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Prison Legal News v. Lehman, ACLU Amicus Brief, Washington DOC Censorship 2004

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03-35608
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PRISON LEGAL NEWS,
a Washington corporation; et al.,
Appellees,
v.
JOSEPH LEHMAN,
in his official and individual capacities; et al.,
Appellants.

On appeal from the United States District Court for the Western
District of Washington (District Court No. C01-1911L)
The Honorable Robert S. Lasnik
United States District Judge

AMICUS CURIAE BRIEF OF AMERICAN CIVIL LIBERTIES
UNION OF WASHINGTON
(Filed in Support of Appellees and Requesting Affirmance of the
District Court's Decision)
Joseph E. Bringman
PERKINS COIE LLP
1201 Third Avenue, Suite 4800
Seattle, Washington 98101
Telephone: (206) 359-8000
Attorneys for Amicus Curiae
American Civil Liberties Union of
Washington

CORPORATE DISCLOSURE STATEMENT
Amicus Curiae American Civil Liberties Union of Washington, Inc.
("ACLU") is a nonprofit, tax-exempt corporation with foundations that handle its
legal and educational work. It does not have a corporate parent, and no publicly
held company owns ten percent or more of its stock.

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TABLE OF CONTENTS
CORPORATE DISCLOSURE STATEMENT .................................................... i
TABLE OF CONTENTS..................................................................................... ii
TABLE OF AUTHORITIES .............................................................................. iv
I.

II.

III.

IDENTITY AND INTERESTS OF THE AMICUS CURIAE ................ 1
A.

Nature of Action.............................................................................. 1

B.

The ACLU and Its Interest in This Action...................................... 1

C.

Source of ACLU's Authority to File This Brief .............................. 3

SUMMARY OF ARGUMENT................................................................. 4
A.

Bulk Mail......................................................................................... 4

B.

Catalogs ........................................................................................... 5

C.

Third-Party Legal Materials ............................................................ 6

D.

Notice .............................................................................................. 6

ARGUMENT............................................................................................. 7
A.

WASHINGTON'S BAN ON RECEIPT OF MAIL RELATED
TO SUBSCRIPTION PUBLICATIONS, SOLELY BECAUSE
IT IS MAILED AT "BULK" RATES, IS
UNCONSTITUTIONAL................................................................. 7
1.

Washington's "Bulk Mail" Regulations Conflict With the
Purposes and Objectives of Congress and Therefore Are
Preempted.............................................................................. 7

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2.

IV.

a)

Congress affirmatively encourages communication
of nonprofit organizations by granting them the
right to use discounted, bulk-mailing rates. ............... 8

b)

Local laws and regulations that conflict with
federal postal laws and regulations are preempted... 12

Forcing Nonprofit Organizations—or, Indeed, Any
Organization That Qualifies to Use Bulk-Mailing
Rates—to Use More Expensive Rates of Mail Is
Equivalent to Imposing an Unconstitutional Tax or
Surcharge ............................................................................ 14

B.

PROHIBITING BOOK ORDER FORMS ON GROUNDS
THAT THEY ARE "CATALOGS" DEFEATS RECOGNIZED
GOALS OF PRISONER REHABILITATION............................. 17

C.

THE DEPARTMENT'S RESTRICTION ON RECEIPT OF
THIRD-PARTY LEGAL MATERIALS IMPEDES
PRISONERS' EXERCISE OF THEIR CONSTITUTIONAL
RIGHT OF ACCESS TO THE COURTS..................................... 20

D.

IF MAIL IS REJECTED, PUBLISHERS AND INMATES
ARE ENTITLED TO RECEIVE NOTICE................................... 22

CONCLUSION........................................................................................ 24

CERTIFICATION OF COMPLIANCE ............................................................ 25
CERTIFICATE OF SERVICE .......................................................................... 26
ADDENDUM
U.S. Const. art. VI, cl. 2.............................................................................. A-1
39 U.S.C. § 3622......................................................................................... A-2
39 U.S.C. § 3626(a)(1)-(3).......................................................................... A-3
39 U.S.C. § 4452 (repealed 1970)............................................................... A-4

