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Amicus Curiae Brief in the US Supreme Court for Law Professors

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No. 18-355
IN THE
__________
PRISON LEGAL NEWS,
Petitioner,
v.
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
Respondent.
__________
On Petition for Writ of Certiorari
to the United States Court of Appeals
for the Eleventh Circuit
__________
BRIEF OF LAW PROFESSORS AS
AMICI CURIAE IN SUPPORT OF PETITIONER
_________
CHARLES H. DAVIS
Counsel of Record
KEVIN K. RUSSELL
GOLDSTEIN & RUSSELL, P.C.
7475 Wisconsin Ave.
Suite 850
Bethesda, MD 20814
(202) 362-0636
cdavis@goldsteinrussell.com

TABLE OF CONTENTS
TABLE OF AUTHORITIES ....................................... ii 
INTEREST OF AMICI CURIAE ............................... 1 
SUMMARY OF ARGUMENT .................................... 2 
ARGUMENT ............................................................... 6 
I.  THIS COURT’S REVIEW IS NECESSARY TO
REESTABLISH THE PROPER ANALYSIS OF
CENSORSHIP DECISIONS BY PRISON OFFICIALS.......... 6 
A.  This Court Never Intended For Review
Under Turner To Involve Near Absolute
Deference To Prison Officials .......................... 7 
B.  The Courts Of Appeals Have Misread
Turner And Extended Deference Too Far,
Resulting In Inconsistent Results ................. 10 
II.  IN THE ALTERNATIVE, THIS COURT SHOULD
RECONSIDER THE AMOUNT OF DEFERENCE
GIVEN AND ALLOCATIONS OF BURDENS
UNDER TURNER .................................................... 18 
CONCLUSION ......................................................... 24 
APPENDIX: Amici and University Affiliations...... 1a

ii
TABLE OF AUTHORITIES
Cases 
Beard v. Banks,
548 U.S. 521 (2006) ................................. 3, 9, 10, 17
Brown v. Entm’t Merchs. Ass’n,
564 U.S. 786 (2011) ............................................... 17
City of Boerne v. Flores,
521 U.S. 507 (1997) ............................................... 20
Davila v. Gladden,
777 F.3d 1198 (11th Cir. 2015) ............................. 20
Garner v. Kennedy,
713 F.3d 237 (5th Cir. 2013) ................................. 21
Haight v. Thompson,
763 F.3d 554 (6th Cir. 2014) ................................. 21
Hause v. Vaught,
993 F.2d 1079 (4th Cir. 1993) ........................... 3, 14
Holt v. Hobbs,
135 S. Ct. 853 (2015) ................................. 20, 21, 23
Jehovah v. Clarke,
798 F.3d 169 (4th Cir. 2015) ................................. 21
Johnson v. California,
543 U.S. 499 (2005) ......................................... 10, 19
Koger v. Bryan,
523 F.3d 789 (7th Cir. 2008) ................................. 21
Mack v. Warden Loretto FCI,
839 F.3d 286 (3d Cir. 2016) .................................. 20
Montejo v. Louisiana,
556 U.S. 778 (2009) ................................................ 18
Munson v. Gaetz,
673 F.3d 630 (7th Cir. 2012) ............................. 3, 15

iii
New Doe Child #1 v. United States,
901 F.3d 1015 (8th Cir. 2018) ................................ 20
O’Lone v. Estate of Shabazz,
482 U.S. 342 (1987) ......................................... 19, 20
Overton v. Bazzetta,
539 U.S. 126 (2003) ............................................... 17
Prison Legal News v. Cook,
238 F.3d 1145 (9th Cir. 2001) ............................... 15
Prison Legal News v. Livingston,
683 F.3d 201 (5th Cir. 2012) ........................... 15, 16
Procunier v. Martinez,
416 U.S. 396 (1974) ....................................... passim
Rosenberger v. Rector & Visitors of Univ. of Va.,
515 U.S. 819 (1995) ............................................... 16
Shaw v. Murphy,
532 U.S. 223 (2001) ............................................... 17
Sorrell v. IMS Health Inc.,
564 U.S. 552 (2011) ............................................... 17
Thornburgh v. Abbott,
490 U.S. 401 (1989) ....................................... passim
Turner v. Safley,
482 U.S. 78 (1987) ......................................... passim
United States v. Alvarez,
567 U.S. 709 (2012) ............................................... 17
United States v. Gaudin,
515 U.S. 506 (1995) ................................................ 19
United States v. Sec’y, Fla. Dep’t of Corr.,
828 F.3d 1341 (11th Cir. 2016) ............................. 21
Williams v. Annucci,
895 F.3d 180 (2d Cir. 2018) .................................. 21

iv
Constitutional Provisions 
U.S. Const. amend. I .......................................... passim
Statutes 
Religious Freedom Restoration Act of 1993,
42 U.S.C. § 2000bb et seq. ................................. 5, 19
42 U.S.C. § 2000bb-1 ........................................... 20
Religious Land Use and Institutionalized
Persons Act of 2000,
42 U.S.C. § 2000cc et seq. ............................... 1, 5, 20
42 U.S.C. § 2000cc-1(a) ....................................... 20
Rules 
Fla. Admin. Code r.33-501.401(3)(l) .......................... 11
Sup. Ct. R. 37 ............................................................... 1
Other Authorities 
David M. Shapiro, Lenient in Theory, Dumb in
Fact: Prison, Speech, and Scrutiny,
84 Geo. Wash. L. Rev. 972 (2016) .............. 11, 16, 21

