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Amicus Curiae Brief in the US Supreme Court for R. Street Institute et al

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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,
Respondent.
————
On Petition for Writ of Certiorari to the
United States Court of Appeals
for the Eleventh Circuit
————
BRIEF AMICI CURIAE OF
R STREET INSTITUTE, AMERICANS FOR
PROSPERITY, THE CATO INSTITUTE, REASON
FOUNDATION, AND THE RUTHERFORD
INSTITUTE IN SUPPORT OF PETITIONER
————
NILA BALA
R STREET INSTITUTE
1212 New York Ave., NW
Suite 900
Washington, DC 20005
(202) 525-5717
VICTOR BERNSON
CASEY MATTOX
AMERICANS FOR PROSPERITY
1310 N. Courthouse Rd.
Suite 700
Arlington, VA 22201
(703) 224-3200

JOHN N. ESTES III
Counsel of Record
DONALD P. SALZMAN
THOMAS A. PARNHAM, JR.
TODD D. KELLY*
1440 New York Ave., NW
Washington, DC 20005
(202) 371-7000
john.estes@skadden.com
TREVOR BURRUS
CATO INSTITUTE
1000 Massachusetts Ave., NW
Washington, DC 20001
(202) 842-0200

Counsel for Amici Curiae
*Admitted to practice in Virginia only;
supervised by a member of the D.C. Bar.
[Additional Counsel Listed On Inside Cover]
WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002

MANUEL S. KLAUSNER
LAW OFFICES OF
MANUEL S. KLAUSNER
601 W. Fifth St., Ste. 800
Los Angeles, CA 90071
(213) 617-0414

JOHN W. WHITEHEAD
DOUGLAS R. MCKUSICK
THE RUTHERFORD
INSTITUTE
P.O. Box 7482
Charlottesville, VA 22906
(434) 978-3888

TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ................................

ii

INTEREST OF AMICI CURIAE ........................

1

SUMMARY OF THE ARGUMENT ....................

3

ARGUMENT ........................................................

5

I. Self-Directed Legal Education Furthers
Rehabilitation and Civic Involvement .....

5

II. The Scope of the First Amendment Is Not
Defined By the Whims of the
Government...............................................

12

CONCLUSION ....................................................

21

(i)

ii
TABLE OF AUTHORITIES
CASES

Page(s)

Beard v. Banks,
548 U.S. 521 (2006) ............................. 13, 14, 19
Brown v. Plata,
563 U.S. 493 (2011) ......................................

5

Chevron U.S.A., Inc. v. Nat. Res. Def. Council,
467 U.S. 837 (1984) ...................................

15

Gentile v. State Bar of Nev.,
501 U.S. 1030 (1991) .................................

18

Jacobellis v. State of Ohio,
378 U.S. 184 (1964) ...................................

17

Marbury v. Madison,
5 U.S. 137 (1803) .......................................

14

McKune v. Lile,
536 U.S. 24 (2002) .....................................

3, 6

Miller-El v. Cockrell,
537 U.S. 322 (2003) ...................................

15

Minneapolis Star & Tribune Co. v.
Minn. Comm’r of Revenue,
460 U.S. 575 (1983) ...................................

16

Nat’l Fed’n of Indep. Bus. v. Sebelius,
567 U.S. 519 (2012) ...................................

15

Near v. Minnesota,
283 U.S. 697 (1931) ...................................

16

New York Times Co. v. United States,
403 U.S. 713 (1971) ................................... 12, 16
Overton v. Bazzetta,
539 U.S. 126 (2003) ...................................

5

iii
TABLE OF AUTHORITIES—Continued
Page(s)
Pell v. Procunier,
417 U.S. 817 (1974) ............................... 3, 13, 15
Pereira v. Sessions,
138 S. Ct. 2105 (2018) ...............................

15

Procunier v. Martinez,
416 U.S. 396 (1974) ...................................

19

Schneider v. Smith,
390 U.S. 17 (1968) .....................................

12

Sessions v. Dimaya,
138 S. Ct. 1204 (2018) ...............................

18

Simon & Schuster, Inc. v. Members of N.Y.
State Crime Victims Bd.,
502 U.S. 105 (1991) ...................................

15

Thornburgh v. Abbott,
490 U.S. 401 (1989) ............................. 13, 18, 19
Turner v. Safley,
482 U.S. 78 (1987) ................................. 5, 12, 13
West Virginia Board of Education v.
Barnette, 319 U.S. 624 (1943) ...................

14

CONSTITUTION
U.S. Const. amend. I ...................................passim
STATUTES
28 U.S.C. § 2244 ...........................................

9

42 U.S.C. § 1997e .........................................

10

iv
TABLE OF AUTHORITIES—Continued
OTHER AUTHORITIES

Page(s)

Bureau of Justice Statistics, U.S. Dep’t
of Justice, Bull. No. NCJ 250374,
Correctional Populations in the United
States, 2015 (2016) ....................................

5

David M. Shapiro, Lenient in Theory, Dumb
in Fact: Prison, Speech, and Scrutiny, 84
Geo. Wash. L. Rev. 972 (2016).................. 4, 15
Elena Kagan, Private Speech, Public
Purpose: The Role of Governmental
Motive in First Amendment Doctrine, 63
U. Chi. L. Rev. 413 (1996) ........................

16

Emily Music, Teaching Literacy in Order to
Turn the Page on Recidivism, 41 J.L. &
Educ. 723 (2012)...........................................

