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Amicus Curiae Brief in the US Supreme Court for Former Corrections Officials

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No. 18-355
IN THE

Supreme Court of the United States
______________________

PRISON LEGAL NEWS,
Petitioner,

v.

JULIE L. JONES, SECRETARY,
FLORIDA DEPARTMENT OF CORRECTIONS,
Respondent.
__________________________

On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Eleventh Circuit
_____________
BRIEF OF FORMER CORRECTIONS OFFICIALS
AS AMICI CURIAE IN SUPPORT OF PETITIONER
_____________

*Admitted in California only;
supervised by D.C. Bar
Members.

Elliott Schulder
Counsel of Record
Alexander D. Chinoy
Lauren K. Moxley
Nicole Y. Roberts
Melanie Ramey*
COVINGTON & BURLING LLP
One CityCenter
850 Tenth Street, NW
Washington, DC 20001
ESCHULDER@COV.COM
(202) 662-6000
Counsel for Amici Curiae

TABLE OF CONTENTS
TABLE OF CONTENTS ............................................ ii
TABLE OF AUTHORITIES.......................................iv
INTEREST OF THE AMICI CURIAE .......................1
INTRODUCTION AND SUMMARY OF
ARGUMENT ........................................................1
ARGUMENT ...............................................................5
I.

The Eleventh Circuit’s Decision Conflicts
with Binding Supreme Court Precedent. ............5

II.

A Proper Application of Supreme Court
Precedent Requires Relief for Prison
Legal News. ..........................................................8
A.

Prison Legal News Uniquely Benefits
Prisoners and the Prison
Environment. ................................................8

B.

There is No Rational Connection
Between the Ban on Prison Legal
News and Prison Security, as the Ban
Will Not Meaningfully Impact the
Prison Environment. ..................................13

C.

Censoring Prison Legal News Is an
Exaggerated Response to Prison
Concerns. ....................................................17
1. FDOC Is the Only Corrections
System in the Country that
Imposes a Total Ban on Prison
Legal News. ......................................... 18
ii

2. Enforcing Prison Rules
Effectively Addresses Prison
Concerns. ............................................. 20
3. Monitoring Prisoner Behavior
Effectively Detects and Prevents
Misconduct. ......................................... 21
CONCLUSION .......................................................... 23

iii

TABLE OF AUTHORITIES
Cases

Page(s)

Beard v. Banks,
548 U.S. 521 (2006) ............................................ 5, 6
Block v. Rutherford,
468 U.S. 576 (1984) .............................................. 14
Pesci v. Budz,
730 F.3d 1291 (11th Cir. 2013) ...................... 14, 16
Prison Legal News v. Fla. Dep’t of Corr.,
890 F.3d 954 (11th Cir. 2018) ...................... passim
Prison Legal News v. Livingston,
683 F.3d 201 (5th Cir. 2012) .................................. 7
Prison Legal News v. Stolle,
319 F. Supp. 3d 830 (E.D. Va. 2015) ..................... 6
Procunier v. Martinez,
416 U.S. 396 (1974) ................................................ 5
Schmidt v. Crusoe,
878 So. 2d 361 (Fla. 2003) ................................... 15
Shaw v. Murphy,
532 U.S. 223 (2001) .............................................. 14
Turner v. Safley,
482 U.S. 78 (1987) ........................................ passim
Statutes
Fla. Stat. § 944.275 (2017) ........................................ 21
iv

Regulations
Cal. Code Regs. tit. 15, § 3135 (2015) ................. 18, 19
Colo. A.R. 300-26 (2017) ............................................ 19
Fla. Admin. Code r. 33-602.205 (2016) ............... 20, 22
Fla. Admin. Code r. 33-210.101 (2016) ... 20, 21, 22, 23
Fla. Admin. Code r. 33-210.102 (2012) ..................... 23
Fla. Admin. Code r. 33-210.103 (2012) ..................... 23
Fla. Admin. Code r. 33-601.314 (2014) ..................... 21
Fla. Admin. Code r. 33-602.201 (2016) ..................... 20
Fla. Admin. Code r. 33-602.205 (2016) ............... 20, 22
Fla. Admin. Code r. 33-602.207 (2008) ..................... 21
Other Authorities
About Prisoner Express, Prisoner
Express, https://prisonerexpress org/about .................................................... 11
About Us, News and Letters
Committees,
https://newsandletters.org/about-us.................... 10
Attention Artists, Prison Legal News
(Dec. 15, 1992) ...................................................... 11
Mumia Abu-Jamal, Prieto’s Promise: An
End to Death Row? (Aug. 10, 2016) ....................... 9
v

Justin Brooks, Addressing Recidivism
Legal Education in Correctional
Settings, 44 Rutgers L. Rev. 699, 735
(1992) .............................................................. 12, 13
Dale Chappell, Florida Prisoners
‘Laydown’ in Non-Violent Protests,
Prison Legal News (June 16, 2018) ..................... 11
Matt Clarke, Florida Court of Appeals:
Prison Guards Can Raise “Stand
Your Ground” Defense, Prison Legal
News (Dec. 3, 2014) .............................................. 12
Matt Clarke & Christopher Zoukis,
Litigation Heats Up Over Extreme
Temperatures in Prisons, Jails,
Prison Legal News (June 29, 2018) ..................... 10
Florida Department of Corrections,
Securus Technologies,
https://securustech.net/fl-doc ............................... 22
Frivolous Dismissal Reviewed Under
Abuse of Discretion Standard, Prison
Legal News (July 15, 2002) ................................. 12
Derek Gilna, New York Law Gives
Reformed Offenders an Opportunity
to Seal Convictions, Prison Legal
News (May 7, 2018).............................................. 10
David L. Hudson, Jr., Ex-Con Fights for
Prisoner Rights and Battles
Censorship, ABA J. (Oct. 2016) ............................. 9
vi

