Petition for Writ of Certiorari — Prison Legal News, Petitioner v. Julie L. Jones, Secretary, Florida Department of Corrections

APPENDIX

TABLE OF APPENDICES

Appendix A

Opinion, United States Court of Appeals

for the Eleventh Circuit, Prison Legal

News v. Secretary, Fla. Dep’t. of

Corrections, No. 15-14220 (May 17, 2018) .. App-1

Appendix B

Amended Order, United States District

Court for the Northern District of Florida,

Prison Legal News v. Jones, No.

4:12cv239-MW/CAS (Oct. 5, 2015) ............ App-48

Appendix C

Relevant Statutory Provision.................. App-112

Fla. Admin. Code R. 33-501.401(3) .. App-112

App-1

Appendix A

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________

No. 15-14220

________________

PRISON LEGAL NEWS, A project of the Human Rights

Defense Center, a Not-for-Profit Washington

Charitable Corporation,

v.

Plaintiff-Appellee

Cross-Appellant,

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

Defendant-Appellant

Cross-Appellee.

________________

Appeals from the United States District Court

for the Northern District of Florida

________________

Filed: May 17, 2018

________________

Before Ed Carnes, Chief Judge, Dubina, Circuit

Judge, and Conway,* District Judge

________________

OPINION

________________

* Honorable Anne C. Conway, United States District Judge for

the Middle District of Florida, sitting by designation.

App-2

Ed Carnes, Chief Judge:

From time to time we have all followed the advice

of Oscar Wilde and gotten rid of temptation by yielding

to it.1 Yielding to the temptation to commit an act that

the law forbids can lead to bad consequences,

including imprisonment. Prison officials have the duty

to reduce the temptation for prisoners to commit more

crimes and to curtail their access to the means of

committing them. The Constitution does place some

limits on the measures that corrections officials may

use to carry out that duty, which is what this case is

about.

The Florida Department of Corrections has rules

aimed at preventing fraud schemes and other criminal

activity originating from behind bars, but inmates

continually attempt to circumvent measures in place

to enforce those rules. The Department, for its part,

continually strives to limit sources of temptation and

the means that inmates can use to commit crimes. One

way it does that is by preventing inmates from

receiving publications with prominent or prevalent

advertisements for prohibited services, such as threeway calling and pen pal solicitation, that threaten

other inmates and the public. In the Department’s

experience, those ads not only tempt inmates to

violate the rules and commit crimes, but also enable

them to do so.

One publication the Department impounds based

on its ad content is plaintiff Prison Legal News

(PLN)’s monthly magazine, Prison Legal News. PLN

1 Oscar Wilde, The Picture of Dorian Gray 19 (Joseph Bristow

ed., Oxford Univ. Press 2006) (1890).

App-3

contends that the Department’s impoundments of its

magazine violate the First and Fourteenth

Amendments. After a bench trial, the district court

ruled that the impoundments do not violate the First

Amendment but the failure to give proper notice of

them does violate the Fourteenth Amendment. We

agree.

I.

Facts and Procedural History

A. Facts

1.

The

Florida

Corrections

Department

of

Florida law requires the Department of

Corrections to “protect the public through the

incarceration and supervision of offenders,” to protect

offenders “from victimization within the institution,”

and to rehabilitate offenders. Fla. Stat. § 20.315(1),

(1)(d). The Department strives to balance those

mandates of public safety, prison security, and

rehabilitation. That is no small task. It employs

16,700 officers to oversee 100,000 inmates in 123

facilities throughout Florida. Those officers enforce a

multitude of rules to ensure prison security and public

safety. See, e.g., Fla. Admin. Code rr. 33-602.101, .201,

.203 (rules governing inmate care, property, and

control of contraband).

To promote its rehabilitation mandate, the

Department grants inmates phone, pen pal, and

correspondence privileges so that they can stay in

touch with family and friends. Id. r. 33-210.101(9)

(allowing inmates to correspond with pen pals); id.

r. 33-602.201 app. 1 (authorizing inmates to keep up

to 40 stamps for correspondence); id. r. 33-602.205(1)

(granting telephone privileges). Those and similar

App-4

privileges pose problems in Florida prisons and

elsewhere. 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.

The record is heavy with evidence of that unfortunate

reality.

James Upchurch, the Department’s Assistant

Secretary for Institutions and Re-entry, testified that

“[g]iven uncontrolled and unverifiable telephone

access, inmates have been found to use such

opportunities to harass the general public,

[D]epartment employees, their victims[,] and to search

for new victims.” He cited the example of incarcerated

Mexican mafia members in California who used a

network of prison phones to sell drugs and conduct

other illegal activity. Prison Legal News itself has

reported on instances of inmates abusing their phone

privileges. See News in Brief: Florida, Prison Legal

News, Nov. 2011, at 50 (reporting how an inmate

discovered that the county jail’s phone system

provided double refunds each time a call did not go

through, prompting the inmate to make calls and then

hang up until he had made the $1,250 he needed for

bail); Mark Wilson, Reach Out and Defraud Someone:

Oregon Jail Prisoners Commit Phone Scams, Prison

Legal News, Nov. 2010, at 24-25 (reporting on

inmates’ use of prison phones to conduct identity theft

scams, one of which resulted in the indictment of an

inmate on 35 counts of identity theft); News in Brief:

Florida, Prison Legal News, Sept. 2010, at 50

App-5

(reporting how a county inmate used the prison

phones to call in bomb threats).2

Like phone privileges, pen pal privileges may

open doors to criminal activity. Inmates abuse pen pal

privileges by soliciting kind-hearted but gullible

people and then defrauding them. Pen pal scams are

so common that the United States Postal Service

warns customers that pen pal ads have “proliferated

in recent years” and that “many ads placed by

prisoners are part of a sophisticated mail fraud

scheme that misuses postal money orders to bilk

consumers out of their hard earned savings.”3

2 PLN submitted into evidence every issue of Prison Legal News

from 2002 through 2014.

3 Prison Pen Pal Money Order Scam, U.S. Postal Inspection

Service,

http://www.postalinspectors.uspis.gov/investigations/

mailfraud/fraudschemes/othertypes/penpalfraud.aspx [https://

web.archive.org/web/20170204190103/postalinspectors.uspis.gov

/investigations/mailfraud/fraudschemes/othertypes/penpalfraud.

aspx]; see also Woods v. Comm’r of the Ind. Dep’t of Corr., 652

F.3d 745, 747 (7th Cir. 2011) (recounting that 350 inmates had

placed ads soliciting pen pals on websites, that “the majority of

these inmates had . . . misrepresented themselves to the public

in their postings on the sites,” and that several pen pals felt

deceived after “sending money to prisoners who had lied about

their release dates and offenses of conviction”); United States v.

