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Prison Legal News v. Florida DOC, Censorship, amicus brief press 2015

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Case: 15-14220

Date Filed: 12/14/2015

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IN THE
UNITED STATES COURT OF APPEALS
ELEVENTH CIRCUIT
Case No. 15-14220
PRISON LEGAL NEWS, a project of the Human Rights Defense Center,
a not-for-profit Washington charitable corporation,
Plaintiff-Appellee/Cross-Appellant,
v.
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
Defendant-Appellant/Cross-Appellee.
__________________________________________
On Appeal from the United States District Court
Northern District of Florida, Tallahassee Division
Case No. 4:12-cv-239-MW/CAS
________________________________________

Brief of Amici Curiae Florida Press Association, Inc.,
First Amendment Foundation, Inc., Reporters Committee for
Freedom of the Press, American Society of News Editors,
Allied Daily Newspapers of Washington,
Washington Newspaper Publishers Association, and
Association of Alternative Newsmedia
in Support of Prison Legal News and Reversal of the Judgment

Thomas R. Julin & Jamie Z. Isani
Florida Bar Nos. 325376 & 728861
Hunton & Williams LLP
Attorneys for the Amici Curiae
1111 Brickell Avenue – Suite 2500
Miami, FL 33131
305.810.2516 Fax 1601
tjulin or jisani@hunton.com

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Case No. 15-14220
Prison Legal News v. Secretary, Florida Department of Corrections
CERTIFICATE OF INTERESTED PERSONS
AND CORPORATE DISCLOSURE STATEMENT

Pursuant to 11th Cir. R. 26.1, Amici Curiae hereby certify that Florida Press
Association, Inc., First Amendment Foundation, Inc., The Reporters’ Committee
for Freedom of the Press are not-for-profit charitable corporations. Amici curiae
further certify that Washington Newspaper Publishers Association is trade
association representing 131 member newspapers. No publicly held corporation
owns 10% or more of the stock of any of the Amici Curiae. Amici Curiae also
certify that the following is a complete list of the trial judge and all attorneys,
persons, associations of persons, firms, partnerships, or corporations that have an
interest in the outcome of this particular case on appeal.
1.

Abudu, Nancy Gbana, Counsel for Prison Legal News

2.

Allied Daily Newspapers of Washington

3.

American Civil Liberties Union Foundation of Florida, Inc., Counsel
for Prison Legal News

4.

American Society of News Editors

5.

Association of Alternative Newsmedia, Amicus Curiae

6.

Bancroft PLLC, Counsel for Prison Legal News

7.

Berg, Randall C. Jr., Counsel for Prison Legal News

8.

Bondi, Pamela Jo, Attorney General, State of Florida

9.

Clement, Paul D., Counsel for Prison Legal News

10.

First Amendment Foundation, Inc. Amicus Curiae
C1-of-3
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Case No. 15-14220
Prison Legal News v. Secretary, Florida Department of Corrections

11.

Florida Justice Institute, Inc., Counsel for Prison Legal News

12.

Florida Press Association, Inc., Amicus Curiae

13.

Garland, Cedell Ian, Counsel for Secretary Jones,

14.

Gellis, Sean, Counsel for Secretary Jones

15.

Human Rights Defense Center, Inc., a not-for-profit Washington
charitable corporation

16.

Isani, Jamie, Counsel for Amici Curiae

17.

Jones, Julie L., Secretary, Florida Department of Corrections

18.

Julin, Thomas R., Counsel for Amici Curiae

19.

Maher, Susan A., Counsel for Secretary Jones

20.

McGinley, Michael H., Counsel for Prison Legal News

21.

Neelakanta, Sabarish, Counsel for Prison Legal News

22.

Neff, Lance Eric, Counsel for Secretary Jones

23.

Prison Legal News, a project of the Human Rights Defense Center

24.

Reporters’ Committee for Freedom of the Press, The, Amicus Curiae

25.

Stampelos, Hon. Charles, United States Magistrate Judge

26.

Stevenson, Benjamin James, Counsel for Prison Legal News

27.

Tietig, Lisa, Counsel for Secretary Jones

28.

Trevisani, Dante P., Counsel for Prison Legal News

29.

Walker, Hon. Mark, United States District Judge

30.

Washington Newspaper Publishers Association, Amicus Curiae

31.

Weber, Lance, Counsel for Prison Legal News

C2-of-3
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Case No. 15-14220
Prison Legal News v. Secretary, Florida Department of Corrections

32.

Wright, Paul, Editor of Prison Legal News and Executive Director of
the Human Rights Defense Center

I also certify that no publicly traded company or corporation has an interest
in the outcome of the case or appeal and thus no stock ticker symbol will be
entered in the web-based CIP. I will complete the web-based CIP by entering
“nothing to declare”.
s/ Thomas R. Julin
Thomas R. Julin

C3-of-3
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TABLE OF CONTENTS
TABLE OF CITATIONS ....................................................................................... ii
INTEREST OF THE AMICI CURIAE ...................................................................1
STATEMENT RE PREPARATION OF THE BRIEF ............................................8
STATEMENT OF THE ISSUES ............................................................................8
SUMMARY OF THE ARGUMENT ......................................................................9
INTRODUCTION ..................................................................................................9
ARGUMENT........................................................................................................ 12
I. The Rule Does Not Meet the Substantive
Requirements of Turner v. Safley ................................................................ 12
II. The Rule Lacks Procedural Safeguards &
Criteria To Prevent its Use for Improper Censorship .................................. 22
A.

The Rule Lacks Required Procedural Safeguards .............................. 22

B.