Ronald Kuby, Silencing the Oppressed:
No Freedom of Speech for Those
Behind Walls, Prison Legal News
(May 15, 1995) ........................................................ 9
Md. Comm’n on Corr. Standards,
Standards, Compliance Criteria, and
Compliance Explanations for Adult
Correctional Institutions (2012) .......................... 19
Chief Judge Jon O. Newman, Not All
Prisoner Lawsuits Are Frivolous,
Prison Legal News (Apr. 15, 1996) ...................... 10
Alan Prendergast, At the Federal
Supermax, When Does Isolation
Become Torture?, Prison Legal News
(Sept. 2, 2018) ........................................................ 9
Remote Call Forwarding-Call Diverters,
Securus Customer Care,
https://securus.custhelp.com/app/ans
wers/detail/a_id/661/kw/threeway%20calling/session/
L3RpbWUvMTUzODA3NTk5OC9za
WQvQkdEb0tSWG4%3D ..................................... 22
David Reutter, Eleventh Circuit:
Florida Prisoners Must be Provided
Kosher Meals, Prison Legal News
(Oct. 10, 2017) ...................................................... 11
David M. Reutter, Florida Prisoners
with Disabilities to Receive
Accommodations Under Settlement,
Prison Legal News (Mar. 6, 2018) ....................... 11
vii

David M. Reutter, Lawsuit, Ballot
Initiative Seek to Reform Felon
Disenfranchisement in Florida,
Prison Legal News (Sept. 2, 2018) ...................... 10
Giovanna Shay, Response, One Market
We Do Not Need, 160 U. Pa. L. Rev.
PENNumbra (2012) ............................................... 9
Benjamin Steiner, Maintaining Prison
Order: Understanding Causes of
Inmate Misconduct within and
Across Ohio Correctional Institutions
(July 21, 2008) ...................................................... 16
Alexander Volokh, Do Faith-Based
Prisons Work?, Prison Legal News
(July 10, 2014) ........................................................ 9
Adam Wisnieski, Access Denied: The
Digital Crisis in Prisons, The Crime
Report (Aug. 6, 2018) ..................................... 12, 13
Brandon Wood, Tex. Comm’n on Jail
Standards, Technical Assistance
Memorandum 2 (2013) ......................................... 19
Christopher Zoukis, Prison Publication
Provides a Voice for Those Behind
Bars, New York Daily News (July
19, 2016) ................................................................. 9

viii

INTEREST OF THE AMICI CURIAE
Amici curiae are former corrections officials with
over 320 collective years of experience managing jails
and prisons. 1 Amici have an interest in ensuring that
the constitutional rights of publishers and prisoners
are restricted only for legitimate reasons. 2
INTRODUCTION AND
SUMMARY OF ARGUMENT
The Florida Department of Corrections’ (FDOC)
total ban on Prison Legal News violates the First
Amendment. The ban lacks a valid, rational connection to FDOC’s interests in prison security. It is
ineffective, unneeded, and unknown in any other corrections system in the United States.
Corrections officials manage an environment in
which security is a primary concern. Many activities
allowed outside of prison are legitimately forbidden to
prisoners. Amici do not wish to see corrections officials’ legitimate exercise of their authority to
maintain that security curtailed. A decision to completely censor Prison Legal News is not, however,
legitimate. While FDOC says that its total censorship
policy is justified because the magazine’s advertisements raise safety and security concerns, amici know
1 No counsel for a party authored this brief in whole or in part,
and no person other than amici curiae and their counsel made a
monetary contribution to fund the preparation or submission of
this brief. All parties have consented to the filing of this brief.
2 For further information about the individual amici, see Interest
of Former Corrections Officers as Amici Curiae in Support of Petitioners infra at 25-27.

from working in and running corrections systems—including FDOC itself—that any such claims are
premised on unfounded speculation at best.
Specifically, amici have experience working in, directing, and overseeing corrections facilities in
California, Colorado, Florida, Maryland, New York,
Oklahoma, Pennsylvania, Texas, and Washington, as
well as the Federal Bureau of Prisons. Each of these
systems has rules in place to protect prison safety and
security, including rules relating to permissible restraints on incoming mail. But none of these systems
have seen it fit or necessary to implement such a
wholesale ban on speech as FDOC has instituted. 3
This disparity exists because of the tenuous connection between FDOC’s stated security concerns and
total censorship of Prison Legal News.
I. The Eleventh Circuit improperly deferred to
FDOC in upholding the total ban of Prison Legal News
under the First Amendment. In Turner v. Safley, 482
U.S. 78, 89-90 (1987), this Court identified four factors
for courts to consider when determining whether a
prison’s restriction of a prisoner’s constitutional right
is legitimate:
1. Whether there is a “valid, rational connection”
between the regulation and the prison’s interest (“first Turner factor”);
2. Whether there are “alternative means” for the
prisoner to exercise the right restricted by the
regulation (“second Turner factor”);
3

See infra Part II(C)(1).