Brown, 7 F.3d 1155, 1158 (5th Cir. 1993) (stating that a

Mississippi inmate scammed thousands of dollars out of a 65year-old Florida retiree he met through a “lonely hearts pen-pal

club”). [In keeping with Eleventh Circuit Internal Operating

Procedure 10, “Citation to Internet Materials in an Opinion,”

under Federal Rule of Appellate Procedure 36, a copy of the

internet materials cited in this opinion is available at this Court’s

Clerk’s Office.]

App-6

Inmates also abuse correspondence privileges.

For instance, one Florida inmate sent threatening

letters to a federal magistrate judge, one of which

informed the judge that someone would “stick a

curling iron up [the judge’s] twat and plug that sucker

in,” while another stated that the inmate was coming

to kill her. See United States v. Adamson, No.

4:00cr52, 2007 WL 2121923, at *1 (N.D. Fla. July 23,

2007) (unpublished). Another way inmates abuse

correspondence privileges is by using their stamps as

a currency in the underground prison economy to buy

drugs, sexual favors, and anything else they can

bargain for. See United States v. Becker, 196 F. App’x

762, 763 & n.1 (11th Cir. 2006) (unpublished) (noting

how one inmate ran a prison gambling operation

where inmates paid him with stamps and another

inmate used stamps to pay for heroin); United States

v. Martin, 178 F. App’x 910, 911 (11th Cir. 2006)

(unpublished) (stating how an inmate used letters

with hidden compartments to smuggle heroin into the

prison, which he then gave to another inmate in

exchange for stamps). The problems associated with

stamps increase when inmates can send their stamps

to “cash-for-stamps” companies that will exchange the

stamps for cash at a percentage of the stamps’ face

value. Inmates can use the cash to purchase goods and

services outside prison walls, which facilitates

contraband smuggling and the corruption of prison

guards.

Recognizing that when inmates abuse their

privileges it threatens other inmates and the public,

the Department has sought to prevent that abuse.

First, it has prohibited three-way calling, which

includes any type of call transferring. Fla. Admin.

App-7

Code r. 33-602.205(2)(a). Three-way calling allows

inmates to circumvent the regulations the

Department has in place to stop them from using

prison phones to harass the public, arrange

contraband smuggling, and conduct other criminal

activity. The Department’s regulations restrict

inmates to calling no more than ten people on a preapproved list and require each outgoing call to begin

with an automated message informing the recipient

that the call is coming from a Department prison. Id.

r. 33-602.205(2)(a), (g). The Department also monitors

and records some inmate calls. Id. r. 33-602.205(1).

Second, the Department does not allow inmates to

“solicit or otherwise commercially advertise for money,

goods, or services,” which includes “advertising for

pen-pals” and “plac[ing] ads soliciting pen-pals” on

social media and inmate pen pal websites. Id. r. 33210.101(9). Third, inmates cannot use “postage

stamps as currency to pay for products or services.” Id.

r. 33-210.101(22). Fourth, inmates cannot conduct a

business while confined, which includes “any activity

in which the inmate engages with the objective of

generating revenue or profit while incarcerated.” Id. r.

33-602.207(1)-(2). That rule exists because inmate

businesses increase the risk of fraud and burden

Department staff with monitoring more mail and

phone activity. Id. r. 33-602.207(2).

Just as some inmates abuse their privileges, some

also evade or break the rules restricting their

privileges. For example, the Department’s telephone

security vendor can detect three-way call attempts by

the clicking noise that occurs when a call is

transferred, but inmates will blow into the receiver

App-8

when transferring a call to mask that clicking noise.

There are nearly 700,000 three-way call attempts each

year in Department prisons, leading officials to believe

that inmates would not make so many attempts if

some were not succeeding. Disciplinary reports

confirm that some attempts do succeed. Despite the

rule prohibiting pen pal solicitation, some inmates

manage to post profiles on pen pal solicitation

websites. Inmates also succeed in exchanging stamps

for cash––one cash-for-stamps company deposited

over $50,000 into inmates’ accounts over several

years. And as for the prohibition against conducting a

business, one inmate, a jailhouse lawyer known as

“H&R Block,” lived up to his nickname by running a

tax filing business where he would file tax returns on

behalf of other inmates. See News in Brief: Florida,

Prison Legal News, Apr. 2010, at 50. Of course, those

tax returns were false, and the inmate faced up to 90

years in prison for his scheme. Id.

2.

The

Department’s

Reading Material Rule

Admissible

Because some inmates abuse their privileges and

break the rules put in place to stop that abuse, the

Department takes additional steps to help increase

prison security and public safety. As Department

official Upchurch testified, protecting the public “goes

further than just . . . keeping the inmates inside the

fence and not allowing them to be out committing the

crimes that they commit.” Prison security challenges

evolve. Upchurch cited the availability of contraband

cell phones, which give inmates unregulated internet

access and have been used in other states to

orchestrate prison riots and arrange assaults on

App-9

prison staff. PLN’s expert acknowledged that

Department officials must be proactive in addressing

security problems. As Upchurch testified, “act[ing]

after the fact [in the prison business] risk[s] someone’s

life.”

One of the ways the Department tries to stay a

step ahead of inmates is to screen all incoming

publications for content that might enable them to

break prison rules. See Fla. Admin. Code r. 33501.401(3). Under the Department’s Admissible

Reading Material Rule, inmates can “receive and

possess publications . . . unless the publication is found

to be detrimental to the security, order or disciplinary

or rehabilitative interests of any institution of the

[D]epartment . . . or when it is determined that the

publication might facilitate criminal activity.” Id. For

example, to bolster the Department’s ban on inmates

possessing firearms or other dangerous weapons, id.

r. 33-602.203(2), the rule prohibits inmates from

receiving publications that “describe[ ] procedures for

the construction of or use of weapons,” id. r. 33501.401(3)(a).

The Admissible Reading Material Rule applies

that same logic to ads for prohibited services. A

publication is impounded if it contains ads for threeway calling services, pen pal solicitation services,

cash-for-stamps exchange services, or for conducting a

business, but only “where the advertisement is the

focus of, rather than being incidental to, the

publication[,] or the advertising is prominent or

prevalent throughout the publication.” Id. r. 33501.401(3)(l). The Department can also impound any

publication that “otherwise presents a threat to the

App-10

security, order or rehabilitative objectives of the

correctional system or the safety of any person.” Id. r.

33-501.401(3)(m). Once mailroom staff impound an

issue of a magazine for violation of the rules, it is

withheld from inmates until the Department’s

Literature Review Committee makes a final decision

about whether the issue does violate the Admissible

Reading Material Rule. Id. rr. 33-501.401(5), (8),

(14)(a).4 Mailroom staff cannot impound all issues of

an entire publication in advance; instead, they must

separately review and decide whether each issue of a

publication violates the Admissible Reading Material

Rule. Id. r. 33-501.401(5).5

3.

Prison Legal News and the First

Impoundments of It

Prison Legal News is a monthly magazine founded

in 1990 that reports on legal developments in the

criminal justice system and other topics that affect

The Admissible Reading Material Rule defines

“impoundment” as the action taken by mailroom staff “to

withhold an inmate’s incoming publication . . . pending review of

its admissibility by the Literature Review Committee.” Fla.