The Rule Lacks Sufficiently Specific Guidelines to
Prevent its Use to Censor the Contents of Prison Legal News ........... 25

CONCLUSION .................................................................................................... 29
CERTIFICATE OF COMPLIANCE
WITH TYPE-VOLUME LIMITATION ............................................................... 30
CERTIFICATE OF TYPE SIZE AND STYLE .................................................... 30
CERTIFICATE OF SERVICE.............................................................................. 30

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TABLE OF CITATIONS
Page(s)
Cases
Atlanta Journal & Constitution v. City of Atlanta Department of Aviation,
322 F.3d 1298 (11th Cir. 2003) (en banc) ................................................................... 27
Barrett v. Orman,
373 Fed. Appx. 823 (10th Cir. 2010) .......................................................................... 23
Beard v. Banks,
548 U.S. 521 (2006) ....................................................................................................... 16
Bigelow v. Virginia,
421 U.S. 809 (1975) ................................................................................................. 19, 20
City of Lakewood v. Plain Dealer Publishing Co.,
486 U.S. 750 (1988) ................................................................................................. 26, 27
Florida Prison News v. Crosby,
No 3:04-cv-14-J-16TEM (M.D. Fla. July 28, 2005)............................................. 5, 6
Freedman v. Maryland,
380 U.S. 51 (1965) ......................................................................................................... 25
Gold Coast Publications, Inc. v. Corrigan,
42 F.3d 1336 .................................................................................................................... 27
Grayned v. City of Rockford,
408 US 104 (1972) ......................................................................................................... 25
Harrell v. The Florida Bar,
608 F.3d 1241 (11th Cir. 2010) ............................................................................. 27, 28
High Ol’ Times v. Busbee,
456 F. Supp. 1035 (N.D. Ga. 1978) ............................................................................ 19
International Society for Krishna Consciousness v. Eaves,
601 F.2d 809 (5th Cir. 1979) ........................................................................................ 27
Jones v. North Carolina Prisoners’ Labor Union, Inc.,
433 U.S. 119 (1977) ....................................................................................................... 24
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Jucklovich v. Simmons,
392 F.3d 420 (10th Cir. 2004) ...................................................................................... 23
Lawson v. Singletary,
85 F. 3d 502 (11th Cir. 1996) ................................................................................. 14, 15
Mathews v. Eldridge,
424 U.S. 319 (1976) ....................................................................................................... 23
Miami Herald Publishing Co. v. City of Hallandale,
734 F.2d 666 (11th Cir. 1984) ...................................................................................... 27
Miniken v. Walter,
978 F. Supp. 1356 (E.D. Wash. 1997) ........................................................................ 16
Pell v. Procunier,
417 U.S. 817 (1974) ................................................................................................. 13, 14
Perry v. Secretary, Florida Department of Corrections,
664 F.3d 1359 (11th Cir. 2011) .............................................................................. passim
Prison Legal News v. Columbia County,
No. Case No.: 3:12-cv-00071-SI, 2012 WL 1936108 (D. Ore. May 29,
2012) ................................................................................................................................. 15
Prison Legal News v. Cook,
238 F.3d 1145 (9th Cir. 2001) ....................................................................................... 15
Prison Legal News v. Lehman,
397 F.3d 692 (9th Cir. 2005) ................................................................................... 15, 24
Prison Legal News v. McDonough,
200 Fed. Appx. 873 (11th Cir. 2006) .................................................................... passim
Procunier v. Martinez,
416 U.S. 396 (1974) ................................................................................................ passim
Rios v. Lane,
812 F.2d 1032 (7th Cir. 1987) ....................................................................................... 26
Sentinel Communications Co. v. Watts,
936 F.2d 1189 (11th Cir.1991)..................................................................................... 27

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Shaw v. Murphy,
532 U.S. 223 (2001) ....................................................................................................... 14
Sorrell v. IMS Health Inc.,
131 S. Ct. 653 (2011) ................................................................................................. 3, 18
Thornburgh v. Abbott,
490 U.S. 401 (1989) ................................................................................................. 14, 23
Turner v. Safley,
482 U.S. 78 (1987) .................................................................................................. passim

Constitutional Provisions
U.S. Const. amend. I ..................................................................................................... passim

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INTEREST OF THE AMICI CURIAE
The Florida Press Association, Inc. was founded in 1879 as a nonprofit
corporation to protect the freedoms and advance the professional standards of the
press of Florida. Authority to file has been provided by its general counsel. Its
purpose includes the promotion and encouragement of higher standards of
journalism to the benefit of the industry and the public.
The First Amendment Foundation, Inc. believes that government openness
and transparency is critical to citizen trust and involvement in our democratic
society – without Government in the Sunshine, civic engagement cannot bloom.
Through ongoing monitoring of the state’s public records and open meetings laws,
and the education of government officials and citizens, the Foundation promotes
the public’s constitutional right to oversee and to participate in the governance
process. Authority to file has been provided by its executive director.
For more than 40 years, the Reporters Committee for Freedom of the Press
has provided free legal advice, resources, support and advocacy to protect the First
Amendment and Freedom of Information rights of journalists working in areas
where U.S. law applies, regardless of the medium in which their work appears.
Authority to file has been provided by its legal defense director.

Founded in 1922

to “defend the profession from unjust assault,” the American Society of News
Editors is an organization of news leaders. It fosters public discourse essential to

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democracy; helps editors maintain high quality standards, improve their craft,, and
promotes core journalistic values.

Authority to file has been provided by its

president and executive director.
Allied Daily Newspapers of Washington and Washington Newspaper
Publishers Association are trade associations for newspapers. Authority to file has
been provided by their executive directors. They are interested in this case because
Paul Wright, editor and co-founder of Prison Legal News was imprisoned for 17
years in Washington State until his release in 2003. Mr. Wright founded Prison
Legal News in 1990 while imprisoned. Since then he has successfully litigated a
wide variety of censorship and public records issues against prison systems,
benefitting the public and the press generally. He is a 2007 recipient of the James
Madison Award from the Washington Coalition for Open Government.
The Association of Alternative Newspapers is a 501c(6) organization, which
represents 112 alternative newsmedia organizations throughout North America.
AAN member publications reach more than 38 million active, educated and
influential adults. Authority to file has been provided by its executive director.
Although this case involves prison regulations and the regulations at issue
have a particularly harsh impact on those publications such as Prison Legal News
that specialize in serving the prison community, the case is of great important to
the Amici for a variety of reasons as well.

