Spellman, 95 F.Supp.2d
1267, 1287 (“Given the fact that subscription magazines are sent to inmates by publishers rather
than family or friends – and, thus, are unlikely to conceal contraband – any additional contraband
searches in the mailroom may not be onerous . . . [and] any additional time or trouble to prison
staff caused by accommodation of the right in question appears, in context, to be de minimis.”).
Adopting a publishers-only policy for all incoming publications, including newspapers and
periodicals, would be consistent with many other facilities, including prisons operated by the
Georgia Department of Corrections.6
For these reasons, the new restrictions on inmates’ access to publications are not
reasonably related to the stated penological interests and therefore they fail to satisfy the first
factor of the Turner test. This is particularly significant because the Sixth Circuit Court of
6

Georgia Department of Corrections, Orientation Handbook for Offenders, Section I.A(2),
available at http://www.dcor.state.ga.us/pdf/GDC_Inmate_Handbook.pdf
15

Case 3:12-cv-00125-CAR Document 27-1 Filed 01/07/13 Page 20 of 33

Appeals has found that “[f]ailure to satisfy the first factor renders the regulation unconstitutional
without regard to the remaining three factors.” Jones v. Caruso, 569 F.3d 258, 267 (6th Cir.
2009) (citing Turner, 482 U.S. at 89-91); see also Amatel v. Reno, 156 F.3d 192, 196 (D.C. Cir.
1998) (“Nothing can save a regulation that promotes an illegitimate or non-neutral goal.”).
The policy also fails the second factor of the Turner test. Defendants claim that they are
taking a jail-wide “survey” to ascertain inmates’ preference as to desired reading materials, and
that they will make certain materials available to inmates on a “monthly basis” through a library
cart. (Harris Aff. ¶ 15; Policy No. 5. 16.II. E (effective date Oct. 1, 2012), D.E. 21 at 2). Under
the new policy, however, Defendants will still be able to deny inmates’ access to many, if not all,
publications. In addition, Defendants have yet to define PLN as a “publisher,” and thus there is a
distinct possibility that PLN may be prohibited from sending its’ reading material to inmates in
Walton County Jail. (Defs.’ Response Brief at 18-19). There is no guarantee that inmates will
have access to unobjectionable reading materials like Prison Legal News, and there is no
guarantee that publishers like PLN will be able to communicate with inmates through its
publications. Thus, the new policy fails the second prong of the Turner test because it does not
provide any alternatives for inmates who are denied access to information from unobjectionable
publishers and it does not provide alternatives for publishers who are prohibited from making
their materials available to inmates.
The new policy likely fails the third factor of the Turner test because lifting the de facto
publication ban should have little or no impact on penological interests asserted by Defendants.
Defendants will have a difficult time proving that the publication ban has made the Jail more
sanitary, decreased the risks of fire hazards or helped reduce the risks of contraband being
smuggled into the facility. At this point, Defendants have provided no credible evidence that

16

Case 3:12-cv-00125-CAR Document 27-1 Filed 01/07/13 Page 21 of 33

subscription-based reading materials increased any of those risks or that these specific reading
materials have been used in the past to “stop up toilets,” start fires or conceal weapons or
contraband. “In order to warrant deference, prison officials must present credible evidence to
support their stated penological goals.” Beerheide v. Suthers, 286 F.3d 1179, 1189 (10th Cir.
2002).
The new restrictions fail the fourth factor of the Turner test because there are existing
alternatives that fully accommodate the constitutional rights at issue at a de minimis cost to valid
penological interests. By enforcing its other written policies, the Jail could ensure sanitary
conditions, reduce the risks of fire hazards and decrease the likelihood that contraband will be
concealed. The Jail should also continue its prior policy of inspecting all incoming publications
and rejecting only those publications that undermine security or contain objectionable content
such as graphic pornography. The current policy represents an exaggerated response to prison
concerns and thus fails the fourth Turner factor.
b. Defendants’ Original Mail Policy Prohibiting Inmates From Accessing
Virtually All Publications is Unconstitutional
Defendants’ original policy governing publications fails to satisfy the four factors that
courts must consider under Turner, 482 U.S. at 89-91. While Defendants have modified the
original policy which banned virtually all incoming publications, it is important for this Court to
address the previous policy because Defendants clearly changed its policy in anticipation of
litigation and there is a possibility that Defendants will revert back to the publication ban at some
point in the future.
Defendants’ original publication ban fails the first factor of the Turner test because there
is no valid, rational connection between the ban and a legitimate government objective. As
stated in the argument above, no penological interest is served by banning unobjectionable
17