8

Erwin Chemerinsky, The Hazelwooding
of the First Amendment: The Deference
to Authority, 11 First Am. L. Rev. 291
(2013) .........................................................

12

Felicity Rose et. al., Crime and Justice
Institute, An Examination of Florida’s
Prison Population Trends (2017), https://
bit.ly/2RWWTZI ........................................

6

Fla. Dep’t of Corrections, Annual Report:
Fiscal Year 2016-2017 (2017) ................... 5, 10
Fla. Dep’t of Corrections, Florida Prison
Recidivism Report: Releases from 2010 to
2016 (2018) ................................................

6

v
TABLE OF AUTHORITIES—Continued
Page(s)
Geoffrey R. Stone, Content Regulation and
the First Amendment, 25 Wm. & Mary L.
Rev. 189 (1983)..........................................

16

Gordon Bazemore & Jeanne B. Stinchcomb,
Civic Engagement and Reintegration:
Toward A Community-Focused Theory
and Practice, 36 Colum. Hum. Rts. L.
Rev. 241 (2004)..........................................

7

James Madison, 1 Annals of Cong. (1789)...

12

Jeffrey D. Morenoff & David J. Harding,
Incarceration, Prisoner Reentry, and
Communities, 40 Ann. Rev. of Soc. 411
(2014), https://bit.ly/2Ad3hFp ..................

7

Jessica Feierman, “The Power of the Pen”:
Jailhouse Lawyers, Literacy, and Civic
Engagement, 41 Harv. C.R.-C.L. L. Rev.
369 (2006) ............................................ 4, 8, 9, 10
Jim Thomas, Prisoner Litigation: The
Paradox of the Jailhouse Lawyer (1988) ...

9

John Dannenberg, Tenth Circuit Holds
Prisoner Has Burden Under PLRA to
Plead Administrative Exhaustion, Prison
Legal News, Aug. 15, 2004, https://bit.
ly/2C9Gbkq ................................................

10

Jolene van der Kaap-Deeder et. al.,
Choosing When Choices Are Limited: The
Role of Perceived Afforded Choice and
Autonomy in Prisoners’ Well-Being, 41
Law & Hum. Behav. 567 (2017) ...............

10

vi
TABLE OF AUTHORITIES—Continued
Page(s)
Justin Brooks, Addressing Recidivism:
Legal Education in Correctional Settings,
44 Rutgers L. Rev. 699 (1992) ..................

8

Lois M. Davis et al., Evaluating the
Effectiveness of Correctional Education: A
Meta-Analysis of Programs That Provide
Education to Incarcerated Adults (2013) ...

8

Margo Schlanger, Inmate Litigation, 116
Harv. L. Rev. 1555 (2003) .........................

9

Martin H. Pritikin, Is Prison Increasing
Crime?, 2008 Wis. L. Rev. 1049 (2008) ....

7

Michel Foucault, Discipline and Punish:
The Birth of the Prison (Alan Sheridan
trans.) (1975) .............................................

3

Milton Friedman, An Economist’s Protest
(1975) .........................................................

3

Nat’l Ctr. for Educ. Statistics, U.S. Dep’t of
Educ., Pub. No. 2016-040, Highlights
from the U.S. PIAAC Survey of
Incarcerated Adults: Their Skills, Work
Experience, Education, and Training
(2016) .........................................................

7

Nat’l Research Council, The Growth of
Incarceration in the United States:
Exploring Causes and Consequences
(2014) .........................................................

5, 7

vii
TABLE OF AUTHORITIES—Continued
Page(s)
Nathan James, Cong. Research Serv.,
RL34287, Offender Reentry: Correctional
Statistics, Reintegration into the Community, and Recidivism (2015) ......................

6, 8

Nelson Mandela, Conversations With Myself
(2010) ............................................................

3

Peter Wagner & Bernadette Rabuy,
Following the Money of Mass Incarceration, Prison Policy Initiative (Jan. 25,
2017), https://bit.ly/2kxbnxV .....................

6

Philip M. Genty, Damage to Family Relationships as a Collateral Consequence of
Parental Incarceration, 30 Fordham Urb.
L.J. 1671 (2001) ........................................

6

Recent US Supreme Court Rulings of
Interest: Habeas Corpus, Prison Legal
News, Oct. 15, 1997, https://bit.ly/2NA
yNkp ..........................................................

10

Summer J. Syndeman et al., Procedural
Justice in the Context of Civil Commitment: A Critique of Tyler’s Analysis, 3
Psychol. Pub. Pol’y & L. 207 (1997) .........

9

Thomas C. O’Bryant, The Great Unobtainable Writ: Indigent Pro Se Litigation After
the Anti-terrorism and Effective Death
Penalty Act of 1996, 41 Harv. L. C.R.-C.L
L. Rev. 299 (2006) .....................................

9

Victoria Mckenzie, The Silencing of Prison
Legal News, The Crime Report, June 12,
2018, https://bit.ly/2OMUi6f .....................