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First, advertising that is carried by the press often is as important to their
readers as the editorial content they carry. In some instances, the advertising is of
even greater importance because it informs readers not just about the availability of
products and services they may wish to buy, but it advises them of products and
services that allow readers to improve themselves and their communities. The
advertising also often helps advertisers to reach a mass market for their products
and services, keeping costs low and achieving vital efficiencies that help the
economy. The United States Supreme Court, reflecting on these same points,
recently invalidated restrictions on commercial speech in Sorrell v. IMS Health
Inc., 131 S. Ct. 653 (2011). The Court commented that “a ‘consumer's concern for
the free flow of commercial speech often may be far keener than his concern for
urgent political dialogue’” and pointed out that the marketing data at issue in that
case “can save lives.” Id. at 2664 (quoting Bates v. State Bar of Ariz., 433 U.S.
350, 364 (1977)). Amici respectfully ask the Court to keep this in mind when
evaluating the rule at issue in this case that advertising is a form of speech
protected by the First Amendment.
Second, the Florida Department of Corrections (FDOC) has failed to afford
Prison Legal News due process by giving it notice each time a prison official
regards its publication as carrying advertising that prisoners are prohibited from
possessing so that it can contest the state’s determination before its right to

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communicate is terminated. Members of the Florida Press Association are directly
threatened by the FDOC’s actions in this regard because they distribute
publications such as The Tallahassee Democrat, the Gainesville Sun, The Miami
Herald and many others within the Florida prison system and their publications
also are subject to the restrictions imposed on the plaintiff’s publication. Their
publications also carry advertising for many goods and services, including
telephone and other communications services that prisoners might wish to use now
or in the future but are currently prohibited from using. If the FDOC fails to
follow existing rules that require notice of impoundment to be given to a publisher
whenever a prison intercepts a publication that has been deemed to carry
prohibited advertising, the publishers will be denied due process to challenge the
determination. State compliance with procedural due process requirements is vital
to the protection of the speech rights of the Amici in other contexts as well.
Publishing companies face threats to their speech rights when, for example,
municipalities deem newsracks to be in violation of valid ordinances imposing
reasonable time, place, and manner restrictions. The courts should ensure that
whenever regulations are imposed to restrict First Amendment rights, notice of that
action and an opportunity to oppose it is protected.
Third, government regulation of advertising often poses a direct threat to the
ability of the press to report the news and information that is of public importance

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when the regulations are so flexible that they can be used to punish criticism of the
government or the reporting of news that leads to criticism of the government.
Unless

government

discretion

to

regulate

advertising

is

appropriately

circumscribed, the discretion may be used for purposes of censorship forbidden by
the First Amendment.
Fourth, this case is of importance to the Amici because the history of this
case shows that serious dangers to First Amendment principles are created when
the federal courts decline to adjudicate the constitutionality of regulations because
the state temporarily has halted enforcement of those regulations. Amici note that
Prison Legal News filed a similar action in 2004 seeking a declaration that the
FDOC violated the First Amendment by (1) refusing to allow delivery of Prison
Legal News to prisoners because it contained ads for three-way calling services and
pen-pal services and allowed subscriptions to be purchased with postage stamps,
and (2) prohibiting prisoners from accepting compensation for articles they wrote
for newspapers and magazines. See Prison Legal News v. Crosby, No 3:04-cv-14J-16TEM (M.D. Fla. July 28, 2005) (DE-87 – Order, Findings of Fact and
Conclusions of Law) at 2-3.
In apparent reaction to the suit, FDOC amended its rules effective March 16,
2005, to provide that a publication such as Prison Legal News would not be
rejected based on its inclusion of the restricted advertisements for prohibited

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products or services, as long as those advertisements were ‘merely incidental to,
rather than being the focus of, the publication.’” Id. at 8-9 ¶¶18-19.

After the

amendment, FDOC then allowed distribution of Prison Legal News to continue.
Prison Legal News insisted that the amended rule posed a continuing threat
to it notwithstanding that its distribution was being permitted. U.S. District Judge
John H. Moore, II, conducted a three-day bench trial and found that the FDOC’s
prior prohibition of distribution served no governmental purpose whatsoever
because FDOC effectively could stop the inmates from using the advertised
services whether they saw advertising for them or not.

Id. at 14-15. But, Judge

Moore also entered judgment as a matter of law for FDOC because it was no
longer prohibiting distribution of Prison Legal News. Id. at 16. This Court agreed
that FDOC mooted the challenge by adopting an amended regulation and then not
invoking it to prohibit further distribution. Prison Legal News v. McDonough, 200
Fed. Appx. 873, 877-78 (11th Cir. 2006). The Court agreed with the district court
that the FDOC had shown “‘no intent to ban PLN based solely on the advertising
content at issue in this case’ in the future.” Id. at 878. But the Court added: “We
have no expectation that FDOC will resume the practice of impounding
publications based on incidental advertisements. As to the current rule, we offer
no opinion on its constitutionality.” Id. This ruling allowed FDOC to escape an
adjudication that its amended rule violates the First Amendment.

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In light of this history and FDOC’s invocation of the rule, as it was amended
further in 2009,1 now to ban distribution of Prison Legal News once again, the
Court should view with great skepticism FDOC’s arguments regarding its asserted
negligent application of its rule. As will be discussed, the 2009 amendment to the
rule exacerbated the vagueness of the 2005 rule by banning possession not only of
publications containing non-incidental restricted advertising, but also banning
1

The amended rule now provides:

(3) Inmates shall be permitted to receive and possess publications
per terms and conditions established in this rule unless the publication is
found to be detrimental to the security, order or disciplinary or rehabilitative
interests of any institution of the department, or any privately operated
institution housing inmates committed to the custody of the department, or
when it is determined that the publication might facilitate criminal activity.
Publications shall be rejected when one of the following criteria is met:
*

*

*

(l)
It contains an advertisement promoting any of the following
where the advertisement is the focus of, rather than being incidental to, the
publication or the advertising is prominent or prevalent throughout the
publication.
1.

Three-way calling services;

2.

Pen pal services;

3.

The purchase of products or services with postage stamps; or

4.

Conducting a business or profession while incarcerated.

(m) It otherwise presents a threat to the security, order or
rehabilitative objectives of the correctional system or to the safety of any
person.