Case 3:12-cv-00125-CAR Document 27-1 Filed 01/07/13 Page 22 of 33

publications like Prison Legal News. Defendants’ legitimate concerns of maintaining sanitary
conditions, decreasing the risks of fire hazards, and reducing the risks that contraband and
weapons will be concealed can be addressed by other means which do not infringe upon the First
Amendment rights of inmates and publishers. As discussed herein, Defendants can enforce its
current policies that maintain the cleanliness of the facility and reduce the risks of fire hazards.
Defendants can also reduce the risks that reading materials can conceal contraband by inspecting
all materials that are received via incoming mail, by applying a publishers-only policy to all
publications received via incoming mail, and by limiting the number of reading materials that an
inmate can possess at any given time.
The publication ban also fails the second factor of the Turner test because there are no
other alternatives for the inmates or for the Plaintiff. PLN has no alternative means of sending
its monthly journal or brochures because those materials are prohibited under the current policy.
Although it is theoretically possible for PLN to communicate with the Jail’s inmates over the
phone or through in-person visits, those options would be cost-prohibitive and it would be
impossible for PLN to communicate with all 7,000 of its subscribers through these costly and
inefficient methods. Also, there is no alternative available for inmates. As a result of the
publication ban, inmates are deprived of topical, relevant information provided by publishers like
PLN who send out monthly publications containing current news. It would be impossible for
PLN to communicate the breadth of information contained within its monthly publications
through other forms of communication such as postcards, phone calls or in-person visits.
The original publication ban likely fails the third factor because lifting the ban should
have little to no impact on the penological interests articulated by Defendants and Defendants

18

Case 3:12-cv-00125-CAR Document 27-1 Filed 01/07/13 Page 23 of 33

have yet to present credible evidence that publications receive via mail have been used to
undermine the safety of the facility.
Finally, the ban fails the fourth factor of the Turner test because there are existing
alternatives that fully accommodate the constitutional rights at issue at a de minimis cost to valid
penological interests. The other policies in place adequately addresses the penological concerns
expressed by Defendants without burdening the First Amendment rights of inmates and those
who wish to communicate with those inmates. The current policy represents an exaggerated
response to prison concerns and thus fails the fourth Turner factor.
2. Defendants’ Postcard-Only Mail Policy Violates the First Amendment Right
to Send and Receive Mail.
The First and Fourteenth Amendments protect both inmates and persons with whom they
correspond from undue government interference with their correspondence. Martinez, 416 U.S.
at 408-409 (explaining that it does not matter “whether the nonprisoner correspondent is the
author or intended recipient of a particular letter, for the addressee as well as the sender of direct
personal correspondence derives from the First and Fourteenth Amendments a protection against
unjustified governmental interference with the intended communication.”). On May 29, 2012,
the U.S. District Court for the District of Oregon, Portland Division, granted PLN a preliminary
injunction, halting the enforcement of Columbia County Jail’s postcard policy. See Prison Legal
News v. Columbia County, No. 3:12-CV-00071-SI, 2012 WL 1936108, at *14 (D. Or. May 29,
2012) (noting that publishers have a First Amendment right to communicate with inmates by
mail and that inmates have a First Amendment right to receive mail from publishers).
Walton County Jail’s sweeping postcard-only policy fails to satisfy constitutional
scrutiny under both Martinez’s “generally necessary” standard of review applicable to outgoing

