Case: 15-14220

Date Filed: 12/14/2015

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No. 15-14220-AA
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
JULIE L. JONES, in her official capacity as Secretary of the
Florida Department of Corrections,
Defendant-Appellant/Cross-Appellee,
v.
PRISON LEGAL NEWS,
Plaintiff-Appellee/Cross-Appellant.
On Appeal from the United States District Court
Northern District of Florida, Tallahassee Division
4:12-cv-00239-MW/CAS
BRIEF OF JOHN CLARK, MARTIN HORN,
JUSTIN JONES, STEVE MARTIN
RON McANDREW, CHASE RIVELAND, AND
JEANNE WOODFORD
AS AMICI CURIAE
IN SUPPORT OF PLAINTIFF-APPELLEE/CROSS-APPELLANT
Margo Schlanger
625 S. State Street
Ann Arbor, MI 48109

Alexander Chinoy
Elliott Schulder
Michael Beder
Jason Grimes
Covington & Burling LLP
One CityCenter
850 Tenth Street, N.W.
Washington, D.C. 20001
(202) 662-6000

Counsel for Amici Curiae

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No. 15-14220, Jones v. Prison Legal News

CORPORATE DISCLOSURE STATEMENT AND
CERTIFICATE OF INTERESTED PERSONS
All of the amici are individuals, and accordingly no corporate
disclosure statement is required. See Fed. R. App. P. 26.1(a). Amici believe
that the certificate of interested persons contained in the PlaintiffAppellee’s principal and response brief is complete. See 11th Cir. R. 26.1-2.

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TABLE OF CONTENTS
CORPORATE DISCLOSURE STATEMENT AND CERTIFICATE OF
INTERESTED PERSONS..................................................................... ii
TABLE OF AUTHORITIES .......................................................................... iv
INTEREST OF AMICI CURIAE .................................................................... 1
STATEMENT OF THE ISSUE ....................................................................... 4
INTRODUCTION AND SUMMARY OF ARGUMENT.................................. 5
ARGUMENT.................................................................................................. 7
I.

Banning Advertisements for Prohibited Services Does Not
Prevent Inmates from Using Prohibited Services. ............................. 10
A.

Banning a Publication Because of its Advertising Content
Has no Effect on Prison Security ............................................... 11

B.

The Comparative Ineffectiveness of Banning PLN
Demonstrates That the Ban is an Exaggerated Response ........ 14

C.

1.

Rules and punishment .................................................... 15

2.

Extensive monitoring of inmates effectively
prevents and detects misconduct .................................... 16

The Tools Available to FDOC Will be Used by FDOC
Whether it Bans PLN or Not..................................................... 21

II.

Prisoner Exposure to Content Concerning Prohibited Conduct is
Neither Unusual Nor a Material Threat to Prison Security ............... 23

III.

Publications Such as PLN Benefit Prisoners and the Prison
Environment ...................................................................................... 25

CONCLUSION............................................................................................. 28
CERTIFICATE OF COMPLIANCE .............................................................. 30

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TABLE OF AUTHORITIES
CASES
Beard v. Banks,
548 U.S. 521, , 126 S. Ct. 2572 (2006) ........................................................ 9
Bradbury v. Wainwright,
718 F.2d 1538 (11th Cir. 1983) .................................................................... 8
*Pesci v. Budz,
730 F.3d 1291 (11th Cir. 2013) ................................................... 9, 11, 25, 27
Shaw v. Murphy,
532 U.S. 223, 121 S. Ct. 1475 (2001) ........................................................... 8
*Turner v. Safley,
482 U.S. 787; 107 S. Ct. 2254 (1987) ............................................... 8, 13, 15
OTHER AUTHORITIES
“Former Florida Prison Chief Released from Federal Prison,”
https://www.prisonlegalnews.org/news/2015/jan/13/former-floridaprison-chief-released-federal-prison/ ...................................................... 26
David M. Ruetter, “Florida Smoking Ban Scaled Back as Black-Market for
Cigarettes Grows,” Prison Legal News,
https://www.prisonlegalnews.org/news/2015/oct/16/florida-smokingban-scaled-back-black-market-cigarettes-grows/ ................................... 26
David M. Ruetter, “Florida Withdraws Rule Proposal to Ban Prisoner
Internet Presence,” Prison Legal News,
https://www.prisonlegalnews.org/news/2015/jul/1/florida-withdrawsrule-proposal-ban-prisoner-internet-presence/ ...................................... 26
David M. Ruetter, “State Prison Systems Privatizing Prisoner Accounts for
Commissions,” Prison Legal News,
https://www.prisonlegalnews.org/news/2015/nov/13/state-prisonsystems-privatizing-prisoner-accounts-commissions/ ............................ 26
Lois Davis et al., How Effective Is Correctional Education, and Where Do
We Go from Here? xv (2014) .................................................................... 27
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Securus Website,
http://www.securustechnologies.com/solutions/corrections/communicat
ion/securus-telephone-service ............................................................ 17, 18
REGULATIONS
Fla. Admin. Code r.33-210.101 ............................................................... 15, 19
Fla. Admin. Code r.33-210.103 ................................................................... 19
Fla. Admin. Code r.33-601.314.....................................................................15
Fla. Admin. Code r.33-602.205.............................................................. 15, 17
Fla. Admin. Code r.33-602.207 ....................................................................15