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those that containing restricted ads that are either “prominent” or “prevalent”
throughout the publication. Because FDOC resumed impounding and rejecting of
Prison Legal News on the basis of its advertising content, the constitutionality of
the existing rule is squarely at issue.
STATEMENT RE PREPARATION OF BRIEF
No party’s counsel authored this brief in whole or in part. No party or a
party’s counsel contributed money that was intended to fund preparing or
submitting the brief. No person contributed money that was intended to fund
preparing or submitting the brief.
STATEMENT OF THE ISSUES
Whether the Court should facially invalidate the FDOC rule in light of its
vagueness and the chilling effect it will continue to have on First Amendment
rights if it is not facially invalidated.
Whether the FDOC’s rule and its actions violated the substantive limits that
the First and Fourteenth Amendments impose on the discretion of prison
authorities to prevent the plaintiff from publishing material to prisons as those
limits were delineated in Turner v. Safely, 482 U.S. 78 (1987).
Whether the FDOC’s rule and its actions violated the requirements of
procedural due process because the rule lacks procedural safeguards and specific
guidelines to prevent its use for censorial purposes.

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SUMMARY OF ARGUMENT
The Court should not confine itself to determining whether the FDOC
applied its rule in violation of the First Amendment rights of the plaintiff. It
should invalidate the rule facially due to its vagueness and overbreadth, The
Supreme Court has taken this approach in other First Amendment cases and it
serves the important purpose of preventing the chilling of future speech.
Point I. Under well-established standards applicable to First Amendment
challenges to prison regulations restricting speech rights, the rule at issue and the
actions of the FDOC in applying the rule violated the First Amendment.
Point II. When speech rights are affected, procedural due process requires
regulations to contain certain procedural safeguards and to use specific guidelines
to ensure that the regulations cannot be used to engage in prohibited censorship.
The FDOC rule at issue here contains neither the required guidelines nor the
necessary specificity.
INTRODUCTION
At the heart of this appeal lies a vague regulation of advertising. The district
court recognized as much, noting “inconsistent censorship decisions,” Doc. 279 at
43, “[i]nconsistent application [of the rule] by mailroom staff” Doc. 279 at 43,
“vagueness is principally responsible for the Rule’s disparate application,” Doc.
279 at 47 n. 24, and the “most disconcerting” “worrisome fact[] uncovered at

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trial” “is the Rule’s vagueness,” Doc. 279 at 50. Yet, the district court upheld the
rule, contending that the plaintiff has asserted its void-for-vagueness claim just
three months before the May 13, 2013, trial date, and, after the trial date was
postponed for more than a year, the plaintiff did not again move to assert the claim
until trial. Doc. 279 at 3 n.5. In essence, the district court seems to be saying that
it easily discerned the facial invalidity of the rule, but was constrained to uphold it
because the challenge to the rule was not precisely labeled. The plaintiff, in its
brief, is appropriately respectful of the district court’s approach and properly
shows in its argument that the vagueness of the rule cannot, in any event, be skirted
because vagueness plays a critical rule in both the substantive and procedural asapplied challenges that it was allowed bring. The Amici take the same approach in
their argument below brief. They also suggest here, however, that the Court can
and should take a more direct approach to the vagueness problem in light of the
Court’s constitutional responsibility to ensure that a judgment does not infringe on
First Amendment rights. As the Court has opined on multiple occasions, “‘First
Amendment issues are not ordinary.’” Flanigan's Enters. v. Fulton County, Ga.,
596 F. 3d 1265, 1276 (11th Cir. 2010) (quoting ACLU of Fla., Inc. v. Miami-Dade
County Sch. Bd., 557 F.3d 1177, 1203 (11th Cir. 2009) (citing CAMP Legal Def.
Fund, Inc. v. City of Atlanta, 451 F.3d 1257, 1268 (11th Cir. 2006)). They trigger
special responsibilities for judges, as “expositors of the Constitution,” to conduct

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an independent review of the entire record to ensure the judgment does not result
in a forbidden intrusion on the field of free expression. Bose Corp. v. Consumers
Union of U.S., Inc., 466 U.S. 485, 499, 511 (1984). The district court’s avoidance
of a patent vagueness problem (as specifically found by the district court) on
procedural grounds is distinct, of course, from a district court judgment which
violates the First Amendment by lacking evidentiary support. But the result is no
less problematic. In both instances, the First Amendment is violated. So the
Amici urge the Court to cut through the fog that arises from the as-applied posture
in which this appeal arises and to proceed directly to the problem at the heart of
this case: the fatal vagueness of an advertising regulation that allows officials so
much discretion that they can use the vagueness to conceal their actions that are
taken to prevent the publication of editorial content with which they disagree as
nothing more than applications of the rule. This is a particularly acute problem for
the plaintiff given the nature of its editorial content – scholarly articles that advice
prisoners about their rights. If, of course, the rule is facially invalid, then it goes
without saying, that it also is invalid as applied, as the plaintiff contends.
This approach would not require the Court to break any new ground. An asapplied challenge can result in effective facial invalidation of a challenged law or
regulation even when the parties ask only for a ruling as applied. E.g., David A.
Franklin, Looking Through Both Ends of the Telescope: Facial Challenges and the