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Case 3:12-cv-00125-CAR Document 27-1 Filed 01/07/13 Page 24 of 33

inmate mail, and the more deferential “reasonably related” standard applicable to incoming mail
announced in Turner, 482 U.S. 78 (1987).
a. Defendants’ Postcard-Only Mail Policy is Unconstitutional as Applied
to Inmates’ Outgoing Mail.
The First Amendment prohibits interference with inmates’ outgoing mail unless (1) the
regulation furthers one or more of the substantial government interests of security, order and
rehabilitation; and (2) the restriction is no greater than is necessary or essential to the protection
of the substantial government interest involved. Martinez, 416 U.S. at 413-414; see also
Thornburgh, 490 U.S. at 413. Defendants’ postcard-only policy cannot survive the constitutional
scrutiny applied to outgoing mail because it is neither necessary to maintain security, nor is it
necessary to effectively allocate resources.
Limiting inmates’ outgoing correspondence does little to further Defendants’ security
interests, and may actually compromise the security of the jail. By severely restraining the
inmates’ ability to communicate with their friends, family and other outside support systems, the
inmates will be less successful in adjusting to incarceration and will be at greater risks for
restlessness and violence. In Los Angeles County, California, the Sheriff’s Department rejected
the use of postcard-only mail policies within that county’s detention facilities because it believed
that “the mail coming to inmates is as important as their phone calls … If we were to limit the
mail, we believe we would see a rise in mental challenges, maybe even violence.”7
The postcard-only policy also inhibits inmates’ successful rehabilitation by undermining
their ability to maintain healthy and supportive relationships with friends, family, religious
counselors, etc. Postcard-only policies restrict the amount of information that inmates can
7

Steve Chawkins, Ventura County to Restrict Inmates’ Mail, LOS ANGELES TIMES, Sept. 23,
2010, available at http://articles.latimes.com/2010/sep/23/local/la-me-jail-mail-20100923 (last
downloaded Oct. 7, 2012).
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Case 3:12-cv-00125-CAR Document 27-1 Filed 01/07/13 Page 25 of 33

convey in their correspondence, and privacy concerns will likely deter inmates from sharing
personal and sensitive information on the postcards. This will likely lead to less meaningful
correspondence between inmates and those on the outside. Research has shown that maintaining
strong relationships with those on the outside can greatly improve inmate outcomes upon
release8 and it also greatly reduces the likelihood of recidivism in the future.9
With respect to the Jail’s interest in economic efficiency, courts have held that
constitutional rights cannot be quashed so that a governmental agency can simply improve the
efficiency of its operations or reduce its expenditures. Arizona Free Enterprise Club’s Freedom
Club PAC, et al. v. Bennett, ___ U.S. ___; 131 S.Ct. 2806, 2824 (2011) (“[T]he First
Amendment does not permit the State to sacrifice speech for efficiency.”); O’Bryan, et al. v.
Saginaw Cty, Mich., 437 F. Supp. 582, 595 (E.D. Mich. 1977) (“[N]either the fact that budgetary
changes may be necessary or that minor structural alterations may be required can operate to
excuse the violation of constitutional guarantees.”); Battle v. Anderson, 376 F.Supp. 402, 425
(E.D. Okla. 1974), aff’d in part and rev’d in part, 993 F.2d 1551 (10th Cir. 1993) (outgoing mail
restrictions cannot be justified when imposed only for “administrative convenience” and
“without furthering any demonstrated interest in the orderly operation of the institution or the
rehabilitation of its inmates”). More specifically, reducing costs alone does not and cannot
satisfy the Martinez standard for outgoing mail. Martinez, 416 U.S. at 413 (setting forth an
8

Vera Instit. of Justice, Piloting a Tool for Reentry: A Promising Approach to Engaging Family
Members (March 2011), available at http://www.vera.org/download?file=3339/Piloting-aToolfor-Reentry-Updated.pdf (last downloaded Oct. 7, 2012) (““Research shows that
incarcerated people who maintain supportive relationships with family members have better
outcomes – such as stable housing and employment – when they return to the community.”)
9

