Skip navigation

Amicus Curiae Brief in the US Supreme Court for PLN Advertisers

Download original document:
Brief thumbnail
This text is machine-read, and may contain errors. Check the original document to verify accuracy.
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 FOR PRISON LEGAL NEWS’
ADVERTISERS AS AMICI CURIAE IN SUPPORT
OF PETITIONER
Bruce E. H. Johnson
Counsel of Record
Caesar Kalinowski
Davis Wright Tremaine LLP
Attorneys for Amici Curiae
1201 Third Avenue, Suite 2200
Seattle, WA 98101
(206) 757-8069
brucejohnson@dwt.com
caesarkalinowski@dwt.com

LEGAL PRINTERS

LLC,

Washington DC ! 202-747-2400 ! legalprinters.com

TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ................................... iii
INTEREST OF AMICI CURIAE ............................ 1
SUMMARY OF ARGUMENT.................................. 2
ARGUMENT ............................................................ 3
I. Florida’s Suppression of Free Speech in the
Prison Context Is Unconstitutional Because
It Is Not Reasonably Related to Neutral
Penological Objectives ........................................ 7
A. Florida’s Regulations and Their
Application Are Overbroad, Arbitrary,
Underinclusive, and Only Remotely or
Indirectly Related to Its Avowed
Objectives....................................................... 8
1. Florida’s regulations are overbroad ........ 9
2. Florida’s regulations are arbitrary ........ 11
3. Florida’s regulations are
underinclusive ........................................ 13
4. Florida’s regulations are too remote
and attenuated from their purported
objectives ................................................ 15
B. Florida’s Avowed Penological Objectives
Are Not Neutral in this Context ................. 17
i

II. Affirming the Eleventh Circuit’s Suppression
of First Amendment Rights in this Context Is
Inconsistent with Other Circuits and Would
Lead to Absurd Results .................................... 18
CONCLUSION ....................................................... 20
APPENDIX (DESCRIPTIONS OF AMICI
CURIAE) .......................................................... A-1

ii

TABLE OF AUTHORITIES
Page(s)
Cases
Ahlers v. Rabinowitz,
684 F.3d 53 (2d Cir. 2012) ...................................19
Aikens v. Jenkins,
534 F.2d 751 (7th Cir. 1976)................................13
Allen v. Coughlin,
64 F.3d 77 (2d Cir. 1995) .....................................13
Amatel v. Reno,
156 F.3d 192 (D.C. Cir. 1998) ..............................19
Ashker v. California Dep’t of Corr.,
350 F.3d 917 (9th Cir. 2003)..................................9
Bantam Books, Inc. v. Sullivan,
372 U.S. 58 (1963)..................................................2
Beard v. Banks,
548 U.S. 521 (2006)................................................5
Bigelow v. Virginia,
421 U.S. 809 (1975)................................................4
Clement v. Cal. Dep’t of Corr.,
364 F.3d 1148 (9th Cir. 2004)......................3, 9, 10
Crime Justice & Am., Inc. v. Honea,
876 F.3d 966 (9th Cir. 2017)................................17

iii

Crofton v. Roe,
170 F.3d 957 (9th Cir. 1999).................... 10, 11, 12
Edenfield v. Fane,
507 U.S. 761 (1993)................................................2
Gregory v. Auger,
768 F.2d 287 (8th Cir. 1985)................................19
Griffin v. Lombardi,
946 F.2d 604 (8th Cir. 1991)............................8, 19
Jacklovich v. Simmons,
392 F.3d 420 (10th Cir. 2004)................................9
Jackson v. Pollard,
208 F. App’x 457 (7th Cir. 2006) .........................14
Lindell v. Frank,
377 F.3d 655 (7th Cir. 2004)..........................10, 11
Manual Enterprises, Inc. v. Day,
370 U.S. 478 (1962)................................................4
Martucci v. Johnson,
944 F.2d 291 (6th Cir. 1991)................................19
Morrison v. Hall,
261 F.3d 896 (9th Cir. 2001)................................11
Muhammad v. Pitcher,
35 F.3d 1081 (6th Cir. 1994)..........................12, 14
Murphy v. Missouri Dep’t of Corr.,
814 F.2d 1252 (8th Cir. 1987)........................10, 11
iv