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INTEREST OF AMICI CURIAE
Amici curiae are former corrections officials with over 250 collective
years of experience managing jails and prisons and advising corrections
officials. Amici understand and respect the valid security concerns facing
corrections officials. Amici believe effective prison administration and
overall public policy are best served when prison regulations are based on,
and applied in accordance with, sound, fact-based assessments of a prison’s
realistic security needs. In the view of amici, the decision by the Florida
Department of Corrections (“FDOC”) to ban Prison Legal News (“PLN”)
from its facilities is not such a regulation. FDOC’s decision to ban PLN is
premised on PLN’s advertisements, some of which are for services that
prison regulations prohibit inmates from using. But the relationship
between the tenuous security concerns posed by PLN’s advertisements and
FDOC’s blunderbuss response is too attenuated for that response to pass
constitutional muster.
FDOC is alone among prison systems in the United States in
effectively banning PLN. No other prison system has concluded that PLN
(and the advertisements it contains) constitutes a material threat to the
safety of an effectively managed prison environment. Instead, prisons
around the country use a variety of other tools to prevent the inmate

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misconduct that purportedly informs FDOC’s decision to ban PLN. Such
tools are readily available to FDOC, and are far more logical and effective
than an outright ban.
Amicus John Clark served as Assistant Director of the Federal Bureau
of Prisons from 1991-1997, and served as Warden of U.S. Penitentiary
Marion, at the time the highest security correctional facility in the United
States. He has over 40 years of corrections experience.
Amicus Martin Horn currently serves as the Executive Director of the
New York State Sentencing Commission. He also served as the New York
City Commissioner of Correction from 2003-2009, and the Pennsylvania
Secretary of Corrections from 1995-2000. He has over 40 years of
corrections experience.
Amicus Justin Jones served as Director of the Oklahoma Department
of Corrections from 2005 to 2013, and has more than 35 years of
experience in the field of corrections.
Amicus Steve J. Martin served as the General Counsel and Assistant
Director of the Texas Department of Corrections in the 1980s. He has over
43 years of corrections experience and has worked as a federal court
monitor and an expert for both the U. S. Department of Justice and the

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Department of Homeland Security in numerous prisons, jails, detention
facilities, and juvenile systems across the United States.
Amicus Ron McAndrew served as a Warden in the Florida
Department of Corrections from 1992-2001. He has 23 years of corrections
experience.
Amicus Chase Riveland served as Secretary of the Washington State
Department of Corrections from 1986 to 1997 and as Executive Director of
the Colorado Department of Corrections from 1983 to 1986. He has over
40 years of corrections experience.
Amicus Jeanne Woodford served as Undersecretary of the California
Department of Corrections from 2005-2006, as Director of the California
Department of Corrections from 2004-2005, and as Warden of California’s
San Quentin State Prison from 1999-2004. She has over 30 years of
corrections experience.
Pursuant to Fed. R. App. P. 29(c)(5), amici state that no party’s
counsel authored this brief in whole or in part, and that no party, party’s
counsel, or other person other than amici or amici’s counsel contributed
money that was intended to fund preparing or submitting this brief.

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STATEMENT OF THE ISSUE
Whether the Florida Department of Corrections violates the First
Amendment by imposing a wholesale ban of Prison Legal News from its
facilities because of security concerns purportedly raised by certain
advertisements?

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INTRODUCTION AND SUMMARY OF ARGUMENT
Corrections officials manage an environment in which security is a
primary concern. Many activities allowed outside of prison are legitimately
forbidden to prisoners. However, FDOC’s wholesale ban of PLN — on the
ground that some advertisements refer to services prisoners may not obtain
— is grossly disproportionate to any legitimate government concerns.
Advertisements, even for prohibited services, pose little material risk to
prison security, because the presence or absence of the advertisements at
issue has little impact on whether inmates engage in the underlying
prohibited conduct. Consequently, amici respectfully submit that denying
inmates access to a publication that provides valuable information to
inmates — including unique in-depth coverage of prison conditions and
legal issues directly affecting inmates’ daily lives — is not a reasonable
response to prison security concerns, and thus violates the First
Amendment, for the following reasons:
First, advertisements for prohibited services do not have any material
impact on prison security. Banning a publication because of certain
advertisements does not realistically address any security concerns — even
concerns about whether inmates will seek to pursue the services being
advertised. Whether or not they see a particular advertisement, inmates