2

3. What impact accommodating the asserted constitutional right “will have on guards and other
inmates, and on the allocation of prison resources generally” (“third Turner factor”);
4. Whether there are “ready alternatives” for furthering the prison’s interests, or whether the
regulation is an “exaggerated response” to
prison concerns (“fourth Turner factor”).
Rather than faithfully apply this precedent, the Eleventh Circuit applied a minimal scrutiny standard that
drew every inference in favor of FDOC and against the
prisoners’ and the publishers’ constitutional rights.
II. Under a proper application of Turner, FDOC’s
decision to ban Prison Legal News should be rejected:
A. Prison Legal News uniquely benefits prisoners
and the prison environment. In construing this factor,
the Eleventh Circuit ignored the intertwined right of
prisoners to read the publication, focusing only on Petitioner Prison Legal News’ (“PLN”) right of access to
FDOC prisoners. Consequently, the court failed to
take notice of the singular role the publication has in
the lives of prisoners. Prison Legal News is uniquely
tailored to serve the prison population. The magazine
promotes respect for both the law and the rule of law,
which are critical concepts in rehabilitating the men
and women who find themselves in prison or jail. Because there are no “alternative means” for a prisoner
to exercise the right restricted by the regulation, the
restriction therefore fails the second Turner factor.
482 U.S. at 89-90.
3

B. Denying prisoners access to Prison Legal News
is not a reasonable response to the overstated safety
concerns put forth by FDOC because the ban will not
affect whether prisoners use prohibited services. The
ban neither prevents prisoners from learning about
these prohibited services nor decreases the likelihood
that they will use these services. Accordingly, banning Prison Legal News will not impact the prison
environment. Because there is no “valid, rational connection” between the regulation and the prison’s
interest, the restriction must fail the first Turner factor. Id. at 89. Moreover, because accommodating the
prisoners’ First Amendment rights will have no impact on officers and other prisoners, or the allocation
of prison resources generally, it also violates the third
Turner factor. See id. at 90.
C. FDOC is the only corrections system in the
country that institutes a total ban on Prison Legal
News. FDOC stands alone in using a bludgeon to restrict the First Amendment in response to perceived
concerns about the magazine’s advertising content.
Yet FDOC has at its disposal readily available alternatives that are far better suited to achieve the
penological interests purportedly served by FDOC’s
draconian policy. FDOC can enforce and monitor compliance with existing rules that prohibit the same type
of misconduct that it claims Prison Legal News might
encourage. The complete censorship of Prison Legal
News is a quintessential example of an “exaggerated
response” to prison concerns for which “ready alternatives” are available, and thus fails the fourth Turner
factor. Id. at 90.

4

ARGUMENT
I.

The Eleventh Circuit’s Decision Conflicts with Binding Supreme Court
Precedent.

This Court has made clear that “[p]rison walls do
not form a barrier separating prison inmates from the
protections of the Constitution.” Turner, 482 U.S. at
84. At the same time, “the Constitution sometimes
permits greater restriction of such rights in a prison
than it would allow elsewhere.” Beard v. Banks, 548
U.S. 521, 528 (2006). The “complex and intractable”
problems that prisons present, and the inherent difficulties of managing these institutions, counsel
substantial deference to the judgment of corrections
officials on issues of prison administration. Turner,
482 U.S. at 84-85 (quoting Procunier v. Martinez, 416
U.S. 396, 404-05 (1974)). Reconciling these intertwined principles, this Court has held that a
restrictive prison regulation is constitutional if it is
“reasonably related to legitimate penological interests” and is “not an ‘exaggerated response’ to such
objectives.” Beard, 548 U.S. at 528 (quoting Turner,
482 U.S. at 87). To determine the reasonableness of
the restriction at issue, this Court has set forth four
factors courts must consider, see supra at 2-3.
The Eleventh Circuit failed to properly apply
these standards. First, the court failed to demand a
genuinely rational connection between FDOC’s impoundment of Prison Legal News based on the
magazine’s advertising content and the officials’ concerns about prison security and public safety. See
Prison Legal News v. Fla. Dep’t of Corr., 890 F.3d 954
5

(11th Cir. 2018). Rather, it found that such a connection exists based on the conclusory testimony of a
single expert for FDOC. See id. at 967-72. The expert
stated that each type of advertisement at issue—including advertisements for three-way calling, pen pal
solicitation, cash-for-stamp exchange, prisoner concierge, and people locator—would help “create the
possibility, the real possibility” of prisoners “doing an
end run around prison rules.” Id. at 969 (alterations
and quotations omitted). Contrary to this Court’s
precedent, the court failed to demand “more than a
formalistic logical connection between a regulation
and a penological objective.” Beard, 548 U.S. at 535.
Second, the Eleventh Circuit misapplied the second Turner factor requiring consideration of “whether
there are alternative means” for a prisoner to exercise
the restricted constitutional right. 482 U.S. at 90.
The court acknowledged that the inquiry was “a close
call,” but nonetheless concluded that this factor favored FDOC because PLN had other means of
exercising its right of access to Florida prisoners. 890
F.3d at 972-73. The court reasoned that PLN had the
ability to send other publications to prisoners. Id. at
973. The court emphasized that Turner does not require the publisher’s right of access to be “ideal.” Id.
at 973. The Eleventh Circuit erred in narrowly defining the constitutional right at issue as solely PLN’s
right of access to Florida prisoners. As an initial matter, the court improperly disregarded the fact that
PLN has no alternative means for delivering its content to prisoners in Florida. See id. Moreover, the
court ignored “inmates’ intertwined right to receive
written materials from PLN.” Prison Legal News v.
Stolle, 319 F. Supp. 3d 830, 846 (E.D. Va. 2015); see
6