Nasir v. Morgan,
350 F.3d 366 (3d Cir. 2003) .................................16
Pell v. Procunier,
417 U.S. 817 (1974)..........................................4, 21
Pepperling v. Crist,
678 F.2d 787 (9th Cir. 1982)................................10
Perry v. Sec’y, Fla. Dep’t of Corr.,
664 F.3d 1359 (11th Cir. 2011)..............................4
Pitt News v. Pappert,
379 F.3d 96 (3d Cir. 2004) ......................... 4, 15, 16
Prison Legal News v. Cook,
238 F.3d 1145 (9th Cir. 2001)..............................12
Prison Legal News v. Lehman,
397 F.3d 692 (9th Cir. 2005)................................15
Prison Legal News v. Sec’y, Fla. Dep’t of
Corr.,
890 F.3d 954 (11th Cir. 2018)...................... passim
Procunier v. Martinez,
416 U.S. 396 (1974)...................................... passim
Ramirez v. Pugh,
379 F.3d 122 (3d Cir. 2004) ...........................10, 11
Rowe v. Shake,
196 F.3d 778 (7th Cir. 1999)................................19

v

Simon & Schuster, Inc. v. Members of
New York State Crime Victims Bd.,
502 U.S. 105 (1991)................................................4
Sutton v. Rasheed,
323 F.3d 236 (3d Cir. 2003) .................................13
Thongvanh v. Thalacker,
17 F.3d 256 (8th Cir. 1994)..................................12
Thornburgh v. Abbott,
490 U.S. 401 (1989)...................................... passim
Turner v. Safley,
482 U.S. 78 (1987)........................................ passim
Constitutional Provisions
U.S. Constitution, First Amendment ............... passim
Codes
Florida Administrative Code 33501.401(3) .............................................................10
Florida Administrative Code 33501.401(3)(l) .................................................6, 8, 12
Florida Administrative Code 33501.401(3)(m) ...............................................6, 8, 13
Rules
Supreme Court Rule 37.6 ...........................................1

vi

INTEREST OF AMICI CURIAE 1
Prison Legal News is an award-winning monthly
publication that focuses on prisoners and content
related to prisons, prison reform, and legal issues.
Sometimes critical in its reporting on prisons and
prisoner abuses, the publication is disfavored by
many prison administrations and has often been
forced to vindicate its First Amendment rights in
court. Prison Legal News is funded by
advertisements, which are purchased by law firms,
human rights organizations, and other persons and
organizations offering prison-related services. Amici
are comprised of many of those advertisers, and seek
to vindicate Petitioner’s, and their own, First
Amendment rights.
Amici believe that this case presents an
opportunity for this Court to vindicate the right to
free speech—an essential and explicit part of the
liberty guaranteed by the First Amendment—
against arbitrary government suppression, where
the State of Florida has sought to dramatically
curtail the rights of a disfavored population. We urge
this Court to grant certiorari to protect Petitioner’s
free speech rights, as well as the attendant rights of
Prison Legal News’ advertisers and incarcerated
readers.
1 Pursuant to Rule 37.6, amici affirm that no counsel for
any party authored this brief in whole or in part. Further, no
person other than amici, its members, or its counsel made a
monetary contribution to fund its preparation or submission.
Both parties were notified and have consented to the filing of
this brief.

1

SUMMARY OF ARGUMENT
“Any system of prior restraints of expression
comes to this Court bearing a heavy presumption
against its constitutional validity.” Bantam Books,
Inc. v. Sullivan, 372 U.S. 58, 70 (1963). So when a
state government tramples the constitutionally
protected speech rights of a disfavored group—
especially in favor of arbitrary regulations and
remotely related objectives—this Court rightfully
should be skeptical. Otherwise, we risk crushing
fundamental and enumerated rights “in a headlong
rush to strip inmates of all but a vestige of free
communication with the world beyond the prison
gate.” Thornburgh v. Abbott, 490 U.S. 401, 422
(1989) (Stevens, J., concurring in part and dissenting
in part).
It is beyond argument that Petitioner Prison
Legal News (“PLN”), its contributing writers, and its
advertisers have a First Amendment right to reach
prisoners with their speech. See Edenfield v. Fane,
507 U.S. 761, 765 (1993). Here, however, the
Eleventh Circuit eviscerated those constitutional
rights. Based on nothing more than total deference
to prison administrators’ self-serving statements, the
court upheld the Florida Department of Corrections’
(“FDOC”) absurdly broad ban on all issues of Prison
Legal News. See Prison Legal News v. Sec’y, Fla.
Dep’t of Corr., 890 F.3d 954, 975 (11th Cir. 2018).
Although “this Court has afforded considerable
deference to the determinations of prison
administrators who . . . regulate the relations
between prisoners and the outside world,”