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Roberts Court, 36 Hastings Const. L.Q. 689 (2009) (citing Federal Elections
Commission v. Wisc. Right to Life, 127 S. Ct. 2652 (2007), a case arising from an
as-applied challenge to advertising regulation, as an example of this phenomenon);
see also Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2340 n.3 (2014)
(“petitioners' as-applied claims ‘are better read as facial objections to Ohio's law.’ .
. . Accordingly, we do not separately address the as-applied claims”). Facial
invalidation is particularly appropriate, of course, in First Amendment cases where
holding a statute is unconstitutional as applied will allow a vague, and hence,
overly broad statute to chill speech. F.C.C. v. Fox Television Stations, Inc., 132 S.
Ct. 2307, 2317 (2012) (“When speech is involved, rigorous adherence to
[specificity] requirements is necessary to ensure that ambiguity does not chill
protected speech”).
ARGUMENT
I.
The Rule Does Not Meet the
Substantive Requirements of Turner v. Safley
This Court frequently and recently has examined the constitutionality of
regulations that impose restrictions on First Amendment rights of both prisoners
and the public and the press that seek access to prisoners. An appropriate starting
point for analysis, therefore, is those prior decisions.
The most recent decision is Perry v. Secretary, Florida Department of
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Corrections, 664 F.3d 1359 (11th Cir. 2011). The plaintiffs in that case operated
three pen pal services. The FDOC interpreted its rules as prohibiting inmate
possession of advertisements from those companies promoting their services, but it
also allowed a third pen pal service called Christian Pen Pals to solicit one-to-one
matching of non-inmates and inmates as pen pals. The plaintiffs claimed this
violated the Equal Protection Clause and that their solicitations were protected by
the First Amendment. The Court noted that that the Supreme Court historically
had articulated two different standards for evaluating First Amendment challenges
to prison regulations restricting speech rights – one set forth in Procunier v.
Martinez, 416 U.S. 396 (1974) (examining censorship of prisoner mail and
prisoner marriages), and a lower standard articulated in Pell v. Procunier, 417 U.S.
817, 822 (1974) (examining restrictions on journalists’ rights to interview inmates
face-to-face). In decisions after Martinez and Pell, the Supreme Court regularly
applied only the lower decision from Pell and in Turner v. Safley, 482 U.S. 78
(1987), the Court set out a four-part test providing guidelines for applying the
lower standard. The standard requires the Court to consider:
1.

Whether a valid, rational connection exists between the
regulation and a legitimate and neutral governmental interest to
justify it.

2.

Whether alternative means of exercising the right are available.

3.

How accommodation of the asserted constitutional right
impacts guards and other inmates and the allocation of prison
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resources generally.
4.

Whether ready alternatives are available to the prison for
achieving the governmental objectives.

Shaw v. Murphy, 532 U.S. 223, 228-30 (2001) (citing Turner). The first of these
factors is fatal to any regulation if the connection between the regulation and the
asserted goal is arbitrary or irrational, “irrespective of whether the other factors
tilt” in favor of upholding the regulation. Id. at 229-30. In Thornburgh v. Abbott,
490 U.S. 401 (1989), the Supreme Court made clear the Turner standard is
required even “when the regulation at issue affects the sending of a publication to a
prisoner.” Perry, 664 F.3d at 1365 (citing Thornburgh, 490 U.S. at 413; see also
Lawson v. Singletary, 85 F. 3d 502 (11th Cir. 1996). There is therefore no doubt
today that the Pell standard as discussed in Turner applies in this case.
Before proceeding to examine whether the challenged FDOC rule and
conduct meets this lower standard, the Amici pause to emphasize that even the
lower standard imposes significant limits on the discretion of the state to adopt
policies that restrict the dissemination of news and information to prisoners.
Justice Stevens, dissenting in Thornburgh, accused the majority of adopting “a
manipulable ‘reasonableness’ standard . . . that too easily may be interpreted to
authorize arbitrary rejections of literature addressed to inmates.” Id. at 428. But
the majority rejected this characterization of it action, asserting to the contrary that
the standard “‘is not toothless’” and insisted that it would impose an effective
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check on the arbitrary exercise of discretion serving no legitimate penological
purpose. Id. at 414 (quoting petitioners’ petition for certiorari).
Indeed, the standard has proven not to be toothless in its application. In
Turner itself, the Supreme Court applied the standard to invalidate a prison
regulation that allowed an inmate to marry only with the permission of the
superintendent of the prison, and provides that such approval should be given only
“‘when there are compelling reasons to do so.’” Turner, 482 U.S. at 82. In Prison
Legal News v. Lehman, 397 F.3d 692 (9th Cir. 2005), a federal appellate court
applied the standard to reject the Washington Department of Corrections’
arguments that allowing Prison Legal News in its prisons increased the risk of
contraband in the mail, reduced the volume of prison mail, reduced the risk of fire,
and increased the efficiency of inmate cell searches. In Prison Legal News v.
Cook, 238 F.3d 1145 (9th Cir. 2001), an appellate court applied the standard to
reject the Oregon Department of Correction’s arguments that allowing Prison
Legal News in its prisons made it hard to find contraband in the mail, created an
undue fire hazard, allowed inmates to hide contraband in their cells, and reduced
correctional officer efficiency. In Prison Legal News v. Columbia County, No.
Case No.: 3:12-cv-00071-SI, 2012 WL 1936108 (D. Ore. May 29, 2012), a district
court applied the standard to preliminarily enjoin a prison rule forbidding

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correspondence other than postcards.2 In Miniken v. Walter, 978 F. Supp. 1356
(E.D. Wash. 1997), a district court applied the Turner standard to conclude that
although a prohibition against delivery of bulk mail to inmates may be
constitutional, an inmate’s right to receive his personal subscription to Prison
Legal News was violated by application of that policy. And, in Prison Legal News
v. County of Ventura, No. 14-0773-GHK (EX), 2014 WL 2736103 (C.D. Cal. June
16, 2013), the court preliminarily enjoined similarly restrictive mail policies under
the Turner standard.
The standard therefore clearly has teeth and should not be treated as
inevitably requiring deference to the judgment of state authorities to restrict First
Amendment rights.3 Turning, then, to the specific rule and conduct at issue, it is

2

A final judgment for the plaintiffs later was entered. Prison Legal News
v. Columbia County, 942 F. Supp. 2d 1068 (D. Or. 2013).
3

