Ray Hrdlicka v. Perry Reniff

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RAY HRDLICKA, an individual; 

CRIME, JUSTICE & AMERICA, INC., a

California corporation,

Plaintiffs-Appellants, No. 09-15768

v.  D.C. No.

2:08-cv-00343-

PERRY L. RENIFF, in his official GEB-EFB

capacity of Sheriff of the County

of Butte, California,

Defendant-Appellee.



Appeal from the United States District Court

for the Eastern District of California

Garland E. Burrell, District Judge, Presiding

RAY HRDLICKA, an individual; 

CRIME, JUSTICE & AMERICA, INC., a

No. 09-16956

California corporation,

Plaintiffs-Appellants, D.C. No.

v.  2:08-cv-00394-

FCD-EFB

JOHN MCGINNESS, Sacramento

OPINION

County Sheriff,

Defendant-Appellee.



Appeal from the United States District Court

for the Eastern District of California

Frank C. Damrell, Senior District Judge, Presiding

Argued and Submitted

May 13, 2010—San Francisco, California

1811

1812 HRDLICKA v. RENIFF

Filed January 31, 2011

Before: Stephen Reinhardt, William A. Fletcher and

N. Randy Smith, Circuit Judges.

Opinion by Judge William A. Fletcher;

Dissent by Judge N.R. Smith

1816 HRDLICKA v. RENIFF

COUNSEL

Andrew Alexander Dosa, Alameda, California, Spencer D.

Freeman, Tacoma, Washington, for the appellants.

Bradley Justin Stephens, OFFICE OF THE COUNTY

COUNSEL, Oroville, California, for appellee Perry Reniff.

Amanda Lynn Butts, Jeri Lynn Pappone, LONGYEAR

O’DEA AND LAVRA, Sacramento, California, for appellee

John McGinness.

Paul R. Coble, Martin J. Mayer, JONES & MAYER, Fuller-

ton, California, for Amicus Curiae.

OPINION

W. FLETCHER, Circuit Judge:

Plaintiffs, Ray Hrdlicka and his publication Crime, Justice

& America (“CJA”), brought two suits claiming that their

First Amendment rights are being violated by the mail poli-

cies at two county jails in California that refuse to distribute

unsolicited copies of CJA to inmates. The district courts in

each case granted summary judgment to defendants after

applying the four-factor test of Turner v. Safley, 482 U.S. 78

(1987).

In these related appeals, we conclude that questions of

material fact preclude summary judgment to defendants. On

this record, we cannot hold as a matter of law under Turner

that defendants have sufficiently justified their refusal to dis-

tribute unsolicited copies of CJA to jail inmates. We therefore

reverse and remand to the respective district courts.

I. Background

Ray Hrdlicka, a former bail bondsman, began publishing

CJA in 2002. CJA addresses criminal justice topics relevant

HRDLICKA v. RENIFF 1817

to jail inmates. One recent issue of the publication included,

for example, a section describing the steps between a felony

arrest and conviction, an article on firearms enhancements to

sentences, and a page of humor. Approximately three-fourths

of each publication contains such content. The remainder con-

tains advertisements for bail bond agents and lawyers. CJA

attracts advertisers by promising to get their message in front

of thousands of jail inmates who are in immediate need of

their services. Since 2002, CJA has published 14 editions and

over 1 million copies. CJA is currently distributed in jails in

more than 60 counties in 13 states, including 32 county jails

in California.

The Principal Librarian for the California Department of

Corrections has recommended CJA as an acceptable donation

to the California Department of Corrections Law Libraries.

Fortune Small Business described CJA as a “surprisingly

professional-looking 40-page upstart quarterly with articles

written by lawyers and other criminal-justice-system profes-

sionals and spotlighting issues most glossies prefer to avoid.”

The record contains over 100 letters of appreciation from

inmates who have found the publication valuable.

CJA does not rely on subscriptions or requests for distribu-

tion. Instead, CJA delivers unsolicited magazines to inmates

through one of two methods. If a jail agrees to accept general

distribution, CJA delivers weekly supplies of magazines that

jail staff then leave in common areas of the jail. If a jail

declines to accept general distribution, CJA mails individually

addressed issues directly to some inmates after obtaining

inmate roster information. Under either method, CJA is typi-

cally delivered weekly at a ratio of about one copy for every

ten inmates.

A. Hrdlicka v. McGinness

In September 2003, Plaintiffs contacted the Sacramento

County Sheriff’s Office to inquire about distributing CJA to

1818 HRDLICKA v. RENIFF

inmates in the jail in Sacramento County, California. Captain

Scott Jones initially responded that individually addressed

copies of CJA could be delivered to jail inmates, but that the

jail would not facilitate general distribution. Plaintiffs made

several requests for electronic copies of the inmate roster.