Admin. Code r. 33-501.401(2)(b). When the Committee upholds

an impoundment, that is a “rejection” and the issue is considered

contraband. Id. r. 33-501.401(2)(j). The difference between an

impoundment and rejection is immaterial here, so we use the

term “impound” to refer to the Department’s decision to withhold

a particular issue from an inmate subscriber.

4

For example, if the Department decides that the January

issue of Prison Legal News violates the Admissible Reading

Material Rule, then it impounds that issue. Fla. Admin. Code r.

33-501.401(8). But when the February issue arrives, mailroom

staff must review that latest issue to determine whether it

complies with the rule. Id. r. 33-501.401(5).

5

App-11

inmates. About 70% of the magazine’s 7,000

nationwide subscribers are inmates. It has

subscribers in all 50 state prison systems and the

Federal Bureau of Prisons. Only about 70, or one

percent of the 7,000 subscribers, are Florida inmates.

Prison Legal News began carrying advertisements in

1996 to cover its publication costs. Not surprisingly,

the ads are placed by companies whose target

audience is prisoners. Two examples are law firms

specializing in prisoner litigation and schools offering

inmate correspondence courses. Nothing wrong with

that.

In 2003 the Department began impounding some

Prison Legal News issues based on ad content. The

problem ads included ones for pen pal solicitation,

cash-for-stamps exchange services, and three-way

calling services. The ads for pen pal solicitation offered

inmates the opportunity to post on the company’s

website a profile with a photo and address, and the

public could search for that profile by the inmate’s age,

race, and other features. The cash-for-stamps ads gave

inmates the opportunity to exchange stamps for cash

at a percentage of the stamps’ face value. The threeway calling ads offered discount phone services on

collect calls from inmates. The Department

determined that those phone services fell under its

broad definition of “three way calling” because the

companies forwarded or transferred the inmates’

collect calls to the call recipient’s home phone, cell

phone, or blocked home phone number.6 The

6 PLN asserts that Prison Legal News has never run ads for

three-way calling, but its brief and one of its trial exhibits

contradict that assertion. It acknowledges that its magazine

App-12

Department determined that all three types of ads

violated Rule (3)(l), but it was especially concerned

with the ads for three-way calling because it believed

that its telephone security vendor could not trace

inmate calls made through the discount phone

services.

PLN sued the Department in 2004 to stop the

impoundments. After the Department’s telephone

vendor gave assurances that it could block three-way

call attempts, the Department agreed in 2005 not to

impound Prison Legal News as long as all the

problematic ads were incidental to the overall

publication. Because the Department began allowing

inmate subscribers to receive Prison Legal News we

rejected PLN’s argument that an injunction was

necessary to stop the impoundments, and we affirmed

the district court’s grant of judgment as a matter of

law to the Department. See Prison Legal News v.

McDonough, 200 F. App’x 873, 876-78 (11th Cir. 2006)

(unpublished).

contains ads for discount phone services that allow subscribers to

avoid long distance charges by assigning the inmate a local

number to call, and then transferring that call to the final call

recipient (so if a Miami inmate wants to call his mother in

Kansas, the Miami inmate can call a Miami number and the call

is then transferred to Kansas). That type of call service falls

under the Department’s definition of three-way calling. See Fla.

Admin. Code r. 33-602.205(2)(a) (“Inmates shall not make threeway telephone calls nor make calls to numbers on the list which

are then transferred to other telephone numbers.”). And PLN’s

trial exhibit shows that almost every issue of Prison Legal News

from January 2002 to December 2014 included ads for the

prohibited services. One of the columns in that exhibit is labeled

“3-Way Calls.”

App-13

4.

The

Department’s

Renewed

Impoundments of Prison Legal News

That peace was short-lived. Several changes after

2005 undermined the truce and led to the current

conflict. For one thing, the number and size of ruledefying ads increased after 2005, resulting in their

becoming less incidental and more prominent.7 As the

ads became more prominent, Department officials

noticed an increase in the number of inmates sending

stamps to cash-for-stamps companies. They also

became concerned about a phone technology called

Voice over Internet Protocol, which makes it harder to

detect three-way call attempts by transferring calls

over the internet with no noise. That technology had

not been an issue in 2005, but in the following years it

became more widespread and more of a problem.

New types of ads offering “prisoner concierge” and

“people locator” services also began to appear in Prison

Legal News after 2005. Prisoner concierge companies

offer inmates a variety of administrative and financial

Although the percentage of the magazine containing ads

prohibited by Rule (3)(l) increased only from an average of 9.21%

in 2005 to 9.80% in 2009, those naked percentages don’t tell the

whole story because the number of full-page and half-page ads

increased. The magazine also grew from 48 pages in 2005 to 64

pages in 2014, which allowed PLN to include more problematic

ads without changing the proportion of the magazine devoted to

such ads.

7

More importantly, the record does not stop at 2009. PLN’s own

exhibit shows that the percentage of problematic ads increased

from 9.80% in 2009 to 15.07% in 2014, the last year of the

impoundments that are covered in the record. That is an increase

of more than 50% in the percentage of problematic ads in the

most recent five-year period for which there is data.

App-14

services. One such company, Prisoner Assistant, ran

ads offering inmates “access to hundreds of

professional services that have never before been

available to prisoners,” including money orders, online

fund transfers, internet purchases and research,

website development, cell phone contracts, and Green

Dot cards (prepaid debit cards that can be reloaded

and used to send money). That company even provides

inmates with an “Executive Assistant to manage [the

inmate’s] file and provide personal attention to [the

inmate’s] requests,” and claimed in its ad that “[i]f it

can be done, we will try to do it.” According to the

Department, prisoner concierge companies threaten

prison security and public safety by, among other

things, making it easier for inmates to create an

alternate identity that conceals their inmate status

from people on the outside, enabling them to violate

prison rules and commit crimes.

People locator companies are just that. One such

company placed ads claiming that it can find “just

about anyone” including “hard to find people [and]

unlisted numbers and address[es].” That company has

a database of 1.2 billion records and provides inmates

with a person’s date of birth, email address, any

unlisted telephone numbers, and social security

number. With reason, the Department fears that

inmates will use people locator services to perpetrate

scams or allow inmates to find and harm judges,

jurors, witnesses, or anyone else the inmate may want

to harass or harm.

All of those developments between 2005 and

2009—the increasing number and size of the ruledefying ads, the growth of internet-based phone

App-15

technology, and the appearance of prisoner concierge

and people locator ads—led the Department to begin

impounding Prison Legal News again in September

2009.8 The Department decided that the ads for threeway calling services, pen pal solicitation services, and

cash-for-stamps exchange services violated Rule (3)(l).