2

Thornburgh, 490 U.S. at 408, a prison regulation
that suppresses speech must still be “‘reasonably
related’ to legitimate penological objectives” to be
constitutional. Turner v. Safley, 482 U.S. 78, 87
(1987). Unlike here, other circuits have struck down
similar bans when the regulation, its objectives, or
its application are overbroad, arbitrary, remote or
speculative, underinclusive, or unrelated to
penological goals. See Clement v. Cal. Dep’t of Corr.,
364 F.3d 1148, 1152 (9th Cir. 2004). Because FDOC’s
regulations suppressing PLN’s freedom of speech are
all of those, and upholding them would lead to
absurd results, this Court should grant PLN’s
petition, reverse the Eleventh Circuit, and vindicate
the First Amendment.
ARGUMENT
“[T]here is no question that publishers who wish
to communicate with [subscribing prisoners] . . .
have a legitimate First Amendment interest in
access to prisoners.” Thornburgh, 490 U.S. at 408.2
“[S]ensitive to the delicate balance that prison
administrators must strike between the order and
security of the internal prison environment and the
legitimate demands of those on the ‘outside’ who
seek to enter that environment,” id. at 407, this
constitutional guarantee of freedom of speech and
press “assures the maintenance of our political
2

“Access is essential to lawyers and legal assistants
representing prisoner clients . . . [and] to journalists seeking
information about prison conditions[.]” Thornburgh, 490 U.S. at
407 (emphasis added).

3

system and an open society, . . . and secures the
paramount public interest in a free flow of
information to the people concerning public officials,”
Pell v. Procunier, 417 U.S. 817, 832 (1974) (internal
citations and quotations omitted).
A
publication’s
advertisements
are
also
unquestionably protected by the First Amendment.
Bigelow v. Virginia, 421 U.S. 809, 818 (1975)
(“[S]peech is not stripped of First Amendment
protection merely because it appears in [paid
commercial advertisements].”). And advertisers’
“First Amendment right to access inmates give[s
them] a liberty interest in seeing that their
advertisements reach the inmates.” Perry v. Sec’y,
Fla. Dep’t of Corr., 664 F.3d 1359, 1367–68 (11th Cir.
2011). In fact, an advertiser’s free speech rights are
often bound with its publisher’s because imposing
content-related restrictions on advertisements
“establishes a financial disincentive to create or
publish works with [that] particular content.” See
Simon & Schuster, Inc. v. Members of N.Y. State
Crime Victims Bd., 502 U.S. 105, 118 (1991).3

3

PLN avers that it has lost advertisers as a result of
FDOC’s regulations because those groups cannot reach their
key demographic. Therefore, allowing a publication to be
targeted through its advertising revenue in this case implicates
both groups’ First Amendment rights. See also Pitt News v.
Pappert, 379 F.3d 96, 106 (3d Cir. 2004) (“If government were
free to suppress disfavored speech by preventing potential
speakers from being paid, there would not be much left of the
First Amendment.”); Manual Enters., Inc. v. Day, 370 U.S. 478,
493 (1962) (“Since publishers cannot practicably be expected to
investigate each of their advertisers, and since the economic

4

In the prison context (like here), administrators
are shown deference in creating security and
rehabilitation-related regulations that may infringe
on constitutional rights. Thornburgh, 490 U.S. at
408. That deference, while considerable, is not
insurmountable. As this Court stated in Turner,
“[p]rison walls do not form a barrier separating
prison inmates from the protections of the
Constitution.” 482 U.S. at 84.
To determine if deference should be afforded to a
specific regulation, however, “we must determine
whether the governmental objective underlying the
regulations at issue is legitimate and neutral, and
that the regulations are rationally related to that
objective.” Turner, 482 U.S. at 87; Thornburgh, 490
U.S. at 414 (adopting the Turner standard in
incoming prison mail First Amendment challenges).
Prison authorities are required “to show more than a
formalistic logical connection between a regulation
and a penological objective.” Beard v. Banks, 548
U.S. 521, 535 (2006). Instead, they must show “a
reasonable relationship” that is not “so remote as to
render the policy arbitrary or irrational,” Turner,
482 U.S. at 89–90, in light of the “importance of the
rights at issue,” Banks, 548 U.S. at 533.

consequences of an order barring even a
periodical from the mails might entail heavy
a magazine publisher might refrain
advertisements from those whose own
conceivably be deemed objectionable[.]”).