These requests were denied, but Captain Jones informed

Plaintiffs that a daily list of inmates was available in the jail

lobby. Using that list, in December 2004 CJA began mailing

individually addressed unsolicited copies to inmates at a ratio

of one copy for every ten inmates.

In May 2005, Captain Jones informed Plaintiffs that the jail

would no longer permit delivery of unsolicited copies of CJA.

Captain Jones cited the jail’s Operations Order, which prohib-

its the distribution of unsolicited publications regardless of

content or postage rate. According to Captain Jones, the jail

has never refused to deliver CJA to an inmate who requested

it. The jail has a separate policy limiting the personal property

an inmate can keep in his cell to the amount that can be held

in two copy-paper boxes. An inmate may keep up to one

newspaper, five periodicals, and five soft-covered books in

his cell at any given time.

On February 5, 2008, Plaintiffs filed a § 1983 suit for

injunctive relief against Sacramento County Sheriff John

McGinness, alleging that the jail’s refusal to distribute unso-

licited copies of CJA violates the First Amendment. The dis-

trict court granted summary judgment to Sheriff McGinness

under Turner.

Plaintiffs timely appealed.

B. Hrdlicka v. Reniff

In August 2004, Plaintiffs contacted the Butte County Sher-

iff’s Department to inquire about distributing CJA to inmates

in the jail in Butte County, California. Plaintiffs proposed a

general distribution of CJA. Alternatively, they requested a

HRDLICKA v. RENIFF 1819

list of inmates so that Plaintiffs could mail individually

addressed issues of CJA. Plaintiffs proposed weekly distribu-

tion of one issue for every ten inmates. Sheriff’s Department

officials informed Plaintiffs that the jail would not allow

delivery of unsolicited copies of CJA to inmates through

either method. They explained that the jail’s mail policy pro-

hibits distribution of unsolicited commercial mail through

either general or individually addressed delivery.

The Butte County jail’s mail policy is contained in a

Departmental Order. That order was issued on September 23,

2004, one month after CJA contacted the Sheriff’s Depart-

ment. The order prohibits the distribution of all unsolicited

commercial mail to inmates, regardless of content or postage

rate. The Butte County jail has policies limiting the amount

of written materials inmates can keep in their cells and pro-

hibiting inmates from leaving items in common areas.

On February 5, 2008, Plaintiffs filed a § 1983 suit for

injunctive relief against Butte County Sheriff Perry Reniff,

alleging that the jail’s refusal to distribute unsolicited copies

of CJA violates the First Amendment. The court granted sum-

mary judgment to Sheriff Reniff under Turner.

Plaintiffs timely appealed.

II. Standard of Review

We review de novo a district court’s order granting sum-

mary judgment. Bamonte v. City of Mesa, 598 F.3d 1217,

1220 (9th Cir. 2010). Viewing the evidence in the light most

favorable to CJA and Hrdlicka, we must determine whether

there are any genuine issues of material fact and whether the

district courts correctly applied the relevant substantive law.

See id.

1820 HRDLICKA v. RENIFF

III. Discussion

A. First Amendment

[1] Defendants argue categorically that the First Amend-

ment does not protect distribution of a publication to inmates

who have not requested it. The proper analysis, however, is

more nuanced. In examining regulations that restrict commu-

nications with inmates, we first determine whether any First

Amendment interest is implicated. If such an interest is impli-

cated, we apply the four-factor Turner test to decide whether

that interest gives rise to a protected First Amendment right.

[2] The Supreme Court applied this two-step analysis in

Thornburg v. Abbott, 490 U.S. 401, 408 (1989). The Court

began by stating that “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.” Id. at 408. Hav-

ing found such a “First Amendment interest,” the Court then

turned to the question of whether the publishers had an actual

First Amendment right to send, and the inmates to receive, the

particular communications at issue. Applying Turner, the

Court held that regulations prohibiting certain communica-

tions were valid despite the unquestioned First Amendment

interest. Id. at 419. Similarly, in Pell v. Procunier, 417 U.S.

817 (1974), the Court wrote that “restrictions that are asserted

to inhibit First Amendment interests must be analyzed in

terms of the legitimate policies and goals of the corrections

system.” Id. at 822. The Court noted that inmates might have

a “constitutional interest” in the particular form of communi-

cation they sought, but ultimately held in that case that the

interest did not give rise to a protected First Amendment right

because of the strong countervailing interests of prison admin-

istration. Id. at 823-24, 827-28.

[3] In this case, we first decide whether a publisher has a

First Amendment interest in distributing, and inmates have a

HRDLICKA v. RENIFF 1821

First Amendment interest in receiving, unsolicited publica-

tions. We have repeatedly recognized that publishers and

inmates have a First Amendment interest in communicating

with each other. See, e.g., Prison Legal News v. Lehman, 397

F.3d 692, 699 (9th Cir. 2005) (“PLN II”); see also Thorn-

burgh v. Abbott, 490 U.S. 401, 408 (1989). A First Amend-

ment interest in distributing and receiving information does

not depend on a recipient’s prior request for that information.