It also determined that the ads for prisoner concierge

and people locator services violated Rule (3)(m), the

provision prohibiting any publication that “presents a

threat to the security, order or rehabilitative

objectives of the correctional system or the safety of

any person.” Id. r. 33-501.401(3)(m). The Department

impounds other publications that violate those rules,

The Department amended Rule (3)(l) in June 2009. The

earlier version provided that a publication would not be

impounded as long as the ads were “merely incidental to, rather

than being the focus of, the publication.” The amendment

provided that a magazine could also be impounded if the ruledefying ad was “prominent or prevalent throughout the

publication.” PLN contended at trial that the Department

amended the rule to keep Prison Legal News out of Florida

prisons, but the district court rejected that contention as

conjecture and found that the Department amended Rule (3)(l) to

make it clearer and to address its new security concerns. PLN

makes only a cursory attempt to raise that contention here,

offering no supporting authority, which means that it is

abandoned. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d

678, 681 (11th Cir. 2014) (“We have long held that an appellant

abandons a claim when he . . . raises it in a perfunctory manner

without supporting arguments and authority.”). Its assertion

that the “prominent or prevalent” language is too vague is not

properly before us because the district court denied PLN’s motion

to amend its complaint to include a void-for-vagueness claim, and

PLN did not appeal that ruling. See Singleton v. Wulff, 428 U.S.

106, 120, 96 S. Ct. 2868, 2877 (1976) (“It is the general rule, of

course, that a federal appellate court does not consider an issue

not passed upon below.”).

8

App-16

but it is the only corrections department in the country

that impounds Prison Legal News based on its ad

content.

5.

The

Department’s

Failure

Provide Notice to PLN

to

At the time of trial in January 2015, the

Department had impounded every issue of Prison

Legal News since September 2009, a total of 64 issues

(the magazine has 12 issues per year). The Admissible

Reading Material Rule requires the Department to

send to all publishers a notice form listing the “specific

reasons” for an impoundment. Fla. Admin. Code r. 33501.401(8)(b). Despite that rule, the Department did

not send PLN a notice form for 26 out of the 62

monthly issues it impounded between November 2009

and December 2014, which means that PLN did not

receive a notice form for 42% of the issues impounded

during that time span. That number rises to 87% when

defective notice forms that did not list the reasons for

the impoundment are considered.

When PLN did receive a notice form for an

impounded issue, it appealed the impoundment

decision to the Department’s Literature Review

Committee, which makes the final decision whether

an issue violates the Admissible Reading Material

Rule. See id. rr. 33-501.401(14)(a), (15)(a). Those

appeals were unsuccessful, so PLN sued the

Department in November 2011 to stop the

impoundments.

B. Procedural History

PLN brought two claims under 42 U.S.C. § 1983

against the Department Secretary in her official

capacity. First, it claimed that Rules (3)(l) and (3)(m),

App-17

as applied to Prison Legal News, violate the First

Amendment. Second, it claimed that the Department’s

failure to provide PLN with proper notice for each

impounded monthly issue violated its right to

procedural due process under the Fourteenth

Amendment. PLN sought declaratory and injunctive

relief against the Department.

After a bench trial, the district court ruled against

PLN on the First Amendment claim and for it on the

Fourteenth Amendment claim. The court entered an

injunction requiring the Department to provide PLN

with notice each time it impounded a monthly issue of

the magazine and the reason for the impoundment.

The Department appeals the court’s judgment that it

violated PLN’s due process rights. PLN cross-appeals

the court’s judgment that the impoundments of Prison

Legal News do not violate the First Amendment.9

II. Standards of Review

After a bench trial, we review de novo the district

court’s legal conclusions and we review its fact

findings for clear error. Proudfoot Consulting Co. v.

Gordon, 576 F.3d 1223, 1230 (11th Cir. 2009). “We

PLN also publishes a book called the Prisoner’s Guerilla

Handbook and sends information packets about its publications

to inmates. The Department impounded those publications, and

PLN claimed in its amended complaint that impounding them

also violated its First and Fourteenth Amendment rights. (PLN

claimed that the impoundment of all of its publications violated

its constitutional rights; its amended complaint did not contain

separate claims for each publication.). Although PLN’s brief

refers to its “publications,” it mentions the handbook and

information packets by name only once in its 82-page initial brief.

As a result, PLN has abandoned any separate challenge to those

publications. See Sapuppo, 739 F.3d at 681.

9

App-18

review the decision to grant an injunction and the

scope of the injunction for abuse of discretion.” Angel

Flight of Ga., Inc. v. Angel Flight Am., Inc., 522 F.3d

1200, 1208 (11th Cir. 2008).

III. Discussion

A. First Amendment Claim

PLN

contends

that

the

Department’s

impoundments of Prison Legal News violate its First

Amendment right of access to its inmate subscribers.

The parties agree that the deferential standard

established by the Supreme Court in Turner v. Safley,

482 U.S. 78, 107 S. Ct. 2254 (1987), governs PLN’s

First Amendment challenge to the impoundments.

PLN has received a helping hand from sixteen law

professors acting as amici curiae who claim an

“interest in seeing that First Amendment doctrine

develops in a way that promotes rather than censors

free speech.” Br. of Amici Curiae at 1. The amici

contend that we should give prison management

decisions decreased deference under the Turner

standard in light of the Supreme Court’s recent First

Amendment decisions, mostly in other contexts.

On the First Amendment issue we begin by

explaining the Turner standard, which requires

deference to prison officials’ decisions. We then

address the amici’s argument for diminished

deference. And then we will discuss the application of

the First Amendment to the impoundments.

1.

The Turner Standard

“Prison walls do not form a barrier separating

prison inmates from the protections of the

Constitution.” Turner, 482 U.S. at 84, 107 S. Ct. at

App-19

2259. Inmates retain some constitutional rights in

prison, id., and publishers like PLN have a First

Amendment right of access to their inmate

subscribers, Thornburgh v. Abbott, 490 U.S. 401, 408,

109 S. Ct. 1874, 1879 (1989).

But that right is limited. See Lawson v.

Singletary, 85 F.3d 502, 509 (11th Cir. 1996) (noting

the “more limited nature of . . . First Amendment

rights” in the penal context). “Running 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.”

Turner, 482 U.S. at 84-85, 107 S. Ct. at 2259. Those

branches are responsible for prison administration,

which means that “separation of powers concerns

counsel a policy of judicial restraint” and deference to

prison officials’ management decisions. Id. at 85, 107

S. Ct. at 2259. And “[w]here a state penal system is

involved, federal courts have . . . additional reason to

accord deference to the appropriate prison

authorities.” Id. To balance judicial deference with

“the need to protect constitutional rights,” the Turner

Court held that a prison regulation affecting

constitutional rights is valid as long as “it is

reasonably related to legitimate penological

interests.” Id. at 85, 89, 107 S. Ct. at 2259, 2261. The

Department and PLN agree that the Turner standard

controls here.