INTEREST OF AMICI CURIAE 1
Amici curiae listed in the Appendix are law professors who teach and write in the fields of First
Amendment law or constitutional rights in the prison
context. Amici come together out of a shared belief
that the Eleventh Circuit’s opinion upholding the Florida Department of Corrections’ censorship of Prison
Legal News presents a good vehicle for this Court to
reassert the limits of deference given to prison officials
under Turner v. Safley, 482 U.S. 78 (1987).
In particular, Amici Law Professors believe the
courts of appeals have consistently misinterpreted
Turner to give unrestrained deference to prison officials when faced with prisoner attempts to exercise
their First Amendment rights. This Court’s guidance
is necessary to protect against further erosion of these
constitutional rights. Amici Law Professors also believe that, in the alternative, this Court should reassess the reasonableness standard adopted in Turner
and instead apply heightened scrutiny to censorship
decisions by prison officials, especially given that federal courts have demonstrated the institutional capacity to scrutinize prison restrictions on the free exercise
of religion under the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc et seq.
1

Pursuant to Supreme Court Rule 37, counsel for amici represents that they authored this brief in its entirety and that none
of the parties or their counsel, nor any other person or entity other
than amici or their counsel, made a monetary contribution intended to fund the preparation or submission of this brief. Letters from counsel for petitioner and respondent granting blanket
consent to the filing of amicus briefs are on file with the Clerk,
and counsel for both parties received timely notice of amici’s intent to file this brief.

2
SUMMARY OF ARGUMENT
When prison officials attempt to restrict a prisoner’s assertion of his or her constitutional rights,
courts must determine whether that restriction is
“reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987). This
Court has consistently reiterated that the “reasonableness standard is not toothless.” Thornburgh v. Abbott,
490 U.S. 401, 414 (1989) (citation omitted). Nonetheless, the courts of appeals have applied unquestioned
deference to prison officials’ safety-related justifications for denying publishers’ and prisoners’ First
Amendment rights of dissemination of and access to
information, respectively. The decision in this case is
emblematic of this trend and its dangers: affording
prison officials extraordinary deference, the Eleventh
Circuit upheld a decision by the Florida Department of
Corrections (FDOC) to censor Prison Legal News—
which educates prisoners about their legal rights and
provides information about conditions in prisons
throughout the country—solely because it deemed the
publication to have too many advertisements of a particular sort. No other prison system applies the FDOC
rule or anything like it. Yet, the Eleventh Circuit upheld the censorship because prison officials in Florida
said they disagree with the national consensus and believe the restriction is necessary for prison security.
FDOC officials, however, failed to identify any evidence that Florida prisons faced special security risks
that would require heightened censorship as compared
to the rest of the nation. And the scattered periods
when FDOC did not censor Prison Legal News showed
that there was no increase in security risks or incidents when prisoners received the publication.

3
In light of the courts of appeals’ failure to meaningfully review restrictions on prisoner constitutional
rights, Prison Legal News’s petition asks whether this
Court must reassess the deference provided under
Turner as applied to Prison Legal News. The answer
is a resounding “Yes.”
I. Turner recognized that “separation of powers
concerns counsel a policy of judicial restraint” regarding the “[r]unning [of] a prison” because it is an “inordinately difficult undertaking that requires expertise,
planning, and the commitment of resources.” 482 U.S.
at 84-85. The Court, however, did not intend for the
Turner reasonableness analysis to devolve into whether a prison official’s justifications merely could pass an
absurdity check. The reasonableness test must delve
further into the officials’ reasoning because “[p]rison
walls do not form a barrier separating prison inmates
from the protections of the Constitution.” Ibid.; see
also Beard v. Banks, 548 U.S. 521, 536 (2006) (plurality opinion) (“Turner requires prison authorities to
show more than a formalistic logical connection between a regulation and a penological objective.”).
The courts of appeals have failed to faithfully apply this Court’s teachings in Turner, time and again
simply deferring to prison administrators without any
meaningful scrutiny of their justifications. For example, the Fourth Circuit in Hause v. Vaught, 993 F.2d
1079 (4th Cir. 1993), upheld a ban on prisoner receipt
of periodicals due to the risk of storing flammable materials, even though the same prisoners were allowed
to have paper in the form of personal and legal correspondence in their cells. And the Seventh Circuit in
Munson v. Gaetz, 673 F.3d 630 (7th Cir. 2012), upheld
a ban on a prisoner storing a copy of the Physicians’

4
Desk Reference in his cell that prison officials justified
due to the content of the book, even though the same
book (and content) was available to prisoners in the
prison library.
Some courts have mistakenly believed that such
extraordinary deference is dictated by this Court’s decisions, a misimpression this case provides the Court
an opportunity to correct. This Court has struck down
only one regulation under Turner, and that was the
marriage ban in Turner itself. Because of the cases
that have appeared before this Court and survived reasonableness review, the courts of appeals have taken
these results as a license to give unrestrained deference to prison officials.
Such unwavering deference creates substantial
opportunities for abuse. When courts will accept almost any justification for censorship, prison officials
have little reason to forgo it. At the same time, prison
officials have strong incentives to restrict prisoner access to materials like Prison Legal News for reasons
having nothing to do with security. Publications like
Prison Legal News inform prisoners of their constitutional rights and assist them in bringing appropriate
challenges to the conditions of their incarceration. In
doing so, Prison Legal News facilitates the pursuit of
meritorious claims while cutting down on non-viable,
and even vexatious, prisoner litigation. By barring
prisoners from receiving this information, prison officials restrict prisoners with viable claims from accessing courts and make it substantially more difficult for
those prisoners to force necessary improvements to
their incarceration and to identify legitimate abuses