See Klein v. City of San Clemente, 584 F.3d 1196, 1204-05

(9th Cir. 2009) (“The mere fact that an unwilling recipient

must take the unsolicited leaflet from her windshield and

place it in the garbage cannot justify an across-the-board

restriction.”); see also Martin v. City of Struthers, 319 U.S.

141, 143, 148-49 (1943) (striking down as unconstitutional a

municipal ordinance that made it unlawful to go door to door

distributing handbills, circulars, or advertisements). We see

no reason why this well-established principle does not apply

to a publisher’s interest in distributing, and an inmate’s corre-

sponding interest in receiving, unsolicited literature.

[4] Because a publisher cannot deliver unsolicited commu-

nications to an inmate by distributing handbills on the street,

or by leaving unsolicited leaflets on cars, the publisher needs

some form of cooperation from jail or prison authorities in

order to distribute its literature. (Indeed, some cooperation is

needed for solicited communications as well.) However, jail

or prison authorities cannot be required to distribute unsolic-

ited communications irrespective of the burdens such distribu-

tion might place upon them. Whether the First Amendment

interest in unsolicited communication with inmates gives rise

to a First Amendment right thus implicates very different con-

cerns from such communication in public fora. The Supreme

Court’s opinion in Turner addresses precisely those concerns.

The Court in Turner upheld a prison policy that restricted

the exchange of non-legal mail between inmates in different

institutions who were not family members. The Court stated

that “[p]rison walls do not form a barrier separating prison

1822 HRDLICKA v. RENIFF

inmates from the protections of the Constitution.” Turner, 482

U.S. at 84. The Court recognized, however, that “[r]unning a

prison is an inordinately difficult undertaking that requires

expertise, planning, and the commitment of resources, all of

which are peculiarly within the province of the legislative and

executive branches of government.” Id. at 84-85. The Court

held that “when a prison regulation impinges on inmates’ con-

stitutional rights, the regulation is valid if it is reasonably

related to legitimate penological interests.” Id. at 89.

The Court in Turner provided a four-factor test for evaluat-

ing the reasonableness of a prison or jail regulation impinging

on a constitutional right. The Court ultimately accepted the

government’s justification that correspondence between unre-

lated inmates at different institutions facilitated gang activity

and could be used to coordinate escape plans or violent acts.

482 U.S. at 91. It concluded that the policy “is content neu-

tral, it logically advances the goals of institutional security

and safety . . . , and it is not an exaggerated response to those

objectives.” Id. at 93.

[5] The four-factor Turner test considers:

(1) whether the regulation is rationally related to a

legitimate and neutral governmental objective, (2)

whether there are alternative avenues that remain

open . . . to exercise the right, (3) the impact that

accommodating the asserted right will have on other

guards and prisoners, and on the allocation of prison

resources; and (4) whether the existence of easy and

obvious alternatives indicates that the regulation is

an exaggerated response by prison officials.

PLN II, 397 F.3d at 699 (citing Turner, 482 U.S. at 89). We

evaluate the policies of a jail or prison with “due regard for

the ‘inordinately difficult undertaking’ that is modern prison

administration,” recognizing that “certain proposed interac-

tions, though seemingly innocuous to laymen, have poten-

HRDLICKA v. RENIFF 1823

tially significant implications for the order and security of the

prison.” Thornburgh, 490 U.S. at 407 (quoting Turner, 482

U.S. at 85).

We have applied the Turner test in four cases involving the

distribution of literature to inmates. In each case, we have

held unconstitutional prison policies that placed restrictions

on the distribution of gift and solicited publications. In Crof-

ton v. Roe, 170 F.3d 957, 960-61 (9th Cir. 1999), we struck

down a regulation that prohibited a prisoner from receiving a

book that had been ordered for him by his stepfather. We held

that “although the state has had ample opportunity to develop

a record, it has offered no justification for a blanket ban on

the receipt of all gift publications.” Id. at 960-61. In Prison

Legal News v. Cook (“PLN I”), 238 F.3d 1145, 1151 (9th Cir.

2001), we struck down a ban on bulk-rate mail as applied to

subscription non-profit publications. We noted that “the

receipt of such unobjectionable mail [does not] implicate

penological interests.” Id. at 1149. In Morrison v. Hall, 261

F.3d 896, 898 (9th Cir. 2001), we extended the holding in

PLN I and struck down a similar regulation as applied to “pre-

paid, for-profit, subscription publications.” We recognized

that “the number of subscription for-profit publications that

enter the [prison] may be greater than the number of subscrip-

tion non-profit publications,” id. at 902 (emphasis in original),

but we noted that the government provided no evidence “re-

garding the impact that processing pre-paid, for-profit sub-

scription publications would have on prison resources.” Id. at

903 (emphasis omitted). Finally, in Prison Legal News v. Leh-

man (“PLN II”), 397 F.3d 692 (9th Cir. 2005), we struck

down a prison ban on “non-subscription bulk mail” (publica-

tions that inmates request but do not pay for). We affirmed the

district court’s finding that “the ban on non-subscription bulk

mail was not rationally related to a neutral government objec-

tive.” Id. at 699.