also Turner, 482 U.S. at 90 (explaining that the inquiry is whether alternative means “remain open to
prison inmates”); Prison Legal News v. Livingston,
683 F.3d 201, 218 (5th Cir. 2012) (evaluating First
Amendment alternatives available to “prisoners and
PLN”). The Eleventh Circuit’s application of this factor thus overlooked the unique role the magazine
plays in prisons and the lives of prisoners.
Third, the Eleventh Circuit was impermissibly
deferential in assessing the alleged risks posed by
Prison Legal News to officers, prisoners, and the allocation of prison resources generally under the third
Turner factor. The court’s reasoning was remarkably
thin: FDOC has been “impound[ing] every monthly
issue of Prison Legal News during the five-year period
for which there is evidence.” 890 F.3d at 973. Therefore, according to the court, FDOC “would have to
allocate more time, money, and personnel in an attempt to detect and prevent security problems
engendered by the ads in the magazines.” Id. However, the advertisements do not increase the burden
on prison officials because prisoners inevitably learn
of prohibited services through other means, i.e.,
through exposure through television or the internet,
through the prisoner grapevine, and through the
FDOC regulations themselves. Accordingly, the ban
does not meaningfully impact the prison environment.
Moreover, by denying prisoners access to critical legal
information, the ban paradoxically increases, rather
than decreases, the allocation of resources, as Prison
Legal News disseminates information about viable
claims and thereby reduces frivolous litigation. See
infra at 12 & n.13. The Eleventh Circuit failed to
7

properly weigh the prisoners’ constitutional rights in
assessing the ban’s impact on the prison environment.
Fourth, the Eleventh Circuit failed to properly
conclude that the FDOC’s total ban on Prison Legal
News was an exaggerated response to its purported
concerns under the fourth Turner factor. See id. at
974-76. The court reached its inapposite conclusion to
the contrary despite the fact that FDOC is the only
prison system in the country to impose such a ban,
and despite the fact that FDOC already prohibits the
conduct it claims is encouraged by the advertisements. As discussed further infra Part II(C), FDOC
already enforces and monitors compliance with rules
that prohibit three-way calling and call forwarding,
soliciting pen pals, using stamps as currency, or conducting a business. Combined with the fact that
prisoners will learn of the existence of prohibited services through other means, these rules render a total
ban on the magazine a quintessential exaggerated response to FDOC’s purported concerns for which ready
alternatives exist.
II.

A Proper Application of Supreme
Court Precedent Requires Relief for
Prison Legal News.
A.

Prison Legal News Uniquely
Benefits Prisoners and the
Prison Environment.

In determining the legitimacy of a prison’s restrictions of a prisoner’s First Amendment right, a
court must consider “whether there are alternative
means of exercising the right that remain open to
prison inmates.” Turner, 482 U.S. at 90 (setting forth
8

the second Turner factor). The availability of alternative means militates in favor of deferring to
corrections officials gauging the validity of the regulation. Id. at 90.
Prison Legal News is singularly valuable to prisoners. 4 Prison Legal News was founded by Paul
Wright, a prominent former prisoner. 5 It contains articles from a range of voices—including current and
former prisoners, law professors, journalists, activists, attorneys, and judges. 6 The magazine covers a
See Giovanna Shay, Response, One Market We Do Not Need,
160 U. Pa. L. Rev. PENNumbra 319, 324 (2012) (describing
Prison Legal News as “the leading publication for prisoner
rights.”); Christopher Zoukis, Prison Publication Provides a
Voice for Those Behind Bars, New York Daily News (July 19,
2016),
http://www.nydailynews.com/life-style/prison-publication-voice-behind-bars-article-1.2717628 (describing Prison
Legal News as the “premier outlet for news about prison reform
and legislative developments that pertain to prisoners”).
4

David L. Hudson, Jr., Ex-Con Fights for Prisoner Rights and
Battles Censorship, ABA J. (Oct. 2016), http://www.abajournal.com/magazine/article/prison_legal_news_wright_profile.

5

See, e.g., id.; Ronald Kuby, Silencing the Oppressed: No Freedom of Speech for Those Behind Walls, Prison Legal News (May
15, 1995), https://www.prisonlegalnews.org/news/1995/may/
15/silencing-the-oppressed-no-freedom-of-speech-for-those-behind-the-walls; Alan Prendergast, At the Federal Supermax,
When Does Isolation Become Torture?, Prison Legal News (Sept.
2, 2018), https://www.prisonlegalnews.org/news/2018/sep/2/federal-supermax-when-does-isolation-become-torture;
Mumia
Abu-Jamal, Prieto’s Promise: An End to Death Row?, Prison Legal News (Aug. 10, 2016), https://www.prisonlegalnews.org/
news/2016/aug/10/prietos-promise-end-death-row;
Alexander
Volokh, Do Faith-Based Prisons Work?, Prison Legal News (July
10, 2014), https://www.prisonlegalnews.org/news/2014/jul/10/dofaith-based-prisons-work; Chief Judge Jon O. Newman, Not All
Prisoner Lawsuits Are Frivolous, Prison Legal News (Apr. 15,
6