5
perpetuated by prison officials.2 And by allowing officials to hide invidious viewpoint or content-based discrimination behind post hoc rationalizations for censorship decisions, the courts create an atmosphere
that tolerates abuses of power that go to the heart of
what the First Amendment is intended to prohibit.
Certiorari is necessary to reestablish that Turner
review is reasonableness review with teeth. And the
present petition is an ideal vehicle to revisit how the
courts of appeals have interpreted Turner considering
that FDOC stands alone amongst its peers in restricting access to Prison Legal News due to its advertising.
II. The Court should also grant certiorari to reconsider whether it should impose a standard of review that requires courts to inquire more deeply into
the prison officials’ security justifications than Turner
currently permits. The decision in this case, and others like it, suggests that the Turner standard has
proven unworkable in practice, too susceptible to blind
deference to prison officials’ decisions to protect vital
First Amendment rights. At the same time, Turner’s
foundational assumptions have been undermined by
the Court’s more recent decisions and experience in
the prison context. In the years after Turner, Congress
enacted the Religious Freedom Restoration Act of
1993, 42 U.S.C. § 2000bb et seq., and the Religious
Land Use and Institutionalized Persons Act of 2000,

2

Increasing prisoner access to Prison Legal News and similar
publications also increases prison safety and security by empowering prisoner grievances that could ferret out abusive practices
and corrupt corrections officials who tarnish the work of scrupulous prison administrators.

6
42 U.S.C. § 2000cc et seq., both of which effectively apply strict scrutiny to prison administrators’ decisionmaking. Applying these statutes, this Court and the
lower courts have shown that they have the institutional capacity to meaningfully scrutinize prison officials’ justifications for policies that burden First
Amendment rights without unduly interfering with
prison administration. As the courts now have experience applying heightened scrutiny in the area of prisoner First Amendment rights, Turner’s main justification for its reasonableness test is robbed of much of its
weight.
ARGUMENT
I. THIS COURT’S REVIEW IS NECESSARY TO
REESTABLISH THE PROPER ANALYSIS OF
CENSORSHIP DECISIONS BY PRISON OFFICIALS.
As detailed in the petition, the Eleventh Circuit’s
decision relies on an untenable interpretation of
Turner v. Safley, 428 U.S. 78 (1987), that gives exceptional deference to prison officials’ penological justifications even when they are not grounded in either experience or logic. Pet. 28-32. The Eleventh Circuit’s
approach also illustrates a broader problem with the
courts of appeals’ treatment of assertions of First
Amendment rights within prisons. Because this nowprevalent approach of extraordinary deference is inconsistent with this Court’s longstanding treatment of
such censorship decisions, this Court’s intervention is
necessary.

7
A. This Court Never Intended For Review
Under Turner To Involve Near Absolute
Deference To Prison Officials.
Prisoners retain certain constitutional rights
within prison walls, including the right to receive mail
and obtain information. See Thornburgh v. Abbott,
490 U.S. 401, 409-13 (1989). Protecting this right to
information is particularly important for prisoners,3 as
prison officials have strong incentives to prevent prisoners from accessing publications like Prison Legal
News for reasons having nothing to do with legitimate
security interests. A principal function of Prison Legal
News, for example, is to inform prisoners of their legal
rights and to assist them in taking appropriate action
to enforce those rights, including through litigation
that prison officials may find bothersome. Pet. 4-5.
Scrutinizing prison officials’ censorship of such publications will ensure that First Amendment rights are
protected and that officials may not hide impermissible justifications behind claims of security.
Such scrutiny is also necessary to ensure that incarceration does not result in unjustifiable infringement of a variety of important constitutional rights.
As this case illustrates, even beyond its harm to vital
First Amendment interests, unwarranted censorship
risks other constitutional rights, such as access to
courts. By restricting access to information about how
prisoners can assert their legal rights, prison officials
3

Correspondents and publishers also maintain constitutional
rights regarding access to prisoners. Abbott, 490 U.S. at 408. Although framed within the context of prisoner First Amendment
rights, this case further implicates the First Amendment rights
of publishers in the prison setting, which also are analyzed under
the Turner standard. Id. at 412-13.

8
hinder prisoners from both challenging their own incarceration and forcing improvement in the conditions
of confinement through civil suits. And by denying
prisoners access to information about prison conditions in their own and other systems, prisoners are less
able to identify potential abuses perpetuated by officials. Pet. 19 (identifying Prison Legal News articles
critical of FDOC).
Recognizing these dangers, the Court in Procunier
v. Martinez, 416 U.S. 396, 405-06 (1974), emphasized
that “[w]hen a prison regulation or practice offends a
fundamental constitutional guarantee, federal courts
will discharge their duty to protect constitutional
rights.” Although acknowledging that “courts are ill
equipped to deal with the increasingly urgent problems of prison administration and reform,” the Court
insisted that “a policy of judicial restraint cannot encompass any failure to take cognizance of valid constitutional claims.” Ibid. Accordingly, the Court struck
a balance, invalidating regulations “concerning personal
correspondence between inmates and noninmates.”
Abbott, 490 U.S. at 408. The Court found that the regulations did not “further an important or substantial
governmental interest unrelated to the suppression of
expression,” and the limitations were “greater than is
necessary or essential to the protection of the particular governmental interest involved.” Martinez, 416
U.S. at 413.
The Court revisited this standard in Turner and
Abbott, holding that “Martinez should, or need, [not]
be read as subjecting the decisions of prison officials to
a strict ‘least restrictive means’ test,” and instead
adopting a reasonableness standard. Abbott, 490 U.S.
at 411-13. Turner explained that Martinez “turned on