The Department must show “more than a

formalistic

logical

connection

between

[the

impoundments of Prison Legal News] and a

penological objective.” Beard v. Banks, 548 U.S. 521,

App-20

535, 126 S. Ct. 2572, 2581 (2006) (plurality opinion).

But that does not mean that this Court sits as a superwarden to second-guess the decisions of the real

wardens. See Turner, 482 U.S. at 89, 107 S. Ct. at 2262

(rejecting the view that courts should be the “primary

arbiters of what constitutes the best solution to every

administrative problem”). Instead, under Turner we

owe “wide-ranging” and “substantial” deference to the

decisions of prison administrators because of the

“complexity of prison management, the fact that

responsibility therefor is necessarily vested in prison

officials, and the fact that courts are ill-equipped to

deal with such problems.” Al-Amin v. Smith, 511 F.3d

1317, 1328 (11th Cir. 2008) (quotation marks omitted);

see also Pope v. Hightower, 101 F.3d 1382, 1384 n.2

(11th Cir. 1996) (“Federal courts must scrupulously

respect the limits on their role by not thrusting

themselves into prison administration; prison

administrators must be permitted to exercise wide

discretion within the bounds of constitutional

requirements.”). The Supreme Court has reaffirmed

that point time and time again. See, e.g., Overton v.

Bazzetta, 539 U.S. 126, 132, 123 S. Ct. 2162, 2167

(2003) (“We must accord substantial deference to the

professional judgment of prison administrators, who

bear a significant responsibility for defining the

legitimate goals of a corrections system and for

determining the most appropriate means to

accomplish them.”); Shaw v. Murphy, 532 U.S. 223,

229, 121 S. Ct. 1475, 1479 (2001) (“[W]e generally have

deferred to the judgments of prison officials in

upholding [prison] regulations against constitutional

challenge.”); Thornburgh, 490 U.S. at 408, 109 S. Ct.

at 1879 (“[T]his Court has afforded considerable

App-21

deference to the determinations of prison

administrators who, in the interest of security,

regulate the relations between prisoners and the

outside world.”).

2.

The Amici’s Diminished Deference

Argument

In spite of all of those Supreme Court decisions

requiring us to grant substantial deference to the

decisions of prison officials, the amici argue that we

should not. Claiming clairvoyance, they predict the

Supreme Court will overrule its precedents, and they

urge us to go ahead and effectively do that ourselves.

See Br. of Amici Curiae at 2 (“Modern First

Amendment jurisprudence trends toward more

protections for speech rights, a direction that should

inform this Court’s analysis.”). The amici discern a

trend from several recent Supreme Court decisions,

nearly all of which have nothing to do with Turner or

challenges to prison regulations, to argue that

increased protection of free speech requires decreased

deference under Turner. See, e.g., United States v.

Alvarez, 567 U.S. 709, 713-15, 729-30, 132 S. Ct. 2537,

2542-43, 2551 (2012) (holding that the Stolen Valor

Act violated the First Amendment); Brown v. Entm’t

Merchs. Ass’n, 564 U.S. 786, 805, 131 S. Ct. 2729,

2741-42 (2011) (striking down on First Amendment

grounds a statute that prohibited the sale of violent

video games to minors); Citizens United v. Fed.

Election Comm’n, 558 U.S. 310, 365, 130 S. Ct. 876,

913 (2010) (holding that the government “may not

suppress political speech on the basis of the speaker’s

corporate identity”). In any event, our duty is to follow

App-22

Supreme Court decisions, not to use them to map

trends and plot trajectories.

The only Court that can properly cut back on

Supreme Court decisions is the Supreme Court itself.

See Hohn v. United States, 524 U.S. 236, 252-53, 118

S. Ct. 1969, 1978 (1998) (“Our decisions remain

binding precedent until we see fit to reconsider them,

regardless of whether subsequent cases have raised

doubts about their continuing vitality.”); State Oil Co.

v. Khan, 522 U.S. 3, 20, 118 S. Ct. 275, 284 (1997) (“[I]t

is this Court’s prerogative alone to overrule one of its

precedents.”); Rodriguez de Quijas v. Shearson/Am.

Express, Inc., 490 U.S. 477, 484, 109 S. Ct. 1917, 192122 (1989) (“If a precedent of this Court has direct

application in a case, yet appears to rest on reasons

rejected in some other line of decisions, the Court of

Appeals should follow the case which directly controls,

leaving to this Court the prerogative of overruling its

own decisions.”); Evans v. Sec’y, Fla. Dep’t of Corr., 699

F.3d 1249, 1263 (11th Cir. 2012) (“The Court has told

us, over and over again, to follow any of its decisions

that directly applies in a case, even if the reasoning of

that decision appears to have been rejected in later

decisions.”).

Even if it were otherwise, only one of the postTurner decisions that amici cite even mentions

Turner, and that decision actually confirms that we

owe deference to the decisions of wardens and other

prison officials. See Beard, 548 U.S. at 524-25, 535,

126 S. Ct. at 2575-76, 2581-82 (plurality opinion)

(rejecting a First Amendment challenge to a prison

rule and stating that the court of appeals erred by

offering “no apparent deference to the deputy prison

App-23

superintendent’s professional judgment”);10 see also

Davila v. Gladden, 777 F.3d 1198, 1212-13 (11th Cir.

2015) (addressing the Turner standard without any

hint that it should be applied with decreased deference

in light of recent Supreme Court decisions).

The Beard decision confirms that whatever the

Supreme Court has done in other First Amendment

cases, it has not adopted a damn-the-deference, fullspeed-ahead approach to First Amendment rights

within prison walls. As a result, we categorically reject

the amici’s argument that we should leap-frog ahead

of the Supreme Court in this area. We follow Supreme

10 Justice Thomas, joined by Justice Scalia, concurred in the

judgment and agreed with the plurality that “[j]udicial scrutiny

of prison regulations is an endeavor fraught with peril.” Beard,

548 U.S. at 536, 126 S. Ct. at 2582 (Thomas, J., concurring). The

amici attempt to distinguish Beard, which involved a challenge

to a prison policy designed to motivate better behavior by barring

certain inmates from receiving publications. Id. at 524-25, 126 S.

Ct. at 2575-76 (plurality opinion). They argue that the Beard case

was exceptional because it involved maximum security inmates

and that the prison’s regulations were motivated by its

rehabilitative goals. Neither of those distinctions matter. What

matters is that the Beard Court did not water down Turner. Id.

at 528-33, 126 S. Ct. at 2577-80 (plurality opinion). The amici’s

argument that the prison policy at issue in Beard still allowed

inmates to receive legal correspondence, id. at 526, 126 S. Ct. at

2576 (plurality opinion), and that Prison Legal News is a form of

legal correspondence fails on its essential premise because it is

not. We agree with the definition in the Florida Administrative

Code that legal mail is “mail to and from” courts, attorneys,

public defenders, legal aid organizations, agency clerks, and

government attorneys. Fla. Admin. Code r. 33.210.102(1)-(2).