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TABLE OF AUTHORITIES
Cases
Allen v. Wood, 970 F. Supp. 824 (E.D. Wash. 1997) ....................................... 19
Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221 (1987) ....................... 8
Bob Jones University v. United States, 461 U.S. 574 (1983).............................. 9
Bradley v. Hall, 64 F.3d 1276 (9th Cir. 1995)................................................... 22
Follet v. Town of McCormick, 321 U.S. 573 (1944) ........................................ 14
Frost v. Symington, 197 F.3d 348 (9th Cir. 1999) ........................................ 4, 22
Gerber v. Hickman, 291 F.3d 617 (9th Cir.), cert. denied, 537 U.S.
1039 (2002) .................................................................................................... 18
Greenberg v. Bolger, 497 F. Supp. 756 (E.D.N.Y. 1980) ................................. 11
Grosjean v. American Press Co., 297 U.S. 233 (1936) ..................................... 15
Grover City v. United States Postal Service, 391 F. Supp. 982 (C.D.
Cal. 1975) ....................................................................................................... 13
Hankins v. Finnel, 964 F.2d 853 (8th Cir.), cert. denied, 506 U.S.
1013 (1992) ...................................................................................................... 8
Hines v. Davidowitz, 312 U.S. 52 (1941).......................................................... 13
Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119
(1977).............................................................................................................. 19
McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995).......................... 7
McKinney v. DeBord, 507 F.2d 501 (9th Cir. 1974) ........................................ 23
Miniken v. Walter, 978 F. Supp. 1356 (E.D. Wash. 1997) ............................... 11
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Minneapolis Star & Tribune Co. v. Minnesota Commissioner of
Revenue, 460 U.S. 575 (1983) ........................................................... 14, 15, 16
Morris v. Jones, 329 U.S. 545 (1947).................................................................. 7
Morrison v. Hall, 261 F.3d 896 (9th Cir. 2001) ................................ 4, 11, 18, 19
Murdock v. Pennsylvania (City of Jeannette), 319 U.S. 105 (1943)................. 14
Prison Legal News v. Cook, 238 F.3d 1145 (9th Cir. 2001) ................... 4, 11, 22
Prison Legal News v. Lehman, 272 F. Supp. 2d 1151 (W.D. Wash.
2003)............................................................................................................... 20
Procunier v. Martinez, 416 U.S. 396 (1974), overruled in part on other
grounds by Thornburgh v. Abbott, 490 U.S. 401 (1989)......................... 21, 23
Schneidewind v. ANR Pipeline Co., 485 U.S. 293 (1988).................................. 8
Thornburgh v. Abbott, 490 U.S. 401 (1989) ............................................... 17, 23
Township of Middletown v. N/E Regional Office, United States Postal
Service, 601 F. Supp. 125 (D.N.J. 1985) ....................................................... 13
Turner v. Safley, 482 U.S. 78 (1987)................................................................... 4
United States Postal Service v. Town of Greenwich, 901 F. Supp. 500
(D. Conn. 1995) ........................................................................................ 12, 13
United States v. American Targeted Advertising, Inc., 257 F.3d 348
(4th Cir. 2001) .................................................................................................. 9
United States v. City of Pittsburg, 661 F.2d 783 (9th Cir. 1981) ................ 12, 14
Widmar v. Vincent, 454 U.S. 263 (1981) ............................................................ 7
Constitutional Provisions
U.S. Const. art. VI, cl. 2....................................................................................... 7
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Statutes
39 U.S.C. § 3622(b)(3) ...................................................................................... 10
39 U.S.C. § 3626(a)(1)-(3)................................................................................... 8
39 U.S.C. § 4452(b) (repealed 1970)................................................................... 8
39 U.S.C. § 4452(d) (repealed 1970)................................................................... 8
Act of Oct. 30, 1951, Pub. L. No. 82-233, § 2, 65 Stat. 672 ............................... 9
Rules and Regulations
28 C.F.R. § 540.70 ............................................................................................. 20
Other Authorities
H.R. Rep. No. 91-1104, reprinted in 1970 U.S.C.C.A.N. 3649, 3659 .............. 10
Richard B. Kielbowicz and Linda Lawson, Reduced-Rate Postage for
Nonprofit Organizations: A Policy History, Critique, and Proposal,
11 Harv. J.L. & Pub. Pol. 347 (1988)................................................... 9, 10, 11

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I.
A.

IDENTITY AND INTERESTS OF THE
AMICUS CURIAE

Nature of Action
This civil rights action was filed by Prison Legal News ("PLN"), which

publishes a monthly newsletter that reports on legal cases and news stories related
to prisoner rights and prison conditions of confinement. In the District Court, PLN
contended that the Washington Department of Corrections ("Department of
Corrections" or "Department") violated its First Amendment rights by adopting
regulations that preclude delivery to Washington inmates of any and all mail (other
than periodicals to which inmates have a subscription) that is sent at "bulk mail"
rates. It asserted additional claims under the First Amendment related to
Department regulations that preclude the delivery of "catalogs" and certain "thirdparty legal materials". In addition, it asserted a due process claim based on the
failure of prison officials to provide the basic procedural rights to which mail
senders and recipients are entitled when prison authorities decline to deliver mail to
inmates.
B.

The ACLU and Its Interest in This Action
The American Civil Liberties Union of Washington ("ACLU") is a

nonprofit, nonpartisan civil liberties organization with over 15,000 members in
Washington State. It is affiliated with the national American Civil Liberties Union.
Consistent with its mission to protect constitutional rights, the ACLU often
has participated as amicus curiae or as direct counsel in cases involving the First
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Amendment and Due Process rights of prison inmates and persons, including
publishers, who seek to communicate with prisoners. It was, for example, an
amicus curiae before this Court in Prison Legal News v. Cook, 238 F.3d 1145 (9th
Cir. 2001), and provided counsel for the prisoner who was denied publications in
Miniken v. Walter, 978 F. Supp. 1356 (E.D. Wash. 1997).
In addition to its general interest in the protection of constitutional rights, the
ACLU has a direct, personal interest in some of the issues before the Court because
it and/or affiliated entities sometimes correspond with prisoners utilizing the
discounted, nonprofit bulk mailing rates approved by Congress and the United
States Postal Service. For example, the ACLU publishes a quarterly newsletter for
its members entitled Civil Liberties, which is mailed at the nonprofit rate. Some
ACLU members are incarcerated, and therefore have had problems receiving their
newsletters. Some of them have asked the ACLU to send Civil Liberties to the
addresses of relatives outside the prison system, which leads to delays in the
prisoners receiving their newsletters and additional mailing expenses for their
relatives.
Similarly, The National Prison Project of the American Civil Liberties
Union Foundation ("NPP-ACLUF") publishes a quarterly publication called the
National Prison Project Journal ("NPP Journal"). Copies of the NPP Journal sent
to subscribing prisoners in Washington State had been rejected by corrections
officials solely because the publication is mailed at bulk rates, which led the NPPACLUF to become a plaintiff in Humanists of Washington v. Lehman, No. C97-