9

wide array of pertinent topics for prisoners and their
families, including current affairs in prisons, updates
in the law, and relevant political news. Examples of
recent articles include coverage of litigation over extreme temperatures in prisons, the opportunity of
certain reformed offenders to seal their convictions,
and a ballot initiative to reform felon disenfranchisement in Florida. 7
All speech is unique. But Prison Legal News is
also distinct from other prisoner-related media. A review of the available literature tailored to prisoners
shows that Prison Legal News is unique in the breadth
and depth of the subject matter that its articles cover,
and its diverse and accomplished array of contributors. While publications such as News & Letters 8 and
1996), https://www.prisonlegalnews.org/news/1996/apr/15/notall-prisoner-lawsuits-are-frivolous.
7 See, e.g., Matt Clarke & Christopher Zoukis, Litigation Heats
Up Over Extreme Temperatures in Prisons, Jails, Prison Legal
News (June 29, 2018), https://www.prisonlegalnews.org/news/
2018/jun/29/litigation-heats-over-extreme-temperatures-prisons-jails; Derek Gilna, New York Law Gives Reformed Offenders
an Opportunity to Seal Convictions, Prison Legal News (May 7,
2018), https://www.prisonlegalnews.org/news/2018/may/7/newyork-law-gives-reformed-offenders-opportunity-seal-convictions;
David M. Reutter, Lawsuit, Ballot Initiative Seek to Reform
Felon Disenfranchisement in Florida, Prison Legal News (Sept.
2, 2018), https://www.prisonlegalnews.org/news/2018/sep/2/lawsuit-ballot-initiative-seek-reform-felon-disenfranchisementflorida.

News & Letters, published by the News and Letters Committees, is a Marxist-Humanist newspaper focused on raising “the
voices of revolt” and the abolition of capitalism. About Us, News
and Letters Committees, https://newsandletters.org/about-us
(last visited Oct. 11, 2018).
8

10

Prisoner Express 9 are narrowly focused, Prison Legal
News, as a general interest magazine, explores these
same topics in addition to many more. 10 Unlike other
literature geared toward prisoners, moreover, Prison
Legal News provides uniquely valuable information
about matters taking place in prisoners’ local communities. For example, the magazine recently published
a number of articles on issues central to the lives of
Florida prisoners, such as non-violent protests
against unpaid wages, changes to disability accommodations pursuant to a settlement by FDOC, and
prisoners’ right to receive kosher meals. 11
Prison Legal News is also unparalleled in its ability to speak to prisoners about the issues most
relevant to their current circumstances. By informing
9 Prisoner Express seeks to promote rehabilitation through creative self-expression. See About Prisoner Express, Prisoner
Express, https://prisonerexpress.org/about/ (last visited Oct. 11,
2018).
10 See, e.g., Attention Artists, Prison Legal News (Dec. 15, 1992),
https://www.prisonlegalnews.org/news/1992/dec/15/attentionartists (calling for art by prisoners for the Free U.S. Political
Prisoners and Prisoners of War art show).
11 See, e.g., Dale Chappell, Florida Prisoners ‘Laydown’ in NonViolent Protests, Prison Legal News (June 16, 2018),
https://www.prisonlegalnews.org/news/2018/jun/16/florida-prisoners-laydown-non-violent-protests; David M. Reutter, Florida
Prisoners with Disabilities to Receive Accommodations Under
Settlement, Prison Legal News (Mar. 6, 2018), https://www.prisonlegalnews.org/news/2018/mar/6/florida-prisoners-disabilitiesreceive-accommodations-under-settlement; David Reutter, Eleventh Circuit: Florida Prisoners Must be Provided Kosher Meals,
Prison Legal News (Oct. 10, 2017), https://www.prisonlegalnews.org/news/2017/oct/10/eleventh-circuit-florida-prisonersmust-be-provided-kosher-meals.

11

prisoners of their rights in a clear, digestible way,
Prison Legal News helps prisoners better comprehend
the law. Moreover, by giving prisoners the tools to redress their grievances through legal channels, the
magazine helps reduce the likelihood that prisoners
will use violence against prison officials based on perceived grievances. 12 The magazine also informs
prisoners of their rights and disseminates information
about viable and nonviable claims, thereby reducing
meritless litigation by pro se prisoners. 13
Prison Legal News is becoming increasingly important as Florida’s movement toward digitization of
legal materials thwarts the ability of many prisoners
to gain access to such materials. 14 Many prisoners are
unfamiliar with legal subscription databases such as
LexisNexis and Westlaw and have trouble navigating
See Justin Brooks, Addressing Recidivism Legal Education in
Correctional Settings, 44 Rutgers L. Rev. 699, 735 (1992) [hereinafter Brooks, Addressing Recidivism] (“[I]t is important that
inmates learn how to legally cope with everyday dilemmas, both
inside and outside of correctional facilities. Without these skills
there is increased crime and violence inside correctional facilities, and inmates continue to come in and out of the system
because they cannot deal with their problems in society.”).
12

13 See, e.g., Frivolous Dismissal Reviewed Under Abuse of Discretion Standard, Prison Legal News (July 15, 2002),
https://www.prisonlegalnews.org/news/2002/jul/15/frivolousdismissal-reviewed-under-abuse-of-discretion-standard;
Matt
Clarke, Florida Court of Appeals: Prison Guards Can Raise
“Stand Your Ground” Defense, Prison Legal News (Dec. 3, 2014),
https://www.prisonlegalnews.org/news/2014/dec/3/florida-courtappeals-prison-guards-can-raise-stand-your-ground-defense.
14 See Adam Wisnieski, Access Denied: The Digital Crisis in Prisons, The Crime Report (Aug. 6, 2018), https://thecrimereport.org/
2018/08/06/access-denied-the-digital-crisis-in-prisons.