Our dissenting colleague concludes that because a prison is

a non-public forum, a publisher has no First Amendment

1824 HRDLICKA v. RENIFF

interest in distributing, and an inmate has no First Amend-

ment interest in receiving, unsolicited publications. He there-

fore concludes that the Court’s four-part Turner test is

inapplicable. We respectfully disagree.

[6] The Supreme Court and our court have consistently

applied the Turner test to determine whether various forms of

written communication with inmates are protected by the First

Amendment. See, e.g., Thornburgh (applying Turner to prison

regulation prohibiting specific publications); Crofton v. Roe

(applying Turner to prison regulation banning gift publica-

tions); PLN I (applying Turner to prison regulation banning

bulk-rate mail); Morrison v. Hall (applying Turner to prison

regulation banning bulk-rate, and third and fourth class, mail);

PLN II (applying Turner to non-subscription bulk-rate mail).

In the context of deciding whether the Turner test applies, we

see no way to distinguish what was at issue in those cases

from what is at issue here. All cases, including the case now

before us, have individual challenges to prison or jail regula-

tions forbidding various forms of written communications.

The fact that in this case the publication was unsolicited may,

of course, be taken into account in applying the Turner test.

But the fact that the publication was unsolicited does not

make the Turner test inapplicable.

We therefore review the jails’ policies under the four-factor

Turner test. Because we review summary judgments granted

to defendants, we view the evidence in the light most favor-

able to CJA.

1. “Rationally Related to a Legitimate Penological Objec-

tive”

The first Turner factor is a sine qua non: “[I]f the prison

fails to show that the regulation is rationally related to a legiti-

mate penological objective, we do not consider the other fac-

tors.” Ashker v. Cal. Dep’t of Corr., 350 F.3d 917, 922 (9th

Cir. 2003). But if the regulation is rationally related to a legit-

HRDLICKA v. RENIFF 1825

imate penological objective, that is not the end of the inquiry.

The other three Turner factors must also be evaluated before

a court can decide whether the prison regulation or policy is

permissible.

a. Jail Security

[7] Officers at the Sacramento and Butte County jails

assert that refusing to allow the distribution of unsolicited

copies of CJA promotes security in the jails by reducing the

likelihood of contraband entering the jail, and by reducing the

amount of clutter in each inmate’s cell thereby reducing the

risk of fires and enabling efficient cell searches. The officers

also assert that the policies promote security because, once in

the jail, unsolicited publications are more likely than other

publications to be used for “nefarious purposes” such as

blocking lights or clogging toilets. We do not question the

importance of reducing the likelihood of contraband entering

the jails, reducing the risk of fire, and enabling efficient cell

searches. Nor do we question the importance of discouraging

or preventing inmates from using paper for improper pur-

poses. However, defendants’ general statements are undercut

by the specific evidence they offer in an attempt to show the

degree to which these purposes are actually served by a

refusal to allow the requested distribution of CJA.

For example, Captain Jones of the Sacramento County jail

stated in his deposition that until 2006 the jail accepted deliv-

ery of multiple unsolicited copies of the Sacramento Bee (the

primary general circulation daily newspaper for the Sacra-

mento area) on a “drop-off basis.” The jail stopped delivery

of the Bee in 2006, but for reasons unrelated to those it now

gives for refusing to accept delivery of CJA. Captain Jones

stated in his deposition, “I think at the time the Bee was

stopped because of a perceived crusade against the sheriff’s

department during that time period.” Captain Jones elabo-

rated, “It was very expensive, as well, so I think it was a com-

bination of factors, but I believe that their coverage of the

1826 HRDLICKA v. RENIFF

department during that time period was the catalyst to start

looking at those other factors.”

After delivery of the Bee was canceled, the jail accepted

USA Today on an unsolicited drop-off basis. USA Today was

cancelled after about a year because, according to Captain

Jones, the jail no longer wished to pay for it. Captain Jones

did not list security risks as among the “combination of fac-

tors” that motivated the jail’s decision to stop distributing

either unsolicited newspaper to inmates. He was specifically

asked whether there was any diminution of incidents of “cov-

ering lights [and] clogging toilets” when USA Today was can-

celled. He responded, “I wouldn’t know. . . . I don’t think we

ever kept track of such numbers.”

Captain Jones stated in his declaration that “inmates are not

permitted to leave any materials in the common areas of the

Jail,” and that “[t]here are not materials which are made avail-

able to inmates by placing copies in any of the day rooms.”

However, he stated the opposite in his deposition: “[I]f some-

one has a subscription and gets done with it often times

they’ll put it out for the other inmates to read. . . . [I]f an

inmate gets done with a novel, they might put it out for some-

one else to get[.]” When asked “Would an inmate be allowed

to leave out a copy of Time Magazine when they’re done with

it?”, Captain Jones answered “Yes.”

Captain Jones sought to distinguish the security threat

posed by the availability of newspapers in the common areas

compared to the availability of CJA. He said in his deposition,

“If there were one Crime, Justice & America in a housing

unit, I don’t think it would cause any greater security concern

than a newspaper would.” He was then asked, “What if there

was three copies [of CJA]?” He responded, “Well, three

would cause three times, you know, if you have a minor con-

cern, then you have three times a minor concern, so it’s still

not — I don’t think it would cause an error [sic] of panic, but

nor would it be without consequence.” Captain Jones did not

HRDLICKA v. RENIFF 1827

account for the fact that a general circulation newspaper ordi-

narily has more pages than CJA, nor for the fact that a new

copy of a newspaper is typically delivered every day, whereas

new copies of CJA would be delivered only weekly.

Lieutenant Bryan Flicker of the Butte County jail stated in

his declaration that inmates at that jail already have access to

paper that they use for improper purposes. He stated that

Butte County jail inmates regularly misuse torn out pages

from the telephone books the jail provides in every dayroom

area, as well as from books donated to the jail by the local

community. Lieutenant Flicker did not specify whether distri-

bution of CJA was likely to increase the rate of such use of

paper by inmates.

[8] Further, both jails already have separate policies regu-

lating inmates’ possession of property, including paper, in

their cells. See Morrison, 261 F.3d at 902 (“In light of the reg-

ulation limiting the total amount of property in a cell, . . . per-

mitting inmates to receive for-profit, subscription publications

could not possibly increase the total volume of cell materi-

als.”); see also PLN II, 397 F.3d at 700; PLN I, 238 F.3d at

1150-51. It is thus unclear the degree to which allowing distri-

bution of CJA in the jails would produce additional clutter in

inmates cells or otherwise adversely affect jail security.

b. Staff Resources

[9] Officers at both jails expressed concern that allowing

delivery of unsolicited copies of CJA would require additional

staff time. Officer James Fox of the Sacramento County jail

stated in a declaration that there are 700 pieces of incoming

mail and 600 pieces of outgoing mail per day at the jail. “The

mail is processed during the night shift by a total of sixty (60)

persons, thirty (30) individuals per shift over two (2) shifts.

. . . A total of twenty-four (24) personnel hours are used per

day on mail related duties at the Jail.” But Officer Fox gave

no estimate of how many additional personnel hours would be

1828 HRDLICKA v. RENIFF

required if CJA were delivered to the jail once a week at a

ratio of one issue for every ten inmates. Officers at Butte

County Jail provided no information quantifying the addi-

tional resources that would be required to distribute CJA.

Indeed, they did not even provide information about the

resources the jail currently devotes to mail delivery.

[10] Neither jail has suggested that unsolicited publications

are more difficult to inspect and deliver than solicited publica-

tions. Cf. PLN I, 238 F.3d at 1150 (“The Department has pre-

sented no evidence supporting a rational distinction between

the risk of contraband in subscription non-profit organization

standard mail and first class or periodicals mail.”).

c. Slippery Slope

Captain Jones expressed a concern in his declaration that

“to accept publications or magazines from one publisher

would set an unworkable precedent for the Jail and could obli-

gate the Jail to accept any other publications that appeared on

the doorstep.” But Captain Jones acknowledged in his deposi-

tion that the slippery slope problem was not a concern when

the jail accepted unsolicited copies of the Sacramento Bee and

USA Today. He specifically stated that the jail did not cease

distributing the USA Today “because of any concern about a

precedential value that it would set.”

Captain Jones could recall “maybe three” requests to dis-

tribute unsolicited publications to inmates in Sacramento

County jail since 2000. Of those three requests, Captain Jones

could not remember if any were for regular publications as

opposed to merely one-time-only leaflets. Butte County jail

officers did not present any evidence about other requests to

distribute unsolicited mail.

d. Interference with Existing Advertising

[11] Sheriff Reniff of the Butte County Jail asserts as an

additional interest his desire to maintain control over advertis-

HRDLICKA v. RENIFF 1829

ing of bail in the jail. Butte County jail has a contract with

Partners for a Safer America, Inc. (“PSA”), under which PSA

operates bulletin boards in the jail on which bail bond agents

are allowed to post advertisements. PSA pays the jail a per-

centage of its profits from its sale of advertising space on the

bulletin boards. Sheriff Reniff stated that distributing unsolic-

ited copies of CJA to inmates would be inconsistent with the

jail’s contract with PSA. However, it is not clear on the record

before us that, in fact, distributing CJA would be inconsistent

with the contract.

[12] More important, it is obvious (though not stated by

Sheriff Reniff) that if unsolicited copies of CJA are permitted

in the jail, the value to bail bond agents of advertising on the

jail bulletin boards will be diminished. That diminution in

value may well be reflected in a lower price paid to PSA by

the advertisers, and in a corresponding lower amount paid to

the jail by PSA. We do not believe that a jail has a legitimate

penological interest, for purposes of Turner, in protecting a

profit made by impinging on inmates’ First Amendment

rights. Sheriff Reniff cites no case supporting such a proposi-

tion, and we are aware of none.

The Sacramento County jail, like the Butte County jail, has

bulletin boards posted with information about bail bond

agents. Unlike the Butte County jail, however, the Sacra-

mento County jail is paid no money in return for allowing

these postings.

2. Alternative Avenues to Exercise the Right

[13] The second Turner factor is whether “other avenues

remain available for the exercise of the asserted right.” Tur-

ner, 482 U.S. at 90 (internal quotation marks and citation

omitted). Defendants argue that CJA has alternative avenues

to communicate with inmates because the jails will distribute

CJA to inmates who request it. But there is a material ques-

tion of fact whether, as a practical matter, Plaintiffs can effec-

1830 HRDLICKA v. RENIFF

tively reach county jail inmates if they can deliver CJA only

upon request.

In Morrison, 261 F.3d at 904, we held that the second Tur-

ner factor weighed against the legitimacy of a mail policy

when restricted publications would be delivered only if they

were sent at a higher rate. “ ‘[P]aying a higher rate is not an

alternative because the prisoner cannot force a publisher who

needs to use, and is entitled to use, the standard rate to take

additional costly steps to mail his individual newsletter.’ ” Id.

(quoting PLN I, 238 F.3d at 1149). Here, unlike our earlier

cases, the jails’ policies do not require inmates to pay for

CJA, or for CJA to mail its issues at a higher postage rate. Cf.

Morrison, 261 F.3d at 904.

However, in practice, it is difficult to create a broad aware-

ness of CJA among inmates in jails where, unlike in prisons,

populations turn over quickly. It is true that CJA can advertise

its publication to inmates through the yellow pages or televi-

sion, both of which are available in the jails, and through

word of mouth. But many inmates will have left the jail

before they can learn about the existence of CJA, request that

it be sent to them, and then receive it. Inmates typically want

information about bail bonds and attorneys as soon as they

arrive at the jail. For those who receive CJA only after a sig-

nificant wait, the advertising in CJA is of little or no use.

3. Impact of Accommodating the Asserted Right

[14] The third Turner factor is “the impact accommodation

of the asserted constitutional right will have on guards and

other inmates, and on the allocation of prison resources gener-

ally.” Turner, 482 U.S. at 90. “When accommodation of an

asserted right will have a significant ‘ripple effect’ on fellow

inmates or on prison staff, courts should be particularly defer-

ential to the informed discretion of corrections officials.” Id.

[15] As discussed above, there are material questions of

fact as to whether, and to what degree, the jails would be

HRDLICKA v. RENIFF 1831

forced to expend significant additional resources if CJA is

delivered by either of the two methods sought by Plaintiffs.

Plaintiffs state that they are willing to work with jail officials

to make distribution as easy and efficient as possible. Plain-

tiffs seek to deliver only one copy of CJA for every ten

inmates each week, and have offered the jails the option of

either general delivery or individually addressed mailings. Cf.

PLN I, 238 F.3d at 1151. Officers at the jails have not

explained how mail inspectors will distinguish between a

copy of CJA that is solicited and one that is not. If the jails

have to compile subscription lists and compare incoming mail

to those lists, a ban on unsolicited mail could actually con-

sume more prison resources than accepting such mail. Cf. id.

(prison officials arguing that it is impractical to distinguish

between solicited and unsolicited mail).

4. Exaggerated Response by Prison Officials

[16] The fourth Turner factor requires us to consider

“whether the existence of easy and obvious alternatives indi-

cates that the regulation is an exaggerated response by prison

officials.” PLN II, 397 F.3d at 699. “This is not a ‘least

restrictive alternative’ test: prison officials do not have to set

up and then shoot down every conceivable alternative method

of accommodating the claimant’s constitutional complaint.”

Turner, 482 U.S. at 90-91. “[A]n alternative that fully accom-

modates the [asserted] rights at de minimis cost to valid peno-

logical interests” suggests that the “regulation does not satisfy

the reasonable relationship standard.” Id. at 91. Here, the sug-

gested alternative is the limited distribution sought by Plain-

tiffs, compared to the outright ban imposed by the Sacramento

County and Butte County jails.