11

INTEREST OF AMICI CURIAE1
R Street Institute (R Street) is a nonprofit, nonpartisan, public-policy research organization founded
in 2012. Its mission is to engage in policy research
and outreach to promote free markets and limited,
effective government, including in the area of criminal
justice and civil liberties. R Street’s Criminal Justice
& Civil Liberties Policy program produces research
and commentary on public policy related to all stages
of the criminal justice system, and promotes reforms
that prioritize public safety, due process, individual
liberty and fiscal responsibility.
Americans for Prosperity (AFP) exists to recruit,
educate, and mobilize citizens to take an active role in
building a culture of mutual benefit where people
succeed by helping others improve their lives. AFP’s
activists nationwide advocate and promote policy issues
that will advance that culture, including criminal
justice reform, free speech, and limited government.
This case concerns AFP because arbitrary government
restrictions on speech should not inhibit prisoners
from learning about their constitutional rights.
The Cato Institute (Cato) is a nonpartisan publicpolicy research foundation dedicated to advancing
the principles of individual liberty, free markets, and
limited government. Cato’s Robert A. Levy Center for
Constitutional Studies was established to restore the
principles of constitutional government that are the
1

The parties have consented to the filing of this brief.
No counsel for a party authored this brief in whole or in part, and
no person other than amici and their counsel has made any
monetary contribution to the preparation or submission of this
brief. The parties received at least 10 days’ notice of the intention
to file this brief.

2
foundation of liberty. To those ends, Cato conducts
conferences, files amicus briefs, and publishes books,
studies, and the annual Cato Supreme Court Review.
Reason Foundation (Reason) is a national, nonpartisan, and nonprofit public policy think tank, founded
in 1978. Reason’s mission is to advance a free society
by applying and promoting libertarian principles and
policies—including free markets, individual liberty,
and the rule of law. Reason advances its mission by
publishing Reason magazine, as well as commentary
on its websites, and by issuing policy research reports.
To further Reason’s commitment to “Free Minds and
Free Markets,” Reason selectively participates as
amicus curiae in cases raising significant legal and
constitutional issues.
The Rutherford Institute (Rutherford) is an international civil liberties organization headquartered in
Charlottesville, Virginia. Founded in 1982 by John W.
Whitehead, Rutherford specializes in providing legal
representation without charge to individuals whose
civil liberties are threatened and in educating the
public about constitutional and human rights issues.
Attorneys affiliated with Rutherford have represented
parties and filed amicus curiae briefs in the federal
Courts of Appeals and Supreme Court. Rutherford
works to preserve the most basic freedoms of our
Republic, including the rights guaranteed to prisoners
by the First Amendment.
Amici have a particular interest in this matter
because, by allowing Florida officials to censor Prison
Legal News based on an unsupported invocation of
nebulous “prison security and public safety interests,”
the Eleventh Circuit failed to consider the substantial
benefits to providing prisoners access to reading
materials that support rehabilitation and civic engage-

3
ment. The Eleventh Circuit’s decision amounts to
an abdication of the Judiciary’s constitutional role
in safeguarding individual liberty, and encourages the
government to impose arbitrary and capricious restrictions on the First Amendment rights of prisoners.
SUMMARY OF THE ARGUMENT
This Court has noted that because “most offenders
will eventually return to society,” one of the “paramount objective[s] of the corrections system is the
rehabilitation of those committed to its custody.”
McKune v. Lile, 536 U.S. 24, 36 (2002) (quoting Pell v.
Procunier, 417 U.S. 817, 823 (1974)). There are a
number of steps that prisons can take to facilitate
rehabilitation, such as offering substance abuse treatment, education programs, and chaplaincy services.
But it is also vitally important that government “leave
things alone when that is the best course of action.”
Milton Friedman, An Economist’s Protest 6 (1975); see
also Michel Foucault, Discipline and Punish: The
Birth of the Prison 265–66 (Alan Sheridan trans.)
(1975) (observing that “[d]etention causes recidivism”
when it “impos[es] violent constraints” on prisoners
through “[t]he arbitrary power of administration”).
Left to their own devices, there are prisoners for
whom “the cell is an ideal place to learn to know
[themselves], to search realistically and regularly the
process of [their] own mind and feelings.” Nelson
Mandela, Conversations With Myself 211 (2010). Even
prisoners who would benefit from formal programming must be allowed to retain some measure of
personal freedom and independence if they are to
remain engaged and connected with society before
returning to productive citizenship upon release.
Consider, for example, those prisoners who choose to
subscribe to Prison Legal News, a monthly publication

4
that provides “public education, advocacy, and outreach,” and includes information “educating [prisoners]
about their civil rights under the law.” Pet. 4. At no
cost to taxpayers, these prisoners are provided access
to “writings from legal scholars, attorneys, inmates,
and news wire services” regarding “news and legal
developments related to the criminal justice system,”
which helps educate them on “how to advocate for
their rights.” Pet. App. 49, 55–56. By helping its
subscribers “confront[] injustice and focus[] on problemsolving,” Prison Legal News “assist[s] in forging a sense
of community around the law, learning, and social
action.” See Jessica Feierman, “The Power of the Pen”:
Jailhouse Lawyers, Literacy, and Civic Engagement,
41 Harv. C.R.-C.L. L. Rev. 369, 387 (2006).
Ignoring the obvious benefits of allowing those
within their custody to read and reflect on the
materials presented in Prison Legal News, Florida
officials imposed a de facto ban on the publication—
which, not coincidentally, has printed “dozens of
reports exposing corruption and abuses in Florida’s
penal system,” Pet. 5—after concluding that certain
disfavored advertisements were so “prominent or
prevalent” as to endanger “prison security.” They
offered no evidence to support that conclusion, instead
applying what the District Court aptly described as a
“know it when [they] see it” standard. Pet. App. 95
(alteration in original). The Eleventh Circuit nevertheless upheld Florida’s ban on Prison Legal News,
affording near-unlimited deference to prison officials
acting “as if unconstrained by judicial review in
matters affecting the speech of those in their custody.”
See David M. Shapiro, Lenient in Theory, Dumb in
Fact: Prison, Speech, and Scrutiny, 84 Geo. Wash.
L. Rev. 972, 975 (2016).