5

single issue of a
financial sacrifice,
from accepting
materials could

Here, Florida requires a publication to be
impounded if it contains an advertisement that is
the focus of the publication, or is “prominent or
prevalent throughout the publication,” and promotes
three-way calling services, pen pal services, the
purchase of products or services with postage
stamps, or conducting a business in prison. Fla.
Admin. Code R. (“Code”) 33-501.401(3)(l). Likewise,
an entire publication may be impounded if a single
advertisement “presents a threat to the security,
order or rehabilitative objectives of the correctional
system or the safety of any person.” Code 33501.401(3)(m).
FDOC contends that these regulations relate to
“prison security and public safety” objectives because
prisoners could use the prohibited services to “harass
the general public,” “open doors to criminal activity,”
“solicit[] kind-hearted but gullible people and then
defraud[] them,” “us[e] their stamps as a currency in
the underground prison economy,” and “arrange
contraband smuggling” on the outside. Prison Legal
News, 890 F.3d at 975, 958–59.
PLN now challenges the Eleventh Circuit’s
decision to uphold FDOC’s practice of impounding
PLN’s flagship publication directed to inmates,
Prison Legal News. Since 2009, FDOC has enforced
its prohibition based on its claim that the publication
contains certain types of “problematic” advertising
that are “prominent or prevalent throughout the
publication.” See Code 33-501.401(3)(l). Because the
Eleventh Circuit’s holding was overly deferential to
FDOC in ruling that its regulation was reasonably

6

related to legitimate penological interests, it conflicts
with other circuits’ jurisprudence and leads to
absurd results. This Court should grant certiorari to
resolve those inconsistencies, clarify the law, and
vindicate PLN’s constitutional rights.
I. Florida’s Suppression of Free Speech in the
Prison Context Is Unconstitutional Because
It Is Not Reasonably Related to Neutral
Penological Objectives
In order to survive PLN’s challenge, FDOC is
required to show that its regulation suppressing all
of PLN and its advertisers’ speech—including
acceptable
and
objectionable
portions—is
(1) reasonably and rationally related to a
(2) legitimate, (3) neutral, (4) penological objective,
and not an (5) arbitrary, irrational, or an
exaggerated response. It cannot do so.
Here, FDOC’s regulation results in the total
prohibition of one publication’s legal articles, legal
services
advertising,
and
“objectionable”
advertisements that promote entirely benign and
lawful services. Because the deprivation of rights
here is so severe and FDOC’s reasons are so
attenuated and arbitrary, FDOC cannot meet its
legal burden to validate its unconstitutional
suppression of speech. Furthermore, because the
Eleventh Circuit’s decision is inconsistent with other
circuits’ First Amendment prison jurisprudence, this
Court should grant certiorari.

7

A. Florida’s
Regulations
and
Their
Application Are Overbroad, Arbitrary,
Underinclusive, and Only Remotely or
Indirectly Related to Its Avowed
Objectives
FDOC’s regulations are inherently arbitrary,
arbitrary as applied, overbroad, underinclusive, and
are not reasonably related to the proffered objectives
of the government. This Court and the circuit courts
have provided guidance as to whether a regulation is
reasonably or arbitrarily related to an objective. In
Procunier v. Martinez, 416 U.S. 396 (1974), for
example, this Court held that “outgoing personal
correspondence from prisoners-did not, by its very
nature, pose a serious threat to prison order and
security” and therefore was not related to the
defendant’s objectives. Thornburgh, 490 U.S. at 411.
But the reasonableness of the regulation has been
examined in other terms, including where the
regulation or its application is overbroad, arbitrary,
underinclusive, remote or speculative, or unrelated
to a penological objective.
The regulations at issue in this case, Codes 33501.401(3)(l), (m), are all of the above: unreasonably
overbroad, arbitrary, underinclusive, too remote and
speculative to be related, and only indirectly related
at best to penological objectives. That FDOC’s
regulation stands alone amongst the nation’s prisons
for its unconstitutional policy should signal as much.
See Griffin v. Lombardi, 946 F.2d 604, 608 (8th Cir.
1991) (“We can only say that the conflict between the
policies described in the affidavits ultimately filed by