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are already aware of the potential for violating prison rules through other
uncensored channels. For that reason, FDOC officials — like their
counterparts in prisons nationwide — employ an extensive array of
procedures to deter, detect, and discipline such violations directly.
Second, in contrast to procedures prisons use to regulate inmate
conduct, attempting to seal inmates off from information about prohibited
services is among the least effective measures possible. Inmates are
regularly exposed to information about conduct that is prohibited in the
prison environment, both through formally approved content and through
the informal exchange of information among an ever-changing inmate
population. Yet, in the experience of amici, such exposure does not
constitute a material threat to prison safety. FDOC fails to provide any
plausible explanation of how, in light of the many sources of information to
which inmates have access, banning PLN could reasonably be expected to
have any material impact on inmates’ knowledge of the existence of
prohibited services.
Third, in the experience of amici, publications such as PLN contribute
positively to prison safety. When inmates spend their time constructively,
such as by reading publications like PLN that have content relevant to their
day-to-day lives, they have less time to engage in troublesome behavior.

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Further, PLN provides inmates with uniquely focused, in-depth coverage of
their legal rights and prison issues, information to which inmates might not
otherwise have access. By providing this information to inmates, PLN
increases the safety of the prison environment. As compared to a situation
in which inmates are kept in the dark about their rights, an environment in
which inmates are aware of their rights is more transparent, and inmates
who are aware of legal means to vindicate their rights are less likely to
engage in violence when they feel they have been wronged. By contrast, the
blanket banning of a publication that informs inmates of their rights is
likely to create suspicion and resentment among inmates, potentially
increasing hostility in an environment that is already fraught with tension.
ARGUMENT
Amici, with years of experience managing the security of various
prison facilities, are well aware of the challenges facing corrections officials
charged with maintaining a safe prison environment for staff and inmates.
However, even considering these challenges, courts should defer to prison
decisions predicated upon purported safety concerns only if the decisions
reasonably address those concerns. Among all the prison systems in the
United States, amici believe that FDOC stands alone in its decision to ban

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PLN. As detailed below, FDOC’s decision has impermissibly abridged the
First Amendment rights of both PLN and FDOC inmates.
In order to withstand First Amendment scrutiny, FDOC’s restriction
must be “‘reasonably related’ to legitimate penological objectives,” and not
“an ‘exaggerated response’ to those concerns.” Turner v. Safley, 482 U.S.
78, 87; 107 S. Ct. 2254, 2260 (1987). The four factors that inform the
Turner analysis are:
First and foremost, “there must be a ‘valid, rational connection’
between the prison regulation and the legitimate [and neutral]
governmental interest put forward to justify it.” Ibid. (quoting Block
v. Rutherford, 468 U.S. 576, 586, 104 S.Ct. 3227, 82 L.Ed.2d 438
(1984)). If the connection between the regulation and the asserted
goal is “arbitrary or irrational,” then the regulation fails, irrespective
of whether the other factors tilt in its favor. 482 U.S., at 89-90, 107
S.Ct. 2254. In addition, courts should consider three other factors:
the existence of “alternative means of exercising the right” available
to inmates; “the impact accommodation of the asserted constitutional
right will have on guards and other inmates, and on the allocation of
prison resources generally”; and “the absence of ready alternatives”
available to the prison for achieving the governmental objectives. Id.,
at 90, 107 S.Ct. 2254.
Shaw v. Murphy, 532 U.S. 223, 229-30, 121 S. Ct. 1475, 1479 (2001).
Importantly, the Turner standard is not toothless, and courts, even
when granting some measure of deference to corrections officials, “are not
required to abdicate their responsibility to redress constitutional
violations.” Bradbury v. Wainwright, 718 F.2d 1538, 1543 (11th Cir. 1983).

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See also Pesci v. Budz, 730 F.3d 1291, 1299 (11th Cir. 2013) (“[D]eference to
the professional judgment of the facility administration is not tantamount
to carte blanche permission to deny the fundamental rights of free speech
and free expression. … [W]e again observe that the Turner standard is a
deferential one, but it is not toothless.”). As the Supreme Court has
explained, under Turner, “[t]he real task is . . . determining whether the
[evidence] shows not just a logical relation [but] a reasonable relation.”
Beard v. Banks, 548 U.S. 521, 533, 126 S. Ct. 2572, 2580 (2006).
FDOC’s blanket ban of PLN because of certain advertisements fails
that test because there is no valid, reasonable connection between the
decision banning PLN and the purported goal of eliminating the security
risks posed by certain third-party services advertised within PLN. Banning
PLN simply because some of PLN’s advertisements are for prohibited
services will not prevent inmates from using those services. Rather, that
goal is better achieved by using tools that are a standard part of sound
prison administration (such as telephone call recording and monitoring,
and mail inspection) to target the underlying inmate conduct which is
ultimately of concern. Also, inmates are regularly exposed to
advertisements and other information — including word-of-mouth among
inmates — that depicts or describes prohibited conduct, yet FDOC does not

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purport to ban all such content and likely could not do so as a legal or
practical matter. This further underscores that FDOC’s decision to ban
PLN in particular bears no reasonable relationship to security concerns.
Finally, in the experience of amici, publications such as PLN actually
benefit prison security, as they provide valuable information to prisoners
and promote transparency and justice in the prison environment.
I.