5
Although “the professional judgment of prison administrators” must be given some measure of deference,
Overton v. Bazzetta, 539 U.S. 126, 132 (2003), the
Constitution requires careful judicial scrutiny of government action that threatens to extinguish First
Amendment rights. Imprisonment necessarily requires
some curtailment of individual liberty. Indeed, there
are many prison rules and regulations that “impinge[]
on inmates’ constitutional rights” yet are nevertheless
“reasonably related to legitimate penological interests.”
Turner v. Safley, 482 U.S. 78, 89 (1987). But Florida’s
censorship of Prison Legal News is not one of them.
Instead, it amounts to an impermissible effort to
imprison not only the body but also the mind. This
Court should grant the petition.
ARGUMENT
I. Self-Directed Legal Education Furthers
Rehabilitation and Civic Involvement.
This Court is well aware of the incarceration epidemic in the United States. See, e.g., Brown v. Plata,
563 U.S. 493 (2011) (affirming order requiring California
to reduce its prison population). Since 1972, the rate
of incarceration in the United States has ballooned
from 161 per 100,000 residents to more than 700 per
100,000 residents. See Nat’l Research Council, The
Growth of Incarceration in the United States: Exploring
Causes and Consequences 33 (2014). Florida, which
spends $2.3 billion each year to operate the third
largest state prison system in the county, is no
exception. See Fla. Dep’t of Corrections, Annual
Report: Fiscal Year 2016-2017, at 3 (2017). Nearly 1%
of the State’s population is incarcerated. See Bureau
of Justice Statistics, U.S. Dep’t of Justice, Bull. No.
NCJ 250374, Correctional Populations in the United
States, 2015, at 17, (2016).

6
The economic costs of over-criminalization and mass
incarceration are astronomical. It is estimated that
the annual cost to taxpayers of running every state
and federal corrections system in the United States is
more than $80 billion; when policing, the court system,
and familial support are included, the total is closer to
$180 billion. See Peter Wagner & Bernadette Rabuy,
Following the Money of Mass Incarceration, Prison
Policy Initiative (Jan. 25, 2017), https://bit.ly/2kxbnxV.
And these figures, as large as they are, do not even
take into account other costs to society such as those
associated with the disintegration of the traditional
family. See, e.g., Philip M. Genty, Damage to Family
Relationships as a Collateral Consequence of Parental
Incarceration, 30 Fordham Urb. L.J. 1671 (2001).
Given the high price to the public of incarceration,
one of the primary objectives of imprisonment should
be the prevention of its recurrence. See McKune, 536
U.S. at 36. By any reasonable measure, most prison
systems in the United States are not meeting that
objective. See Nathan James, Cong. Research Serv.,
RL34287, Offender Reentry: Correctional Statistics,
Reintegration into the Community, and Recidivism
(2015) (discussing high rates of recidivism in the
United States). In Florida, for example, more than a
quarter of former prisoners return to prison within
three years of release. See Fla. Dep’t of Corrections,
Florida Prison Recidivism Report: Releases from 2010 to
2016, at 2 (2018).2
2

Florida’s recidivism rate appears lower than that of many
other states, but that is due to Florida’s minimal post-release
supervision rather than successful rehabilitation of former
offenders. See Felicity Rose et. al., Crime and Justice Institute,
An Examination of Florida’s Prison Population Trends 59 (2017),
https://bit.ly/2RWWTZI.

7
A leading cause of recidivism is the severance of ties
to the family and community during incarceration,
and the subsequent failure to reintegrate former
prisoners into society upon release. See generally
Jeffrey D. Morenoff & David J. Harding, Incarceration, Prisoner Reentry, and Communities, 40 Ann. Rev.
of Soc. 411 (2014), https://bit.ly/2Ad3hFp; see also
Martin H. Pritikin, Is Prison Increasing Crime?, 2008
Wis. L. Rev. 1049, 1055 (2008) (arguing that it is not
“merely the strengthening of deviant bonds within
prison that leads to increased criminality, but also the
weakening of social bonds with family and community
on the outside”). Many jurisdictions “deny and inhibit
access to a variety of roles that bind most citizens to
conventional society to those currently or formerly
serving time or under correctional supervision.” Gordon
Bazemore & Jeanne B. Stinchcomb, Civic Engagement
and Reintegration: Toward A Community-Focused
Theory and Practice, 36 Colum. Hum. Rts. L. Rev. 241,
242 (2004). Even upon release, former prisoners face
“restrictions on occupational licensing and employment opportunities, loss of parental rights, and
prohibition from holding elective office or serving on
juries.” Id. at 242–43.
Job prospects for former prisoners are particularly
dim: approximately half of former prisoners remain
unemployed within a year of release. See Nat’l
Research Council, The Growth of Incarceration in the
United States, supra, at 233. Although this is in part
due to the many government-imposed restrictions on
employment faced by former prisoners, it is also a
function of the fact that the adult prison population
has significantly lower literacy and education levels
than the general population. See Nat’l Ctr. for Educ.
Statistics, U.S. Dep’t of Educ., Pub. No. 2016-040,
Highlights from the U.S. PIAAC Survey of Incarcerated