App-24

Court decisions, here as elsewhere, instead of plotting

ways around them.11

With the proper level of deference in mind, we will

turn now to applying the Turner standard to

determine whether the impoundments of Prison Legal

News under its Rules (3)(l) and (3)(m) violate the First

Amendment.

3.

Application of the Turner Standard

The Turner standard requires the Department to

show that its impoundments of Prison Legal News are

content neutral, Thornburgh, 490 U.S. at 415, 109 S.

Ct. at 1882, and “reasonably related to legitimate

penological interests,” Turner, 482 U.S. at 89, 107 S.

Ct. at 2261. The impoundments are content neutral

because they are based “solely on . . . [the magazine’s]

potential

implications

for

prison

security.”

Thornburgh, 490 U.S. at 415-16, 109 S. Ct. at 1883.

And PLN does not dispute that the Department’s

asserted interests for the impoundments—prison

security and public safety—are legitimate. See Perry

v. Sec’y, Fla. Dep’t of Corr., 664 F.3d 1359, 1366 (11th

Cir. 2011) (“[P]rotecting the public and ensuring

internal prison security are legitimate penological

objectives.”). Those interests are not only legitimate,

but paramount. See Thornburgh, 490 U.S. at 415, 109

S. Ct. at 1882 (“[P]rotecting prison security . . . is

central to all other corrections goals.”) (quotation

marks omitted).

11 While we categorically reject the contention and supporting

arguments of the amici, we do not mean to be unfair. The

professors’ brief does have good grammar, sound syntax, and

correct citation form.

App-25

That leaves the issue of whether the

Department’s impoundments of Prison Legal News are

“reasonably related” to prison security and public

safety. Turner, 482 U.S. at 89, 107 S. Ct. at 2261. The

Turner Court established four factors to determine the

reasonableness of prison regulations: (1) whether

there is a “valid, rational connection between the

prison regulation and the legitimate governmental

interest put forward to justify it”; (2) whether the

publisher has alternative means to exercise its right

of access to its inmate subscribers; (3) what “impact

accommodation of the asserted constitutional right

will have on guards and other inmates, and on the

allocation of prison resources generally”; and (4)

whether PLN “can point to . . . alternative[s] that fully

accommodate[ ] [its] rights at de minimis cost to valid

penological interests.” Id. at 89-91, 107 S. Ct. at 2262

(quotation marks omitted).

PLN

contends

that

the

Department’s

impoundments of Prison Legal News under Rules 3(l)

and 3(m) fail all four factors and therefore amount to

unconstitutional censorship. We disagree.

a. The First Turner Factor: The

Existence

of

a

Rational

Connection

The first Turner factor requires the Department

to show that there is a “rational connection” between

its decision to impound Prison Legal News and its

interests in prison security and public safety. Id. at 89,

107 S. Ct. at 2262. The Department’s position is that

limiting inmates’ exposure to the ads in Prison Legal

News will reduce the risk that inmates will engage in

behavior that endangers other inmates, guards, and

App-26

the public. PLN’s position is that there is no rational

connection because there is no evidence that ads in its

magazine have ever caused a security breach. PLN’s

argument demands too much.

The Turner standard does not require the

Department to present evidence of an actual security

breach to satisfy the first factor. Instead, the Supreme

Court recognized that prison officials must be able to

“anticipate security problems and . . . adopt innovative

solutions” to those problems to manage a prison

effectively. Id. (emphasis added). We have rejected the

“misconception” that prison officials are “required to

adduce specific evidence of a causal link between [a

prison policy] and actual incidents of violence (or some

other actual threat to security).” Lawson, 85 F.3d at

513 n.15. “Requiring proof of such a correlation

constitutes insufficient deference to the judgment of

the prison authorities with respect to security needs.”

Id. Other circuits agree. See, e.g., Simpson v. County

of Cape Girardeau, 879 F.3d 273, 280 (8th Cir. 2018)

(“Cape Girardeau may seek to prevent harm that has

yet to occur and, as a result, is not required to provide

evidence of previous incidents of contraband reaching

inmates through the mail in order to adopt a postcardonly incoming mail regulation.”); Murchison v. Rogers,

779 F.3d 882, 890 (8th Cir. 2015) (stating that Turner

“does not require actual proof that a legitimate

interest will be furthered by the challenged policy” and

that “evidence short of an actual incident satisfies” the

first factor) (quotation marks omitted); Singer v.

Raemisch, 593 F.3d 529, 536 (7th Cir. 2010) (“The

question is not whether [a game banned by the prison]

has led to gang behavior in the past; the prison

officials concede that it has not. The question is

App-27

whether the prison officials are rational in their belief

that, if left unchecked, [the game] could lead to gang

behavior among inmates and undermine prison

security in the future.”); Cal. First Amend. Coal. v.

Woodford, 299 F.3d 868, 882 (9th Cir. 2002) (stating

that prison officials “must at a minimum supply some

evidence that . . . potential problems are real, not

imagined,” but affirming that “prison officials may

pass regulations in anticipation of security problems”).

In Perry, a case involving a First Amendment

challenge to a Department regulation prohibiting pen

pal solicitation, we did not require that prison officials

produce evidence of a past incident to satisfy the first

Turner factor. See Perry, 664 F.3d at 1362, 1366. We

held that the Department had established a rational

connection between that regulation and its security

and safety interests through the testimony of James

Upchurch, id. at 1366, the same prison official the

Department relied on in the present case. He testified

in Perry that “when inmates only receive pen pals

through personal associates and not pen pal

companies . . . the possibility of the inmate defrauding

the pen pal is greatly reduced.” Id. (emphasis added).

We did not demand any evidence that inmates’

solicitation of pen pals had previously caused a

security breach. Id.

There is plenty of evidence that preventing

inmates from viewing prominent or prevalent ads for

prohibited services will reduce the possibility that

they will use those services.12 The ads not only make

12 PLN asserts that the Department is judicially estopped from

arguing that the problematic ads present a security threat

because the Department allegedly took the position in the earlier

App-28

the prohibited services available to inmates but also

appear along with articles about inmate phone scams,

the role of Green Dot cards in prison gang extortion

schemes, and the nationwide problem with smuggling

contraband like drugs and cell phones into prisons. An

inmate reading Prison Legal News not only reads

articles about inmates putting the prohibited services

to dangerous use, but also sees ads that enable him to

obtain those same prohibited services. As PLN’s

expert acknowledged, “[j]ust because there [are]

litigation that the same types of ads do not present such a threat.

See Robinson v. Tyson Foods, Inc., 595 F.3d 1269, 1273 (11th Cir.