9
the fact that the challenged regulation” restricted the
rights of non-prisoners, while the intra-prison communications at issue in Turner did not involve non-prisoner rights. 482 U.S. at 85. For a case solely focusing
on “prisoner rights,” the Court held that a reasonableness analysis sufficiently protects prisoner constitutional rights while appropriately deferring to prison officials’ expertise in prison security. Id. at 87-89. The
Court, however, did not intend for this reasonableness
standard to become a rubber stamp on the prison officials’ justifications, particularly in cases involving the
rights of a non-prisoner publisher. See supra n.3. Instead, it instructed courts to scrutinize a prison’s asserted justification in light of four factors: (1) whether
there is “a valid, rational connection between the
prison regulation and the legitimate governmental interest put forward to justify it”; (2) “whether there are
alternative means of exercising the right that remain
open to prison inmates”; (3) “the impact accommodation of the asserted constitutional right will have on
guards and other inmates, and on the allocation of
prison resources generally”; and (4) “the absence of
ready alternatives.” 482 U.S. at 89-91 (internal quotation marks omitted). At each stage of the analysis, the
Court made clear, reviewing courts must look beyond
officials’ facial justifications to determine if there is evidence supporting their safety concerns. Ibid. Applied
in this way, “the Turner standard . . . is not toothless.”
Abbott, 490 U.S. at 414 (quotation marks omitted).
The Court reaffirmed the rigor required by Turner
more recently in Beard v. Banks, 548 U.S. 521 (2006).
In a dissent, Justice Ginsburg argued that it is insufficient for officials simply to assert that “in our professional judgment the restriction is warranted.” Id. at

10
556 (Ginsburg, J., dissenting). Although differing on
Turner’s application to the case before the Court, four
justices agreed that a simple assertion of security need
is not enough. Reiterating that the “constitutional interest here is an important one,” the plurality emphasized that “Turner requires prison authorities to show
more than a formalistic logical connection between a
regulation and a penological objective.” Id. at 535 (plurality opinion).
Although the Court has stepped away from the
more protective language of Martinez, it has since
made clear that the Turner reasonableness test is not
merely an illusory restraint on prison officials, but instead requires those officials to assert a logical and justifiable penological purpose for limiting a prisoner’s
constitutional rights. Johnson v. California, 543 U.S.
499, 547 (2005) (Thomas, J., dissenting) (“[W]e have
never treated Turner as a blank check to prison officials. Quite to the contrary, this Court has long had
‘confidence that . . . a reasonableness standard is not
toothless.’”) (quoting Abbott, 490 U.S. at 414).
B. The Courts Of Appeals Have Misread
Turner And Extended Deference Too
Far, Resulting In Inconsistent Results.
This Court has described the Turner standard as
one that requires the lower courts to perform a searching review of prison officials’ justifications, but the
courts of appeals have failed to faithfully apply
Turner, resulting in ineffective review of prison regulations and almost absolute deference to officials’ penological justifications. This requires this Court’s intervention to correct.

11
1. There are many examples of how the courts
have used Turner to uphold arbitrary and nonsensical
restrictions on speech, as catalogued in David M.
Shapiro, Lenient in Theory, Dumb in Fact: Prison,
Speech, and Scrutiny, 84 Geo. Wash. L. Rev. 972
(2016). Certain of these examples show the depths of
deference and complete lack of principled review being
performed by these courts.
FDOC’s censorship of Prison Legal News is a particularly egregious example. FDOC justifies its ban on
the presence of certain advertisements for services
(like three-way calling) it prohibits its prisoners from
using. But it does not simply ban any publication advertising such a forbidden service. In fact, it routinely
tolerates such advertisements. A publication is banned only if officials deem that the problematic ads are
too “prevalent” or “prominent.” Fla. Admin. Code r.33501.401(3)(l). The vagueness of that flabby standard
is a problem in itself, see infra at 12-13. But it also
makes a hash out of any claim that the ban is justified
by the belief that prisoners will respond to the ads by
breaking prison rules. If FDOC actually believed the
ads led to further rule-breaking—which is not supported by evidence—FDOC would censor publications
with even a single concerning advertisement. Pet. 2829.
FDOC’s decision to tolerate ads for illicit services
no doubt reflects its view that the prison already has
adequate means of preventing prisoners from accessing the advertised services that violate the institution’s rules. Pet. 22-23. Although FDOC claimed that
the censorship was necessary because activities like
three-way calling, pen pal correspondence, stamp trading, or use of concierge services could threaten the

12
safety of persons outside the prison or facilitate criminal activity, FDOC already banned those activities directly. Pet. App. 3-8; see also Pet. 13 (describing justifications relied on by court of appeals). During the
nineteen years when FDOC did not censor Prison Legal News, there was no uptick in the number of incidents involving these banned activities, showing that
the prison had ample means to enforce its rules. Pet.
14. And, in some instances, FDOC created limited exceptions permitting the underlying conduct. Pet. 22.
This is exactly the sort of arbitrary decision-making
that Turner held to be a threat to the First Amendment, even within prison walls.
The ill fit between the rule and the purported justification gives rise to the suspicion that something
else is afoot. At the same time, the vagueness of
FDOC’s standard creates ample opportunity for officials to ban publications for any number of other
unacknowledged and indefensible reasons, including
on the basis of viewpoint or content.
Such a malleable standard also promotes the arbitrary decision-making seen here—FDOC justified its
2009 censorship of Prison Legal News on an increase
in the number of ads in the magazine, but the increase
in ads was due to the magazine itself increasing in
length. Pet. 14. Thus, the proportion of ads to other
content—which should be the determinant of relativistic measures like the “prominen[ce]” or “prevalen[ce]” of ads in a publication—did not change significantly, yet FDOC inconsistently swapped between
permitting and banning Prison Legal News over a
twenty-year period. Ibid.; see also Turner, 482 U.S. at
89-90 (“[A] regulation cannot be sustained where the