8

prison officials, and the practices followed with
respect to other inmates and at other penitentiaries,
should give the officials some pause.”). In light of the
cases below, this Court should resolve the
inconsistencies created by the Eleventh Circuit and
hold that Codes 33-501.401(3)(l), (m) fail to meet the
standard for the first Turner factor.4
1. Florida’s regulations are overbroad
Overbroad regulations are not reasonably related
to government objectives because they prohibit or
censor more constitutionally protected materials
than necessary. See Thornburgh, 490 U.S. at 412
(commenting on Martinez and stating that “the
regulations at issue were broader than ‘generally
necessary’ to protect the interests at stake”).
Rejecting the government’s argument that “a fourmonth complete denial of access to constitutionally
protected materials (regardless of behavior) furthers
behavior management or rehabilitation,” the Tenth
Circuit in Jacklovich v. Simmons also based its
decision in part on the inadequacy of relationship
evidence and the availability of other reading
material. 392 F.3d 420, 429 (10th Cir. 2004).
Similarly, the Ninth Circuit in Clement held that
“security concerns” regarding coded messages were
overbroad and not sufficiently related to a

4

See Ashker v. Cal. Dep’t of Corr., 350 F.3d 917, 922 (9th
Cir. 2003) (“[I]f the prison fails to show that the regulation is
rationally related to a legitimate penological objective, we do
not consider the other factors.”).

9

prohibition of all internet-generated mail. 364 F.3d
at 1152.5
The regulations here are entirely overbroad
and
this
Court
should
presume
them
unconstitutional. Pepperling v. Crist, 678 F.2d 787,
791 (9th Cir. 1982) (“[T]he blanket prohibition
against receipt of the publications by any prisoner
carries
a
heavy
presumption
of
unconstitutionality.”). FDOC’s regulations mandate
that the entirety of Prison Legal News be impounded
if an issue contains one or more offending
advertisements. Code 33-501.401(3). So along with
allegedly objectionable material (which is still
protected by the First Amendment), the regulations
drag down and censor important legal and prisonrelated information contained in Prison Legal News
articles.

5

See also Lindell v. Frank, 377 F.3d 655, 660 (7th Cir.
2004) (holding that a ban on all newspaper clippings was
overbroad); Ramirez v. Pugh, 379 F.3d 122, 128 (3d Cir. 2004)
(refuting “that rehabilitation legitimately includes the
promotion of ‘values,’ broadly defined, with no particularized
identification of an existing harm towards which the
rehabilitative efforts are addressed”); Crofton v. Roe, 170 F.3d
957, 960 (9th Cir. 1999) (rejecting blanket ban on the receipt of
all gift publications because prison regulations already
demanded that publications originate with the publisher);
Murphy v. Mo. Dep’t of Corr., 814 F.2d 1252, 1256 (8th Cir.
1987) (accepting the government’s contention that Aryan
literature is “a clear and present danger to security of the
prison,” but holding “that a total ban is too restrictive a mail
censorship policy”).

10

What’s more, non-offending or innocuous
advertisements of all kinds are also suppressed
regardless of whether they promote or harm prison
objectives. Lawyers and civil rights organizations
seeking to inform prisoners of their rights have their
content blocked because they happen to appear in a
publication that advertises three-way calling.
Articles informing prisoners of important Supreme
Court cases are suppressed because pen pal services
have been advertised. Because there is no federal
constitutional right to counsel in federal habeas
proceedings (something routinely advertised in the
publication),
the
regulation
effectively
disenfranchises and blocks a disfavored group from
accessing legal assistance. Like banning all
newspaper clippings, Lindell, 377 F.3d at 660, or all
gift publications, Crofton, 170 F.3d at 960, “a total
ban is too restrictive a mail censorship policy” to be
constitutional in this instance. Murphy, 814 F.2d at
1256.
2. Florida’s regulations are arbitrary
When the government’s objectives or regulations
are arbitrary, irrational, or simply unrelated to a
penological interest, courts are invited to reject them
because they invite “prison officials and employees to
apply their own personal prejudices and opinions as
standards for prisoner mail censorship.” Martinez,
416 U.S. at 415. See also Ramirez v. Pugh, 379 F.3d
122, 128 (3d Cir. 2004) (rejecting a regulation that
makes “prisoners’ First Amendment rights . . .
subject to the pleasure of their custodians”);
Morrison v. Hall, 261 F.3d 896, 902–04 (9th Cir.