In the most recent Supreme Court case applying the Turner standard,
Beard v. Banks, 548 U.S. 521 (2006), a majority could not agree with respect to
whether the rule violated the Turner standards. Two justices concluded that it did.
Id. at 552 (citations omitted) (Stevens, J., dissenting, joined by Ginsburg, J). Two
others concluded that it would pass the first prong of Turner but fail the second
because “by design” it did not provide an alternative means for inmates to exercise
the rights they have been given. Id. at 541 (Thomas, J., concurring in the judgment,
joined by Scalia, J.). Those justices then declined to apply the third and fourth
Turner factors due to their dissatisfaction with Turner as the appropriate standard.
Id.. Four justices wrote that the prison officials had provided an adequate basis for
upholding the rule under the Turner standards. Id. at 524-42 (Breyer, J.,
announcing the judgment of the Court in an opinion joined by Roberts, C.J. &
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apparent that they do not satisfy any, let alone all four of the Turner standards.
Judge John H. Moore’s decision in the initial Prison Legal News lawsuit
against the FDOC all but required a finding that no valid, rational connection exists
between the regulation and a legitimate and neutral government interest. As noted,
Judge Moore ruled after a bench trial that the state is fully capable of preventing
prisoners from using the services that are the subject of the challenged rule whether
the prisoners see the advertisements or not. No contradictory evidence was offered
by the state at trial. Judge Moore’s ruling shows that the rule serves no legitimate
penological purpose whatsoever, it simply restricts prisoners from viewing
advertising that offers a service they cannot use and that restriction operates to
prevent prisoners from receiving Prison Legal News and all of the other content
that prisoners may find useful.
The second Turner factor also weighs in favor of invalidation of the rule
because enforcement leaves Prison Legal News no alternative means of
distributing the banned advertising and, worse, no economically viable means of
continuing its distribution to Florida prisoners at all. As the record shows, Prison
Legal New has a small base of approximately 7,000 subscribers across the country
and its operation is supported by a small number of advertisers and a small group
Kennedy & Souter, JJ.). Because Justice Alito did not participate in the case, no
majority could address whether the rule satisfied the Turner standards.

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of employees.

Date Filed: 12/14/2015

Revenues barely meet expenses.

Page: 26 of 38

Continued not-for-profit

publication is the product of the plaintiff’s devotion to serving the informational
needs of prisoners rather than any desire for financial gain. The record also shows
that publication of a separate edition of the Prison Legal News that excludes
restricted advertisements would be cost prohibitive, so the company would have no
alternative other than to halt all distribution in the Florida prison system if the rule
is enforced.
The fact that prisoners cannot presently use the advertised services also does
not diminish the magnitude of the violation of the plaintiff’s First Amendment
right to provide the ads at issue to Florida prisoners because the rule acts as an
effective prohibition of distribution of Prison Legal News entirely.
Even if the burden of creating a separate edition were not cost-prohibitive,
the First Amendment does not allow the imposition of such a burden on speech
without justification. The Supreme Court has held that “the ‘distinction between
laws burdening and laws banning speech is but a matter of degree’ and that the
‘Government's content-based burdens must satisfy the same rigorous scrutiny as its
content-based bans.’ . . . Lawmakers may no more silence unwanted speech by
burdening its utterance than by censoring its content.” Sorrell, 131 S. Ct. at 2664
(quoting United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 812
(2000)).

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The Supreme Court also has made clear that states may not ban the
advertising of goods or services that are unlawful if the goods or services may
lawfully be sold elsewhere. Bigelow v. Virginia, 421 U.S. 809 (1975), provides an
example of such a ruling. In that opinion the Court invalidated the conviction of a
Virginia newspaper editor who had published in Virginia an advertisement for
abortion clinics in New York. The Virginia law at issue made it illegal to advertise
in Virginia for abortion clinics, irrespective of where they might be located.
Justice Blackmun, writing for seven members of the Court, held that the
advertisement was speech protected by the First Amendment and that Virginia’s
interest in protecting its citizens against services that were unlawful in that state
could not justify a prohibition of advertising for a service lawfully available in
another state. He observed that a state “may not, under the guise of exercising
internal police powers, bar a citizen of another State from disseminating
information that is legal in that State.” Id. at 824-25. Applying Bigelow, the
district court in High Ol’ Times v. Busbee, 456 F. Supp. 1035 (N.D. Ga. 1978),
held a state statute outlawing the sale or offer of “drug-related objects” could not
be validly applied to prohibit advertisements of such objects in other states where
they were lawful.
This principle is of vital importance to the Amici.

Daily newspapers

distributed in Florida prisons now include advertisements for alcoholic beverages,

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firearms and ammunition, and numerous other products or services that the state
prohibits prisoners from possessing or using. If the state can prohibit distribution
of Prison Legal News in Florida prisons simply because it carries advertising for
products or services prisoners cannot acquire or use, the state also could prohibit
distribution of most publications. Even worse, as far as the amici are concerned, if
the Court were to interpret the First Amendment as allowing the challenged rule to
survive, local governments that prohibit the sale of certain products and services
also could ban newspapers and magazines that carry advertisements for those
products and services.

Three Florida counties, Lafayette, Madison, and

Washington Counties prohibit the sale of alcoholic beverages, and those counties
that do allow alcohol sales impose widely varying restrictions.4 Certain types of
gambling are allowed in Florida solely on Indian reservations and in south Florida
counties.5 Still, the Amici’s members publish advertising for alcoholic beverages
and gambling in all Florida counties. They do not and cannot, in accordance with
the Supreme Court’s ruling in Bigelow, be required to publish separate editions for
geographic areas that prohibit the sale of advertised products and services.
A further alternative to halting distribution in Florida or creating a separate
4

See Samantha Schuyler, Fla.’s Alcohol Sale Laws Remain A WidelyVarying Patchwork, http://www.wuft.org/news/2013/08/25/alcohol-sales/.
5

See http://www.myfloridalicense.com/dbpr/pmw/track.html.

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edition for Florida would be to remove the ads from Prison Legal News both in
Florida and outside of Florida. This would avoid the cost of creating separate
editions, but it also would result in the most grievous violation of First Amendment
rights. Other institutions where Prison Legal News is distributed do not prohibit
three-way calling services, pen pal services, purchase of products or services with
postage stamps, conducting a business or profession, or advertising those services
to prisoners. Instead, they allow prisoners to engage in these activities because
they find the activities beneficial to the prisoners and to society and consistent with
penological objectives.
The third Turner factor also weighs against the constitutionality of the
challenged rule because the lack of the rule and the distribution of Prison Legal
News imposes no additional burdens on prison guards’ resources. The FDOC
already has rules that require monitoring of all correspondence, and therefore that
will continue and these rules will be unaffected.