BANNING ADVERTISEMENTS FOR PROHIBITED
SERVICES DOES NOT PREVENT INMATES FROM USING
PROHIBITED SERVICES.
Amici understand that FDOC purports to justify its banning of PLN

on the ground that PLN contains advertisements for the following services:
(1) services that allow an inmate to run a business; (2) pen-pal services; (3);
postage stamp services; (4) three-way calling and call forwarding, and; (5)
“prisoner concierge” services (which include “people locator services”
allowing inmates to locate individuals, among other services).
Amici are familiar with the potential fraud and security concerns that
may result from inmate use of each of those services. In particular, use of
pen-pal services, three-way calling and call forwarding may make it difficult
for prison staff to ascertain with whom inmates are communicating outside
of prison walls. People locator services may allow inmates to obtain the
contact information of people they might attempt to harm. Permitting

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inmates to use postage stamps as currency may lead to conflicts and
violence among inmates. Amici take no issue with FDOC’s concerns about
these activities. Nevertheless, any concerns related to safety and security
posed by the underlying services cannot be used as a pretext to grant blind
deference to prison administrators who seek to broadly silence undesirable
speech. See Pesci v. Budz, 730 F.3d 1291, 1300 (11th Cir. 2013).
While framed as a safety and security issue, FDOC’s decision to ban
PLN has only the most tenuous connection to addressing the underlying
security concerns presented by the services advertised in PLN. At bottom,
the ban neither prevents inmates from learning about those services, nor
does it diminish the possibility that inmates will use those services. Like all
other prison systems, FDOC directly prevents inmates from using those
services – irrespective of the presence of absence of PLN in its facilities – by
using the ready alternatives that are at its disposal. Yet, FDOC stands alone
in keeping PLN out of its prisons on the basis of its advertising content.
A.

Banning a Publication Because of its Advertising Content Has
No Effect on Prison Security

In the experience of amici, inmates are aware of the prohibited
services at the center of FDOC’s regulation, and inmates who want to use
those services will attempt to do so whether or not they are exposed to
advertisements in a certain publication. At most, FDOC’s decision to ban
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PLN may prevent inmates from becoming aware of particular providers of
prohibited services through the advertisements in PLN. In truth, however,
the ban is unlikely to have even that limited effect. Any interested inmate
may easily get specific information on these advertisers from associates in
the community who subscribe to or obtain PLN (or other publications
advertising such services). The information is easily communicated
through phone calls, visits, letters, or the inmate grapevine. If such
information is considered at all valuable, it can easily become common
knowledge among prisoners. Ultimately, in the view of amici, a regulation
that targets only one communication channel through which inmates can
learn of a given method for breaking a rule will provide no meaningful
benefit to prison security, as precisely the same information will still be
conveyed through other communication channels.
As FDOC itself noted in the court below, “[d]espite the FDOC having
rules forbidding the solicitation of pen pals by inmates, forbidding stamps
from being used as a currency by inmates, and forbidding three way calling
and call forwarding by inmates…such conduct by FDOC inmates continues
to be widespread.” [Doc. No. 135 at 7]. In other words, FDOC concedes
that, notwithstanding its decision to ban PLN and the fact that the
contested advertisements were not entering the prison via PLN, inmate use

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of those services remained “widespread.” This concession undermines the
credibility of FDOC’s assertion that its ban on PLN is reasonably related to
FDOC’s penological interests in prohibiting the underlying services.
Turner is instructive on this point. There, the government generally
prohibited inmates from marrying other inmates, citing the possibility that
marriage among inmates could lead to “love triangles,” which could lead to
violence. Turner, 482 U.S. at 97, 107 S. Ct. at 2266. The Supreme Court
saw through this argument, noting that “[c]ommon sense suggests that
there is no logical connection between the marriage restriction and the
formation of love triangles,” because love triangles could form whether
inmates got married or not. Id. at 98, 107 S. Ct. at 2266. Similarly, here, in
the experience of amici, common sense suggests there is no connection
between PLN’s advertisements and prison security. Just as inmates can
become involved in love triangles whether or not they are allowed to marry,
so too inmates can, and will, attempt to use prohibited services whether or
not they happen to see PLN advertisements for those services.
The Court need not speculate on this point, for FDOC has conceded in
the court below that inmate use of prohibited services remains
“widespread”, even though PLN has been banned since 2009. If PLN’s
advertisements were somehow driving security problems, its removal from

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the prison for more than half a decade would presumably have helped
improve conduct at the prison. Yet FDOC’s concession demonstrates that
this did not occur.
B.