12

digital material. 15 Often, the limited number of computers available to the large group of prisoners
seeking to use them leaves prisoners with little time
to adequately conduct research. 16 Prison Legal News
offers an accessible way for prisoners to access pertinent updates.
Furthermore, reading Prison Legal News allows
prisoners to spend their time in a constructive manner. Corrections officers understand that prisoners
who spend their time reading and studying are less
apt to cause problems. “A lack of understanding regarding the prison rules and processes leads to
conflict, frustration, and diminished self-esteem that
accompanies feelings of powerlessness.” 17 Prison Legal News not only helps keeps prisoners positively
engaged, but also provides them access to critical legal
information that has a number of beneficial effects.
B.

There is No Rational Connection
Between the Ban on Prison Legal
News and Prison Security, as the
Ban Will Not Meaningfully Impact the Prison Environment.

For a restriction of a prisoner’s constitutional
rights to be permissible, there must be “a ‘valid, rational connection’ between the prison regulation and
the legitimate governmental interest put forward to
justify it.” Turner, 482 U.S. at 89 (quoting Block v.
Rutherford, 468 U.S. 576, 586 (1984)) (setting forth
15

See id.

16

See id.

17

See Brooks, Addressing Recidivism, supra note 12, at 736.

13

the first Turner factor). A lack of a rational connection
is fatal to any regulation, “irrespective of whether the
other factors tilt” in favor of upholding the regulation.
Shaw v. Murphy, 532 U.S. 223, 229-30 (2001). In the
absence of any evidence that Prison Legal News constitutes an actual and meaningful threat to
institutional order, safety or security, FDOC’s unsubstantiated concerns 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).
Similarly, courts must also consider “the impact
[that] accommodation of the asserted constitutional
right will have on guards and other inmates, and on
the allocation of prison resources generally.” Turner,
482 U.S. at 90 (setting forth the third Turner factor).
“When accommodation of an asserted right will have
a significant ‘ripple effect’ on fellow inmates or on
prison staff, courts should be particularly deferential
to the informed discretion of corrections officials.” Id.
FDOC suggests that Prison Legal News’ advertising content raises potential fraud and security
concerns because it provides information about conduct that FDOC prohibits. The prohibited services
include: (1) services that allow an inmate to run a
business; (2) pen pal services; (3) postage stamp services; and (4) three-way calling and call forwarding,
amongst others. Brief for Appellant at 41, Fla. Dep’t
of Corr. v. Prison Legal News, 890 F. 3d 954 (11th Cir.
2018) (No. 15-14220). While amici are familiar with
the concerns associated with these services in the
prison context, banning Prison Legal News is not an
effective mechanism for preventing prisoner use of
14

such services. Prisoners are aware of the prohibited
services that FDOC alleges are reflected in Prison Legal News’ advertising content. Accordingly, prisoners
who wish to use these services will attempt to do so
whether or not they are exposed to advertisements
about them.
Indeed, prisoners will learn about prohibited services in at least three ways. First, the mere presence
of FDOC’s regulations prohibiting such services itself
places prisoners on notice that these services exist. 18
Second, prisoners are frequently exposed to advertisements or information about products or services they
are not permitted to obtain or use. For example, prisoners may watch television programs that depict
illegal acts or contain advertisements for products or
services prohibited to prisoners, such as alcohol or
online social networking sites. 19 Such television programs do not impact prison security and there would
be no justification for prohibiting prisoners from
watching those shows or using the internet altogether. Advertisements containing information about
prohibited services likewise do not impact prison security. There is no rational justification for an
outright ban on an invaluable magazine based solely
on advertising content that tells prisoners what they
already know. Third, information about these types
18 See infra Part II(C)(2), discussing prohibitions on certain
abuses of mail and telephone privileges.
19 See, e.g., Schmidt v. Crusoe, 878 So. 2d 361, 366 n.6 (Fla. 2003)
(referring to a lawsuit filed by a Florida inmate seeking access to
satellite television as the network television available to inmates
“contained violence and profanity.”).

15

of services, even in the absence of advertising content,
is easily communicated through phone calls, visits,
letters, or the inmate grapevine; 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. 20 Accordingly,
the possibility that advertising content might lead
prisoners to evade prison rules is inconsequential.
The advertisements simply do not raise the specter
that a prisoner will become aware of, or engage in,
prohibited services.
Although prison administrators need not wait 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.”).
The dubious relationship between the advertising content and FDOC’s purported safety and security
concerns does not pass this test.

See Benjamin Steiner, Maintaining Prison Order: Understanding Causes of Inmate Misconduct within and Across Ohio
Correctional Institutions 13 (July 21, 2008) (unpublished Ph.D.
dissertation, University of Cincinnati), https://www.ncjrs.gov/
pdffiles1/nij/grants/226458.pdf (noting that in prisons, “[s]tratification systems develop to provide materials and services denied
by the administration (e.g., alcohol, drugs, weapons, sex, legal
advice, protection”)).
20

16

Allowing prisoners to gain access to the magazine
would have no negative impact on the prison environment under the third Turner factor. Banning the
magazine would have no meaningful impact on prison
security because prisoners who seek to use prohibited
services will do so regardless of whether they are exposed to information about those services in the
magazine. Instead, the availability of Prison Legal
News may enhance the prison environment for officials and prisoners, as the magazine allows them to
spend their time in a constructive manner. Moreover,
FDOC already enforces and monitors compliance with
rules that prohibit conduct that FDOC alleges will occur as a result of the advertising content in Prison
Legal News.
C.

Censoring Prison Legal News Is
an Exaggerated Response to
Prison Concerns.

