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PLN sues Upshur County over jail censorship

Gilmer Mirror, Jan. 1, 2013.
PLN sues Upshur County over jail censorship - Gilmer Mirror 2013

Inmate magazine sues jail


January 24, 2013

A Vermont-based organization which says it “educates prisoners about their legal rights” has filed a federal lawsuit against Upshur County, Sheriff Anthony Betterton and Sheriff’s Lt. Jill McCauley, charging the co-defendants are “wrongfully censoring” the organization’s mailed communications with prisoners in the county jail.

Dallas attorney Cass Wieland, representing the county, has filed a general denial of the charges in the suit filed by Prison Legal News on Nov. 26 in United States District Court in Marshall.

The lawsuit, which seeks an unspecified amount of damages, alleges the county has violated PLN’s right to free speech by rejecting and returning magazines and books it tried to send prisoners.

Mrs. McCauley was named as a co-defendant because she is lieutenant over the jail and a “final policymaker” for it, the document said.

The lawsuit identifies PLN as a nonprofit organization with primary offices in Brattleboro, Vt., and as a wholly-owned subsidiary of the Human Rights Defense Center, a nonprofit, tax-exempt corporation. The center’s “mission is centered on public education, prisoner education, and advocacy in support of basic human rights,” says the 8-page document.

The lawsuit was filed by three Austin attorneys with the Texas Civil Rights Project—Brian McGiverin, Scott Medlock and James C. Harrington.

The document says PLN “publishes and distributes a 56-page legal information magazine addressing the rights of incarcerated people,” which is distributed to prisoners in about 2,200 correctional facilities across the nation. PLN also distributes about 50 books by other publishers concerning the criminal justice system, the lawsuit says.

The plaintiff says that since July 2011, PLN has mailed its magazine to Upshur jail inmates, and that those who subscribe to the magazine are also sent copies of the paperback book Protecting Your Health and Safety: Prisoners’ Rights, published by the Southern Poverty Law Center.

“The book gives inmates information about their right to medical care and protections against inhumane treatment,” the lawsuit says.

“Since July 2011, PLN has received returned copies of its monthly magazine and books from the Upshur County Jail. Out of approximately 223 issues of PLN’s magazine sent since July 2011, at least 86 issues were rejected and sent back. Many books have been returned the same way,” the document states.

The lawsuit then details numerous instances in which publications were purportedly returned between July 2011 and August 2012 with markings such as “Refused,” “Return to Sender,” “No Newspaper,” and “Not Approved by Chief.”

“After suspecting the books and magazines were being censored, PLN’s in-house counsel sent personally addressed letters to individual prisoners to ask if they were receiving the magazines and books,” the lawsuit continues. “These letters, despite being sent in envelopes marked ‘Special Mail: Legal Mail,’ were returned to PLN, unopened, though the prisoners were still incarcerated... ”

The suit charges that the plaintiff was denied due process for censorship decisions, in that it was not given “constitutionally adequate notice of the censorship of the magazine and books” nor provided “an opportunity to be heard or to contest Defendants’ censorship decisions.”

The document also alleges that the “Defendants know their policies and practices unconstitutionally violate PLN’s rights to free speech.”

In addition, the lawsuit says, the defendants’ actions have caused PLN “pecuniary loss of potential subscribers, customers, correspondents and supporters; diversion of resources; loss of reputation; and other damages to be shown at trial.”

It further says the censorship was “arbitrary, unrelated to any legitimate penological interest, and without any individualized determination based on content, in violation (of) PLN’s free speech rights secured by the First and Fourteenth Amendments.”

The plaintiff also quotes the Texas Constitution to support its claim that the state document “offers greater free speech protections than the U.S. Constitution,” so “Defendants’ policy requiring official approval of materials before they are passed on to inmates is an unconstitutional prior restraint on speech.”

Besides seeking monetary damages, the suit asks that a preliminary and permanent injunction be issued “ordering Defendants to stop violating Plaintiff’s rights to due process and free speech.”

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