The primary impact of

invalidation of the rule will be to lighten the FDOC’s load by making it
unnecessary to determine whether advertising of restricted services is nonincidental, prominent, or prevalent throughout every publication that is sent to
prisoners.
Judge Moore’s prior ruling established that the fourth factor of Turner
weighs against the rule because the state has readily available means of preventing

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prisoners from using the restricted services without preventing them from viewing
advertising with respect to those services.
II.
The Rule Lacks Procedural Safeguards &
Criteria To Prevent its Use for Improper Censorship
The challenged rule also violates the First Amendment and fails to afford
due process to Prison Legal News in two additional ways. First, it does not
provide Prison Legal News with notice and an opportunity to challenge a decision
by a prison official to impound and reject an issue of the Prison Legal News that
the official contends prisoners are prohibited from possessing. Second, the rule
does not provide sufficiently clear standards to prevent its use for censorial
purposes that the courts will be able to detect and stop.
A.

The Rule Lacks Required Procedural Safeguards

In Perry, the Eleventh Circuit observed that the Supreme Court’s decision in
Martinez also created a three-part test to decide whether there are proper
procedural safeguards for correspondence of a personal nature. The Martinez
safeguards require an inmate to be notified of the rejection of material written by
or addressed to him, that the author of the material be given a reasonable
opportunity to protest the decision, and that complaints be referred to a prison
official other than the person who originally disapproved the correspondence.
Martinez, 416 U.S. at 418-19. The Martinez procedural safeguards, unlike the
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Martinez standards of scrutiny, have not been lowered or changed by subsequent
decisions, so they remain binding on this Court today. Perry, 664 F.3d at 1368
(“Martinez may still control for due process claims where a prison limits personal
correspondence”); see also Barrett v. Orman, 373 Fed. Appx. 823, 826 (10th Cir.
2010) (“Martinez's procedural requirements survived Thornburgh); Jacklovich v.
Simmons, 392 F.3d 420, 433 (10th Cir. 2004) (same, in appeal by Prison Legal
News).
The rule challenged by Prison Legal News affords no procedural safeguards,
let alone the strict procedural safeguards required by Maritnez.
The Eleventh Circuit did not apply that Martinez test in Perry because the
communications at issue were “bulk mailings” – bundled materials delivered in
bulk for distribution to multiple prisoners. The Eleventh Circuit held that the
lower due process standards established in Mathews v. Eldridge, 424 U.S. 319
(1976), for the denial of Social Security disability benefits would apply.6

The

Eleventh Circuit did not explain in Perry its rationale for distinguishing between
bulk mailings and personal correspondence, but it may have been influenced by the

6

Applying the Matthews standards in Perry, the Eleventh Circuit held that
the plaintiffs’ First Amendment rights were sufficiently protected by their ability to
“separate and distinguish mail to inmates” concerning pen pal services from other
solicitations and to correspond with FDOC officials to challenge the denial of their
advertisements. Perry, 664 F.3d at 1368.

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Supreme Court’s decision in Jones v. North Carolina Prisoners’ Labor Union,
Inc., 433 U.S. 119 (1977), which also examined a restriction on “bulk mailings.”
In that case, the plaintiff was a “self-denominated Prisoners’ Labor Union and the
mailings at issue were bulk mail solicitations to join a union. The defendant
prohibited bulk mailings other than the Jaycee Newsletter and the plaintiff
challenged the rule on equal protection grounds. The Court found no violation in
light of the distinct threat that solicitations to join a union posed to prison security,
not on any distinctions that exist between bulk mailings and personal mail. Jones
also did not consider what procedural safeguards apply to a decision denying
access to mailings of any type. The ruling in Jones cannot therefore explain the
distinction adopted by the Eleventh Circuit in Perry for bulk mailings.
The instant case involves neither bulk mailings nor solicitations of the type
at issue in Jones or Perry. The instant case involves the direct distribution to
subscribers of individually addressed copies of a magazine containing a wide
variety of news and information of interest to prisoners, as well as some
advertising for services that the prison system does not allow prisoners to engage.
In Lehman, the Ninth Circuit found that mail from Prison Legal news was “sent as
a result of a request by the recipient.” Id. 397 F.3d at 700. The inclusion of that
advertising cannot provide a justification for elimination of the Martinez
safeguards that protect all of the other content because, as discussed, that

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advertising does not undermine any legitimate penological interests or otherwise
impose burdens on the state that would warrant the banning of the advertising.
B.

The Rule Lacks Sufficiently Specific Guidelines to
Prevent its Use to Censor the Contents of Prison Legal News

In Martinez, the plaintiff argued in the Supreme Court that the regulations
allowing censorship of prisoner mail suffered from undue vagueness that would
allow “censorship of constitutionally protected expression without adequate
justification.”

Martinez, 416 U.S. at 401-02.

The Supreme Court did not,

however, address the argument because the rules had not been challenged below on
vagueness grounds. Id. Here, the plaintiff has attacked the rule at issue not only
on First Amendment grounds but also separately on due process grounds.7 DE-14
at 13.
The due process claim also is a distinct basis for invalidation of the rule

7

The plaintiff’s failure to denominate one of their counts as a vagueness
challenge and the district court’s refusal to allow an amendment to add such a
count did not relieve the district court of its obligation to decide whether the rule
suffers from undue vagueness because the requirement for clear and specific
criteria is a fundamental component of both due process, Grayned v. City of
Rockford, 408 US 104 (1972) (“a basic principle of due process that an enactment
is void for vagueness if its prohibitions are not clearly defined”), and First
Amendment challenges, Freedman v. Md., 380 U.S. 51 (1965) (“In the area of
freedom of expression it is well established that one has standing to challenge a
statute on the ground that it delegates overly broad licensing discretion to an
administrative office”). The plaintiff challenged the rule on both grounds in its
First Amended Complaint.

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because courts have held that even when prisoner speech rights may be restricted
consistent with the First Amendment, this “does not detract from the continuing
requirement[s]” of due process, which includes a right to be free from “poorly
delineated prison regulation.” Rios v. Lane, 812 F.2d 1032, 1039 (7th Cir. 1987).
The Amici have a particular interest in ensuring that the Court does not
allow the vague rule at issue here to stand because, as discussed above, the
members of the Amici’s members also are subject to the rule when they send their
newspapers and magazines to Florida prisoners. The Amici also must comply with
other forms of distribution licensing such as newsrack regulations.