A court assessing the legitimacy of a prison’s restriction of a prisoner’s First Amendment right must
also consider whether the restriction is an “‘exaggerated response’ to prison concerns.” Turner, 482 U.S.
at 90 (setting forth the fourth Turner factor). The
complete ban of Prison Legal News is such an exaggerated response that FDOC stands alone as the only
penal system in the country that bans Prison Legal
News in full every month. FDOC has at its disposal
readily available alternatives that are far better
suited to achieve the penological interests purportedly
served by FDOC’s policy. These basic alternatives are
so “obvious” and “easy” that they are not only used in
every other state in the country, they are also currently used by FDOC itself. See id. at 90 (“[T]he
17

existence of obvious, easy alternatives may be evidence that the regulation is not reasonable, but is an
‘exaggerated response’ to prison concerns.”). FDOC
can effectively address concerns that it claims are
raised by certain advertisements in Prison Legal
News by enforcing existing rules regarding prison behavior and monitoring compliance with those rules.
1. FDOC Is the Only Corrections
System in the Country that Imposes a Total Ban on Prison
Legal News.
FDOC is the only penal system in the country that
imposes total censorship on Prison Legal News every
month. To prevent prisoners from engaging in prohibited conduct that FDOC alleges is encouraged by the
magazine’s advertisements, other penal systems enforce rules that prohibit conduct that would damage
prison safety and security.
California, for example, provides an instructive
list of “disallowed” correspondence which includes
“material obscene in nature” or which “[c]oncerns
plans to disrupt the order, or breach the security, of
any institution/facility.” Cal. Code Regs. tit. 15, §
3135(c)(5) (2015) (“Disturbing or Offensive Correspondence”). While this list is non-exhaustive, it
provides helpful and necessary guidance to officers reviewing materials for contraband to avoid abuses of
discretion and allegations of misguided motivations to
ensure a neutral process. The list also specifically targets activity that “concerns plans” for dangerous
conduct, rather than speculating whether prisoners
18

will be influenced by the mere suggestion of an activity which is already prohibited. Id.
Similarly, Colorado provides for mailroom review
of incoming publications, and allows prison officials to
censor individual publications that “pose a potential
threat to the safety and security . . . by advocating facility disruption or noncompliance with prison rules or
regulations.”
Colo. A.R. 300-26, at 3 (2017),
https://www.colorado.gov/pacific/cdoc/policies-1. Maryland provides an exception to the general rule that
“correspondence should not be read, rejected, or restricted” when prison officials find “clear and
convincing evidence that it poses a threat to the order,
security or safety of the facility, public officials or the
general public.” Md. Comm’n on Corr. Standards,
Standards, Compliance Criteria, and Compliance Explanations for Adult Correctional Institutions 52
(2012),
https://www.dpscs.state.md.us/publicinfo/
publications/pdfs/MCCS/StandardsManual-ACI-022012.pdf.
Texas has made clear that “policies that ban all or
certain publications without proper review should
never be implemented.” Brandon Wood, Tex. Comm’n
on Jail Standards, Technical Assistance Memorandum 2 (2013), https://www.tcjs.state.tx.us/docs/TA
MemoPrisonLegalNews.pdf. Instead, officials must
consider whether prisoner correspondence and publications meet certain baseline standards on a “case-bycase basis.” Id. at 1.

19

2. Enforcing Prison Rules Effectively Addresses Prison
Concerns.
No other penal system in the country has seen fit
to impose a total ban on a publication’s speech. Rather, they have enforced rules that effectively protect
prison safety and security. This is because the most
effective way to address misconduct in prisons is to
institute clear rules and impose direct punishment for
violations of those rules. Clear rules provide direction
to inmates as to what conduct is not permitted, and
punishment deters inmates from engaging in such
conduct.
FDOC enforces rules that prohibit the same misconduct that it claims Prison Legal News
advertisements might encourage, including but not
limited to:
•

Prohibiting call forwarding and three-way calling
services. Fla. Admin. Code r. 33-602.205(2)(a)
(2016).

•

Limiting a prisoner’s call list to ten telephone
numbers, and requiring that each number be approved by FDOC. Id. r. 33-602.205(2)(a), (g).

•

Prohibiting prisoners from soliciting for pen pals.
Id. r. 33-210.101(9).

•

Limiting the number of stamps a prisoner can possess to forty stamps. Id. r. 33-602.201.

•

Limiting the number of stamps a prisoner can receive in the mail to twenty. Id. r. 33-210.101(2)(e).
20

•

Prohibiting prisoners from using postage stamps
as currency to pay for products or services. Id. r.
33-210.101(22).

•

Prohibiting prisoners from conducting a business
while confined, which includes “any activity in
which the inmate engages with the objective of
generating revenue or profit while incarcerated.”
Id. r. 33-602.207(1)-(2) (2008).

FDOC rules provide penalties for each incident of
misconduct, including disciplinary confinement and
reducing “gain time.” Gain time provides an opportunity for prisoners to reduce their sentence through
good behavior. See Fla. Stat. § 944.275 (2017). Eligible prisoners may earn 10 days of incentive gain time
per month. See id. For violations of mail regulations
or telephone regulations, prisoners may receive up to
30 days of disciplinary confinement and lose up to 30
days of gain time. See Fla. Admin. Code r. 33601.314(9-14), (9-25) (2014). The imposition of these
direct, immediate penalties are effective bulwarks
against prisoners’ use of prohibited services.
3. Monitoring Prisoner Behavior
Effectively Detects and Prevents Misconduct.
Prison officials extensively monitor prisoners to
ensure that they do not engage in misconduct or use
prohibited services. The nature of the penal system
enables monitoring to be quite effective, as prison
staff have unique control over the lives of prisoners,
and every aspect of a prisoner’s life may be subject to
21