The Comparative Ineffectiveness of Banning PLN Demonstrates
That the Ban is an Exaggerated Response

FDOC has at its disposal readily available alternatives far better
suited to achieve the penological interests purportedly served by FDOC’s
ban of PLN. These alternatives include directly detecting and preventing
use of prohibited services. In the experience of amici, these alternatives
have been used effectively in the prison systems that have not banned PLN.
And as detailed below, these alternatives are already in use by FDOC.
In well-managed prison systems, clear rules provide direction to
inmates as to what conduct is not allowed, and punishments are in place to
deter inmates from engaging in such conduct. Surveillance of inmates gives
prison staff the ability to directly oversee inmate behavior, so that they can
detect attempts to engage in misconduct and prevent those attempts. By
contrast, banning PLN because it contains advertisements for certain
services is an unnecessary and demonstrably ineffective means of
attempting to police inmate misconduct. Given the existence of readily
available alternatives, FDOC’s decision to ban PLN is not reasonable, but is

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an unconstitutional “exaggerated response” to prison concerns. Turner,
482 U.S. at 90, 107 S. Ct. at 2262.
1.

Rules and punishment

In the experience of amici, the first line of defense against inmate
misconduct is to have in place clear rules defining misconduct and clear
consequences for inmates who violate those rules. For instance, like most
prison systems, FDOC has rules prohibiting inmates from using call
forwarding and three-way calling services. Fla. Admin. Code r.33602.205(2)(a). FDOC also limits the amount of telephone numbers on a
prisoner’s call list to ten, each of which must be approved by FDOC. Id.
Similarly, FDOC limits the number of stamps a prisoner can possess to
forty, and limits the number of stamps a prisoner can receive in the mail to
twenty. Id. r.33-602.207 & 33-210.101(2)(e). Inmates are prohibited from
soliciting for pen-pals. Id. r.33-210.101(9). Finally, the behavior that may
result from inmates using these prohibited services, whether by using
three-way calling, call forwarding, pen-pal services, or people locator
services to facilitate criminal activity outside of the prison’s walls, or
potential violence resulting from conflicts over stamps inside the prison’s
walls, is all prohibited by FDOC rules. See id. r.33-601.314.

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Inmates who violate these rules are subject to punishment, which
may include such sanctions as imposing more restrictive conditions of
confinement and rescinding credits previously given toward time served.
Id. Of course, if any misconduct is a crime in its own right in addition to
being a violation of prison rules, an inmate also is subject to criminal
prosecution. In the experience of amici, clear rules and the threat of
punishment effectively deter many inmates from engaging in misconduct,
even if they might happen to become aware of the potential to engage in
misconduct by reading a publication that contains advertisements for
certain services.
2.

Extensive monitoring of inmates effectively prevents and
detects misconduct

Although rules and punishment effectively deter many prisoners from
engaging in misconduct, amici are aware that there are inmates who will
not be deterred merely by the threat of punishment. To the extent that a
prisoner may not be so deterred, FDOC has tools at its disposal — tools that
it currently uses — that enable it to effectively prevent and detect
misconduct. By the very nature of the penal system, prison staff have
extensive control over the lives of inmates. Every aspect of a prisoner’s life
may be subject to surveillance. Effective supervision of inmates, not

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banning publications for advertisements, addresses prison concerns that
inmates will use prohibited services.
a)

Tools to prevent three-way calling and call
forwarding

FDOC has tools that enable it to prevent inmates from using threeway calling and call forwarding services. With limited exceptions, all
inmate calls are subject to recording and real-time monitoring. Fla. Admin.
Code. r.33-602.205. This alone is a valuable tool that enables prison staff
to listen to inmates’ telephone conversations at any time to detect
suspicious activity. Further, inmates may only place calls to numbers that
are approved by FDOC. Id. Also, amici understand from the record below
that FDOC contracts with Securus Technologies (“Securus”) to provide
telephone services. Securus advertises to the public that it offers three-way
calling and call forwarding detection services, as well as other services that
enable it to detect attempts at engaging in misconduct. 1 In the experience
of amici, such tools, which are common among prison systems, are highly
effective at detecting and preventing misconduct. Indeed, as the District
Court found, even though Securus “is not 100% effective” at preventing call
transfers directly, Securus has detected “hundreds of thousands of
Securus Website, http://www.securustechnologies.com/solutions/
corrections/communication/securus-telephone-service.
1

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attempted calls,” and prison personnel have detected other unauthorized
call transfers by monitoring inmates’ calls. 2 [Doc. 279 at 13-14]. This
layered approach to security — involving both direct prevention measures
and monitoring by staff for violations — is a typical and appropriate means
of enforcing prison rules, and is far more effective than banning one
potential source of information for obtaining a prohibited service. Notably,
FDOC inmates apparently continue to have ready access to information
about call-transfer services, despite FDOC’s ongoing ban on PLN and its
advertisements, or else there would not be “hundreds of thousands of
attempted calls” for Securus to detect.
b)