Such

regulations are constitutionally justifiable by the legitimate interest that a city may
have in safety and aesthetics, see generally City of Lakewood v. Plain Dealer
Publishing Co., 486 U.S. 750 (1988), just as prison regulations are justifiable by
legitimate penological interests. But the courts also have recognized that such
regulations sometimes may be used for improper censorial purposes if the
discretion of those administering the regulations is not carefully restricted by clear
and specific guidelines. Id. at 772. In Lakewood, the Court explained that facial
attacks are allowed on vagueness grounds because “a licensing statute placing
unbridled discretion in the hands of a government official or agency constitutes a
prior restraint and may result in censorship. . . . And these evils engender
identifiable risks to free expression that can be effectively alleviated only through a

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facial challenge.” Id. at 757. Those risks, the Court held, include the risk that the
licensor’s discretion will intimidate parties into censoring their own speech and
that such self-censorship will not be able to present an effective “as applied”
challenge. Id. at 757-58. This Court has invoked these principles frequently to
invalidate speech restrictions.8 For example, the Court applied these principles in
Harrell v. The Florida Bar, 608 F.3d 1241 (11th Cir. 2010), to enjoin rules
regulating attorney advertising. The court recognized that the Florida Supreme
Court, like a prison administrator, has important interests that can justify serious
restrictions on advertising, but the court was firm in its insistence that when such
restrictions are imposed, that only can be done through clear and specific criteria.
The Court quoted this language from International Society for Krishna
Consciousness v. Eaves, 601 F.2d 809, 822-23 (5th Cir. 1979), to make its point

8

See Atlanta Journal & Constitution v. City of Atlanta Dep’t of Aviation,
322 F.3d 1298, 1311 (11th Cir. 2003) (en banc) (invalidating a licensing scheme
that failed to use “clear standards by which to accept or reject a publisher’s
request”); Gold Coast Publ’ns, Inc. v. Corrigan, 42 F.3d 1336, 1349) (11th Cir.
1994) (upholding a licensing scheme that limited discretion through “neutral
criteria and procedural safeguards”); Sentinel Commc’s Co. v. Watts, 936 F.2d
1189, 1196 (11th Cir.1991) (invalidating licensing scheme that “appears to be
subject to the completely standardless and unfettered discretion of one bureaucrat
working for the DBS in Tallahassee”); Miami Herald Publ’g Co. v. City of
Hallandale, 734 F.2d 666, 675 (11th Cir. 1984) (“Accompanying . . . discretion is
the opportunity to discriminate on the basis of what the licensee intends to say,
which in the context of licensing newspaper distribution raises the spectre of prior
restraint”).

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emphatically:
“All vague statutes are unacceptable partly because they encourage ...
arbitrary and discriminatory application; similarly, vague measures
regulating first amendment freedoms enable low-level administrative
officials to act as censors, deciding for themselves which expressive
activities to permit. The very existence of this censorial power,
regardless of how or whether it is exercised, is unacceptable.”
Harrell, 608 F.3d at 1258.

The court also held that when a speech restriction is

challenged on vagueness grounds “‘it [is] immaterial . . . whether the party
challenging the measure even applied for’ permission to engage in the challenged
conduct,” because “‘the very existence of [censorial] power is unacceptable, there
is little reason [for a court] to forbear entertaining an anticipatory challenge in
order to allow that power to be exercised.’” Id. (quoting Eaves, 601 F.2d at 823).
The rule at issue in this case has multiple vagueness problems that could be
exploited for improper censorial purposes. Initially, the rule directs prison officials
to determine whether a publication carries an advertisement promoting “three-way
calling services,” “pen-pal services,” purchases by postage stamps, or “conducting
a business or profession.” Yet, none of its terms that are used are defined by the
rule or otherwise and their meaning is far from clear. Next, the rule does not
entirely ban the advertising that it describes. It only bans advertising that is not
focal, non-incidental, prominent, or prevalent.

These highly-subjective words

allow prison officials wide discretion to favor certain publications over others
notwithstanding that they all carry the same type of advertising. Because the terms
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are so vague, they do not provide judges with meaningful standards by which they
can assess whether prison authorities have impounded or rejected a publication
because it carried content which constitutionally can be banned or content that is
protected by the First Amendment such as political endorsements or criticism of
prison regulation or administration.

The danger that such censorship will be

imposed is quite apparent from the fact that Prison Legal News has been a critic of
prison policies and practices across the country since its creation by a former
prisoner himself. A vague and standardless licensing scheme like this that allows
administrators to achieve indirectly what they cannot achieve directly simply
cannot stand.
CONCLUSION
The Court should affirm those aspects of the district court’s ruling that favor
the plaintiff and reverse those aspects that disfavor the plaintiff.
Respectfully submitted,
Hunton & Williams LLP
Attorneys for the Amici Curiae
By

s/ Thomas R. Julin
Thomas R. Julin & Jamie Z. Isani
Florida Bar Nos. 325376 & 728861
1111 Brickell Avenue – Suite 2500
Miami, FL 33131
305.810.2516 Fax 1601 tjulin@hunton.com

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CERTIFICATE OF COMPLIANCE
WITH TYPE-VOLUME LIMITATION
This brief complies with the type-volume limitation of Federal Rule of
Appellate Procedure 32(a)(7)(B) because this brief contains approximately 6,987
words, excluding the parts of the brief exempted by Federal Rule of Appellate
Procedure 32(a)(7)(B)(iii).
CERTIFICATE OF TYPE SIZE AND STYLE
The type size and style used in the body of this brief is fourteen point Times
New Roman.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been
filed electronically via this Court’s CM/ECF system and served via the same on all
counsel or parties of record on December 14, 2015.
I FURTHER CERTIFY that pursuant to Eleventh Circuit Rule 31-3, seven
(7) paper copies of this brief, including one signed original, have been mailed to
the court by using one of the methods outlined in Rule 25(a)(2)(B), Federal Rules
of Appellate Procedure and/or Eleventh Circuit Rule 25-3(a), on this October 28,
2015.

s/ Thomas R. Julin
Thomas R Julin

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