13
logical connection between the regulation and the asserted goal is so remote as to render the policy arbitrary or irrational.”).
FDOC is also the only prison system in the country—federal, state, or local—to censor Prison Legal
News on the basis of its advertising. Pet. 8-9. The regulations (or lack thereof) adopted by “[o]ther well-run
prison systems, including the Federal Bureau of Prisons,” are highly relevant to the Turner analysis.
Turner, 482 U.S. at 93; Martinez, 416 U.S. at 414 n.14
(“While not necessarily controlling, the policies followed at other well-run institutions [are] relevant to a
determination of the need for a particular type of restriction.”). FDOC has failed to identify any concerns
that are exclusive to Florida penal institutions that
would justify its unique censorship of Prison Legal
News. Pet. 1.
The Eleventh Circuit nonetheless deferred to
prison officials’ justifications for their application of
the rule to Prison Legal News, including that officials
could ban any publications that “might enable [prisoners] to break prison rules,” and that the “rules certainly help advance [safety] interests.” Pet. App. 9, 43.
The court called these justifications a “common-sense
proposition” and consistently rejected the relevance of
the facts showing the arbitrariness of the rule’s application, id. at 27-43, even though, in prior litigation
over application of the rule, FDOC conceded that there
were no safety justifications sufficient to uphold the
censorship of Prison Legal News on the basis of advertising content. Pet. 9-10. As discussed, application of
the rule to Prison Legal News lacked a rational underpinning and did not result in any change in prisoner

14
behavior, all while restricting prisoners from information related to enforcing their constitutional rights.
These justifications would not pass a reasonableness
test in any other field of law, and Turner did not apply
such a feeble standard within prison walls.
2. The Eleventh Circuit hardly stands alone in its
lax application of Turner. In Hause v. Vaught, 993
F.2d 1079 (4th Cir. 1993), the prisoner challenged the
prison’s policy of “not permitting detainees to receive
books and periodicals in the mail.” Id. at 1081. Prison
officials justified their policy under two rationales. Id.
at 1083-84. First, they claimed that allowing prisoners
to have publications in their cells presented a fire risk,
and the court accepted that justification as sufficient
to uphold the policy. Ibid. The problem is that the
prison allowed prisoners to have correspondence and
other letters in their cell, which presumably could just
as easily start fires. Ibid. The court brushed this concern aside by stating that officials’ lenience towards
some paper in cells did not mean that the prison could
not restrict other paper, even though the paper was indistinguishable with regards to flammability. Ibid.
The court upheld the policy despite its irrationality,
which is contrary to Turner.
The prison also justified the policy by claiming
that outside publications could be used to smuggle contraband. Ibid. The court did not dispute that, as the
prisoners argued, this rationale was no justification
for banning publications shipped directly to the prisoner from a publisher. But it upheld even that aspect
of the policy on the supposition – utterly unsupported
in the record – that “most publications sent from publishers and book clubs” arrive at the prison after the
prisoner has been transferred to another facility. Ibid.

15
Similarly, in Munson v. Gaetz, a prisoner ordered
a copy of the Physicians’ Desk Reference from an authorized vendor because the prisoner wanted to educate himself about prescription drugs and possible side
effects. 673 F.3d 630, 631-32 (7th Cir. 2012). Even
though the Physicians’ Desk Reference was available at
the prison library, the prison rejected the prisoner’s order simply by writing “DRUGS” on a standard form.
Id. at 632. Applying Turner, the court gave almost absolute deference to prison officials, concluding that because the “book[] contain[s] drug-related content and
the prison restricted [prisoner’s] access to the books
because of their drug-related content . . . . [t]here was
little else to say.” Id. at 635. The court found that the
library’s copy of the book weighed in favor of the restriction by providing an alternate means of accessing
the information, even though the prison did not base
its restriction on physical possession of the book, but
on the information contained therein. Id. at 636-37.
Courts have also developed different frameworks
for applying Turner, adopting conflicting approaches
even in cases involving similar publications. In Prison
Legal News v. Cook, the Ninth Circuit applied a
burden-shifting framework, where after the publisher
“present[ed] sufficient evidence that refutes a
common-sense connection between a legitimate objective and a prison regulation, . . . the state must present
enough counter-evidence to show that” the policy is not
“arbitrary or irrational.” 238 F.3d 1145, 1150 (9th Cir.
2001). In contrast, the Fifth Circuit in Prison Legal
News v. Livingston, like the Eleventh Circuit in its
review below, took the prison officials’ penological
justifications as given and placed the burden entirely
on Prison Legal News to disprove those assertions

16
without requiring the defendants to present counterevidence. 683 F.3d 201, 215-20 (5th Cir. 2012).
These cases, among others,4 demonstrate the
length to which courts of appeals will contort themselves to defer to prison officials and their penological
justifications under Turner.
3. The level of extreme deference that has developed since Turner permits and encourages authorities
to hide invidious viewpoint or content-based discrimination under the guise of post hoc, neutral penological
justifications.
The Fifth Circuit has recognized the possibility for
such chicanery, while doing little to prevent it:
[C]ensorship of viewpoints critical of prison
systems or prison administrators may disguise itself in a policy of excluding books depicting guard-prisoner conflict on the purported basis that they are likely to incite similar conflict. . . . [But] in the absence of specific
evidence indicating that [prison officials] excluded the book to censor its criticism of prisons, as opposed to excluding it because of its
potentially harmful effects, [its] decision does
not run afoul of Turner.
Livingston, 683 F.3d at 218.
Applying Turner in a way that effectively provides
license for viewpoint and content-based discrimination
is intolerable. See, e.g., Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829-30 (1995) (viewpoint discrimination is an “egregious form of content

4

See Shapiro, supra, at 988-1005.