Tools to prevent using stamps as currency,
solicitation of pen-pal services, or conducting a
business

The court below accepted FDOC’s contention that, because of advances in
technology, Securus’s telephone monitoring system may not detect all
three-way or forwarded calls. [Doc. No. 279 at 12]. While amici
acknowledge that no system of monitoring is perfect, logic suggests FDOC’s
contention on this point is exaggerated. If Securus were as ineffective as
FDOC claims, FDOC would not pay for its services. Automatic detection of
call forwarding is the one aspect of Securus services that the district court
determined was less effective to the extent inmates used Voice Over
Internet Protocol (“VoIP”) technology. Id. However, this is only one part of
a comprehensive suite of services advertised by Securus. In the experience
of amici, the comprehensive suite of services Securus provides, which
according to Securus includes live call monitoring, call logging,
comprehensive call detail reports, and various other tools, are effective
tools. See Securus Website, http://www.securustechnologies.com/
solutions/corrections/communication/securus-telephone-service
2

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FDOC also has tools in place to prevent inmates from using stamps as
currency. Specifically, all non-legal mail, incoming and outgoing, is opened
by staff to determine whether it contains prohibited items, such as a
prohibited number of stamps.3 Fla. Admin. Code. r.33-210.101(5) (all
routine mail opened by employees), 33-210.102(8)(d) (all legal mail opened
in presence of inmate) & 33-210.103(5)(a) (all privileged mail opened in
presence of inmate). Routine mail is also subject to inspection, and may be
read by prison staff. Id. 33-210.101(5). And FDOC already limits inmates
to possessing no more than 40 stamps at any given time, thus requiring
FDOC to monitor the number of stamps sent to an inmate and how many
stamps an inmate has collected. See [Doc. 279 at 44].
The upshot is that, to prevent the excessive inflow of stamps, FDOC
need only follow its own procedures regarding prison mail — some of the
same procedures that it has been using to keep PLN from entering its
prisons. Similarly, FDOC’s ability to open, inspect, and read outgoing mail
can be used to prevent prisoners from soliciting for pen pals or conducting
businesses. Another tool commonly used in limiting possession of
contraband such as excessive stamps is regular and unannounced searches

FDOC could also ban stamps in their entirety; as PLN pointed out below,
some prison systems have already taken this step. [Doc. No. 139 at 28-29].
3

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of prison cells. Like all major prison systems, FDOC presumably makes
regular use of this tool. Further, in the event a prisoner succeeds in having
stamps delivered to a vendor, FDOC still controls the delivery to the
prisoner of any item that may pose a direct threat to institutional security
or order.
In addition, for the reasons discussed below, see Section II infra, it is
unreasonable to expect that policies designed to shield inmates from mere
knowledge about services that accept stamps will have any material effect
either on inmates’ knowledge, or on the efforts prison staff must undertake
to monitor the flow and collection of stamps.
c)

Tools to prevent people locator services from being
used for criminal purposes

As shown above, written communications between prisoners and
those on the outside are subject to routine and pervasive monitoring by
prison staff. These tools give FDOC the ability to minimize any misconduct
that might result from prisoners using people locator or other prohibited
services. These tools are not perfect, and inmates often are able to
communicate with family or associates directly through the inmates’ own
authorized visits or through other prisoners’ communications with their
visitors. But, by the same token, the limitations of prison monitoring
procedures also underscore why, for the reasons discussed in Section II
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below, it is unreasonable to expect that policies such as the ban on PLN
would have any measurable effect on inmates’ knowledge about the
existence of prohibited services.
C.

The Tools Available to FDOC Will be Used by FDOC Whether it
Bans PLN or Not

There is good reason for FDOC to inspect inmate mail, monitor and
record inmate phone calls, to contract with Securus to provide extensive
telephone security services, and to take other steps, such as the deployment
of correctional officers, to prevent violence among inmates. These methods
are directly targeted to monitoring inmate behavior, so that any misconduct
can be detected and prevented. In the experience of amici, well-managed
prisons effectively allocate their resources to prevent and detect the kind of
inmate misconduct at issue in this case.
There is no evidence that, since it began banning PLN, FDOC has
stopped employing these methods of monitoring its inmates. If banning
PLN because of the advertisements it contains were an effective means of
preventing prisoner misconduct, FDOC would have been able to scale back
this comprehensive surveillance regime and deploy its resources elsewhere.
Yet, nothing in the record suggests FDOC has done that, and those tools
presumably remain necessary to maintain a safe and secure prison
environment, whether or not PLN is allowed in FDOC’s facilities. This is
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consistent with the experience of amici. Because advertisements in
publications have no direct impact on prison security, banning publications
because of some advertisements would not allow a prison system to change
its security regime.
Inmates who are intent on breaking prison rules will not be prevented
from doing so simply because they do not have access to a publication with
advertisements for prohibited services — any regulation that limits that
access as a means to prevent rules violations is bound to fail. Instead,
inmates are prevented from breaking prison rules through effective
deterrence and effective use of the surveillance tools at the disposal of all
prison systems, including FDOC. At the same time, an inmate who wants
to break the rules by using a service advertised in PLN will have to
overcome the comprehensive surveillance regime FDOC has in place; any
inmate who successfully uses a prohibited service does not do so because
that service may have been advertised in PLN, but rather because FDOC
ineffectively used the tools at its disposal.
Banning PLN does not materially increase prison security, and
allowing PLN would not materially decrease prison security. Instead,
banning PLN is meaningless and ineffective, whereas alternative methods,
which FDOC already employs, are very effective. FDOC’s decision to ban