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5499FDB (W.D. Wash. filed Aug. 7, 1997) (challenging Washington Department
of Corrections regulations and rules that prohibited the delivery of subscription
publications mailed at "bulk" rates, without notice that the publication was not
being delivered to its intended recipient).
The effects of the regulations challenged here are not limited to publishers
like PLN whose primary audience consists of prisoners and persons (such as
attorneys) who work with prisoners. As Appellees observe in their Brief, the
Department of Corrections has censored mailings from political, scientific and
literary magazines, colleges, religious groups, and even the United States
Department of Justice. Brief of Appellees at 9 & n.9 (Jan. 9, 2004). Moreover, the
Department's regulations directly affect prison inmates, none of whom are parties
to this action or appeal. Given its unique position as a guardian of the
constitutional rights of all Americans, the ACLU offers this amicus brief to provide
a broader perspective to the Court than the necessarily more fact-specific Briefs of
the parties. The ACLU urges the Court not to overlook the effect that its ruling
will have on both prisoners and nonprofit organizations of all kinds, in addition to
publishers like PLN whose primary audience consists of prisoners.
C.

Source of ACLU's Authority to File This Brief
The ACLU has filed a motion, contemporaneously with this Brief, in which

it requests the Court to grant it permission to submit this Brief.

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II.

SUMMARY OF ARGUMENT

As a general matter, the ACLU agrees with Appellees that the regulations
that preclude delivery to Washington inmates of "bulk mail", "catalogs" and "thirdparty legal materials" cannot survive scrutiny under the test enunciated by the
Supreme Court in Turner v. Safley, 482 U.S. 78 (1987), as applied by this Court in
cases such as Prison Legal News v. Cook, 238 F.3d 1145 (9th Cir. 2001), and
Morrison v. Hall, 261 F.3d 896 (9th Cir. 2001), and that the failure to provide
notice to publishers and prisoners when mail is withheld constitutes a violation of
Due Process under Cook and Frost v. Symington, 197 F.3d 348 (9th Cir. 1999).
The ACLU will not repeat arguments already made by Appellees, but instead
offers additional perspectives on the unconstitutionality of the Department's
censorship and the harms it creates.
A.

Bulk Mail
Congress determined long ago that communications between nonprofit

organizations and their intended audience provide benefits not only to those
organizations and the recipients of their mailings, but to society as a whole.
Consequently, Congress established special mail rates, including discounted rates
for bulk mailings, that are available only to nonprofit organizations. Congress did
not create an exception to those rates for mail that is sent to prisoners.
The Washington Department of Corrections, however, has taken upon itself
to "repeal" the special postage rates that Congress and the United States Postal
Service have deemed appropriate for nonprofit organizations like the ACLU to use.
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The Department of Corrections has no authority to do so. Only Congress can limit
the application of laws that it has enacted. The Department's actions are thus
preempted by federal law.
The Department's actions with respect to "bulk mail" also violate the First
Amendment. The forced requirement that organizations such as the ACLU must
pay more to send mail, including subscription-related communications, to
Washington inmates than Congress has deemed appropriate is the equivalent of an
unconstitutional tax that discriminatorily targets the speech of the ACLU and other
similarly situated organizations.
B.

Catalogs
As applied to this case, the Department of Corrections' ban on "catalogs" is

directed only to the sale of books. By preventing publishers from sending to
inmates a catalog of book titles—often taking the form of 1-2 page flyers—the
Department improperly impedes the ability of publishers and prisoners to exercise
their First Amendment rights. Indeed, if inmates cannot receive mailings which
advise them of the availability of books that might interest them, and forms with
which to order them, the publisher's (and author's) ability to share their ideas with
the prisoners effectively has been stopped at the prison's walls. This is a
particularly irrational approach to maintaining prison security, because not only
does it not take into consideration the content of the books that might be ordered,
but it fails to acknowledge the positive effects of reading on rehabilitation and
prevention of recidivism.

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C.

Third-Party Legal Materials
The Department of Corrections' refusal to deliver "third-party legal

materials" applies only to original source documents, such as complaints, briefs,
settlement agreements and court orders. At the same time, however, the
Department does not preclude prisoners from learning about the results of legal
proceedings through reports in newspapers, television and other media. If
knowledge about such proceedings is not a threat to institutional security, it defies
logic that a ban on delivery of the source materials would constitute a threat either.
It appears, therefore, that the real purpose underlying this form of censorship is the
fact that possession of "third-party legal materials" can lead inmates to have a
better idea as to how they can assert their rights when those rights are violated by
the Department. Indeed, Department officials have admitted as much. This ban
should not survive scrutiny, therefore, because of the improper burden it places on
access to the courts by prisoners who believe they have been harmed by prison
officials and seek to obtain relief and vindicate their rights.
D.

Notice
There is no justification for the Department of Corrections' refusal even to

give notice to publishers and prisoners that mail sent to Washington prisoners,
whether it be in the form of "bulk mail" or a "catalog", is not being delivered. The
refusal to provide such notice is a denial of the publishers' and the prisoners' Due
Process rights.