11

2001) (holding that “prohibiting inmates from
receiving mail based on the postage rate at which
the mail was sent is an arbitrary means of achieving
the goal of volume control”); Prison Legal News v.
Cook, 238 F.3d 1145, 1149–50 (9th Cir. 2001)
(holding that “tying the receipt of subscription nonprofit
newsletters
to
postal
service
rate
classifications” is arbitrary because that does not
promote security or relate to penological concerns).6
Like those other cases, the regulations here and
their application to Prison Legal News are entirely
arbitrary, focusing their ire on random services.
Most arbitrary, however, is the broad latitude and
powers of prison staff to apply the rules in disparate
and discriminatory ways, determining if (1) “the
advertisement is the focus of, rather than being
incidental to, the publication,” Code 33-501.401(3)(l),
(2) “the advertising is prominent or prevalent
throughout the publication,” id., or (3) “otherwise
presents a threat to the security, order or
6

See also Muhammad, 35 F.3d at 1085 (treating legal mail
from the Attorney General’s Office differently than “legal mail
from private attorneys, courts, and legal assistance
organizations” is arbitrary); Crofton, 170 F.3d at 960 (blanket
ban on the receipt of all gift publications is unrelated to
penological interests because “[t]he issue is not whether an
overall restriction on other gift items is legitimate. . . . the issue
is whether there is a penological justification for the restriction
on First Amendment rights”); Thongvanh v. Thalacker, 17 F.3d
256, 259 (8th Cir. 1994) (“English only” correspondence rule
was arbitrarily applied because languages other than Lao were
permitted, and blocking certain languages is not reasonably
related to a legitimate government interest).

12

rehabilitative objectives of the correctional system or
the safety of any person,” Code 33-501.401(3)(m).
This type of expansive, vague guidance gives
government employees unfettered control over
prisoners’ First Amendment rights, “invit[ing] prison
officials and employees to apply their own personal
prejudices and opinions as standards for prisoner
mail censorship.” Martinez, 416 U.S. at 415. See
Aikens v. Jenkins, 534 F.2d 751, 756–57 (7th Cir.
1976) (invalidating a regulation that generally
prohibits publications that are “in any way
subversive of institutional discipline”). Moreover, it
permits censorship of writings that “unduly
complain” about prison issues and thus “present[] a
threat to the [undefined] security, order or
rehabilitative objectives,” as determined by the sole
discretion of the prison officials. See Martinez, 416
U.S. at 415. Neither this Court nor any other circuit
courts have applied such broad deference to
decidedly discretionary suppression of speech.
3. Florida’s regulations are
underinclusive
Underinclusive regulations are often considered
unreasonable, especially when they ignore “the
existence of obvious, easy alternatives[.]” Turner,
482 U.S. at 90. In Sutton v. Rasheed, the Third
Circuit found it difficult “to discern a legitimate
penological interest in the denial of Nation of Islam
texts” when the prison allowed other religious texts.
323 F.3d 236, 254 (3d Cir. 2003). See also Allen v.
Coughlin, 64 F.3d 77, 80 (2d Cir. 1995) (rejecting ban
on newspaper clippings because the prison already

13

allowed full newspapers); Muhammad v. Pitcher, 35
F.3d 1081, 1085 (6th Cir. 1994) (rejecting mail policy
that only applied to one type of legal mail); Jackson
v. Pollard, 208 F. App’x 457, 461 (7th Cir. 2006)
(rejecting a prohibition on the “delivery of printed email responses” because “inmates may freely
influence the public by soliciting and receiving from
the public handwritten responses”).
The regulations here are as underinclusive as
they are overbroad. See Turner, 482 U.S. at 90.
Three-way calling advertisements are penalized, but
calling cellphones (which permit three-way calling)
is not. Pen pal service advertisements are
prohibited, yet the services themselves, as well as
having or writing to pen pals, are not. Cash-forstamps advertisements are prohibited, but stamps
are still made available despite the prison knowing
they will be used for currency. Business assistance
service advertisements are objectionable, yet finding
employment and gaining job skills is a critical part of
rehabilitative efforts. Effectively, FDOC’s policy
targets speech in the form of advertisements,
punishes that speech and any associated speech, and
then continues to ignore other ways that the
objectives are circumvented.
Thus, prisoners continue to have a plethora of
means to “harass the general public,” defraud “kindhearted but gullible people,” “arrange contraband
smuggling,” and “us[e] their stamps as a currency in
the underground prison economy.” Prison Legal
News, 890 F.3d at 958–59. Had the FDOC felt the
services offered in these advertisements were so

14

detrimental to prison security as to require a total
ban on publications featuring them, it entirely
missed more obvious and less restrictive means that
did not require trampling PLN or its advertisers’
First Amendment rights.
4. Florida’s
regulations
are
too
remote and attenuated from their
purported objectives
A regulation’s relation to an objective can also be
unreasonable when it is too remote or attenuated.
See Turner, 482 U.S. at 89–90 (stating that a
regulation cannot stand if “the logical connection
between the regulation and asserted goal is so
remote as to render the policy arbitrary or
irrational”). In Pitt News, the Third Circuit
examined whether alcohol venders could be banned
from placing advertisements with “those media
affiliated with [public] educational institutions[.]”
379 F.3d at 107 (Alito, J.). Holding that the
advertisers’ First Amendment rights had been
violated (in an admittedly non-prison context), the
court stated that “[i]n contending that underage and
abusive drinking will fall if alcoholic beverage ads
are eliminated . . ., the Commonwealth relies on
nothing more than ‘speculation’ and ‘conjecture.’” Id.
at 107–08. See also Prison Legal News v. Lehman,
397 F.3d 692, 695–96 (9th Cir. 2005) (striking down
a Washington regulation that prohibited receipt of
“non-subscription bulk mail and catalogs” because no
one had ever tried to “flood” a prison with
publications).

15

Like the government’s reasons for prohibiting the
advertisements in Pitt News, FDOC’s reasons for
suppressing speech are also too remotely related to
its objectives to be reasonable. See 379 F.3d at 107–
08. Invoking “prison security and public safety”
goals, FDOC asserts that there is a logical
connection between the regulations and its
penological goals. Not so. Unlike other constitutional
suppressions of the First Amendment in the prison
context, none of the “objectionable” advertisements
here pose a direct threat to anyone—much less
prisoners or staff. Accord Nasir v. Morgan, 350 F.3d
366, 372 (3d Cir. 2003) (regulation that prohibits
correspondence between current and former inmates
related to objectives because letters could contain
escape-related information or threats).
In fact, the only real connection between stopping
these advertisements from reaching prisoners and
penological objectives is an indirect one, speculative
and remote. To accept FDOC’s rationale, this Court
would have to assume that a prisoner might
(1) subscribe to an otherwise unobjectionable
publication, (2) see an advertisement for one of these
lawful-but-problematic services, (3) call the service,
(4) pay or otherwise secure funds for the service
itself, and (5) misuse the service (6) in a way that
could affect the prison’s safety and security. Surely
the connection between the regulations and
objectives must be more closely linked to permit the
suppression of PLN’s free speech for years on end.

16

B. Florida’s Avowed Penological Objectives
Are Not Neutral in this Context
This Court mandates that “the governmental
objective . . . be a legitimate and neutral one.”
Turner, 482 U.S. at 90. “PLN does not dispute that
the
[FDOC’s]
asserted
interests
for
the
impoundments—prison security and public safety—
are legitimate.” Prison Legal News, 890 F.3d at 967.
“Neutrality,” this Court has said, also means “the
regulation or practice in question must further an
important or substantial governmental interest
unrelated to the suppression of expression,”
Thornburgh, 490 U.S. at 415 (quoting Martinez, 416
U.S. at 413). See Crime Justice & Am., Inc. v. Honea,
876 F.3d 966, 978 n.2 (9th Cir. 2017) (finding the
regulation neutral because it did not distinguish
between content, but rather between manner of
solicitation).
Invoking the talismanic phrase “safety and
security” does not relieve FDOC of all duty to respect
PLN, its advertisers, or prisoners’ free speech rights.
While those oft-repeated objectives are legitimate
and facially neutral, see Thornburgh, 490 U.S. at
415, the regulations must further those objectives “in
a neutral fashion, without regard to the content of
the expression,” Turner, 482 U.S. at 90. As
previously discussed, the regulations are not
reasonably related and therefore cannot “further an
important or substantial governmental interest
unrelated to the suppression of expression.”
Thornburgh, 490 U.S. at 415 (quoting Martinez, 416
U.S. at 413).

17

Additionally, because these regulations can (and
are) arbitrarily applied, their application necessarily
is biased as to fulfilling FDOC’s objectives. Prison
officials are free to interpret the prominence,
prevalence, or threat of advertisements in ways that
discriminate against disfavored or critical content.
That the regulations target the prisoners’ ability to
communicate (with otherwise permissible services
and lawyers) by prohibiting a specific type of speech
(commercial advertisements), which are displayed in
a constitutionally protected medium (a prison and
law-related publication), to the detriment of other
unobjectionable speech (the entirety of Prison Legal
News and its other advertisers), conveys an illicit
relationship between FDOC’s true objectives and its
unconstitutional suppression of free speech.
II. Affirming
the
Eleventh
Circuit’s
Suppression of First Amendment Rights in
this Context Is Inconsistent with Other
Circuits and Would Lead to Absurd Results
In practical terms, FDOC’s regulations and its
prohibition of Prison Legal News are extremely
severe and if permitted, would lead to an absurd
neutering of the First Amendment in the prison
context. From 2009 through 2014, FDOC impounded
100 percent of all Prison Legal News issues,
unconstitutionally providing notice only 42 percent
of the time. See Prison Legal News, 890 F.3d at 977.
FDOC’s justification: prison security and public
safety related to the harassment or defrauding of
people outside of prison, and the prevention of
criminal activity. Based on these facts, not only does

18

FDOC’s policy depart from the rest of the country’s
prisons and courts’ jurisprudence, see Griffin, 946
F.2d at 608, but it also illuminates the path for other
prisons to cut off disfavored publishers from
subscribing prisoners and the protections afforded by
the First Amendment.
No other circuit has ever upheld a regulation that
applies such a broad sweeping ban on free speech.
Normally, permissible constitutional suppressions of
speech involve direct threats to prison safety and
security, Martucci v. Johnson, 944 F.2d 291, 296 (6th
Cir. 1991) (upholding regulation that withheld “mail
destined for a prisoner believed to be planning an
escape”), or crime-specific rehabilitation efforts,
Ahlers v. Rabinowitz, 684 F.3d 53, 64 (2d Cir. 2012)
(affirming prohibition on sexually explicit material
from a civilly committed sex offender); Amatel v.
Reno, 156 F.3d 192, 199 (D.C. Cir. 1998) (sexually
explicit material), and are short in duration or scope,
Rowe v. Shake, 196 F.3d 778, 782 (7th Cir. 1999)
(permitting prohibitions that “were relatively shortterm and sporadic”); Gregory v. Auger, 768 F.2d 287,
290 (8th Cir. 1985) (same).
Conversely in this case, the speech being targeted
is not hate speech nor does it represent a direct
threat to anyone at the prison. It is not linked to a
specific rehabilitative effort but instead prohibits
access to an entire publication to preclude viewing
advertisements for “problematic” services. And most
shockingly, the regulations’ duration is much longer
than those that have been upheld in other circuits.
To this day, PLN’s advertisers still cannot reach

19

their audience. Affirming the Eleventh Circuit, then,
would mean upholding a lengthy, indiscriminately
expansive bar on advertisements (of perfectly lawful
services) on the ground that it will indirectly help
prison goals.
Upholding FDOC’s regulation also means
opening the door for prisons to suppress any and all
incoming mail or publications, removing any vestige
of First Amendment rights in the prison context. All
that would be necessary, at least in the Eleventh
Circuit’s view, is for prisons to ban incoming speech
and invoke an indirect—yet admirable—penological
objective. Language books could be banned because
they enable prisoners to learn a means of
communication that guards cannot understand. The
Bible could be banned because it contains violent
stories, ostensibly leading to more violent prison
confrontations. Case law books could be banned
because they recount gruesome crimes or stoke
prisoners’ animosity towards the legal system.
Effectively, no written work could make its way
through prison bars so long as some portion of that
work included otherwise perfectly legal speech
deemed by a prison official to be “prevalent” and
“detrimental.” The First Amendment’s guarantee
that the government “shall make no law . . .
abridging the freedom of speech, or of the press”
simply demands more.
CONCLUSION
This Court has repeatedly said “there is no
question that publishers [like PLN] . . . have a
legitimate First Amendment interest in access to

20

prisoners.” Thornburgh, 490 U.S. at 408. With
regard to PLN’s incarcerated reader, he also “retains
those First Amendment rights that are not
inconsistent with his status as a prisoner or with the
legitimate penological objectives of the corrections
system.” Pell, 417 U.S. at 822. FDOC’s regulations—
and the Eleventh Circuit’s decision upholding
them—deny publishers, their advertisers, and prison
inmates their constitutionally protected right to free
speech. Applying that regulation in an overbroad,
arbitrary, and tenuous way, FDOC invokes vague
penological objectives and threats to broadly
suppress related and unrelated speech. We ask that
this Court deny such an affront to the Constitution,
grant PLN’s petition for certiorari, and reverse the
Eleventh Circuit’s decision.

RESPECTFULLY SUBMITTED
this day of October 15, 2018.
Bruce E. H. Johnson
Counsel of Record
Caesar Kalinowski
Davis Wright Tremaine LLP
Attorneys for Amici Curiae
1201 Third Avenue, Suite 2200
Seattle, WA 98101
(206) 757-8069
brucejohnson@dwt.com
caesarkalinowski@dwt.com

21



 

Prisoner Education Guide side

 

Federal Prison Handbook

 

Disciplinary Self-Help Litigation Manual

 

Federal Prison Handbook
Disciplinary Self-Help Litigation Manual