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PLN violates the First Amendment because it severely abridges the rights of
PLN to distribute its publication and the right of FDOC’s inmates to read
that publication, yet does not reasonably address prison security.
II.

PRISONER EXPOSURE TO CONTENT CONCERNING
PROHIBITED CONDUCT IS NEITHER UNUSUAL NOR A
MATERIAL THREAT TO PRISON SECURITY
Inmates are frequently exposed to advertisements or information

about products or services they are not permitted to obtain or use. For
example, inmates may watch television programs that depict illegal acts or
contain advertisements for products and services prohibited to inmates,
such as alcohol or online social networking sites. But, in the experience of
amici, such television programs are not a security threat, and there would
be no justification for prohibiting inmates from watching those shows.
Information also flows to and from prisoners via phone calls, letters,
conversations on personal visits, or from the constant flow of prisoners
cycling in and out of the prison community on new violations or from other
prisons and jails. There is an active, vigorous inmate grapevine and flow of
information. In this context, the value of PLN’s ads to inmates seeking to
evade prison rules is inconsequential. They simply do not present a
realistic concern — certainly not a concern sufficient to warrant stifling the
beneficial aspects of the publication — as is evident from the fact that no

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other prison system has found that PLN’s ads pose a threat justifying a ban
like FDOC’s.
Instead, as described above, prison officials have access to a variety of
effective measures to detect and deter problematic conduct, a strategy far
more effective than attempting to seal off the prison population from
undesirable information. Prison administrators also have access to the
regular sharing of intelligence and best practices among correctional
agencies, including meetings and networks established by the Association
of State Correctional Administrators (ASCA), the National Institute of
Corrections (NIC), and the American Correctional Association (ACA) — all
of which are available to FDOC officials. Information about serious security
problems moves quickly through these cross-jurisdictional networks. Yet
none of the amici, all experienced prison administrators, have ever
experienced or heard of a disruptive incident or of the introduction of
contraband traceable to prisoners’ access to an advertisement in any
publication.
The most compelling evidence against FDOC’s assertion that such
advertisements, in PLN or elsewhere, pose a legitimate security threat is the
ongoing daily operation of the other 49 state prison systems and the
Federal Bureau of Prisons, all of which allow such ads. If the mere presence

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of advertisements like those FDOC has objected to had caused security
incidents in those systems, prison officials would communicate information
about such incidents to their peers around the country, including to FDOC,
via the various channels described above. Amici are not aware that these
systems have communicated information about any such incidents, nor
does FDOC seem to be so aware, as FDOC has not made any such incidents
in other systems part of the record here.
Although prison administrators need not wait to act until an incident
actually occurs, Turner demands that prison officials’ asserted concerns be
supported by more than pure speculation that prohibited speech or conduct
might possibly impinge on legitimate penological interests. See Pesci, 730
F.3d at 1299 (“[D]eference to the professional judgment of the facility
administration is not tantamount to carte blanche permission to deny the
fundamental rights of free speech and free expression. Care must be
exercised to examine each claim individually and particularly.”).
III.

PUBLICATIONS SUCH AS PLN BENEFIT PRISONERS AND
THE PRISON ENVIRONMENT
Finally, although FDOC officials testified below “that they view Prison

Legal News favorably,” [Doc. 279 at 17-18], it does not appear that FDOC
made any attempt to rationally weigh the attenuated and hard-to-credit
benefits of its ban on PLN against the substantial benefits of allowing
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access to publications like PLN. PLN’s focus on coverage of prisoners’
rights and prison conditions creates a unique resource allowing an
underserved population — inmates — to learn about the issues most
relevant to their daily lives. For instance, PLN has covered FDOC’s decision
to expand its contract allowing a private company to control prisoner trust
accounts in exchange for a per-transaction commission collected by FDOC 4;
FDOC’s partial reversal of a ban on tobacco products for prisoners at work
release centers 5; former FDOC Secretary James Crosby’s conviction and
sentence for agreeing to receive kickbacks from a company seeking to
become an FDOC vendor6; and FDOC’s decision — under threat of
litigation from prisoner-rights organizations — to withdraw a proposed
rule that would have prohibited inmates “from establishing or maintaining
an account or any other presence on any other internet website,” including
David M. Ruetter, “State Prison Systems Privatizing Prisoner Accounts for
Commissions,” Prison Legal News,
https://www.prisonlegalnews.org/news/2015/nov/13/state-prisonsystems-privatizing-prisoner-accounts-commissions/ (loaded Nov. 13,
2015).
4