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III.
A.

ARGUMENT

WASHINGTON'S BAN ON RECEIPT OF MAIL RELATED TO
SUBSCRIPTION PUBLICATIONS, SOLELY BECAUSE IT IS
MAILED AT "BULK" RATES, IS UNCONSTITUTIONAL
At issue in this lawsuit is the ability of prisoners to receive and of publishers

to send subscription-related mail, where the publisher chooses to take advantage of
special, discounted mailing rates established at the direction of Congress by the
United States Postal Service. These include publishers whose publications contain
political and religious speech, both of which are entitled to the highest protection
under the Constitution. See McIntyre v. Ohio Elections Commission, 514 U.S.
334, 347 (1995) ("[n]o form of speech is entitled to greater constitutional
protection than" political speech); Widmar v. Vincent, 454 U.S. 263, 276 (1981)
(holding, in religious speech case, that "[o]ur cases have required the most exacting
scrutiny in cases in which a state undertakes to regulate speech on the basis of the
content").
1.

Washington's "Bulk Mail" Regulations Conflict With the
Purposes and Objectives of Congress and Therefore Are
Preempted

When action of a state government, whether under its police powers or
otherwise, collides with the Federal Constitution or an act of Congress, the action
of the state "must give way by virtue of the Supremacy Clause." Morris v. Jones,
329 U.S. 545, 553 (1947) (citing U.S. Const. art. VI, cl. 2). Here, the Washington
Department of Corrections' bulk mail regulations directly conflict with federal laws
and policies that encourage the use of special, discounted bulk mailing rates by
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nonprofit organizations. Those regulations, therefore, are subject to preemption
under the Supremacy Clause. See Hankins v. Finnel, 964 F.2d 853, 861 (8th Cir.)
(holding unconstitutional a Missouri law that required prisoners to reimburse the
state for the cost of their incarceration because the law "'stands as an obstacle to the
accomplishment and execution of the full purposes and objectives of Congress'")
(quoting Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 300 (1988)), cert.
denied, 506 U.S. 1013 (1992).
a)

Congress affirmatively encourages communication of
nonprofit organizations by granting them the right to
use discounted, bulk-mailing rates.

For more than 50 years, Congress has acknowledged the importance of
communications by "qualified nonprofit organizations" by granting to them a lower
bulk mailing rate than it provides to other senders of "bulk mail." Qualified
nonprofit organizations include "religious, educational, scientific, philanthropic,
agricultural, labor, veterans' and fraternal organizations or associations which are
not organized for profit and for which none of the net income inures to the benefit
of any private stockholder or individual." See 39 U.S.C. § 3626(a)(1)-(3)
(providing reduced rates for qualified nonprofit organizations, as specified in
former 39 U.S.C. § 4452(b)); 39 U.S.C. § 4452(d) (repealed 1970) (defining
categories of qualified nonprofit organizations entitled to use reduced bulk mailing
rates under former 39 U.S.C. § 4452(b)); accord Arkansas Writers' Project, Inc. v.
Ragland, 481 U.S. 221, 237-38 (1987) ("The United States Postal Service . . .
grants a special bulk rate to written materials disseminated by certain nonprofit
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organizations—religious, educational, scientific, philanthropic, agricultural, labor,
veterans' and fraternal organizations.") (Scalia, J., dissenting). Thus,
"[o]rganizations and groups eligible for the Nonprofit Standard Rate are permitted
to mail letters and other materials for about forty-three percent less than the rate
paid by businesses operated for profit." United States v. American Targeted
Advertising, Inc., 257 F.3d 348, 352 (4th Cir. 2001).
The discounted bulk rate granted to qualified nonprofit organizations—
including the ACLU—reflects a congressional recognition that mailings by the
specified types of nonprofit groups yield benefits for society as a whole. See
Richard B. Kielbowicz and Linda Lawson, Reduced-Rate Postage for Nonprofit
Organizations: A Policy History, Critique, and Proposal, 11 Harv. J.L. & Pub. Pol.
347, 348 (1988) (hereinafter "Kielbowicz & Lawson"); cf. Bob Jones University v.
United States, 461 U.S. 574, 591 (1983) (stating, in regard to tax exemptions for
501(c)(3) organizations, "Charitable exemptions are justified on the basis that the
exempt entity confers a public benefit—a benefit which the society or the
community may not itself choose or be able to provide, or which supplements and
advances the work of public institutions already supported by tax revenues"). This
special treatment for nonprofit organizations can be traced back to at least 1951,
when Congress exempted nonprofit bulk mailings from a rate increase that was
applied to commercial mailers. See Kielbowicz & Lawson, supra, at 354 (citing
Act of Oct. 30, 1951, Pub. L. No. 82-233, § 2, 65 Stat. 672). This decision
followed substantial congressional testimony by representatives of nonprofit

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organizations that any increase in bulk mailing rates that applied to them would
severely undercut the services they provided. See id. at 354-55. 1
When Congress in 1970 reorganized the Post Office Department into the
United States Postal Service, it sought, in part, to modernize the way in which
postal rates are created, and established a requirement that each class of mail must
bear the costs attributable to it as well as its share of general overhead. See id. at
366-67 (citing 39 U.S.C. § 3622(b)(3)). In essence, Congress sought to make each
class of mail pay its own way. Id. at 367. Congress made an exception to this
general requirement, however, for nonprofit mail: "[t]he continuation of belowcost rates for nonprofit mailers thus veered markedly from general policy
established by the [Postal] Reorganization Act." Id. at 367; H.R. Rep. No. 911104, reprinted in 1970 U.S.C.C.A.N. 3649, 3659 ("The same groups that enjoy
the benefits of free or reduced rate mail today will continue to enjoy these benefits
until changed by law, if and to the extent that Congress appropriates to the Postal
Service the revenue foregone by the free or reduced rates"). The continued
provision of lower rates for nonprofit organizations again reflected "that the public