8
Adults: Their Skills, Work Experience, Education, and
Training 6 tbl. 1.2 (2016). Education and post-release
employment are among “the most important elements
for an ex-offender to successfully transition back into
the community.” James, supra, at 14–15. Those who
gain literacy skills and participate in educational
programs while incarcerated are less likely to reoffend.
See Lois M. Davis et al., Evaluating the Effectiveness
of Correctional Education: A Meta-Analysis of Programs
That Provide Education to Incarcerated Adults xvi
(2013); Emily Music, Teaching Literacy in Order
to Turn the Page on Recidivism, 41 J.L. & Educ. 723,
723–24 (2012).
Of course, prisoner education and literacy provide
rehabilitative benefits beyond increasing the likelihood of post-release employment. This is particularly
true for legal education and literacy. For example,
research shows that legal education classes in junior
high school reduce crime. See Justin Brooks, Addressing
Recidivism: Legal Education in Correctional Settings,
44 Rutgers L. Rev. 699, 718 & n.112 (1992). Legal
education of prisoners could therefore reduce recidivism by “changing inmates’ perceptions and attitudes
[about the law], developing their cognitive and analytical skills, and imparting the rudimentary legal skills
and knowledge necessary to deal with daily problems
both inside and outside of a correctional setting.” Id.
at 718–19. “[B]y confronting injustice and focusing on
problem-solving, prisoners can create a positive reality,
even within the confines of the prison,” which “can also
assist in forging a sense of community around the law,
learning, and social action.” Feierman, supra, at 387.
Encouraging prisoners to engage constructively
with the legal system through an increased legal
education can have beneficial impacts on both the

9
prisoner and the legal system. A more legally savvy
prisoner is less likely to file a frivolous lawsuit or a
lawsuit that will be dismissed for procedural errors.
See Feierman, supra, at 382–83 & n.84 (citing
Jim Thomas, Prisoner Litigation: The Paradox of the
Jailhouse Lawyer 156 (1988)). Because prisoners file
disproportionately more civil suits than other citizens,
the reduction in frivolous suits and procedural errors
should help reduce the burden that prison litigation
puts on an already overburdened court system. See
Margo Schlanger, Inmate Litigation, 116 Harv. L. Rev.
1555, 1575 (2003) (noting that inmates were 35 times
more likely than non-inmates to file a civil lawsuit in
1995). And filing a lawsuit that is not immediately
deemed frivolous or dismissed can improve a prisoner’s sense of “procedural justice,” which can create
and reinforce a more positive view of the legal system
and society generally. See Feierman, supra, at 387
n.114 (citing Summer J. Syndeman et al., Procedural
Justice in the Context of Civil Commitment: A Critique
of Tyler’s Analysis, 3 Psychol. Pub. Pol’y & L. 207, 210
(1997)).
Prisoners face serious barriers to self-advocacy,
which can dim their view that the legal system, and
society, are treating them fairly. For example, the
Anti-Terrorism and Effective Death Penalty Act of
1996 (AEDPA) created a one-year statute of limitations for habeas petitions filed by State prisoners.
28 U.S.C. § 2244(d)(1). Prisoners without access to
legal information may be uninformed about the time
limit or unable to educate themselves in time to file
a petition within these time constraints, foreclosing
forever potential review of constitutional violations.
See Thomas C. O’Bryant, The Great Unobtainable Writ:
Indigent Pro Se Litigation After the Antiterrorism and
Effective Death Penalty Act of 1996, 41 Harv. L. C.R.-

10
C.L L. Rev. 299, 315–16 (2006). Similarly, the Prison
Litigation Reform Act (PLRA), 42 U.S.C. § 1997e,
created obstacles for legally uninformed inmates,
particularly the requirement that prisoners exhaust
administrative remedies before filing suit in federal
court.3 These problems have been made worse in
recent years as prisoner access to adequate law
libraries has decreased, leading to a subsequent
increase in the filing of inadequate court papers which
result in dismissal. See Feierman, supra, at 380.
To amici’s knowledge, although Florida offers some
education programs, see Fla. Dep’t of Corrections,
Annual Report: Fiscal Year 2016-2017, supra, at 33–
40, it does not provide legal education to prisoners
that might mitigate these obstacles to self-advocacy.
Even if it did, such government-run programs are not
a substitute for introspection and self-directed study
by prisoners—which can be more effective, at no cost
to taxpayers. See, e.g., Jolene van der Kaap-Deeder
et. al., Choosing When Choices Are Limited: The
Role of Perceived Afforded Choice and Autonomy in
Prisoners’ Well-Being, 41 Law & Hum. Behav. 567
(2017) (discussing research showing that prisoners
who are afforded autonomy with regard to leisure
3

Prison Legal News has reported on developments in case
law involving both AEDPA and the PLRA. See, e.g., John
Dannenberg, Tenth Circuit Holds Prisoner Has Burden Under
PLRA to Plead Administrative Exhaustion, Prison Legal News,
Aug. 15, 2004, https://bit.ly/2C9Gbkq; Recent US Supreme Court
Rulings of Interest: Habeas Corpus, Prison Legal News, Oct. 15,
1997, https://bit.ly/2NAyNkp. In addition, the Human Rights
Defense Center, which publishes Prison Legal News, also
publishes a number of self-help reference books dedicated to
assisting incarcerated pro se litigants, including the Prisoner’s
Self-Help Litigation Manual and the Habeas Citebook. Order
forms for these books appear in issues of Prison Legal News.

11
activities, work, and education report higher quality of
life while incarcerated, which promotes rehabilitation). Although the State may keep those convicted of
crimes in physical custody, their minds must remain
free to constructively and appropriately engage with
communities outside of prison, which is critical in
allowing a return to productive citizenship upon release.
Allowing prisoners to access Prison Legal News is
thus a cost-free way to promote the rehabilitation process and encourage prisoners’ reintegration into society.
Prison Legal News “reports on legal developments in
the criminal justice system and other topics that affect
inmates.” Pet. App. 10–11. The monthly publication
includes “writings from legal scholars, attorneys,
inmates, and news wire services” that are consistent
with its missions to “inform the public about events in
prisons and jails and the need for progressive criminal
justice reform, to inform prisoners and their advocates
about these events and how to advocate for their
rights, and to enhance rehabilitation for prisoners,
ensure transparency and increase accountability of
prison officials.” Id. at 49, 55–56. Indeed, in the
absence of sufficient prison law libraries, “Prison
Legal News is [often] the only up-to-date source of
information prisoners have” regarding developments
in the law. Victoria Mckenzie, The Silencing of Prison
Legal News, The Crime Report, June 12, 2018,
https://bit.ly/2OMUi6f.
As a periodical designed specifically to provide legal
information to prisoners, Prison Legal News is essential to fostering a sense of procedural justice and
engendering positive views of the legal system and
society. The Eleventh Circuit, by focusing so intently
on Florida’s assertion of a need for “prison security,”
lost sight of this legitimate penological objective.

12
Arbitrary regulations that impede prisoners’ efforts
to rehabilitate themselves only further the cycle of
mass incarceration in the United States and its many
detrimental effects on society. This Court should
grant the petition.
II. The Scope of the First Amendment Is Not
Defined By the Whims of the Government.
The Eleventh Circuit viewed this Court’s decision in
Turner as requiring it to defer completely to unsubstantiated assertions of government officials. But the
mere invocation of “prison security” is not a trump
card that can be used by officials to silence those with
whom they disagree. Unquestioning deference to
government officials defending seemingly arbitrary
regulations that impinge upon the freedom of the
press is incompatible with the Founder’s vision of the
Judiciary as “the guardian[]” of the Bill of Rights and
“an impenetrable bulwark against . . . every encroachment upon [the] rights expressly stipulated for in the
Constitution.” New York Times Co. v. United States,
403 U.S. 713, 718 n.5 (1971) (Black, J., concurring)
(quoting James Madison, 1 Annals of Cong. 457).
The fundamental purpose of our written Constitution,
and particularly the Bill of Rights, was to protect
individual liberty against government encroachment—
“to take government off the backs of people.” Schneider
v. Smith, 390 U.S. 17, 25 (1968). The potential for
government encroachment on individual liberty is
magnified in the prison setting. “[I]t is the nature
of authoritarian institutions to not be sensitive to
speech interests, and often to be hostile to them.”
Erwin Chemerinsky, The Hazelwooding of the First
Amendment: The Deference to Authority, 11 First Am.
L. Rev. 291, 301 (2013). When government officials

13
are given “great authority,” they “will often use it, and
use it unfairly.” Id.
By necessity, incarceration requires some constraints on individual liberty. Even so, “[p]rison walls
do not form a barrier separating prison inmates from
the protections of the Constitution.” Turner, 482 U.S.
at 84. “[N]or do they bar free citizens from exercising
their own constitutional rights by reaching out to
those on the ‘inside.’” Thornburgh v. Abbott, 490 U.S.
401, 407 (1989). Although “courts should ordinarily
defer” to the “expert judgment” of corrections officials,
they must not “abdicate their constitutional responsibility
to delineate and protect fundamental liberties.” Pell,
417 U.S. at 827. In Turner, for example, the Court
sustained a challenge to a prison regulation after
determining that “the rehabilitative objective asserted
to support the regulation . . . [was] suspect.” 482 U.S.
at 99. In Thornburgh, the Court remarked that
Turner’s “reasonableness standard is not toothless.”
490 U.S. at 414. And in Beard, the Court noted that
“the deference owed prison authorities” does not
preclude those “attacking a prison policy . . . ever to
succeed.” Beard v. Banks, 548 U.S. 521, 535 (2006).
In this case, the Eleventh Circuit failed to heed this
Court’s admonition regarding the importance of a
careful and independent review of prison regulations.
Reasoning that it “does not . . . sit[] as a super-warden
to second-guess the decisions of the real wardens,” Pet.
App. 20, the Eleventh Circuit held that the mere
assertion by the government that censorship would
“certainly help[]” prison security and public safety was
“all Turner requires,” id. at 42–43. But the Court of
Appeals has confused an overbearing “super-warden”
with an independent Judiciary—one of the hallmarks
of our constitutional system. Although courts do not

14
sit as “super-wardens,” they do have an overriding duty
to determine “if a law be in opposition to the constitution.” Marbury v. Madison, 5 U.S. 137, 177–78 (1803).
That duty cannot be outsourced to government officials
merely because they claim some expertise.
In West Virginia Board of Education v. Barnette, 319
U.S. 624 (1943), Justice Jackson eloquently explained
the limited deference that should be afforded the
government officials when courts are tasked with
translating the majestic generalities of the
Bill of Rights, conceived as part of the pattern
of liberal government . . . . which also
produced a philosophy that the individual
was the center of society, that his liberty was
attainable through mere absence of governmental restraints, and that government should
be entrusted with few controls and only the
mildest supervision over men’s affairs.
Id. at 639–40. Justice Jackson remarked that the
Court’s “duty to apply the Bill of Rights to assertions
of official authority [does not] depend upon [its]
possession of marked competence in the field where
the invasion of rights occurs.” Id. at 639. The Court
“act[s] in these matters not by authority of our
competence but by force of our commissions. We
cannot, because of modest estimates of our competence
in [a particular field], withhold the judgment that
history authenticates as the function of this Court
when liberty is infringed.” Id. at 640.
Amici do not mean to imply that Barnette directs
lower courts to refuse to “accord deference to the
views of prison authorities” with respect to “disputed
matters of professional judgment.” See Beard, 548 U.S.
at 530. But Justice Jackson’s words are a useful

15
reminder not to be overly deferential on constitutional
questions, lest government officials feel “unconstrained
by judicial review.” Shapiro, supra, at 975. Even in
long-settled areas of the law, this Court occasionally is
called upon to remind lower courts that they may
respectfully consider the views of others without
abdicating their own responsibilities. See, e.g., Pereira
v. Sessions, 138 S. Ct. 2105, 2120 (2018) (Kennedy, J.,
concurring) (“In according Chevron deference . . .,
some Courts of Appeals [have] engaged in cursory
analysis . . . [that] suggests an abdication of the
Judiciary’s proper role in interpreting federal statutes.”); Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S.
519, 538 (2012) (“Our deference in matters of policy
cannot . . . become abdication in matters of law.”);
Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)
(“[D]eference does not imply abandonment or abdication of judicial review.”).
Assuming courts should “ordinarily defer” in
matters involving prisoner’s rights, see Pell, 417 U.S.
at 827, the Court should be particularly wary of the
Eleventh Circuit’s deference to prison administrators
in this case for at least three reasons.
First, a more rigorous review is necessary where
government officials seek to silence their critics.4 The
chief concern of the First Amendment is the “specter
that the government may effectively drive certain
ideas or viewpoints from the marketplace” by burdening disfavored speech. Simon & Schuster, Inc. v.
Members of N.Y. State Crime Victims Bd., 502 U.S.
4

The District Court, noting the lack of precedent from this
Court and seemingly conflicting decisions from the Courts of
Appeal, voiced uncertainty about what role, if any, the motive of
prison officials should play in its analysis. See Pet. App. 83–84.
The Court of Appeals did not address the issue.

16
105, 116 (1991); see also New York Times Co., 403 U.S.
at 723–24 (Douglas, J., concurring) (noting that the
First Amendment was enacted in response to “the
widespread practice of governmental suppression of
embarrassing information”). To the Founders, “[t]he
conception of the liberty of the press . . . . was
especially cherished for the immunity it afforded from
previous restraint of the publication of censure of
public officers and charges of official misconduct.”
Near v. Minnesota, 283 U.S. 697, 716–17 (1931).
In light of the First Amendment’s particular concern
for government censorship of disfavored speech, courts
must be vigilant in “ferreting out ‘improper’ motivation” by government officials who seek to “restrict
expression simply because [they] disagree[] with the
speaker’s views.” Geoffrey R. Stone, Content Regulation
and the First Amendment, 25 Wm. & Mary L. Rev. 189,
227 (1983); see also Elena Kagan, Private Speech,
Public Purpose: The Role of Governmental Motive in
First Amendment Doctrine, 63 U. Chi. L. Rev. 413, 414
(1996) (“First Amendment law, as developed by the
Supreme Court over the past several decades, has as
its primary, though unstated, object the discovery of
improper governmental motives.”). Uncritical deference
to the government censor is incompatible with that
mandate. Of course, “[i]llicit . . . intent is not the
sine qua non of a violation of the First Amendment,”
and “even regulations aimed at proper governmental
concerns can restrict unduly the exercise of rights
protected by the First Amendment.” Minneapolis Star
& Tribune Co. v. Minn. Comm’r of Revenue, 460 U.S.
575, 592 (1983). But where the government does act
in a way that silences its critics, courts must be alert
to the potential that the justification it proffers for
doing so is mere pretext.

17
Second, courts cannot defer to a vague and arbitrary
test that is incapable of coherent application. The
District Court was particularly concerned with the
State’s determination as to whether certain types of
advertisements carried by Prison Legal News were so
“prominent or prevalent” as to justify impounding a
publication:
The most disconcerting [fact uncovered at
trial] is the Rule’s vagueness. None of the
witnesses at trial were able to articulate any
reasonably specific guidelines to determining
when advertisements were “prominent or
prevalent.” Some considered whether font
was large and bolded to determine prominence. Others looked to the size of the
advertisements. For prevalence, no one could
identify a cutoff. With no framework handy,
this Court would probably be unable to apply
the Rule to those publications at the margins.
Yet [Florida] officials felt very strongly about
their ability to determine prominence and
prevalence correctly. It seems that they,
unlike this Court, “know it when [they] see
it.” Jacobellis v. State of Ohio, 378 U.S. 184,
197 (1964) (Stewart, J., concurring).
To make matters worse, the . . . final decisionmaker . . . never reviews an entire publication
or book when it makes its decision. . . . [T]his
means that final determinations about prevalence are made without knowing whether, for
instance, the four or five pages copied and
attached to the impoundment notice are four
or five out of one hundred, one thousand.
Pet. App. 95 (emphasis in original). The District Court
dismissed these concerns because Petitioner had not