[17] The undisputed fact that CJA is currently distributed

in more than 60 counties throughout 13 states, including in 32

California county jails, suggests that the response of the two

jails in this case may be exaggerated. There is a marked con-

trast between defendants’ strong general statements about the

1832 HRDLICKA v. RENIFF

ways the ban on unsolicited copies of CJA serves their peno-

logical purposes, on the one hand, and the weak, and to some

degree contradictory, specific evidence they offer to support

those statements, on the other. Further, defendants have not

demonstrated that they cannot work with CJA to establish dis-

tribution schedules that minimize the drain on jail resources.

Finally, the possibility that Butte County Jail’s policy is moti-

vated by a concern with losing revenue from bail bond adver-

tisements also suggests that the jail’s policy may be an

exaggerated response.

5. Summary

[18] Taking the evidence in the light most favorable to

Plaintiffs and evaluating that evidence under the four Turner

factors, we hold that neither defendant is entitled to summary

judgment.

B. California Law

Defendants assert as a separate justification for their refusal

to deliver unsolicited copies of CJA to inmates that distribu-

tion of CJA violates California’s bail licensee regulations.

The district courts did not reach this issue, and we decline to

decide it in the first instance.

Conclusion

[19] For the foregoing reasons, we reverse the district

courts’ orders granting summary judgment to Defendants. On

the record before us, we cannot determine as a matter of law

that Defendants have justified banning the unsolicited distri-

bution of CJA to county jail inmates under the four-factor

Turner test. We remand to the district courts for further pro-

ceedings consistent with this opinion.

REVERSED and REMANDED.

HRDLICKA v. RENIFF 1833

N.R. SMITH, Circuit Judge, dissenting:

Ray Hrdlicka publishes Crime, Justice & America (“CJA”),

a glossy quarterly publication that is distributed for free to

prison inmates across the United States. Hrdlicka has chosen

a free distribution model of business in which CJA is either

given to correctional facilities to be put in common areas on

a weekly basis or sent to a list culled from the inmate rolls

(which are public record). Apparently, it has been a successful

business model. Since its introduction in 2002, over one mil-

lion copies of CJA have been distributed to inmates across the

United States. CJA’s revenue comes from its advertisers, who

are primarily bail bonds agents and lawyers. In soliciting

advertisers, CJA claims the advertisements will be seen by

“hundreds to thousands” of pre-trial inmates.

Hrdlicka now asks this court to assist him in further

increasing the circulation of CJA over the objections of two

sheriffs who believe that accommodating Hrdlicka’s distribu-

tion model would burden the administration of their correc-

tional facilities. While we have previously found that the First

Amendment guarantees Hrdlicka access to prisoners that have

requested CJA, there have been no prisoner requests here.

Further, there is no precedent suggesting that the First

Amendment guarantees Hrdlicka the special right to sue any

sheriff who refuses to be a de facto distribution arm of the

CJA.

The majority holds that there is a “First Amendment inter-

est in distributing and receiving unsolicited publications.” It

cites Klein v. City of San Clemente, 584 F.3d 1196 (9th Cir.

2009), for the proposition that the First Amendment protec-

tions do not depend on the request of the recipient. Klein,

however, explicitly deals with First Amendment restrictions

in “public fora.” 584 F.3d at 1200-01. Prisons are not public

fora. See United States v. Douglass, 579 F.2d 545, 549 (9th

Cir. 1978). Instead prisons are one of a few “public institu-

tions which do not perform speech-related functions at all . . .

1834 HRDLICKA v. RENIFF

[where] the government is free to exclude even peaceful

speech and assembly which interferes in any way with the

functioning of those organizations.” Id.; see also Adderley v.

State of Florida, 385 U.S. 39, 41 (1966) (“Jails, built for

security purposes, are not [public fora].”)

The majority’s statement, that “Turner [v. Safely, 482 U.S.

78 (1987)] addresses” any “concerns” regarding the differ-

ence between public fora and prisons, is unavailing. As the

Supreme Court stated in Turner, “[o]ur task, then . . . is to for-

mulate a standard of review for prisoners’ constitutional

claimsI[.]” 482 U.S. at 85 (emphasis added). No prisoners’

constitutional claims are implicated in this case. Both before

and after Turner, the Supreme Court and this court have uni-

formly and frequently cautioned against a judicial rule allow-

ing publishers of unsolicited publications a right to demand

distribution within prisons. See Morrison v. Hall, 261 F.3d

896, 905 (9th Cir. 2001) (“[P]risons can and have adopted

policies permitting prisoners to receive [requested] publica-

tions, while at the same time, prohibiting prisoners from

receiving unsolicited junk mail.”) (emphasis added); Prison

Legal News v. Lehman, 397 F.3d 692, 701 (9th Cir. 2005)

(Distinguishing Jones v. North Carolina Prisoners’ Labor

Union, Inc., 433 U.S. 119 (1977), by stating: “In this case,

every piece of mail sent by PLN is sent as a result of a request

by the recipient . . . it is the fact that a request was made by

the recipient . . . that is important.”)