2010) (“[J]udicial estoppel is designed to prevent a party from

asserting a claim in a legal proceeding that is [clearly]

inconsistent with a claim taken by the party in a previous

preceding.”) (quotation marks omitted). Not so. PLN’s current

position is not clearly inconsistent with its earlier position

because the Department never represented that the ads present

no security threat. Instead, its position was that the problematic

ads were not a security threat as long as they remained

incidental in terms of their size and number. See McDonough,

200 F. App’x at 878 (stating that we did not expect the

Department to “resume the practice of impounding publications

based on incidental advertisements”) (emphasis added). But after

2005 the ads became more prominent (the size and number of the

ads increased), ads for prisoner concierge and people locator

services appeared, and phone technology changed. In view of

those changes, the Department’s decision to renew impoundment

was not an attempt to “play[ ] fast and loose with [this Court] to

suit the exigencies of self interest.” In re Coastal Plains, Inc., 179

F.3d 197, 205 (5th Cir. 1999) (quotation marks omitted). As a

result, the district court did not abuse its discretion in rejecting

PLN’s judicial estoppel argument. And because judicial estoppel

does not apply here, we need not decide the extent to which it can

be applied against a state if at all. See Heckler v. Cmty. Health

Servs. of Crawford Cty., Inc., 467 U.S. 51, 60-61, 104 S. Ct. 2218,

2224 (1984) (noting the uncertainty on that point).

App-29

rule[s] [prohibiting use of those services] is no

guarantee that everybody will abide by the rule[s].”

See Hudson v. Palmer, 468 U.S. 517, 526, 104 S. Ct.

3194, 3200 (1984) (“Inmates have necessarily shown a

lapse in ability to control and conform their behavior

to the legitimate standards of society by the normal

impulses of self-restraint; they have shown an

inability to regulate their conduct in a way that

reflects either a respect for law or an appreciation of

the rights of others.”). Given that common-sense

proposition, it’s no surprise that Upchurch, the

Department’s expert, agreed with the district court’s

statement that the ads “create the possibility, [the]

real possibility” of inmates doing an end run around

prison rules. He explained how that possibility exists

for each type of ad at issue in this case: (1) three-way

calling ads, (2) pen pal solicitation ads, (3) cash-forstamps exchange ads, and (4) prisoner concierge and

people locator ads.13

i. Three-Way Calling Ads

The Department is concerned with ads for threeway calling because that service undermines its

ability to determine a call recipient’s identity and

location. For instance, the December 2009 issue of

13 Rule (3)(l) allows the Department to impound publications

that contain prominent or prevalent ads for “[c]onducting a

business or profession while incarcerated.” Fla. Admin. Code

r. 33-501.401(3)(l). PLN asserts that the district court failed to

analyze the rational connection between an ad for that kind of

service and the Department’s penological interests, but neither

party discusses those particular ads in its briefs. In any event,

Upchurch testified that all the ads create the possibility that

inmates will circumvent prison rules, which is enough to

establish a rational connection. See Perry, 664 F.3d at 1366.

App-30

Prison Legal News featured an ad from a company

that allowed inmates to make a call to a local number,

which could then be forwarded to up to three different

numbers. Those types of three-way calling services,

combined with the growth of internet-based phone

technology, make it easier for inmates to call people

outside their approved list. Although two phone

companies that advertise in Prison Legal News

provide the Department’s telephone vendor with the

final call recipient’s number and address, other

companies that advertise in the magazine have not

done so. Given that Department inmates make

700,000 three-way call attempts each year—and some

of those attempts succeed—the Department’s effort to

reduce that number by curtailing inmates’ exposure to

ads for that service is rational. See Prison Legal News

v. Livingston, 683 F.3d 201, 218 (5th Cir. 2012)

(holding that it was reasonable for prison officials to

conclude that removing a book “describing racial

tensions in the prison context—as opposed to racial

tensions more generally—” would make prison

violence less likely).

PLN argues that the Department’s fears about

three-way calling ads are overblown. It points out that

the Department allows inmates to call cell phones,

even though cell phones present just as much of a

security threat as three-way calling because the

Department cannot identify a cell phone call

recipient’s location. (Identifying a call recipient’s

location helps the Department detect and stop

criminal activity conducted over the phones.).

According to PLN, that alleged loophole undermines

the rational connection. See Woodford, 299 F.3d at 881

(noting that a prison policy involved in that case

App-31

contained

“loopholes

that

undermine[d]

its

rationality”). But the Department explained why it

allows inmates to call cell phones despite the security

problems they present. Given the decline in landline

use, prohibiting inmates from calling cell phones

would curtail their ability to keep in touch with family

and friends, which can be critical for rehabilitation.

The Department also has several rules addressing the

unique security problems that cell phones create: the

cell phone must be contracted through a company

licensed

with

the

Federal

Communications

Commission; calls to pre-paid or pay-as-you-go phones

are prohibited; and the cell phone owner must provide

a physical billing address. See Fla. Admin. Code r. 33602.205(2)(a). Because the Department has good

reason for not banning all calls to cell phones, while

also limiting three-way calls, PLN’s argument that the

restriction on ads for three-way calls has no rational

connection to security and safety interests is

unpersuasive.

ii. Pen Pal Solicitation Ads

Upchurch’s

testimony

shows

why

the

Department’s concerns with pen pal solicitation ads

are rationally connected to its security and safety

interests. He described how those services give

inmates opportunities to prey on the public by

allowing them to write people they have no connection

with, which heightens the risk of fraud. In his

experience, giving inmates the opportunity to solicit

pen pals resulted in the exploitation of kind-hearted

but gullible people. Inmates have been known to

borrow or buy from each other pen pal letters that

have proven effective in scamming victims. Upchurch

App-32

explained that such scams are hard to investigate

because victims are often embarrassed and

prosecutors prefer to focus on criminals on the streets,

not those already in prison. And despite the

Department’s rule prohibiting pen pal solicitation,

inmates succeed in posting online profiles with the

same companies that advertise in Prison Legal News.

Given that evidence, the Department’s belief that

reducing inmates’ exposure to the ads will help ensure

compliance with the prohibition on pen pal solicitation

is rational.

iii. Cash-for-Stamps Ads

Turning to cash-for-stamps ads, Upchurch

testified that the large number and size of those ads

in Prison Legal News makes inmates “aware of the

opportunity [to break prison rules] where they

otherwise might not be.” That is enough to establish a

rational connection between the ads and the

Department’s penological interests. See McCorkle v.

Johnson, 881 F.2d 993, 995-96 (11th Cir. 1989)

(upholding a prison’s ban on a satanic bible based on

prison officials’ testimony that allowing access to it

would “only encourage” violent behavior because of the

book’s teachings about revenge and disobedience).