17
discrimination” which is “presumptively unconstitutional”). To be sure, incarcerated prisoners and publishers seeking to communicate with them enjoy lesser
First Amendment protection. But this Court has recently and repeatedly recognized the need for vigilance
against such discrimination in other fields that ordinarily enjoy less robust First Amendment protection.
See, e.g., United States v. Alvarez, 567 U.S. 709 (2012)
(plurality opinion) (false speech); Brown v. Entm’t
Merchs. Ass’n, 564 U.S. 786 (2011) (violent imagery);
Sorrell v. IMS Health Inc., 564 U.S. 552 (2011) (commercial speech). If prison officials can conjure up
phony penological justifications in support of a censorship policy, including irrational justifications like in
Hause, there is little to prevent them from discriminating among publications on the basis of their content
or viewpoints without having to justify the distinct
First Amendment injury occasioned by such discrimination. See Beard, 548 U.S. at 552 (Stevens, J., dissenting) (comparing such censorship decisions to
“state-sponsored effort at mind control”).
4. Certiorari is particularly warranted because
the lower courts’ misapplication of Turner may be due,
in part, to a misimpression arising from the fact that
in the few cases the Court has decided since Turner,
the Court has almost exclusively sided with prison officials, upholding the restrictions under various
safety-related justifications. See Beard, 548 U.S. at
530-35 (plurality opinion); Overton v. Bazzetta, 539
U.S. 126, 133-36 (2003); Shaw v. Murphy, 532 U.S.
223, 230-32 (2001); Abbott, 490 U.S. at 414-19; Turner,
482 U.S. at 91-93. Indeed, the only time the Court has
struck down a prison regulation under Turner was in

18
Turner itself, and that was for a restriction on marriage, not a restriction on prisoner-to-prisoner or, more
aptly, publisher-to-prisoner correspondence. 482 U.S.
at 94-99. Because the regulations that reached this
Court have almost uniformly been upheld, some courts
of appeals have failed to look deeper into this Court’s
application of Turner and mistakenly assumed that almost any safety-related justification would do, or that
almost all justifications are legitimately borne out of
concerns for prison safety and security.
II. IN THE ALTERNATIVE, THIS COURT SHOULD
RECONSIDER THE AMOUNT OF DEFERENCE
GIVEN AND ALLOCATIONS OF BURDENS
UNDER TURNER.
In light of the courts of appeals’ failure to correctly
apply Turner, the standard has proven unworkable in
practice and out of step with recent jurisprudence.
Thus, the Court should reconsider Turner to require a
more searching review of prison officials’ justifications
for censorship decisions.
1. As just described, the Turner standard has
proven unworkable in practice. See Montejo v. Louisiana, 556 U.S. 778, 792 (2009) (unworkability of precedent is a reason to revisit it). Despite this Court’s clear
warnings that reasonableness review is not tantamount to abdication of the judicial role, the lower
courts have been unable to find a way to give Turner
review “teeth,” instead applying a standard of review
that provides only a cursory examination of a policy’s
justification.
2. At the same time, subsequent legal developments have eroded Turner’s underpinnings, another

19
reason for reconsidering that precedent. See, e.g.,
United States v. Gaudin, 515 U.S. 506, 521 (1995).
The Court moved away from the more searching
review of Martinez and adopted the reasonableness
analysis of Turner, supra at 8-10, due to concerns that
“the judiciary is ‘ill equipped’ to deal with the difficult
and delicate problems of prison management,” Abbott,
490 U.S. at 407-08 (citation omitted), and its belief
that “[s]ubjecting the day-to-day judgments of prison
officials to an inflexible strict scrutiny analysis would
seriously hamper their ability to anticipate security
problems and to adopt innovative solutions to the intractable problems of prison administration,” Turner,
482 U.S. at 89. The Court felt that a more deferential
reasonableness analysis was necessary because it
lacked the institutional capacity to judge the appropriateness of penological justifications. The extensive
deference that eventually metastasized into the “blank
check” now given to prison officials derived from the
Court’s discomfort with making the sorts of administrative decisions related to prison safety involved in
censorship restrictions. Johnson, 543 U.S. at 547
(Thomas, J., dissenting).
Since Turner and Abbott, however, this Court and
the courts of appeals have gained extensive experience
applying a less-deferential standard to restrictions on
prison First Amendment rights. Congress enacted the
Religious Freedom Restoration Act (RFRA), 42 U.S.C.
§ 2000bb et seq., in 1993. RFRA applies strict scrutiny
to all state and federal action that substantially burdens religious exercise,5 including prison operations.
5

Prior to RFRA, this Court in O’Lone v. Estate of Shabazz,
482 U.S. 342, 349-50 (1987), extended the Turner reasonableness