Terry Kupers, M.D., Prison Madness: The Mental Health Crisis Behind Bars and What We
Must Do About It (1999) (“Research shows that continuous contact with family members
throughout a prison term makes it much less likely that a prisoner will be re-arrested and
reimprisoned in the years following his release”).
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Case 3:12-cv-00125-CAR Document 27-1 Filed 01/07/13 Page 26 of 33

exhaustive list of governmental interests that can justify restrictions on inmates’ outgoing mail
and excluding cost from consideration).
In February 2011, Judge Richard W. Story, United States District Judge for the Northern
District of Georgia, reviewed a postcard-only policy under Martinez’s strict scrutiny standard as
it applied to inmates’ outgoing mail. Johnson v. Smith, 2011 WL 344085 (N.D. Ga. 2011) (Slip
Opin. 2/1/11) (citing Thornburgh, 490 U.S. at 411). Judge Story determined that an inmate
stated a viable claim challenging a jail’s outgoing mail policy, finding that “outgoing personal
correspondence from prisoners – did not, by its very nature, pose a serious threat to prison order
and security . . . Plaintiff may argue that Jail officials could address their concerns by the less
restrictive measure of requiring that general outgoing mail be placed in unsealed envelopes . . .
instead of altogether limiting the type and size of the medium used for such mail.” Id.
The postcard-only policy for outgoing mail fails the first prong of the Martinez test
because it does not further a substantial government interest. In fact, it may actually undermine
security by depriving inmates of meaningful emotional support from their loved ones on the
outside, and it will likely inhibit successful rehabilitation. The policy fails the second prong of
the Martinez test because less restrictive alternatives are available. Instead of implementing the
postcard-only policy, Defendants could require that outgoing mail be placed in unsealed
envelopes or they could simply return to the previous inspection policy which likely addressed
substantial government concerns like security. For these reasons, the postcard-only policy is
unconstitutional as applied to outgoing mail.
b. Defendants’ Postcard-Only Mail Policy is Unconstitutional as Applied
to Inmates’ Incoming Mail.
Defendants cannot restrict inmates’ incoming mail unless the regulation is reasonably
related to legitimate penological interests. Turner, 482 U.S. at 89. Defendants’ postcard-only
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Case 3:12-cv-00125-CAR Document 27-1 Filed 01/07/13 Page 27 of 33

policy is not reasonably related to satisfying security and costs concerns. Defendants are
required to present “credible evidence” as to how this policy has improved security and reduced
cost. Beerheide, 286 F.3d at 1189. Defendants will have a very difficult time presenting
credible evidence that restricting all incoming mail to postcards is “rationally related to a
legitimate and neutral governmental objective.” Turner, 482 U.S. at 89-90. In fact, this policy
could very well increase security risks. By denying inmates any meaningful contact with their
family, friends, religious counselors, AA sponsors, etc., it will likely increase the stress levels of
inmates and inhibit successful rehabilitation. If Defendants fail to satisfy the first factor of the
Turner test, this Court can, and should, strike down the entire policy. See Caruso, 569 F.3d at
267.
Defendants’ postcard-only policy does not provide an alternative means for the inmates
or outside parties to exercise their First Amendment right to send and receive mail. While there
are other ways to communicate with inmates, including in-person visitation and collect phone
calls, these alternative methods may present insurmountable financial and logistical barriers that
make it virtually impossible for inmates to communicate with the outside world. These barriers
include the high cost of collect calls or calling cards, and the expense and difficulty of arranging
transportation to and from the detention facility.
Postcards provide an insufficient method of communication because they deter speech by
limiting communications to the space of a few squared inches and they implicate privacy and
confidentiality issues. Although inmates and those with whom they communicate reasonably
expect that correctional staff will review traditional letters that are sent and received by the
inmates, those individuals would never expect that their correspondence would be viewed by the
public at-large. This public exposure is a very real problem when communications are confined