David M. Ruetter, “Florida Smoking Ban Scaled Back as Black-Market for
Cigarettes Grows,” Prison Legal News,
https://www.prisonlegalnews.org/news/2015/oct/16/florida-smoking-banscaled-back-black-market-cigarettes-grows/ (loaded Oct. 16, 2015).
5

“Former Florida Prison Chief Released from Federal Prison,”
https://www.prisonlegalnews.org/news/2015/jan/13/former-floridaprison-chief-released-federal-prison/ (loaded Jan. 13, 2015).
6

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through non-inmates posting information about an inmate.7 There are few,
if any, news sources that provide inmates with ready access to such relevant
information. The value of allowing inmates access to this sort of
information — including coverage critical of the prison system — should not
be taken lightly, as FDOC appears to have done. And as this Court has
made clear, “[d]eference to facility administrators and concerns relating to
safety and security cannot be used as a pretext to silence undesirable
speech.” Pesci, 730 F.3d at 1300.
In the experience of amici, publications such as PLN provide a benefit
to the prison environment for at least two reasons. First, by informing
prisoners of their legal rights and prison developments, PLN gives
prisoners tools to attempt to redress their grievances through legal
channels, reducing the likelihood they will use violence against prison
officials based on perceived grievances. Second, reading PLN allows
inmates to spend their time in a constructive manner. Not only does access
to PLN’s editorial content encourage reading in general, PLN also informs
inmates about valuable services such as educational programs. One recent

David M. Ruetter, “Florida Withdraws Rule Proposal to Ban Prisoner
Internet Presence,” Prison Legal News,
https://www.prisonlegalnews.org/news/2015/jul/1/florida-withdrawsrule-proposal-ban-prisoner-internet-presence/ (loaded July 1, 2015).
7

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report by the Rand Corporation noted that “inmates who participated in
correctional education programs had a 43 percent lower odds of
recidivating than inmates who did not.” Lois Davis et al., How Effective Is
Correctional Education, and Where Do We Go from Here? xv (2014). Any
assessment of whether banning PLN is an exaggerated response to the
possibility of an inmate learning about prohibited services solely through
PLN’s ads should also consider that such a policy deprives inmates (and the
prison) of substantial benefits in exchange for purely hypothetical (and
likely nonexistent) gains in security.
CONCLUSION
Although prison officials are entitled to deference in judging the
security needs of their institutions, they are not entitled to have the courts
blindly accept their unsupported assertions that a given security concern
warrants a restriction on speech. In this case, nothing FDOC has put
forward supports — and nothing in amici’s own extensive experience
corroborates — the notion that effective prison security requires banning
PLN for the reasons FDOC has asserted. Such a ban is an exaggerated
response to security needs that can be fully addressed by less restrictive,
and more effective, means, without the damage to the First Amendment
rights of PLN and FDOC’s inmates imposed by FDOC’s current policy.

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Respectfully submitted,

Margo Schlanger
625 S. State Street
Ann Arbor, MI 48109

Alexander Chinoy
Elliott Schulder
Michael Beder
Jason Grimes
Covington & Burling LLP
One CityCenter
850 Tenth Street, N.W.
Washington, D.C. 20001
(202) 662-6000

Counsel for Amici Curiae
December 14, 2015

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CERTIFICATE OF COMPLIANCE
1.

This brief complies with the type-volume limitation of Fed. R.

App. P. 29(d) because it contains 5,794 words, excluding the parts of the
brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii) and 11th Cir. R. 32-4.
2.

This brief complies with the typeface requirements of Fed. R.

App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6),
because it has been prepared in a proportionally spaced typeface using
Microsoft Word 2010 in 14-point Georgia type.
Dated: December 14, 2015

_/s/ Michael Beder______________
Michael Beder

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CERTIFICATE OF SERVICE
I hereby certify that on December 14, 2015, I electronically filed
the foregoing with the Clerk of the Court for the United States Court of
Appeals for the Eleventh Circuit by using the CM/ECF system. I certify that
all participants in this case are registered CM/ECF users and that service
will be accomplished by the CM/ECF system.
In addition, in accordance with 11th Cir. R. 31-3, I certify that
one originally signed brief and six copies are being sent to the Clerk on
December 14, 2015, by commercial carrier for delivery within three days.

/s/ Michael Beder
Michael Beder