surveillance. To effectively detect and prevent prisoner misconduct, FDOC uses a layered approach
involving staff monitoring and a variety of technological tools. These tools are far more effective than
banning one potential source of information for obtaining a prohibited service.
First, FDOC uses critical surveillance tools to detect and prevent misuse of telephones by prisoners,
including call-forwarding and three-way calling. With
a limited exception for calls placed to attorneys and
foreign consulates, FDOC monitors and records prisoner telephone calls. Id. r. 33-602.205(1). This
enables prison staff to listen to telephone conversations to detect suspicious activity and violations of
prison rules. In addition, FDOC contracts with a technology company that provides secure telephone
services to prisons, and offers services that prevent
misconduct automatically, including three-way calling and call forwarding detection. 21
Second, FDOC extensively monitors mail to detect
and prevent misconduct, including pen pal services
and people locator services. Specifically, FDOC staff
open every piece of incoming and outgoing non-legal
mail to ensure it does not contain prohibited items.
See Fla. Admin. Code. r. 33-210.101(5) (all routine
mail opened by employees); id. r. 33-210.102(8)(d) (all
legal mail opened in presence of prisoner); id. r. 33See Florida Department of Corrections, Securus Technologies,
https://securustech.net/fl-doc (last visited Oct. 11, 2018); see also
Remote Call Forwarding-Call Diverters, Securus Customer Care,
https://securus.custhelp.com/app/answers/detail/a_id/661/kw/
three-way%20calling/session/L3RpbWUvMTUzODA3NTk5OC
9zaWQvQkdEb0tSWG4%3D (last visited Oct. 11, 2018).
21

22

210.103(5)(a) (2012) (all privileged mail opened in
presence of prisoner). FDOC also inspects mail on a
routine basis. Id. r. 33-210.101(5). The extensive
monitoring of written communications between prisoners and the outside world is an effective safeguard
against the use of prohibited services.
In addition to monitoring prisoners’ limited use of
telephone and mail services, FDOC conducts routine
and unannounced searches of prison cells for contraband. Accordingly, to prevent prisoners from abusing
mail privileges—including preventing inmates from
soliciting pen pals, using stamps as currency, or using
people locator services for criminal purposes—FDOC
need only follow its own rules.
CONCLUSION
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. The decision by FDOC to ban Prison
Legal News from its facilities is not such a regulation.
Amici’s experience working in and managing prisons,
jails, and corrections systems across ten federal and
state jurisdictions, including Florida, does not support
FDOC’s stated justification for the complete ban on
core free speech rights.
The Eleventh Circuit’s absolute deference to
FDOC sends a dangerous message to corrections systems across the country. It suggests that they need
only assert the barest of justifications for their restrictive regulations to pass constitutional muster. The
23

Turner reasonableness standard is not so toothless.
The Court should grant the petition for certiorari.

Respectfully submitted,
Elliott Schulder
Counsel of Record
Alexander D. Chinoy
Lauren K. Moxley
Nicole Y. Roberts
Melanie Ramey*
COVINGTON & BURLING LLP
One CityCenter
850 Tenth Street, NW
*Admitted in California only; Washington, DC 20001
supervised by D.C. Bar
ESCHULDER@COV.COM
Members.
(202) 662-6000
Counsel for Amici Curiae
October 2018

24

INTEREST OF FORMER CORRECTIONS
OFFICIALS AS AMICI CURIAE IN SUPPORT
OF PETITIONERS
Former Assistant Director of the Federal Bureau of Prisons John Clark
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.
Former Pennsylvania and New York City Corrections Administrator Martin Horn
Amicus Martin Horn has served as Secretary of
Corrections of the State of Pennsylvania and Commissioner of Corrections of the City of New York. He has
had a career of more than 40 years in corrections including service as Superintendent of New York State’s
Hudson Correctional Facility. He is now Distinguished Lecturer at John Jay College of Criminal
Justice, City University of New York.
Former Director of Oklahoma Department of
Corrections Justin Jones
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.

25

Former General Counsel and Assistant Director
of the Texas Department of Corrections Steve J.
Martin
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 Department of Homeland Security in numerous prisons, jails, detention
facilities, and juvenile systems across the United
States.
Former Warden of the Florida Department of
Corrections Ron McAndrew
Amicus Ron McAndrew served as a Warden in
the Florida Department of Corrections from 19792001 and as Interim Director of the Orange County
Department of Corrections from 2001-2002. He has
23 years of employed corrections experience. Since
2005, he has served as a Prison & Jail consultant and
expert witness.
Former Secretary of the Washington State Department of Corrections Richard Morgan
Amicus Richard Morgan served as the Interim
Secretary of the Washington State Department of
Corrections from 2016-2017. He also served as the Director of the Division of Prisons of the Washington
State Department of Corrections from 2008-2010. He
has more than 34 years of experience in the corrections field.
26

Former Secretary of the Washington State Department of Corrections and Executive Director
of the Colorado Department of Corrections
Chase Riveland
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.
Former Director of the Montgomery County Department of Correction and Rehabilitation in
Maryland Arthur Wallenstein
Amicus Arthur Wallenstein served as Director
of the Montgomery County Department of Correction
and Rehabilitation in Maryland from 1999-2015. He
also served as Director of the King County Department of Adult Detention in Washington State from
1990-1999, and Director of the Bucks County Department of Correction in Pennsylvania from 1977 to
1990. He has 37 years of corrections experience.
Former Undersecretary of the California Department of Corrections Jeanne Woodford
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 19992004. She has over 30 years of corrections experience.

27



 

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