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to a postcard because everyone within the postal chain can view the correspondence. The threat
of this level of public exposure deters the communication of information that is personal,
intimate, legally confidential or otherwise sensitive to the correspondent. Thus, postcards are not
viable alternatives to traditional mail.
This case is distinguishable from the case in Overton v. Bazzetta, where the Supreme
Court found that letter-writing and telephone calls were sufficient alternatives to in-person
visitation. 539 U.S. 126, 135 (2003) (“Alternatives . . . need not be ideal . . . they need only be
available” and “of sufficient utility that they give some support to the regulations . . . .”). The
Court recognized that an inmate’s constitutional right to intimate association is neither
“altogether terminated by incarceration,” nor is it “always irrelevant to claims made by
prisoners.” Overton, 539 U.S. at 131. In Overton, the Court found that the prison’s restrictive
visitation policy was justified because overriding security concerns and the State’s interest in
protecting children. In this case, there are no security or child protection concerns arising from
the exchange of letters between inmates and the public that are addressed through the
implementation of the Jail’s postcard-only mail policy.
In addition, the postcard-only mail policy reaches beyond the inmates’ right to send and
receive letters and implicates the inmates’ right to communicate with organizations who
primarily communicate through publications. Other forms of communication like phone calls,
postcards and in-person visitation, are not suitable alternatives because they do not allow the
inmates to maintain association with organizations that provide valuable legal, educational,
spiritual and mental health resources through newsletters and other publications. This infringes
upon inmates’ right of association with social, political or other organizations that pose no
security risk to the correctional facility. Pell v. Procurier, 417 U.S. 817, 822 (1974) (“[A] prison

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Case 3:12-cv-00125-CAR Document 27-1 Filed 01/07/13 Page 29 of 33

inmate retains those First Amendment rights [of freedom of speech and association] that are not
inconsistent with his status as a prisoner or with the legitimate penological objectives of the
corrections system.”)
Defendants’ postcard-only policy forecloses any opportunity to receive materials from
organizations that communicate with their members through newsletters, brochures, magazines,
books, catalogs, etc. The postcard-only policy also prohibits inmates from receiving religiousbased materials or other meaningful materials that bring spiritual comfort and emotional stability
to inmates, and it prevents inmates from being well-informed citizens by prohibiting newspapers
and other topical periodicals. See Mitchell, 421 F.Supp. at 895. Expensive phone calls, small
postcards and in-person visitation privileges are not suitable alternatives for either the inmates or
those who wish to correspond or associate with them.
Defendants will be unable to satisfy the third factor of the Turner test because the
postcard-only policy will likely have no impact on correctional staff or the allocation of limited
prison resources. Countless other correctional facilities throughout the country have managed to
operate effectively without postcard-only policies and those facilities have not determined that
accepting traditional mail undermines the security of the staff or inmates, nor has it proven to be
cost-prohibitive to inspect traditional letters. See Martinez, 416 U.S. at 414 n. 14 (“While not
necessarily controlling, the policies followed at other well-run institutions would be relevant to a
determination of the need for a particular type of restriction”).
Defendants will be unable to satisfy the fourth factor of the Turner test because there are
at least two reasonable alternatives to the postcard-only policy that accommodate the
constitutional rights at issue at a de minimis cost to Defendants. First, Defendants can return to
the more reasonable mail policy without incurring additional (pre-policy) costs. There is no

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indication that a return to the previous policy would result in additional mail traffic beyond that
which the Jail has managed for years, nor would it require a significant reallocation of prison
resources or impair Defendants’ ability to maintain security at the facility. Overton, 539 U.S. at
135 (upholding prison’s strict visitation policy because the alternative would have caused a
significant reallocation of prison resources and undermined prison security).
A second alternative would be for the Defendants to implement a more tailored mail
policy that reasonably restricts the mail privileges of inmates who present an actual security
threat to the Jail or to the public at-large. This would include inmates who have repeatedly
violated the Jail’s contraband policy by sending or receiving contraband in the mail, or by using
mail to facilitate criminal activity. A more tailored policy would be consistent with the Supreme
Court’s decision in Beard, where the Court allowed very restrictive mail policies for those
inmates “with serious prison-behavior problems.” See Beard, 548 U.S. at 533, 535 (stating that
in both Overton and Beard, “the deprivations at issue . . . have an important constitutional
dimension. In both cases, prison officials have imposed the deprivation at issue only upon those
with serious prison-behavior problems . . .” and noting that it might have reached a different
conclusion if the restrictions constituted a de facto permanent ban.)
As presently implemented, Defendants’ postcard-only policy is an unlawfully
exaggerated response to Defendants’ concern about security and allocation of Jail resources.
Turner, 482 U.S. at 90 (“[T]he existence of obvious, easy alternatives may be evidence that the
regulation is not reasonable, but is an ‘exaggerated response’ to prison concerns.”) While
Amicus appreciates the fact that many correctional facilities are under immense financial strain,
budgetary concerns do not permit the government to wholly disregard the constitutional rights of
inmates and those who wish to communicate with them through the implementation of overly