20
42 U.S.C. § 2000bb-1 (requiring “compelling governmental interest” and “least restrictive means”). Although this Court held that RFRA was unconstitutional as applied to the states, City of Boerne v. Flores,
521 U.S. 507 (1997), the courts of appeals still apply
RFRA to free exercise restrictions allegedly imposed
by the federal government, New Doe Child #1 v. United
States, 901 F.3d 1015 (8th Cir. 2018), including in federal prisons, Mack v. Warden Loretto FCI, 839 F.3d
286 (3d Cir. 2016); Davila v. Gladden, 777 F.3d 1198
(11th Cir. 2015).
Congress responded to City of Boerne by enacting
the Religious Land Use and Institutionalized Persons
Act of 2000 (RLUIPA), 42 U.S.C. § 2000cc et seq.,
which applies the same strict scrutiny of RFRA to a
narrow subset of state programs including, as most
relevant here, state prisons that accept federal funding. See Holt v. Hobbs, 135 S. Ct. 853 (2015). Under
RLUIPA:
No government shall impose a substantial
burden on the religious exercise of a person
residing in or confined to an institution . . .
unless the government demonstrates that imposition of the burden . . . (1) is in furtherance
of a compelling governmental interest; and
(2) is the least restrictive means of furthering
that compelling governmental interest.
42 U.S.C. § 2000cc-1(a). Thus, RLUIPA imposed an
even higher standard than Martinez, which required
analysis to prisoner Free Exercise Clause claims. It applied
Turner to the Free Exercise Clause because of similar concerns
about the Court’s lack of institutional expertise related to prison
safety. Id. at 349.

21
only an “important or substantial governmental interest” along with limiting restrictions to “no greater than
is necessary or essential to the protection of the particular governmental interest involved.” 416 U.S. at 413.
For more than two decades, this Court and the
lower courts have effectively applied the heightened
standard of RFRA and RLUIPA to prison safety regulations, and there has been no evidence that this more
searching review has led to any uptick in security incidents or other harms to prison operations. See
Shapiro, supra, at 1022-23 (citing statement from federal government that “the federal Bureau of Prisons
has managed the largest correctional system in the
Nation under the same heightened scrutiny standard
as RLUIPA without compromising prison security,
public safety, or the constitutional rights of other prisoners.”). This Court recently explained that RLUIPA
“does not permit . . . unquestioning deference” to
prison officials and, although “courts should respect
[officials’] expertise,” “that respect does not justify the
abdication of the responsibility . . . to apply RLUIPA’s
rigorous standard.” Holt, 135 S. Ct. at 864. And the
courts of appeals have regularly applied the heightened scrutiny of RLUIPA to free exercise claims
brought by prisoners in state correctional facilities
while giving limited deference to prison officials’ penological justifications. See, e.g., Williams v. Annucci,
895 F.3d 180 (2d Cir. 2018); Jehovah v. Clarke, 798
F.3d 169 (4th Cir. 2015); Haight v. Thompson, 763
F.3d 554 (6th Cir. 2014); Garner v. Kennedy, 713 F.3d
237 (5th Cir. 2013); Koger v. Bryan, 523 F.3d 789 (7th
Cir. 2008); see also United States v. Sec’y, Fla. Dep’t of
Corr., 828 F.3d 1341 (11th Cir. 2016) (suit brought by
Department of Justice under RLUIPA).

22
Thus, if Prison Legal News had been a religious
magazine with the same advertising content, respondent would have the burden of meeting the stringent
RLUIPA standard and there would be no question of
the district or circuit courts’ competency to apply that
test. Because the application of RLUIPA has shown
that the concerns giving rise to deference under
Turner and O’Lone are tenuous at best, this deference
no longer has a strong basis in fact. It is time for a
reevaluation of Turner.
3. In place of Turner, this Court either should
adopt the stricter RLUIPA standard discussed above,
or at least return to the intermediate scrutiny afforded
by Martinez, requiring that prison officials demonstrate that a restriction on publisher or prisoner
speech “furthers one or more of the substantial governmental interests of security, order, and rehabilitation,”
and was “no greater than is necessary or essential to
the protection of the particular governmental interest
involved.” 416 U.S. at 413.
This established standard continues to acknowledge the limits of judicial competency, and affords appropriate deference to prison administrator’s special
expertise. But it protects against the abuses Turner
has allowed, in several important respects.
First, heightened scrutiny requires prison officials
to identify and substantiate a real threat to security,
order, or rehabilitation that would be addressed in a
material way by the proposed censorship. It simply
cannot be sufficient for prison officials to justify censorship on a belief that a publication could create generic, vague safety concerns without having to provide
some evidence that there is an actual and realistic
danger to either the prison population or the public at

23
large. Instead, the institution must substantiate the
claimed risk to security by providing, for example, evidence of how frequently that harm would occur, how
seriously it would manifest, and whether it has happened in other systems that did not take similar censorship steps.
Second, in deciding whether a prison has sustained this burden, courts should look to the experience of other systems. When, as here, a policy stands
as a conspicuous outlier from the vast majority of similarly-situated prison systems, the prison should be required to explain the discrepancy and justify its unusual actions with concrete evidence. See Holt, 135
S. Ct. at 866; Martinez, 416 U.S. at 414 n.14.
Third, although heightened scrutiny does not require prisons to pursue their legitimate ends through
the least restrictive means, see Abbott, 490 U.S. at 40913, it does require appropriate tailoring, preventing institutions from unthinkingly adopting policies that are
far more speech-restrictive than necessary to address
legitimate penological concerns. At the same time, examining the fit between means and ends provides a
safeguard against invidious discrimination masquerading as a sweeping response to a legitimate problem.
Finally, although prison officials would maintain
the burden to justify their speech restriction, plaintiffs
would have the opportunity to respond with evidence
demonstrating both the harms caused by the denial of
the publication, in terms of their First Amendment
rights and to their efforts at rehabilitation, and the potential irrationality of the officials’ policy. The courts
then would be required to perform a careful, searching
review to determine if the justifications for the censor-