1

Arguments made to dissuade Congress from raising bulk mail rates
applicable to nonprofit organizations included: (1) nonprofit organizations devote
the income they obtain from mailings to their charitable activities; (2) if bulk mail
rates were increased, these organizations might need to curtail some of their
services in order to cover the higher postal costs (even though the Post Office
would gain little revenue); and (3) these nonprofit organizations were helping
people who otherwise would have to turn to the Government for aid. See
Kielbowicz & Lawson, supra, at 356.
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benefits from nonprofit mail." Kielbowicz & Lawson, supra, at 367; see also
Greenberg v. Bolger, 497 F. Supp. 756, 776 (E.D.N.Y. 1980) (discounted postal
rates "are public facilities designed to promote public communication").
Thus, Congress repeatedly has recognized the important social benefits that
nonprofit organizations provide to society and their need to use discounted bulk
mail rates to communicate with their target audiences, through means such as
newsletters, periodicals and brochures. 2 Congress's goals in granting nonprofit
organizations the right to use discounted bulk-mailing rates would be unduly
impeded, and the impact of this Court's decisions in Prison Legal News v. Cook,
238 F.3d 1145 (9th Cir. 2001), and Morrison v. Hall, 261 F.3d 896 (9th Cir. 2001),
unduly restricted, if organizations such as the ACLU could use bulk-mail rates
only for their publications, and not for other communications to subscribers and
potential subscribers, including on matters directly related to the publications.

2

Programs and services that nonprofit organizations provide could be
severely restricted if they had to use their limited funds to pay for higher postage
rates. See Kielbowicz & Lawson, supra, at 354-56. Therefore, if denied the right
to use the discounted bulk-mailing rates that Congress and the U.S. Postal Service
have granted to them, some nonprofit organizations could be forced to choose
between reducing expenditures on other programs and services or reducing (or
even eliminating) communications with Washington State inmates, even if the
inmates, by their subscriptions, have indicated a desire to receive the nonprofit
organization's message. See Miniken v. Walter, 978 F. Supp. 1356, 1363 (E.D.
Wash. 1997) (holding that there was no reasonable alternative where the "entire
nonprofit operation [of the publisher] is centered on mailing the publication third
class as an economic and logistical matter").
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b)

Local laws and regulations that conflict with federal
postal laws and regulations are preempted.

Court repeatedly have recognized that state and local laws that conflict with
federal laws and policies related to the United States Postal Service are subject to
federal preemption. For example, in United States v. City of Pittsburg, 661 F.2d
783, 784 (9th Cir. 1981), this Court ruled that a local law which prohibited postal
workers from crossing private lawns unless they obtained the resident's prior
consent was preempted. The Court indicated that
[l]ocal law will be found to be preempted by federal law
whenever the "challenged state statute 'stands as an obstacle to
the accomplishment and execution of the full purposes and
objectives of Congress.'"
Id. at 785 (citations omitted). Focusing on whether the city's ordinance "obstructs
the execution of Congressional objectives in the area of mail delivery," id., the
Court held that the ordinance was preempted because it conflicted with and
frustrated the congressional goal to increase postal efficiency. Id. at 785-86.
Other courts likewise have concluded that local laws that infringe upon the
execution of congressional objectives related to the delivery of mail are subject to
preemption. For example, in United States Postal Service v. Town of Greenwich,
901 F. Supp. 500 (D. Conn. 1995), the court held that the Postal Service was not
subject to local building codes and building permit fee schedules, when it sought to
erect a new Post Office building, because Congress had not unambiguously
authorized that the Postal Service be subjected to such codes and fees. Id. at 505.
The court concluded that the preemptive effect of federal law also applied
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derivatively to efforts by the Town of Greenwich to subject to the building code
and permit fees a lessor of the building and the private contractor engaged to build
it. The court ruled that the building code was preempted to the extent it actually
conflicted with federal law, holding that "the state law in this case conflicts with a
federal scheme by infringing on the Postal Service's mandate to construct and
operate post offices as authorized under the Postal Reorganization Act." Id. at 507.
The court added:
Any regulation of the post office project, whether against the
property, the lessor, or the building contractors "stands as an
obstacle to the accomplishment and execution of the full
purposes and objectives of Congress."
Id. (quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941)); see also Township of
Middletown v. N/E Regional Office, United States Postal Service, 601 F. Supp.
125, 127 (D.N.J. 1985) (holding that Postal Service is not subject to local zoning
regulations because, "unless Congress clearly and affirmatively declares that
federal instrumentalities shall be subject to state regulation, the federal function
must be left free of such regulation"); Grover City v. United States Postal Service,
391 F. Supp. 982, 986-87 (C.D. Cal. 1975) (holding that local ordinance which
directed that curbside mailboxes be removed and located at least six inches behind
the sidewalk conflicted with postal regulations and therefore was preempted under
the Supremacy Clause).
These rules apply to the present case because, in prohibiting the delivery of
mail sent by nonprofit organizations at bulk mailing rates, the regulations enacted

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by the Department of Corrections "stand[] as an obstacle to the accomplishment
and execution of the full purposes and objectives of Congress." See City of
Pittsburg, 661 F.2d at 785. State prison officials simply may not override the
decision of Congress to allow nonprofit organizations, like the ACLU, to use
discounted bulk-mailing rates to communicate with actual and potential
subscribers, including for purposes related to renewal and solicitation of
subscriptions.
2.