Upchurch also testified that the large number of cashfor-stamps ads in each issue of Prison Legal News

shows that the companies are making money off their

ads, which evidences that the ads are causing inmates

to use those services.14 The record supports his

14 PLN argues that if the Department is worried about the

security problems stamps present, then it should just prohibit

inmates from keeping stamps altogether instead of allowing

them to keep up to 40 stamps at a time. But the Department

App-33

suspicion, because it shows that over a period of

several years a cash-for-stamps exchange company

deposited more than $50,000 into the accounts of

Florida inmates.

iv. Prisoner

Concierge

People Locator Ads

and

Finally, Upchurch testified about why ads for

prisoner concierge and people locator services

threaten prison security and public safety. The

problem with prisoner concierge companies is that

their services allow inmates to conceal their true

identities from the public. Upchurch recounted how

some prisoner concierge companies offer photo editing

services, which an inmate could use to transform an

official prison photo depicting him in a prison uniform

into a fake vacation photo depicting him in a bathing

suit at the beach. The inmate could then use that fake

photo to misrepresent himself to the public, which

facilitates fraud. In that and other ways, those ads

undermine the Department’s ability to control

inmates’ contact with the public.

The case against ads for people locator services is

even more obvious. As Upchurch put it, inmates could

use people locator services to “locate judges, lawyers,

prosecutors, former witnesses, families of victims,” or

explained that it allows inmates to keep some stamps so that they

can mail letters to family and friends, and switching to a

stampless system would be costly and impractical. The

Department does inspect all outgoing mail, but stamps are easily

hidden and the Department processes 50,000 pieces of mail each

day. Allowing inmates to have stamps for the legitimate purpose

of sending mail to family and friends, while banning ads that

tempt them to use stamps for illegitimate purposes, is rational.

App-34

anyone else “they would have an axe to grind with.”

He cited the example of a Department inmate who

threatened a judge, as well as the example of a prison

gang member who after he was released murdered the

chief of the Colorado Department of Corrections. As

the district court aptly noted, “it doesn’t require a JD,

or a federal judgeship” to see why people locator

services pose a threat.

v. The “Focus of” or “Prominent

or Prevalent” Requirement

It is true that Rule (3)(l) prohibits only those

publications where the ruledefying ads are either the

“focus of” the publication or are “prominent or

prevalent” throughout it. Fla. Admin. Code r. 33501.401(3)(l). PLN asserts that if the ads are as

dangerous as the Department makes them out to be,

then the Department should impound a publication

with even one suspect ad, which it could do. See

Thornburgh, 490 U.S. at 404-05 & n.5, 418-19, 109 S.

Ct. at 1877 & n.5, 1884-85 (upholding the facial

validity of a prison regulation that allowed a warden

to reject a publication based on a single prohibited

feature). Upchurch testified that the Department

adopted the “prominent or prevalent” standard to

“moderate[ ]” the “focus of” requirement in Rule 3(l)

and provide “some leeway” to Prison Legal News and

other publications with questionable ads.15 It did so

even though that more moderate approach amounted

to “giv[ing] in on some security concerns.” PLN has not

convinced us that moderation in pursuit of safety is a

15 Except, for example, publications containing even a single

depiction of, or description about, how to manufacture drugs or

construct a weapon. See Fla. Admin. Code r. 33- 501.401(3)(a), (c).

App-35

constitutional vice. We do not condemn the

Department for permitting more expression than it

was required to.16

vi. Summary of the First Turner

Factor

The record shows that the Department’s decision

to limit inmates’ exposure to the ads is not “so remote”

from the Department’s security and safety interests

“as to render the . . . [impoundments] arbitrary or

irrational.” Pope, 101 F.3d at 1385. It’s not remote at

all. There is a rational connection between its

impoundments of Prison Legal News based on the

magazine’s ad content and prison security and public

safety interests.

b.

The Second Turner

Alternative Means

Factor:

The second Turner factor is “whether there are

alternative means” available to PLN to exercise its

right of access to its inmate subscribers. See Turner,

482 U.S. at 90, 107 S. Ct. at 2262. PLN contends that

this factor weighs in its favor because the district court

found that PLN could not afford to publish its

magazine without advertising revenue, and

publishing a separate Florida-only version without the

rule-defying ads would be cost prohibitive. With those

options off the table, PLN argues, the impoundments

amount to a blanket ban on its magazine because it

16 PLN, inconsistently, also argues that the Department cannot

prohibit a large amount of protected speech based on a few

suspect ads. But the Thornburgh Court upheld the facial validity

of regulations doing just that. See 490 U.S. at 404-05 & n.5, 41819, 109 S. Ct. at 1877 & n.5, 1884-85.

App-36

has no other way to send Prison Legal News to inmate

subscribers in Florida.

It is a close call, but we reject PLN’s argument

that no alternative means exist here. The Supreme

Court has made clear that prisons do not have to

provide exact, one-for-one substitutes to provide

alternative means. See id. at 92, 107 S. Ct. at 2263

(holding that a prison regulation satisfied this factor

because it did not “deprive prisoners of all means of

expression,” and instead barred “communication only

with a limited class of other people with whom prison

officials have particular cause to be concerned”). Even

if PLN cannot deliver Prison Legal News to its inmate

subscribers in Florida, this factor is satisfied as long

as there is some other way to exercise its right of

access to inmates. See Thornburgh, 490 U.S. at 41718, 109 S. Ct. at 1884 (stating that the second factor

was satisfied even though inmates could not attend a

particular Muslim religious ceremony because they

could “participate in other Muslim religious

ceremonies”) (citing O’Lone v. Estate of Shabazz, 482

U.S. 342, 107 S. Ct. 2400 (1987)).

Although PLN cannot publish its magazine

without ads and cannot afford to publish a Floridaonly version, it can send its other publications to

Florida inmates. For example, PLN publishes a

handbook called the Prisoners’ Guerrilla Handbook,

which describes various educational programs for

prisoners. The Department does not impound that

handbook. PLN also distributes to inmates a variety

of books about daily life in prison, incarceration in the

United States, and related topics. See Livingston, 683

App-37

F.3d at 209-10. There is no indication that those books

are impounded.

PLN’s argument focuses solely on its ability to

send Prison Legal News to Florida inmates, but

“adequate alternatives” can exist even “where

prisoners [are] cut off from unique and irreplaceable

activities.” Id. at 219; see also id. at 209, 218-19

(concluding that the second factor favored the

corrections department, which had banned five of

PLN’s books in Texas prisons, because the

“alternatives left open to PLN to communicate its

intended message to [the inmates were] extensive,” as

it could distribute “countless other books” to inmates).

Sending alternate publications might not be “ideal” for

PLN, but Turner does not demand the ideal. See Yang

v. Mo. Dep’t of Corr., 833 F.3d 890, 894-95 (8th Cir.

2016) (upholding a prison regulation that prohibited a

Chinese inmate from corresponding in Chinese with

his Chinese-speaking relatives in China, who did not

speak English, because the inmate could still

correspond in English, receive visitors, and make

domestic and international calls). The second factor

favors the Department or, perhaps more accurately,

does not disfavor the Department.

c. The Third Turner Factor: Impact

of Accommodating the Asserted

Right

The “third consideration is the impact [that]

accommodation of the asserted constitutional right

will have on guards and other inmates, and on the

allocation of prison resources generally.” Turner, 482

U.S. at 90, 107 S. