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Amicus Curiae Brief in the US Supreme Court for Prison Book Clubs

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No. 18-355

In the Supreme Court of the United States
PRISON LEGAL NEWS, PETITIONER
v.
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS
ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

BRIEF FOR AMICI CURIAE PRISON BOOKS CLUBS
IN SUPPORT OF PETITIONER

GREGORY M. LIPPER
Counsel of Record
CLINTON BROOK & PEED
1455 Pennsylvania Ave. NW
Suite 400
Washington, DC 20004
(202) 996-0919
glipper@clintonbrook.com

QUESTION PRESENTED

Whether the Florida Department of Corrections’
blanket ban of Prison Legal News violates Petitioner’s
First Amendment right to free speech and a free press.

(I)

II
TABLE OF CONTENTS

Page
Interests of Amici Curiae ............................................................. 1
Summary of Argument ................................................................. 3
Argument ........................................................................................ 4
I. The decision of the court of appeals gives prisons
nearly unfettered discretion to censor reading
materials, including books. .............................................. 4
A. Prison officials have tried to censor virtually
all types of books. ....................................................... 5
B. The more a book appeals to prisoners, the
more likely it is to be censored. .............................. 11
C. Book clubs also face arbitrary application of
logistical rules and outright bans on mailing
books to prisoners. ................................................... 16
II. Prison censorship of reading material impedes
prisoner education, to the detriment of both
prisoners and society at large. ...................................... 19
Conclusion ..................................................................................... 22

TABLE OF AUTHORITIES
Cases:
Couch v. Jabe,
737 F. Supp. 2d 561 (W.D. Va. 2010) ................................ 6
Mason v. United States,
170 A.3d 182 (D.C. 2007) .................................................. 12
Munson v. Gaetz,
673 F.3d 630 (7th Cir. 2012) ............................................ 10
Prison Legal News v. Livingston,
683 F.3d 201 (5th Cir. 2012) ............................................ 12
Singer v. Raemisch,
593 F.3d 529 (7th Cir. 2010) .............................................. 7
Statutes:
20 U.S.C. 1070a(b)(6) ............................................................ 21

III
Other Authorities:
Nick Anderson, Advocates Push To Renew Pell Grants
for Prisoners, Citing Benefits of Higher Education,
Wash. Post (Dec. 3, 2013),
https://tinyurl.com/ybsxg7n6 .......................................... 21
Neela Banerjee, Prisons To Restore Purged Religious
Books, N.Y. Times (Sept. 26, 2007),
https://tinyurl.com/y9twdyzl ............................................. 8
Books to Prisoners (@B2PSeattle), Twitter (June 20,
2018, 8:16 AM), https://tinyurl.com/yczj82p7 ............... 16
Books to Prisoners (@B2PSeattle), Twitter (July 24,
2018, 8:26 PM), https://tinyurl.com/yam6s9qm ............ 16
Books to Prisoners, Banned Books Lists,
https://tinyurl.com/y7byh7tj ......................................... 6, 8
Myesha Braden, et al., Opinion, Banning Literature in
Prisons Perpetuates System That Ignores Inmate
Humanity, USA Today (Mar. 9, 2018),
https://tinyurl.com/yb9dour9 ............................................ 8
Jonah Engel Bromwich, Why Are American Prisons so
Afraid of this Book?, N.Y. Times (Jan. 18, 2018),
https://tinyurl.com/y83qbodz .................................... 12, 21
Clay Calvert & Kara Carnley Murrhee, Big Censorship
in the Big House—A Quarter-Century After Turner
v. Safley: Muting Movies, Music & Books Behind
Bars, 7 Nw. J. L. & Soc. Pol’y 257 (2012) .................... 6, 7
Eric Dexheimer, Banned in Texas Prisons: Books and
Magazines that Many Would Consider Classics,
Austin-Am. Statesman (Sep. 1, 2012),
https://tinyurl.com/yajaql7u .................................... passim
Federal Bureau of Prisons, Stamps, Negotiable
Instrument & Other Returned to Sender (Dec. 6,
2016) ................................................................................... 16
Federal Bureau of Prisons, Stamps, Negotiable
Instrument & Other Returned to Sender (May 8,
2017) ..................................................................................... 9
Free Minds Book Club & Writing Workshop, The
Untold Story of the Real Me: Young Voices from
Prison (2015)..................................................................... 19

IV
Gadsden Correctional Facility, Notice of Rejection or
Impoundment of Publications (July 26, 2017)............... 9
Daniel A. Gross, New York Makes it Harder for
Inmates To Get Books, New Yorker (Jan. 9, 2018),
https://tinyurl.com/yawnbg9m ............................ 17, 21, 22
Daniel A. Gross, The Book that Changed My Life . . . In
Prison, Guardian (Jan. 19, 2018),
https://tinyurl.com/y9u8mhkt ............................. 11, 19, 20
Daniel A. Gross, The Encyclopedia Reader,
New Yorker (Sept. 13, 2016),
https://tinyurl.com/y8bocq46 .......................................... 11
Hardee Correctional Institution, Notice of Rejection or
Impoundment of Publications (Aug. 8, 2017) .............. 13
Debbie Holmes, Why Do Ohio Prisons Ban Books
About Learning To Code?, WOSU (Sept. 5, 2017),
https://tinyurl.com/y97nkc9v ............................................ 8
John J. Lennon, Opinion, For Prisoners Like Me,
Books are a Lifeline. Don’t Cut It, Guardian (Feb. 4,
2018), https://tinyurl.com/yb84whuh ............................. 20
John J. Lennon, Opinion, From Attica Prisoners to
Harvard Law Students: A Message from Behind the
Wall, Harv. L. Rec. (Oct. 18, 2016),
https://tinyurl.com/ydcp4msj .......................................... 21
Letter from A. Washington-Adduci to Chicago Books to
Women in Prison (Dec. 5, 2015)...................................... 11
Letter from Inmate to Chicago Books to Women in
Prison (July 7, 2018)........................................................... 9
Jodi Lincoln, Opinion, Incarcerated Pennsylvanians
Now Have To Pay $150 To Read. We Should All Be
Outraged., Wash. Post (Oct. 11, 2018),
https://tinyurl.com/y9canptf ........................................... 18
Ann E. Marimow, Federal Prisons Abruptly Cancel
Policy that Made it Harder, Costlier for Inmates To
Get Books, Wash. Post (May 3, 2018),
https://tinyurl.com/ybkb2ya4 .......................................... 18
Ann E. Marimow, In a Reversal, Md. Prison Officials
Lift Limits on Access to Books for Inmates, Wash.
Post (June 11, 2018), https://tinyurl.com/yaj26ro3 ...... 17

V
Lauren McGaughy, Why Do Texas Prisons Ban
Certain Books, Such as “Freakonomics,” but not
Hitler’s “Mein Kampf”?, Dallas Morning News
(Nov. 27, 2017), https://tinyurl.com/y992t55 ... 5, 8, 14, 15
Samantha Melamed, One Review of Pa. Prisons’ Pricey
eBooks: “Books That Are Available for Free, That
Nobody Wants Anyway”, Phil. Inquirer (Sept. 21,
2018), https://tinyurl.com/y8jzbh99 .................... 18, 19, 22
North Carolina Dep’t of Public Safety, Master List of
Disapproved Publications: 5/16/2014 to
5/16/2015 ................................................................ 7, 8, 9, 10
Notice from Charles County Detention Center to Free
Minds Book Club .............................................................. 17
PA Department of Corrections (@CorrectionsPA),
Twitter (Sept. 14, 2018),
https://tinyurl.com/y9d24wuh ......................................... 18
Prison Book Program (@prisonbookprog), Twitter
(Sept. 16, 2018), https://tinyurl.com/y9mnzfem ............ 18
Corrina Regnier, ACLU Nat’l Prison Prison Project,
What Do Batman and The Onion Book of Known
Knowledge Have in Common? Censorship, the
ACLU, and Arizona Prisons., Speak Freely (Sept.
30, 2015), https://tinyurl.com/yayk87dx..................... 7, 11
Margo Schlanger, Inmate Litigation, 116 Harv. L. Rev.
1555 (2003) ......................................................................... 19
The Sentencing Project, Fact Sheet: Trends in U.S.
Corrections (June 2018),
https://tinyurl.com/y7c932wz .......................................... 21
Adam Serwer, Books Behind Bars, Am. Prospect (Apr.
4, 2011), https://tinyurl.com/ya8nax62 ............................. 6
David M. Shapiro, Lenient in Theory, Dumb in Fact:
Prison, Speech, and Scrutiny, 84 Geo. L. Rev. 972
(2016) .......................................................................... passim
Dan Slater, Texas Prisons Banned My Book About
Texas Prisoners, Slate (Sept. 27, 2016),
https://tinyurl.com/zq2ut2x ................................. 13, 14, 15

VI
Texas Civil Rights Project, Banned Books in the Texas
Prison System: How the Texas Department of
Criminal Justice Censors Books Sent to Prisoners
(2011) .......................................................................... passim
Vivian Wang, Cuomo Halts a Controversial Prison
Package Policy, N.Y. Times (Jan. 12, 2018),
https://tinyurl.com/y84k2op8 .......................................... 17
Andrew P. Wilper et al., The Health and Health Care of
US Prisoners: Results of a Nationwide Survey, 99
Am. J. Pub. Health 666 (2009) ........................................ 10

In the Supreme Court of the United States
No. 18-355
PRISON LEGAL NEWS, PETITIONER
v.
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS
ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

BRIEF FOR AMICI CURIAE PRISON BOOK CLUBS
IN SUPPORT OF PETITIONER

INTERESTS OF AMICI CURIAE

Amici provide books and other reading and educational materials to people in prison.1
Asian American Writers’ Workshop is an arts organization that develops and distributes creative writing
by Asian-American authors. As part of a new project,
AAWW is also publishing creative work by incarcerated
and detained writers.

1

As required by Rule 37.6, amici affirm that no counsel for a party
authored this brief in whole or in part and that no person other than
amici and their counsel made a monetary contribution to its preparation or submission. The parties’ letters consenting to the filing of this
brief have been filed with the Clerk’s office.

(1)

2
Book ’em, a project of The Big Idea Bookstore and
The Thomas Merton Center, is a Pittsburgh-based all-volunteer nonprofit organization that sends free educational
books and quality reading materials to prisoners and
prison libraries in Pennsylvania and across the country.
Books Beyond Bars, a project of the Center for Appellate Litigation, provides books and other reading materials to prisoners across New York state.
Books Through Bars is a Philadelphia-based all-volunteer organization that has operated for nearly thirty
years and that sends books to people incarcerated in the
Mid-Atlantic region. Every year it sends approximately
7,000 book packages.
Chicago Books to Women in Prison sends books to
women in prison across the country. In 2017 alone, it sent
over 12,000 books to incarcerated women.
Free Minds Book Club uses books, creative writing,
job-readiness training, and community support to help
District of Columbia youths and adults at the DC Jail, in
federal prison, and in reentry. It offers, among other services, both new books and a weekly book club at the DC
Jail, and a correspondence-based book club and writing
program for people in federal prison.
NYC Books Through Bars is an all-volunteer organization that sends donated books to people who are incarcerated in state and federal facilities across the country.
Prison Book Program, based in Quincy, MA, sends
books and a self-published legal primer to prisoners in
forty-four states. The program was founded in 1972 and
in 2017 served more than 12,000 people.
Prisoners Literature Project is an all-volunteer
group, sponsored by Berkeley’s Grassroots House, that
sends books directly to prisoners throughout the United
States. Each year, PLP sends out about 36,000 books.

3
Amici seek to ensure that prisoners have access to
reading materials, including high-quality books that prisoners are interested in reading, to promote their education, rehabilitation, and reintegration into society. But
amici’s efforts to do so often collide with censorship by
prison officials. Accordingly, amici seek to ensure that
prison censorship of reading materials receives appropriate scrutiny under the First Amendment.
SUMMARY OF ARGUMENT

The court of appeals offered multilevel deference to
the Florida Department of Corrections, relieving it of any
obligation to show actual or even likely harm, and instead
adopting reasoning that could be used to justify banning
virtually any publication, including nearly any book. Using this reasoning, the court of appeals upheld the censorship of Prison Legal News, even though “there is no evidence that ads in its magazine have ever caused a security
breach.” App. 26.
As amici are all too aware, this approach is a censor’s
dream. With enough time and ingenuity, prison officials
and their lawyers can usually imagine some way in which
some aspect of a particular written work might conceivably have some marginal effect on prison order or security.
And if courts deferred to even the most attenuated of
these rationales, then virtually all prison censorship
would be immune from First Amendment scrutiny.
Hyperbolic as these concerns may seem, amici have
experienced firsthand just how aggressively prison officials will censor reading materials, including books. In
fact, prisons across the country have censored an astonishing number and variety of books—fiction and nonfiction, classic and contemporary, educational books and
books for entertainment, books that profile the prison system or criticize the justice system, and many, many more.

4
The reasoning used by the court of appeals risks protecting this censorship—including and especially censorship
of books that prisoners are most likely to actually want to
read—and even offers a roadmap for prison officials to
justify broader, blanket bans on direct mailing of all
books.
The scale and scope of such book bans offends the
First Amendment in and of itself. And the resulting harms
to prisoners are real and profound. For a population with
low rates of education and literacy, access to compelling
books can be a godsend—for both prisoners and the rest
of us, who benefit when prisoners have constructive outlets and better odds of rehabilitation. Broad censorship
deprives prisoners of good books and also makes it harder
for amici and other cash-strapped prison book clubs to do
their jobs efficiently and effectively. And for many prisoners, receiving books is their best and perhaps only educational opportunity: Prisoners have limited access to more
formal education, and prison libraries rarely fill the gaps.
In upholding the ban on Prison Legal News, the court
of appeals has paved the way for decisions upholding even
broader censorship, including censorship of books on
which prisoners depend. Such a result offends the First
Amendment and disserves both prisoners and those
around them.
ARGUMENT
I. The decision of the court of appeals gives prisons
nearly unfettered discretion to censor reading materials, including books.
According to the court of appeals, the Florida Department of Corrections could censor Prison Legal News because (1) certain types or quantities of certain services
might marginally increase the risk of problems or crime

5
by prisoners, and (2) certain sizes of ads about certain services might make prisoners marginally more likely to use
those services that might marginally increase the risk of
crime or other problems. See App. 11, 30–34, 38 & n.14.
These multiple layers of deference—stitched together
largely by speculation about marginal increases in the
risk of potential harms—will enable prison officials to censor nearly anything, including a wide range of books sent
to prisoners by book clubs.
A. Prison officials have tried to censor virtually all
types of books.
Left to their own devices, prison officials can and will
try to censor a wide range of books.
1. Prisons have banned a variety of novels, both classic
and contemporary. With respect to the classics, for instance, Texas has banned novels by Pulitzer Prize winners Alice Walker, Robert Penn Warren, and John Updike; National Book Award winners Joyce Carol Oates
and Annie Proulx; and Nobel Prize winners Pablo Neruda
and Andre Gide. See Eric Dexheimer, Banned in Texas
Prisons: Books and Magazines that Many Would Consider Classics, Austin-Am. Statesman (Sep. 1, 2012),
https://tinyurl.com/yajaql7u. It has banned Alice Walker’s
The Color Purple, which won the Pulitzer Prize and National Book Award. Lauren McGaughy, Why Do Texas
Prisons Ban Certain Books, Such as “Freakonomics,”
but not Hitler’s “Mein Kampf”?, Dallas Morning News
(Nov. 27, 2017), https://tinyurl.com/y992t55c. And it has
banned Burmese Days by George Orwell. Texas Civil
Rights Project, Banned Books in the Texas Prison System: How the Texas Department of Criminal Justice Censors Books Sent to Prisoners 40 (2011) (“Banned Books”),
https://tinyurl.com/ydawtj5f. Further, until it was blocked
by a court, a prison in Virginia even banned James Joyce’s

6
Ulysses—widely considered to be one of the finest English-language novels ever written. See Clay Calvert &
Kara Carnley Murrhee, Big Censorship in the Big
House—A Quarter-Century After Turner v. Safley: Muting Movies, Music & Books Behind Bars, 7 Nw. J. L. &
Soc. Pol’y 257, 290–292 (2012) (citing Couch v. Jabe, 737
F. Supp. 2d 561 (W.D. Va. 2010)).
Popular fiction often has fared no better. Virginia has
banned novels by Louis L’Amour, James Patterson, John
Grisham, and Walter Mosley. See Books to Prisoners,
Banned Books Lists, https://tinyurl.com/y7byh7tj; Adam
Serwer, Books Behind Bars, Am. Prospect (Apr. 4, 2011),
https://tinyurl.com/ya8nax62. Texas has banned four novels by John Grisham, Dexheimer, supra, and 28 novels by
Donald Goines, a prominent author of urban fiction, which
is “primarily written by African American authors and
touches on themes of race, culture, and poverty,” Banned
Books, supra, at 19. For its part, the District of Columbia
jail at one point banned mystery novels by George Pelecanos because his mystery novels, like all mystery novels,
discuss crimes. See David M. Shapiro, Lenient in Theory,
Dumb in Fact: Prison, Speech, and Scrutiny, 84 Geo. L.
Rev. 972, 997 (2016).
Although typically addressing different worlds altogether, science fiction and fantasy novels have likewise attracted scrutiny from prison censors. Pennsylvania has
banned Dungeons & Dragons manuals, claiming that materials for the classic fantasy game violate the ban on
“writings which advocate violence, insurrection, or guerrilla warfare against the government or any of its facilities
or which create a danger within the context of the correctional facility.” Banned Books Lists, supra. A prison in
Wisconsin also banned Dungeons & Dragons materials,
insisting that the game promotes gang activity; the ban

7
was upheld by the Seventh Circuit. See Calvert & Murrhee, supra, at 272 (citing Singer v. Raemisch, 593 F.3d
529 (7th Cir. 2010)).
D&D aside, Arizona has banned Dragonology: The
Complete Book of Dragons, see Corrina Regnier, ACLU
Nat’l Prison Prison Project, What Do Batman and The
Onion Book of Known Knowledge Have in Common?
Censorship, the ACLU, and Arizona Prisons, Speak
Freely (Sept. 30, 2015), https://tinyurl.com/yayk87dx;
North Carolina has banned the Encyclopedia of 5,000
Spells and the Encyclopedia of Science Fiction, see North
Carolina Dep’t of Public Safety, Master List of Disapproved Publications: 5/16/2014 to 5/16/2015 (on file with
counsel for amici). Classic myths are targets, too: Arizona
has banned Mythology of Greece and Rome. See Regnier,
supra.
2. Prisons have likewise censored books about history
and politics. When amicus NYC Books Through Bars
sent a book about the Holocaust to a prisoner in Tennessee, the prison rejected it because one page had a photo of
the nude bodies of people killed by the Nazis. Texas has
banned World War II: An Illustrated History of Crisis
and Courage, by former Senator Bob Dole. Dexheimer,
supra. And although it later reversed its decision, a federal prison in Colorado stopped a prisoner from receiving
Barack Obama’s Dreams from My Father and The Audacity of Hope—on the ground that President Obama’s
memoirs were “potentially detrimental to national security.” Shapiro, supra, at 997.
Prisons have also banned a wide range of nonfiction
about arts and culture: high culture, low culture, and culture in between. Texas has banned books of paintings by
da Vinci, Picasso, and Michelangelo. Dexheimer, supra.
North Carolina has banned Warner Bros. Animation Art
and Inside Beatlemania’s With the Beatles. See Master

8
List of Disapproved Publications, supra. Gadsden Correctional Facility in Florida prohibited amicus Chicago
Books to Women in Prison from sending books about origami. And Texas has banned a pop-up version of A Charlie Brown Christmas, see Myesha Braden, et al., Opinion,
Banning Literature in Prisons Perpetuates System That
Ignores Inmate Humanity, USA Today (Mar. 9, 2018),
https://tinyurl.com/yb9dour9—as well as Where’s Waldo?
Santa Spectacular, because it “contains stickers,”
McGaughy, supra.
3. Remarkably, censors have invoked prison security
to ban a number of religious books. In 2007, the Federal
Bureau of Prisons tried to remove from its chapel libraries any book that could “incite violence.” After consulting
“[u]nidentified religious experts,” Neela Banerjee, Prisons To Restore Purged Religious Books, N.Y. Times
(Sept. 26, 2007), https://tinyurl.com/y9twdyzl, the Bureau
assembled a banned-book list comprising “tens of thousands” of works, including essential Jewish texts by Moses Maimonides and Rabbi Harold Kushner’s When Bad
Things Happen to Good People, see Shapiro, supra, at
1002. Congress had to step in. Ibid. Religious books have
been banned elsewhere; for example, Texas has banned
books about the Wiccan religion because they purportedly
contained “codes.”	Banned Books Lists, supra.
4. Prisons have banned numerous works of education,
vocation, and reference. Arizona has banned educational
texts ranging from Sketching Basics, E=MC2: Simple
Physics, and Arizona Wildlife Views. See Banned Books
Lists, supra. Ohio prisons have banned books on coding
software. See Debbie Holmes, Why Do Ohio Prisons Ban
Books About Learning To Code?, WOSU (Sept. 5, 2017),
https://tinyurl.com/y97nkc9v. North Carolina has banned
How To Draw and Paint Birds. See Master List of Disapproved Publications, supra. A prison in New York

9
banned a book of lunar maps—“maps of the Moon”—
claiming that it would “present risks of escape.” Shapiro,
supra, at 997. Texas banned The Elements of Persuasion:
Use Storytelling to Pitch Better, Sell Faster and Win
More Business, because it “[c]ould be used to persuade
others.” Dexheimer, supra. Not even man’s best friend
has been immune: North Carolina prisons have banned
Dog Encyclopedia and Encyclopedia of Dog Breeds. See
Master List of Disapproved Publications, supra.
Amici have met these barriers directly. NYC Books
Through Bars received a rejection notice after sending a
psychology textbook to a prisoner in Connecticut; the
prison deemed the academic text “dangerous to the good
operation of the facility.” Chicago Books to Women in
Prison was unable to send to a prisoner a book about home
wiring, even though the prison itself offered a class on wiring. See Letter from Inmate to Chicago Books to Women
in Prison (July 7, 2018) (on file with counsel for amici).
The same goes for cookbooks, see Federal Bureau of Prisons, Stamps, Negotiable Instrument & Other Returned to
Sender (May 8, 2017) (on file with counsel for amici)—including a book entitled Prison Ramen: Recipes and Stories from Behind Bars, which the prison’s Literature Review Committee decided “contains subject matter that is
inadmissible,” Gadsden Correctional Facility, Notice of
Rejection or Impoundment of Publications (July 26,
2017) (on file with counsel for amici).
Prison censors have also and inexplicably banned dictionaries, which are commonly requested by prisoners
and on which they depend when encountering unfamiliar
words when reading other books. At one point, North Carolina banned all dictionaries, see Banned Books Lists, supra, including English-language dictionaries like Webster’s All-In-One Dictionary & Thesaurus and foreign-

10
language dictionaries such as German Unabridged Dictionary, see Master List of Disapproved Publications,
supra.
Some prisoners, including especially vulnerable prisoners, depend on medical-reference books to improve the
medical care that they receive in prison; prisoners receive
healthcare of uneven quality and have higher rates of
many ailments than does the general population, see generally Andrew P. Wilper et al., The Health and Health
Care of US Prisoners: Results of a Nationwide Survey,
99 Am. J. Pub. Health 666 (2009). Yet medical-reference
books have been censored. To take one example, Chicago
Books to Women in Prison has been unable to send The
Pill Book to some prisons. The book informs readers
about medicines used to treat illnesses, and discusses the
unique needs of senior citizens, women who are pregnant
or breastfeeding, children, and other groups.
A Wisconsin prison, meanwhile, forbade a prisoner to
order Physicians’ Desk Reference. Shapiro, supra, at 975.
The prison offered the rationale “DRUGS,” even though
the same book was in the prison library. See id. at 990 (citing Munson v. Gaetz, 673 F.3d 630, 631, 637 (7th Cir.
2012)). And a prison in Arizona prevented a prisoner from
receiving Gray’s Anatomy, because the prisoner “might
request more health care” after learning more about his
body, and because certain diagrams of human anatomy
were “sexually explicit.” Id. at 996–997. The prison also
did not let the prisoner remove the offending diagrams,
id. at 997, so he never received this standard medical text.
4. Banned-books lists, moreover, are often hopelessly
inconsistent. Arizona prisons have accepted Bowhunt
America but excluded Crossbow Connection; permitted
How To Draw Graffiti Style but prohibited 1000 Ideas for
Graffiti and Street Art; and allowed The Complete Guide

11
to Natural Home Remedies but not The Herbal Handbook. See Regnier, supra. One prison banned novels by
John Updike, on the ground that they were salacious, but
allowed prisoners to read Maxim and Playboy. Shapiro,
supra, at 975. Texas has banned Guns and Ammo but allowed Guns Illustrated. Banned Books, supra, at 3. It has
also allowed prisoners to read U.S. Army manuals on
counter-guerrilla and counter-insurgency tactics, as well
as Che Guevara’s Guerrilla Warfare, which informs readers how to build mortars and Molotov cocktails. Id. at 45.
B. The more a book appeals to prisoners, the more
likely it is to be censored.
Prison book clubs seek to supply books that will actually resonate with prisoners, so that they will be motivated
to start the book, keep reading the book, and pick up another book once they are done. See, e.g., Daniel A. Gross,
The Book that Changed My Life . . . In Prison, Guardian
(Jan. 19, 2018), https://tinyurl.com/y9u8mhkt (describing
how Piper Kerman’s Orange is the New Black: My Year
in a Women’s Prison became “a hot item” among prisoners because it revealed that “someone who was in our position got out and wrote a book”); Daniel A. Gross, The
Encyclopedia Reader, New Yorker (Sept. 13, 2016),
https://tinyurl.com/y8bocq46 (prisoner describes becoming interested in reading after he received The Sicilian,
Mario Puzo’s sequel to The Godfather). Meaningful books
are especially important for prisoners who are young,
lightly educated, or new to regular reading.
Yet prisons seem especially likely to censor books that
are likely to interest prisoners most. Some prisons may do
so out of exaggerated concern for institutional security,
and others may wish to deter prisoners from reading
books critical of prisons or the criminal-justice system.
See, e.g., Letter from A. Washington-Adduci to Chicago
Books to Women in Prison (Dec. 5, 2015) (on file with

12
counsel for amici) (“Warden Letter”) (federal warden requesting that amicus send books to prison, but instructing that books must “NOT contain prison escape, racial
issues, references to drugs, crime, gangs, and/or prison
conditions”). In justifying the ban on Prison Legal News,
the court of appeals noted that the publication’s ads appeared “along with articles about inmate phone scams, the
role of Green Dot cards in prison gang extortion schemes,
and the nationwide problem with smuggling contraband
like drugs and cell phones into prisons.” App. 28. And the
court of appeals approvingly cited Prison Legal News v.
Livingston, 683 F.3d 201 (5th Cir. 2012), which upheld a
prison’s decision to remove a book “describing racial tensions in the prison context—as opposed to racial tensions
more generally.” App. 30.
In other words, because Prison Legal News writes
about issues affecting prisoners, the court of appeals was
more likely to allow it to be censored. This approach hamstrings prison book clubs when they try to send reading
materials that prisoners will actually want to read.
For example, criticism of the criminal-justice system
is robust and many critics believe that it disproportionately touches people of color. See, e.g., Mason v. United
States, 170 A.3d 182, 187 (D.C. 2007) (McLeese, J.) (observing that “the belief that the criminal-justice system is
systematically unfair to blacks is . . . neither uncommon
nor irrational”). Books addressing these issues are of obvious interest to prisoners, but they are also regular targets of censors. One especially prominent critique—The
New Jim Crow by Michelle Alexander, a lawyer who
clerked for this Court—has been banned at various times
by various prisons. See Jonah Engel Bromwich, Why Are
American Prisons so Afraid of this Book?, N.Y. Times
(Jan. 18, 2018), https://tinyurl.com/y83qbodz. Indeed,

13
Florida has censored the book on the ground that it has
“racial overtones.” Ibid.
Meanwhile, prison officials in Florida prohibited amicus Free Minds Book Club from sending The Cook Up, a
bestselling and critically acclaimed memoir about the redemption of a Baltimore resident who escaped the drug
trade and became an educator. The book—whose author
disavowed crime and promoted rehabilitation—was nonetheless excluded on the ground that it “encourages or instructs in the commission of criminal activity.” Hardee
Correctional Institution, Notice of Rejection or Impoundment of Publications (Aug. 8, 2017) (on file with counsel
for amici).
Censorship by prison officials in Texas—which bans
over 15,000 titles, Dexheimer, supra—has been studied
especially thoroughly. And their practices highlight how
readily prison officials will censor books that are likely to
interest people behind bars.
For instance, a prisoner locked up since he was a teenager was stopped from reading Nicholas Pileggi’s Wiseguy, the basis for the acclaimed film Goodfellas. Dan
Slater, Texas Prisons Banned My Book About Texas
Prisoners,
Slate
(Sept.
27,
2016),
https://tinyurl.com/zq2ut2x. Texas then denied that same prisoner
a copy of Wolf Boys: Two American Teenagers and Mexico’s Most Dangerous Drug Cartel, because one page of
the book described a drug smuggler who bought pickup
trucks “from which he removed panels and lights” to hide
the drugs. Ibid. As its author explains, however, the book
“reflects the experiences of thousands of kids living along
the border, and scores of young inmates across the Texas
prison system.” Ibid.
Even more attenuated concerns about institutional security have made it nearly impossible to send prisoners
books that describe racism. Texas has banned

14
Freakonomics, a bestselling nonfiction book applying economic theory to diverse areas of public policy—claiming
that a prize-winning University of Chicago economist
wrote the book “solely for the purpose of communicating
information designed to achieve the breakdown of prisons
through offender disruption.” McGaughy, supra. The basis for that conclusion? The book quotes the use of a racial
epithet in a chapter about the Ku Klux Klan. Dexheimer,
supra.
For similar reasons, Texas has banned Coming
Through the Fire, a book about racial reconciliation by a
Duke University professor; poetry by Langston Hughes;
a book about Jackie Robinson; and the Narrative of Sojourner Truth. See ibid. It has banned Juan Williams’s biography of Thurgood Marshall, Charles Fager’s history
of the 1965 march at Selma, and a book about bringing the
Ku Klux Klan to justice. Banned Books, supra, at 36. It
has banned the prize-winning Arc of Justice: A Saga of
Race, Civil Rights, and Murder in the Jazz Age—about
the famous trial of an African-American doctor prosecuted for killing someone who attacked his home in Detroit—because the book quotes a racial epithet used by a
white man to describe three African-American men that
he tried to lynch. Slater, supra; Banned Books, supra, at
37. And while barring books that document racism, Texas
has allowed books that affirmatively and explicitly promote white supremacy, including Hitler’s Mein Kampf,
David Duke’s Jewish Supremacism, and the anti-Semitic
classic Protocols of the Elders of Zion. See McGaughy, supra; Banned Books, supra, at 38.
Also kept from Texas prisoners: Books that describe
or even refer to sexual abuse or sexual assault, which
many prisoners have experienced before or during their
incarceration. Texas prisons have barred Women Behind

15
Bars: The Crisis of Women, in which the author interviewed prisoners who were critical of the prison system,
because the book explained that one of the inmates had
been sexually abused as a child and thus purportedly encouraged “deviant sexual behavior.” Slater, supra. Texas
also barred Texas Tough: The Rise and Fall of America’s
Prison Empire, because one paragraph stated that one
prisoner had been sexually assaulted by her uncle as a
young girl. Banned Books, supra, at 3. It has barred Joel
Dyer’s Perpetual Prisoner Machine, because it quotes a
1968 report by the Philadelphia District Attorney’s Office
about the rates of prison rape in Philadelphia jails. Id. at
33. And it has barred Stopping Rape: A Challenge for
Men, written by the founder of Men Can Stop Rape, as
well as Sandra Butler’s Conspiracy of Silence: The
Trauma of Incest—the latter because it reports statistics
about incest. Id. at 50.
There is more. Texas has banned Anatomica: The
Complete Home Medical Reference and A Child is
Born—each for including nudity, Dexheimer, supra; National Geographic’s Visual History of the World, because
it publishes the iconic, Pulitzer-winning photo of a naked
girl running away from a napalm attack in Vietnam, ibid.;
How the Other Half Lives, a classic account of poverty in
New York slums, because it includes pictures of naked
children, ibid.; and work prepared for the United States
Holocaust Museum, see Banned Books, supra, at 47.
Texas has even banned The Sistine Chapel Coloring
Book. Dexheimer, supra.
And while it has censored Shakespeare and Love Sonnets because of its cover art, ibid., Texas has allowed 100
Great Poems of Love and Lust, McGaughy, supra; a calendar featuring Dallas Cowboys cheerleaders, ibid.; and

16
magazines like Swimsuit International, Swimwear Illustrated, Bachelor’s Beat, Bikini, and Bikini Girls, see
Banned Books, supra, at 49.
C. Book clubs also face arbitrary application of logistical rules and outright bans on mailing books
to prisoners.
Beyond the hundreds, thousands, or tens of thousands
of titles that they have censored, prisons have routinely
installed procedural or logistical obstacles to sending
books, and sometimes have prevented book clubs from
sending any books at all. Again, the near-unfettered deference conferred by the court of appeals makes these
practices more likely to persist.
Prison book clubs are no strangers to arbitrary application of logistical or procedural barriers. Over the summer, a prison refused to deliver a used copy of Strunk &
White’s The Elements of Style because the “[f]irst page
has a spider carcass.” Books to Prisoners (@B2PSeattle),
Twitter (July 24, 2018, 8:26 PM), https://tinyurl.com/yam6s9qm. Books to Prisoners also recently
had a shipment of books rejected by a Florida prison because of new rules requiring that all shipments be in white
envelopes rather than boxes. See Books to Prisoners
(@B2PSeattle), Twitter (June 20, 2018, 8:16 AM),
https://tinyurl.com/yczj82p7. Another prison refused to
deliver a book sent by amicus Chicago Books to Women
in Prison on the ground that it could not “be inspected
without damage”—because the book had tape on it. Federal Bureau of Prisons, Stamps, Negotiable Instrument
& Other Returned to Sender (Dec. 6, 2016) (on file with
counsel for amici).
Even worse, some prisons have banned book clubs
from sending any and all books.
From 2008 until 2010, a detention center in South Carolina refused to accept any books, returning them with the

17
message that “books not allowed.” Shapiro, supra, at 999.
A shipment from amicus Free Minds Book Club was rejected and returned by Maryland’s Charles County Detention Center, which stated: “Book Clubs are not approved for our inmates @ CCDC.” Notice from Charles
County Detention Center to Free Minds Book Club (on
file with counsel for amici). Free Minds Book Club has
also been unable to deliver any books to those in custody
in Prince George’s County, Montgomery County, Southwest Virginia Abingdon, Alexandria, and Baltimore.
Then, earlier this year, New York banned delivery to
prisoners of all packages, including packages of books. Instead of receiving free books curated by book clubs, prisoners were required to buy books, at significant markup,
from just a few prison vendors, who offered just a few
hundred books. Daniel A. Gross, New York Makes it
Harder for Inmates To Get Books, New Yorker (Jan. 9,
2018), https://tinyurl.com/yawnbg9m. After initially insisting that the book ban promoted “high security” and
ensured “efficient operation,” ibid., New York rescinded
the policy after ten days, see Vivian Wang, Cuomo Halts
a Controversial Prison Package Policy, N.Y. Times (Jan.
12, 2018), https://tinyurl.com/y84k2op8. Maryland recently enacted a similar policy, claiming that it was necessary to stop drug smuggling, but reversed course as well.
See Ann E. Marimow, In a Reversal, Md. Prison Officials
Lift Limits on Access to Books for Inmates, Wash. Post
(June 11, 2018), https://tinyurl.com/yaj26ro3.
Also earlier this year, the federal Bureau of Prisons
announced that it would ban direct delivery of books from
publishers, book stores, and book clubs. Prisoners would
have been forced to buy books from a prison-approved
vendor, through a seven-step ordering process that required them to provide the book’s thirteen-digit ISBN
number, pay thirty percent more for each book, and order

18
no more than five paperbacks per mailing. See Ann E.
Marimow, Federal Prisons Abruptly Cancel Policy that
Made it Harder, Costlier for Inmates To Get Books,
Wash. Post (May 3, 2018), https://tinyurl.com/ybkb2ya4.
After beginning to implement the policy in Virginia and
California, the Bureau reversed itself amid outcry. Ibid.
Then there is the recent and near-total book ban by
the Pennsylvania Department of Corrections, which
claims that banning package deliveries is necessary to
stop drug smuggling. See Samantha Melamed, One Review of Pa. Prisons’ Pricey eBooks: “Books That Are
Available for Free, That Nobody Wants Anyway,” Phil.
Inquirer (Sept. 21, 2018), https://tinyurl.com/y8jzbh99.
But the Department did not identify any examples of
smuggled drugs that had come from prison book clubs.
See Jodi Lincoln, Opinion, Incarcerated Pennsylvanians
Now Have To Pay $150 To Read. We Should All Be Outraged., Wash. Post (Oct. 11, 2018), https://tinyurl.com/y9canptf. On social media, Pennsylvania’s Department of Corrections also posted a letter from a prisoner, to his family, asking for books, and claimed that the
letter “describ[ed] how to smuggle drugs through a popular book donation program.” PA Department of Corrections (@CorrectionsPA), Twitter (Sept. 14, 2018),
https://tinyurl.com/y9d24wuh. But the posted letter does
not mention or allude to drugs—“just books.” Prison Book
Program (@prisonbookprog), Twitter (Sept. 16, 2018),
https://tinyurl.com/y9mnzfem.
No matter. Under the new policy, prisoners have access to only 8,500 electronic books, for which prisoners—
who earn as little as 19 cents per hour—must buy a $149
tablet from an approved prison vendor. See Melamed, supra. The e-books themselves cost more than they do outside prison, and prisoners must pay even for books that

19
are otherwise free and in the public domain. Ibid. Standard and legal dictionaries are unavailable, and religious
books are scarce. Ibid.
These policies reveal that while prison officials are
quick to invoke institutional order and security, those invocations are often exaggerated. In deferring to similarly
exaggerated claims, the court of appeals would make it far
easier for prison officials to censor books—and in some
cases, all books.
II. Prison censorship of reading material impedes prisoner education, to the detriment of both prisoners
and society at large.
Improper censorship, bad in itself, also harms prisoners by hindering their education and rehabilitation.
A. It is difficult to overstate how important it is for
prisoners to read, and thus to have access to books and
other materials that they actually want to read. Compared
to the overall population, prisoners are far less educated
and far more illiterate. See Margo Schlanger, Inmate Litigation, 116 Harv. L. Rev. 1555, 1611 n.161 (2003). Almost
a third of American prisoners have “extremely limited
reading abilities.” Gross, The Book that Changed My Life,
supra. On the other hand, prisoners who read adult-level
books encounter more new words than do those who only
watch television, and reading improves memory, ability to
learn new skills, and resistance to aging-related effects on
the brain. See Banned Books, supra, at 5.
Reading books relevant to their own experiences can
also boost prisoners’ self-esteem and motivate them to become productive members of society. See, e.g., Free
Minds Book Club & Writing Workshop, The Untold Story
of the Real Me: Young Voices from Prison 116 (2015)
(Free Minds Book Club alumnus explains that after reading about American racial history, “now I understand and
I know I’m not inferior”). One prisoner in Arizona started

20
writing poetry after receiving an anthology called The Romantic Poets; since then, he has published dozens of
books of poetry. Gross, The Book that Changed My Life,
supra. Prisoner John J. Lennon, who is also now a published author, got started by joining a creative writing
workshop at Attica; after reading periodicals sent by his
mother and the book Just Mercy by criminal lawyer
Bryan Stevenson, “[r]eading so much solid writing has
helped build my own skills. I began publishing articles. I
became a journalist.” John J. Lennon, Opinion, For Prisoners Like Me, Books Are a Lifeline. Don’t Cut It, Guardian (Feb. 4, 2018), https://tinyurl.com/yb84whuh.2 Anthony Pleasant, an alumnus of amicus Free Minds Book
Club’s prison book club program, was jailed at age 16 and
could not read and write; while locked up he joined the
book club and learned how to read, ultimately reading
hundreds of books during his ten years in prison. Now he
writes poetry for the Free Minds literary journal, is a supervisor at a furniture assembly company, and plans to
start his own business.
As prison officials themselves have recognized, “reading improves literacy and enables inmates to further their
education which directly helps to reduce recidivism.”
Warden Letter, supra. Reading also helps prisoners to
mitigate the boredom and stress that they experience
every day while incarcerated. Books can even build rapport between prisoners and prison staff. See Gross, The
Book that Changed My Life, supra (describing how one

2

Arbitrary obstacles, however, nearly prevented Lennon from
reading the book that inspired him. Attica would not allow him to receive whole books, and instead limited him to “five printed pages to
arrive in each regular mail envelope.” Ibid. Lennon’s friend had to
photocopy “300-plus pages, stuffing them into more than 30 envelopes
and sending them [his] way.” Ibid.

21
prisoner recommended A Confederacy of Dunces to several prison guards).
B. Arbitrary book censorship, however, deters book
clubs from delivering books to prisoners. Books are often
rejected, sometimes by mailroom staff, and sent back
without explanation. See Bromwich, supra. Books are also
regularly added or removed from banned-books lists,
sometimes even daily, and prisons do not always share
these lists with book clubs, who are left flying blind. Because they are usually small and often staffed entirely by
volunteers, and because it is costly to send books that do
not reach prisoners, book clubs inevitably self-censor.
And when prison book clubs are chilled, prisoners forgo
books that might interest them and spark a lifelong habit
of reading.
The loss of access to reading materials is especially
harmful since most prisoners have few other outlets to
read or learn. In 1994, prisoners lost access to Pell grants
to pay for higher education. See 20 U.S.C. 1070a(b)(6); see
also Nick Anderson, Advocates Push To Renew Pell
Grants for Prisoners, Citing Benefits of Higher Education, Wash. Post (Dec. 3, 2013), https://tinyurl.com/ybsxg7n6. Since then, the U.S. prison population has doubled. See The Sentencing Project, Fact Sheet:
Trends in U.S. Corrections 1 (June 2018), https://tinyurl.com/y7c932wz. Needless to say, “[c]ollege in the can
is scarce.” John J. Lennon, Opinion, From Attica Prisoners to Harvard Law Students: A Message from Behind
the Wall, Harv. L. Rec. (Oct. 18, 2016), https://tinyurl.com/ydcp4msj.
Those in custody also lack access to technology that
most American students take for granted. Prisoners do
not carry iPhones or laptops and usually cannot use the
Internet. See, e.g., Gross, New York Makes it Harder for
Inmates To Get Books, supra (son of prisoner at

22
Shawangunk Correctional Facility in New York notes,
“My dad hasn’t seen a smartphone—he doesn’t have access to anything, beyond books.”).
Nor do most prison libraries reliably fill these gaps.
They often stock few books and cannot meet demand. See
ibid. (“When you go to the general library, you’re basically competing for books with a thousand other people.”).
Other policies deter prisoners from using the library.
Overdue fines are one thing, but one Pennsylvania prisoner was confined to his cell for forty-five days after he
returned a book late; after that, he understandably
stopped checking out books. See Melamed, supra.
For prisoners like him, and for prisoners across the
country, access to a wide and diverse array of books from
book clubs is irreplaceable. And in allowing prisons, on the
thinnest of justifications, to censor reading material of interest to prisoners, the court of appeals has put these programs in jeopardy.
CONCLUSION

The petition should be granted.
Respectfully submitted.
GREGORY M. LIPPER
Counsel of Record
CLINTON BROOK & PEED
1455 Pennsylvania Ave. NW,
Suite 400
(202) 996-0919
glipper@clintonbrook.com

OCTOBER 2018



 

Prisoner Education Guide side

 

Federal Prison Handbook

 

Prisoner Education Guide side

 

Federal Prison Handbook
Prisoner Education Guide