24
ship are substantial enough to overcome the restrictions on prisoner constitutional rights, all while
providing some deference to the institution’s factual
assertions regarding the extent of predicted harms.
This Court should take the opportunity to reconsider the deference provided under Turner and, in
light of the expertise gained in applying RLUIPA to
prisoner free exercise claims, place a greater burden
on the institution to justify its restrictions on publishers’ and prisoners’ First Amendment rights.
CONCLUSION
This Court should grant the petition for writ of
certiorari.
Respectfully submitted,
CHARLES H. DAVIS
Counsel of Record
KEVIN K. RUSSELL
GOLDSTEIN & RUSSELL, P.C.
7475 Wisconsin Ave.
Suite 850
Bethesda, MD 20814
(202) 362-0636
cdavis@goldsteinrussell.com
October 19, 2018

APPENDIX

1a
APPENDIX
Titles and university affiliations for identification
purposes only
Andrea Armstrong
Professor of Law
Loyola University New Orleans College of Law
Hadar Aviram
Thomas Miller ’73 Professor of Law
University of California-Hastings College of Law
W. David Ball
Associate Professor
Santa Clara University School of Law
Monica C. Bell
Associate Professor of Law
Yale Law School
Lynn S. Branham
Visiting Professor of Law
Saint Louis University School of Law
Erwin Chemerinsky
Dean & Jesse E. Choper Distinguished Professor of Law
University of California-Berkeley School of Law
Alan K. Chen
Professor of Law
University of Denver Sturm College of Law

2a
Fred Cohen
Professor Emeritus
SUNY Albany School of Criminal Justice
Holly S. Cooper
Lecturer & Co-Director of the Immigration Law Clinic
University of California-Davis School of Law
Jason C. DeSanto
Senior Lecturer
Northwestern University Pritzker School of Law
Sharon Dolovich
Professor of Law
UCLA School of Law
Director
UCLA Prison Law & Policy Program
Bryan K. Fair
Thomas E. Skinner Professor of Law
Hugh E. Culverhouse Jr. School of Law
at the University of Alabama
James Forman, Jr.
Professor of Law
Yale Law School
Nicole B. Godfrey
Visiting Assistant Professor
University of Denver Sturm College of Law
G.S. Hans
Assistant Clinical Professor of Law
Vanderbilt Law School

3a
Taja-Nia Henderson
Professor
Rutgers Law School
Shon Hopwood
Associate Professor of Law
Georgetown University Law Center
Danielle Jefferis
Clinical Fellow
University of Denver Sturm College of Law
Jennifer Kinsley
Professor of Law & Associate Dean
for Professional Development
Northern Kentucky University Chase College of Law
Andrew M. Koppelman
John Paul Stevens Professor of Law
Northwestern University Pritzker School of Law
Seth F. Kreimer
Kenneth W. Gemmill Professor of Law
University of Pennsylvania Law School
Gregg P. Leslie
Executive Director, First Amendment Legal Clinic
Sandra Day O’Connor College of Law
at Arizona State University
Lyrissa Lidsky
Dean & Judge C.A. Leedy Professor of Law
University of Missouri School of Law

4a
Jules Lobel
Bessie McKee Walthour Endowed Chair
& Professor of Law
University of Pittsburgh Law School
Daniel E. Manville
Director, Civil Rights Clinic
Michigan State University College of Law
Justin Marceau
Professor of Law & Animal Legal Defense Fund
Professor
University of Denver Sturm College of Law
Hope R. Metcalf
Clinical Lecturer in Law & Research Scholar in Law
Yale Law School
Jamelia N. Morgan
Associate Professor of Law & Robert D. Glass
Research Scholar
University of Connecticut School of Law
Michael B. Mushlin
Professor of Law
Elisabeth Haub School of Law at Pace University
Martin H. Redish
Louis & Harriet Ancel Professor of Law & Public Policy
Northwestern University Pritzker School of Law
Keramet Reiter
Associate Professor of Criminology, Law and
Society & Law
University of California Irvine School of Social Ecology

5a
Ira P. Robbins
Barnard T. Welsh Scholar and Professor of Law
American University, Washington College of Law
Laura Rovner
Professor
University of Denver Sturm College of Law
David Rudovsky
Senior Fellow
University of Pennsylvania Law School
Margo Schlanger
Wade H. & Dores M. McCree Collegiate Professor of Law
University of Michigan Law School
Andrew J. Schwartzman
Lecturer in Law
Georgetown University Law Center
David M. Shapiro
Clinical Associate Professor of Law
Northwestern University Pritzker School of Law
Jonathan Simon
Adrian A. Kragen Professor of Law
University of California-Berkeley School of Law
Rodney Smolla
Dean & Professor of Law
Delaware Law School at Widener University
Dean Spade
Associate Professor of Law
Seattle University School of Law

6a
Geoffrey R. Stone
Edward H. Levi Distinguished Service Professor of Law
University of Chicago Law School
Laura Weinrib
Professor of Law
University of Chicago Law School
Carter C. White
Lecturer & Supervising Attorney of the Civil Rights Clinic
University of California-Davis School of Law



 

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