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Case 3:12-cv-00125-CAR Document 27-1 Filed 01/07/13 Page 31 of 33

restrictive mail policies. Postcard-only policies severely limit the ability of inmates to maintain
healthy and supportive outside relationships which can create undue stress among the inmate
population, inhibit successful rehabilitation and lead to worse outcomes upon release. These
policies fail to satisfy all four factors of the Turner test and thus this Court should find that they
unconstitutionally infringe upon the First Amendment rights of both the inmates and those who
wish to communicate with them through the most basic form of communication – letter-writing.
IV.

CONCLUSION

The Defendants’ mail policy – both old and new – places an unconstitutional burden on
the First Amendment rights of the Jail’s inmates and those who wish to communicate with those
inmates. The Jail’s mail policy is not rationally related to a legitimate penological concern and
there are no alternative means of communication for the inmates and other individuals who wish
to communicate with them. For these reasons and those discussed above, the ACLU Foundation
of Georgia urges this Court to grant Plaintiff’s motion for a preliminary and permanent
injunction and enjoin Defendants from enforcing these unconstitutional mail restrictions.
Respectfully submitted this 7th day of January, 2013.
/s/Chad M. Brock
Chad M. Brock
Georgia Bar No. 357719
Email: cbrock@acluga.org
Chara F. Jackson
Georgia Bar No. 386101
Email: cfjackson@acluga.org
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION OF
GEORGIA
1900 The Exchange
Suite 425
Atlanta, GA 30339
(770) 303-8111
/s/ Michael Mears
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Case 3:12-cv-00125-CAR Document 27-1 Filed 01/07/13 Page 32 of 33

Michael Mears
Georgia Bar No. 500494
Email: mmears@johnmarshall.edu
1422 W. Peachtree St. NW
Atlanta, Georgia 30309
(404) 872-3593
Counsel for Amicus Curiae

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Case 3:12-cv-00125-CAR Document 27-1 Filed 01/07/13 Page 33 of 33

CERTIFICATE OF SERVICE
I hereby certify that I have electronically filed this AMICUS CURIAE BRIEF OF THE
AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF GEORGIA IN SUPPORT OF
PLAINTIFF PRISON LEGAL NEWS’ MOTION FOR INJUNCTIVE RELIEF with the Clerk of
Court using the CM/ECF system which will automatically send email notification of such filing
to the following attorneys of record:
Andrew H. Marshall, Esq.
dmarshall@athens1867.com
BEGNAUD & MARSHALL, LLP
1091-B Founders Boulevard
PO Box 8085
Athens, GA 30603
Respectfully submitted this 7th day of January, 2013.
/s/Chad M. Brock
Chad M. Brock
Georgia Bar No. 357719
Email: cbrock@acluga.org
Chara F. Jackson
Georgia Bar No. 386101
Email: cfjackson@acluga.org
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION OF
GEORGIA
1900 The Exchange
Suite 425
Atlanta, GA 30339
(770) 303-8111
/s/ Michael Mears
Michael Mears
Georgia Bar No. 500494
Email: mmears@johnmarshall.edu
1422 W. Peachtree St. NW
Atlanta, Georgia 30309
(404) 872-3593
Counsel for Amicus Curiae
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