No party disputes that we have no request on a part of any

prisoner to receive the CJA. Prisoners’ First Amendment

rights are not implicated in any way. Instead, Hrdlicka is ask-

ing the court to create a special rule, under the First Amend-

ment, protecting his chosen method of distributing CJA to

inmates.

Any First Amendment analysis involving prisons must be

couched in the understanding that:

HRDLICKA v. RENIFF 1835

[C]ourts are ill equipped to deal with the increas-

ingly urgent problems of prison administration and

reform. . . . Running a prison is an inordinately diffi-

cult undertaking that requires expertise, planning,

and the commitment of resources, all of which are

peculiarly within the province of the legislative and

executive branches of government. Prison adminis-

tration is, moreover, a task that has been committed

to the responsibility of those branches, and separa-

tion of powers concerns counsel a policy of judicial

restraint. Where a state penal system is involved,

federal courts have . . . additional reason to accord

deference to the appropriate prison authorities.

Turner, 482 U.S. at 84-85 (discussing Procunier v. Martinez,

416 U.S. 396 (1974) (internal quotation marks and citations

omitted). With this understanding, the Supreme Court has

held that the press has “no constitutional right of access to

prisons or their inmates beyond that afforded the general pub-

lic.” Pell v. Procunier, 417 U.S. 817, 834 (1974). While Pell

dealt with the press attempting to access prisons in order to

gather information, it remains one of the only cases that has

dealt with the press’s right of access to prisons when no con-

current right of prisoners has been implicated.1

Just as the press had no special right of access to prisons

in Pell, here Hrdlicka has no special right to demand a sheriff

accept one of his chosen methods of distribution, especially

given that a prison is not a public forum. If Hrdlicka would

like prisoners to read CJA, he has the option of spending the

time and money that all other members of the press spend in

order to acquire new readership. Namely, Hrdlicka can adver-

tise both in and outside of the jail in an effort to convince

inmates (or noninmates) to request his publication.2 He can

1

Pell also dealt with an inmate’s right of access to the press. However,

the analysis was done separately from the press’s right of access to the

prison. See Pell, 417 U.S. at 823-828.

2

No inmate has been refused a requested copy of CJA.

1836 HRDLICKA v. RENIFF

also rely on the word of mouth that many publications take

the time to develop among their readers. While this method

of acquiring readers may be costly, in the context of prisons,

losing “cost advantages does not fundamentally implicate free

speech values.” Jones, 433 U.S. at 130-31; see also Cornelius

v. NAACP Legal Defense and Education Fund, Inc., 473 U.S.

788, 809 (1985) (“The First Amendment does not demand

unrestricted access to a non-public forum merely because use

of that forum may be the most efficient means of delivering

the speaker’s message.”). Hrdlicka has chosen not to advertise

to acquire new readership. Instead, he seeks the cost advan-

tage of automatic distribution at any jail he chooses to target.

He does not have such a right.

The majority’s analysis under Turner further demonstrates

the problem with finding a special First Amendment right for

Hrdlicka’s distribution method. By allowing CJA the right to

demand unrequested distribution, the majority forces sheriffs

either to allow all unrequested mail to reach inmates or to

make a case by case determination of the quality of the publi-

cation. In discussing the Turner factors, the majority notes

“[f]or those who only receive CJA after a significant wait, the

bail bond advertising in CJA is of little or no use.” But the

Supreme Court has dictated that the value of information to

inmates is not a valid consideration. “[T]he Turner test, by its

terms, simply does not accommodate valuations of content.”

Shaw v. Murphy, 532 U.S. 223, 230 (2001). The majority

would now require valuation of content for any publisher or

bulk mail advertiser that asked for access to prisons (if no val-

uation is to be made then the majority would suggest that all

unrequested mail should be allowed unless Turner is satis-

fied). Such assessment is impossible under Supreme Court

precedent.

Instead, the simpler and saner rule is that Hrdlicka has no

special First Amendment right to demand that a prison agree

to one of his distribution methods. A prison is not a public

forum, and a ban on unrequested publications is a content

HRDLICKA v. RENIFF 1837

neutral method for sheriffs to ensure efficient administration

of their facilities. A publisher wishing to develop readership

among prisoners is free to advertise or develop word of mouth

programs to encourage the request of a publication. The pub-

lisher is not entitled to use the First Amendment for cost sav-

ings in acquiring new readers. Therefore, Hrdlicka does not

have a special First Amendment right to demand distribution

in prisons, and Sheriffs Reniff and McGuinnes are entitled to

summary judgment.