18
raised a separate void-for-vagueness claim. Id. at 95–
96 & n.25. The Eleventh Circuit followed suit. Id. at
15 n.8.
Contrary to the suggestion of the Court of Appeals
and District Court in this case, Petitioners’ failure to
bring a separate void-for-vagueness claim does not
absolve Florida officials of articulating and justifying
the specific basis for censoring Prison Legal News.5
This Court has never required a party to bring a
separate void-for-vagueness claim to challenge a
prison regulation that infringes on First Amendment
freedoms. In Thornburgh, for example, the Court
considered a party’s argument that the regulations
under review called for discretion that could be
exercised in an arbitrary and capricious fashion. 490
U.S. at 417 n.15. This, of course, is precisely the harm
that a void-for-vagueness challenge would address.
Rather than ignore this argument because it was not
raised as a separate void-for-vagueness claim, the
Court held that the regulations were not facially
invalid, but directed the Court of Appeals to consider
on remand the possibility that “variability in
enforcement of the regulations stems solely from the
censors’ subjective views.” Id.; see also Sessions v.
Dimaya, 138 S. Ct. 1204, 1223 (2018) (Gorsuch, J.,
concurring) (“Vague laws invite arbitrary powers.”);
Gentile v. State Bar of Nev., 501 U.S. 1030, 1051 (1991)
(“The prohibition against vague regulations of speech
is based in part on the need to eliminate the
impermissible risk of discriminatory enforcement, for
history shows that speech is suppressed when either
5

Petitioner in fact sought leave to amend its complaint to
add a void-for-vagueness claim. The District Court denied
Petitioner’s motion, see Pet. App. 51 n.5, and the Eleventh Circuit
considered the issue to be waived, id. at 15 n.8.

19
the speaker or the message is critical of those who
enforce the law.”).
Third, deference is inappropriate where a challenged policy is a national outlier that has resulted in
a wholesale ban on protected speech. Since 2009,
Florida has censored every issue of Prison Legal News
on the basis of its advertising content; it is the only
state to do so. See Pet. App. 15–16. The District Court
found these facts to be “troubling,” see id. at 94–95, but
the Court of Appeals rejected the District Court’s
concerns out of hand, asserting that “the policies of
departments in other states do not matter so much”
because “circumstances vary from state to state,” id.
at 41 n.18. However, the Eleventh Circuit did not
identify any circumstance unique to Florida that
might be relevant to the regulation at issue. See id.
(noting, as the sole example of a difference between
Florida and another state that does not impound
Prison Legal News, Arizona’s use of dormitories for
certain categories of prisoners). In fact, between 2005
and 2009 Florida followed the practice of every other
State in allowing Prison Legal News to be delivered to
prisoners, and faced no major security issues as a
result. See id. at 60.
Under this Court’s precedents, the fact that no other
prison system in the United States has a policy like
Florida’s is not a minor detail to be brushed aside.
See, e.g., Procunier v. Martinez, 416 U.S. 396, 414 n.14
(1974) (“While not necessarily controlling, the policies
followed at other well-run institutions would be relevant
to a determination of the need for a particular type of
restriction.”), overruled in part on other grounds by
Thornburgh, 490 U.S. 401. Similarly, courts should
view a complete ban on speech more skeptically than
a less severe limitation. Beard, 548 U.S. at 535 (“[I]f

20
faced with evidence that [it were] a de facto permanent
ban . . . we might reach a different conclusion in a
challenge to a particular application of the regulation.”) (second and third alterations in original). The
Eleventh Circuit gave short shrift to these precedents,
which merits this Court’s review.

21
CONCLUSION
For the foregoing reasons, the petition for writ of
certiorari should be granted.
Respectfully submitted,
NILA BALA
R STREET INSTITUTE
1212 New York Ave., NW
Suite 900
Washington, DC 20005
(202) 525-5717
VICTOR BERNSON
CASEY MATTOX
AMERICANS FOR PROSPERITY
1310 N. Courthouse Rd.
Suite 700
Arlington, VA 22201
(703) 224-3200
TREVOR BURRUS
CATO INSTITUTE
1000 Massachusetts Ave., NW
Washington, DC 20001
(202) 842-0200

JOHN N. ESTES III
Counsel of Record
DONALD P. SALZMAN
THOMAS A. PARNHAM, JR.
TODD D. KELLY*
1440 New York Ave., NW
Washington, DC 20005
(202) 371-7000
john.estes@skadden.com
JOHN W. WHITEHEAD
DOUGLAS R. MCKUSICK
THE RUTHERFORD
INSTITUTE
P.O. Box 7482
Charlottesville, VA 22906
(434) 978-3888

MANUEL S. KLAUSNER
LAW OFFICES OF
MANUEL S. KLAUSNER
601 W. Fifth St., Ste. 800
Los Angeles, CA 90071
(213) 617-0414
Counsel for Amici Curiae
*Admitted to practice in Virginia only;
supervised by a member of the D.C. Bar.
October 19, 2018



 

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