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Adverse appellate ruling in PLN suit against Florida DOC

Courthouse News, May 21, 2018.

Florida Prison Ban on News Magazine Upheld by 11th Circuit

Eva Fedderly

ATLANTA (CN) – The publisher of Prison Legal News blasted the 11th Circuit for finding that impoundments of the monthly magazine at Florida jailhouses do not violate the First Amendment.

“This is part of the bigger trend with diminishment of free speech and free press – in society in general, not just in prisons,” Paul Wright, executive director of said in a phone interview.

The 48-page opinion from the Atlanta-based federal appeals court Thursday opens with a reference to Oscar Wilde’s novel “The Picture of Dorian Gray.”

“The only way to get rid of a temptation is to yield to it,” Wilde wrote.

With a similar concern in mind, the Florida Department of Corrections has spent the past 15 years impounding issues of Prison Legal News to keep inmates from being tempted to act on ads for prohibited services they might see in the publication.

“Inmates have the time, talent, and tendency to use their phone, pen pal, and correspondence privileges to conduct criminal activity, thwarting efforts to protect inmates and the public,” Chief U.S. Circuit Judge Ed Carnes wrote for the court’s three-person panel. “The record is heavy with evidence of that unfortunate reality.”

Carnes emphasizes that inmates can exploit something as seemingly innocuous as a three-way calling service “to harass the public, arrange contraband smuggling, and conduct other criminal activity.”

Though the Human Rights Defense Center argued on appeal that ads make up less than 10 percent of its content, Friday’s ruling notes that “those naked percentages don’t tell the whole story.”

As the magazine grew from 48 pages in 2005 to 64 pages in 2014, a footnote to the opinion states, Prison Legal News was able “to include more problematic ads without changing the proportion of the magazine devoted to such ads.”

The footnote also notes that the publisher’s “own exhibit shows that the percentage of problematic ads increased from 9.80 percent in 2009 to 15.07 percent in 2014, the last year of the impoundments that are covered in the record.”

“That is an increase of more than 50 percent in the percentage of problematic ads in the most recent five-year period for which there is data,” the footnote concludes.

Though the 11th Circuit found no First Amendment violation, the panel also concluded that due-process violations of the 14th Amendment occurred when corrections officers failed to notify Prison Legal News about its monthly impoundments.

Prison Legal News did not receive a notice form for 42 percent of the issues impounded between 2009 and 2014.

“That number rises to 87 percent when defective notice forms that did not list the reasons for the impoundment are considered,” Carnes added.

Despite the state’s defeat on this point, Patrick Manderfield, a spokesman for the Corrections Department, said they were pleased with Thursday’s ruling.

Prison Legal News failed to sway the court  that Florida’s fears about its ads are overblown.

“The department’s decision to impound Prison Legal News is not an exaggerated response to its security concerns,” Carnes wrote.

Wright shot back, however, with his perception of the court’s agenda.

“The 11th Circuit is known for its hostility towards the Constitution in general,” Wright said.

“As far as we know,” Wright added, the 11th Circuit has never struck down a prisoner jail policy for being unconstitutional in their history. We’re disappointed in the ruling but not surprised.”

The Florida Department of Corrections employs 16,700 officers who oversee 100,000 inmates. There are 123 facilities in Florida. Prison Legal News meanwhile has accumulated 7,000 subscribers — about 70 percent of who are inmates — since its founding in 1990.


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