Forcing Nonprofit Organizations—or, Indeed, Any
Organization That Qualifies to Use Bulk-Mailing Rates—to
Use More Expensive Rates of Mail Is Equivalent to
Imposing an Unconstitutional Tax or Surcharge

"Freedom of speech, freedom of the press, freedom of religion are available
to all, not merely those who can pay their own way." Murdock v. Pennsylvania
(City of Jeannette), 319 U.S. 105, 111 (1943). Accordingly, states "may not
impose a charge for the enjoyment of a right granted by the Federal Constitution."
Id. at 113; cf. Follet v. Town of McCormick, 321 U.S. 573, 577 (1944) (stating, in
holding that an ordinance which imposed a license fee for selling books was an
unconstitutional burden on a Jehovah Witness's free exercise of religion: "The
exaction of a tax as a condition to the exercise of the great liberties guaranteed by
the First Amendment is as obnoxious . . . as the imposition of a censorship or a
previous restraint.").
These concerns have special relevance when a state authority imposes
increased costs on persons exercising their First Amendment right to free speech.

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For example, in Minneapolis Star & Tribune Co. v. Minnesota Commissioner of
Revenue, 460 U.S. 575 (1983), the Supreme Court held unconstitutional a
Minnesota statute which had enacted a "use tax" on ink and paper used in
publications, with the first $100,000 of ink and paper consumed in any calendar
year exempt from the tax. Id. at 577-78. Not only did this special use tax apply
only to publications, but it affected only publications large enough to have annual
ink and paper expenditures in excess of $100,000. Id. at 581.
Because taxes that burden First Amendment rights "cannot stand unless the
burden is necessary to achieve an overriding governmental interest," id. at 582, the
Court concluded that Minnesota's ink and paper tax was unconstitutional. The
Court explained that "differential treatment, unless justified by some special
characteristics of the press, suggests that the goal of the regulation is not unrelated
to suppression of expression, and such a goal is presumptively unconstitutional."
Id. at 585. The Court then described some of the detrimental results of upholding
such a tax:
When the State singles out the press, though, the political
constraints that prevent a legislature from passing crippling
taxes of general applicability are weakened, and the threat of
burdensome taxes becomes acute. That threat can operate as
effectively as a censor to check critical comment by the press,
undercutting the basic assumption of our political system that
the press will often serve as an important restraint on
Government.

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Id. at 585; see also Grosjean v. American Press Co., 297 U.S. 233, 250 (1936) ("A
free press stands as one of the great interpreters between the Government and the
people. To allow it to be fettered is to fetter ourselves").
Here, Congress rationally determined that all persons who satisfy certain
conditions may mail their communications at bulk rates that are lower than "firstclass" rates. Congress also determined that certain qualified nonprofit
organizations deserve even lower bulk mailing rates. Nevertheless, the
Washington Department of Corrections in effect tells all persons who qualify to
use bulk mail rates that they may not do so, that acts of Congress related to the
mails are unenforceable in Washington prisons and that, if they wish to
communicate with Washington State prisoners, they must pay more for that
privilege than Congress has determined they must.
The difference between the bulk mailing rates authorized by Congress and
the higher rates required by the Department of Corrections effectively constitutes a
tax or surcharge on persons who qualify under federal law to use bulk mailing
rates—and even more so on qualified nonprofit organizations, which are deprived
of the special discounted rates that Congress and the Postal Service have made
available to them. By contrast, the Department of Corrections does not require
persons who do not qualify for bulk mail rates, because they do not have large
enough mailings, to pay more for postage than Congress determined they should;
they are not subject to a surcharge.

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This surcharge is no different in its effect than the use tax that the Supreme
Court found unconstitutional in Minneapolis Star & Tribune. Both burden the free
speech rights of American citizens. Therefore, it cannot stand unless the burden it
imposes "is necessary to achieve an overriding governmental interest."
Minneapolis Star & Tribune, 460 U.S. at 582. The Department of Corrections
simply cannot demonstrate that this burden on the First Amendment rights of
persons qualified to utilize the Postal Service's bulk mailing rates—including
nonprofit organizations who are entitled to an even lower bulk rate than persons or
entities whose communications are not deemed to provide the same societal
benefits—is necessary to achieve an overriding governmental interest. See Brief of
Appellees at 22-29.
B.

PROHIBITING BOOK ORDER FORMS ON GROUNDS THAT
THEY ARE "CATALOGS" DEFEATS RECOGNIZED GOALS
OF PRISONER REHABILITATION
The Department of Corrections asks the Court to believe that if PLN's book

order forms are allowed into Washington prisons, the floodgates will open wide
and every conceivable catalog will flow into prison mailrooms, requiring review.
The Department fails to acknowledge the extremely limited nature of the issue
before the Court as relates to "catalogs". PLN does not attempt to sell everything
imaginable that could be sold by catalog, nor does it send its book order forms
indiscriminately to every prisoner in Washington State. Rather, it seeks to sell to
its subscribers one and only one thing: books. The Court, therefore, should limit
its review to targeted solicitations related to the sale of books.
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The objective of the Department of Corrections in enforcing its catalog ban
against PLN's book order forms is especially troubling, given the obvious First
Amendment interests involved. See Thornburgh v. Abbott, 490 U.S. 401, 407
(1989) ("there is no question that publishers who wish to communicate with those
who, through subscription, willingly seek their point of view, have a legitimate
First Amendment interest in access to prisoners"). Indeed, Appellees point out that
the Washington catalog ban has even been used to preclude PLN from sending
renewal notices to its active subscribers. Brief of Appellees at 8 & n.8. Clearly,
the right of any publisher to mail its publication to its subscribers is heavily
burdened if the Department can prevent subscribers from renewing an existing
subscription through the simple expedient of calling a one-page letter, or even a
postcard, concerning renewal a "catalog".
Furthermore, precluding PLN (or any other publisher) from sending order
forms to Washington prisoners is irrational in light of the fact that rehabilitation is
one of the recognized goals of incarceration. See Gerber v. Hickman, 291 F.3d
617, 622 (9th Cir.), cert. denied, 537 U.S. 1039 (2002). As this Court recognized
in Morrison, reading is highly conducive to rehabilitation and prevention of
recidivism. In that case, the Court rejected prison officials' arguments that access
to radio and television was an adequate substitute for access to reading materials:
Although radio and television are alternative media by which
inmates may receive information about the "outside" world,
they should not be considered a substitute for reading
newspapers and magazines. . . .

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Watching television and listening to the radio do little to
improve literacy rates among inmates. . . . The Los Angeles
Times also noted the link between higher rates of literacy and
lower rates of recidivism.
Morrison, 261 F.3d at 904 & n.7 (other footnotes omitted). 3
The irrationality of the Department of Corrections' catalog ban is all the
more apparent by comparing the Federal Bureau of Prisons' ("Bureau") position on
the receipt of such materials—including 1-2 page flyers. The Bureau does not
preclude receipt of catalogs or advertising per se, but treats them like any other
subscription publication, such as a newspaper or a magazine:
Except when precluded by statute (see Sec. 540.72), the Bureau
of Prisons permits an inmate to subscribe to or to receive
publications without prior approval and has established
procedures to determine if an incoming publication is
detrimental to the security, discipline, or good order of the
institution or if it might facilitate criminal activity. The term
publication, as used in this subpart, means a book, booklet,
pamphlet, or similar document, or a single issue of a magazine,
periodical, newsletter, newspaper, plus such other materials

3

Some prison systems have kept rehabilitative goals in mind, even as they
attempt to preclude the admission of certain categories of mail. For example, in
Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119 (1977), prison
officials barred prisoners from receiving mail in bulk, for subsequent distribution
by them to other inmates. Id. at 130-31 & nn.7-8. Certain organizations were
excluded from the ban, however—the Jaycees, Alcoholics Anonymous and the
Boy Scouts—because their purpose in sending mail in bulk to prisoners was
viewed as advancing the goal of rehabilitation. Id. at 133-36 & nn. 10-11. See
also Allen v. Wood, 970 F. Supp. 824, 829 (E.D. Wash. 1997) (prison regulations
distinguished catalogs for curio and hobby craft from other catalogs).
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addressed to a specific inmate such as advertising brochures,
flyers, and catalogs.
28 C.F.R. § 540.70. The Department of Corrections' interpretation of its own
"catalog" regulation thus is overly broad, in violation of publisher and prisoner
First Amendment rights.
C.

THE DEPARTMENT'S RESTRICTION ON RECEIPT OF
THIRD-PARTY LEGAL MATERIALS IMPEDES PRISONERS'
EXERCISE OF THEIR CONSTITUTIONAL RIGHT OF
ACCESS TO THE COURTS
The Department of Corrections' prohibition on delivery of certain third-party

legal materials to inmates is irrational, as Appellees explain at pages 35-38 of their
Brief. Of even greater concern is the suspect motivation behind it. As Appellees
explain,
PLN had an admission from the defendant Blodgett himself that
"one of the problems" that justified the censorship of these
materials "might" be the kind of articles PLN carries,
instructing prisoners of their rights and the Department's
violations. SER 504. "Maybe that isn't the type of articles that
we would really like circulated among the population. . . ."
Brief of Appellees at 38. The District Court similarly concluded that "[f]or certain
pieces of censored mail PLN may be correct" that "the Department's real
motivation . . . 'is that the materials embarrass the [Department] and educate

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inmates how to file claims.'" Prison Legal News v. Lehman, 272 F. Supp. 2d 1151,
1162 (W.D. Wash. 2003). 4
There can be little doubt that legal materials from other lawsuits can be a
font of information for prisoners who otherwise might not realize that they even
have a potential claim against prison authorities, or know how to pursue that claim
once asserted. It is logical, moreover, to believe that the original source
materials—the pleadings, motions, briefs, affidavits and orders on file—may
contain more useful information for a prisoner-litigant than the highly truncated
information that appears in the newspaper stories and television broadcasts to
which Washington inmates are granted access. Moreover, to the extent PLN
through its newsletter performs an educational function for prisoners, and helps
them to recognize their rights and the types of claims they may be entitled to assert,
that function also is stymied if its inmate-contributors are denied access to original
source materials. Thus, either directly or indirectly (through PLN), the likely result
is that prisoners with legitimate claims are precluded from pursuing those claims
with the full cache of information that would be at their disposal but for the
Department's restriction on inmate access to third-party legal materials.
This is a matter of grave concern. As this Court has observed,

4

Even if the Department's concern is simply that it not be embarrassed by
legal materials that describe illegal action by prison officials, the motivation is still
inappropriate. See Procunier v. Martinez, 416 U.S. 396, 413, 415 (1974),
overruled in part on other grounds by Thornburgh v. Abbott, 490 U.S. 401 (1989).
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A prisoner's constitutional right of meaningful access to the
courts, which underlies the issue here, is fundamental. Bounds
v. Smith, 430 U.S. at 828, 97 S. Ct. at 1498. The reality and
substance of any of a prisoner's protected rights are only as
strong as his ability to seek relief from the courts or otherwise
to petition the government for redress of the deprivation of his
rights.
Bradley v. Hall, 64 F.3d 1276, 1280 (9th Cir. 1995). This constitutional right of
"meaningful" access to the courts can best be protected by allowing inmates access
to information that will allow them to recognize and assert their rights, especially
when the Department has all but conceded that the information it strives to prevent
prisoners from accessing in its original, unedited and unfiltered form, does not
threaten any legitimate penological interest because inmates can review the same
information (albeit in a highly condensed form) in a newspaper, magazine or other
publication, or through a radio or television broadcast.
D.

IF MAIL IS REJECTED, PUBLISHERS AND INMATES ARE
ENTITLED TO RECEIVE NOTICE
Any restriction on mail sent to prisoners must be accompanied by procedural

protections. As this Court held in Prison Legal News v. Cook, because publishers
and prisoners "have a constitutionally protected right to receive subscription nonprofit organization standard mail, it follows that such mail must be afforded the
same procedural protections as first class and periodicals mail under Department
regulations." 238 F.3d at 1152-53; accord Frost v. Symington, 197 F.3d 348, 353
(9th Cir. 1999) (holding that a prison inmate "has a Fourteenth Amendment due

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process liberty interest in receiving notice that his incoming mail is being withheld
by prison authorities"). The same result is mandated here. 5

5

In Procunier v. Martinez, the Supreme Court determined that due process is
satisfied where (1) the inmate is notified of the rejection of mail written or sent to
him; (2) the author is given reasonable opportunity to protest; and (3) complaints
are directed to a prison official other than the one who disapproved the
correspondence. 416 U.S. at 418-19. These are considered to be the minimal
procedural safeguards required when mail is withheld. See McKinney v. DeBord,
507 F.2d 501, 505 (9th Cir. 1974). Although Thornburgh v. Abbott, 490 U.S. 401
(1989), overruled Procunier in other respects, the Court in Thornburgh did not
overrule Procunier's holding that restrictions of prisoner mail must be accompanied
by procedural protections. Indeed, the Court explicitly pointed out that the
regulations at issue in Thornburgh established procedural protection, including
providing the publisher or sender of rejected publications a copy of the rejection
letter and allowing the publisher to obtain independent review of the decision. 490
U.S. at 406.
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IV.

CONCLUSION

For the reasons set forth above, the Court should affirm the District Court's
injunctive orders with respect to bulk mail, catalogs and notice of withheld mail,
and its decision to leave open until trial issues of qualified immunity with respect
to third-party legal materials.
RESPECTFULLY SUBMITTED this _____ day of January, 2004.
PERKINS COIE LLP

By
Joseph E. Bringman
1201 Third Avenue, Suite 4800
Seattle, WA 98101-3099
Telephone: (206) 359-8000
Attorneys for Amicus Curiae American Civil
Liberties Union of Washington

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CERTIFICATION OF COMPLIANCE
I certify, pursuant to Federal Rules of Appellate Procedure 29(d) and
32(a)(7)(C), that the attached amicus brief is proportionally spaced, has a typeface
of 14 points or more and contains 5853 words.
DATED this _____ day of January, 2004.
PERKINS COIE LLP

By
Joseph E. Bringman
1201 Third Avenue, Suite 4800
Seattle, WA 98101-3099
Telephone: (206) 359-8000
Attorneys for Amicus Curiae American Civil
Liberties Union of Washington

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CERTIFICATE OF SERVICE
I hereby certify that I caused two (2) full, true and correct copies of the
foregoing AMICUS BRIEF OF AMERICAN CIVIL LIBERTIES UNION OF
WASHINGTON ("Amicus Brief") to be served on the following parties by causing
the same to be deposited in the United States mail, first-class, postage prepaid, on
this 16th day of January, 2004:
Jesse A. Wing
MacDonald, Hoague & Bayless
705 Second Avenue, Suite 1500
Seattle, WA 98104-1745
Attorneys for Appellees

Shannon E. Inglis
Carol A. Murphy
Assistant Attorney Generals
Criminal Justice Division
P.O. Box 40116
Olympia, WA 98504-0116
Attorney for Appellants

In addition, on the same day the original and fifteen (15) copies of the
Amicus Brief were dispatched via first-class U.S. Mail to the Clerk of the Court as
follows:
Office of the Clerk
The United States Court of Appeals
for the Ninth Circuit
P.O. Box 193939
San Francisco, CA 94119-3939
Joseph E. Bringman

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ADDENDUM

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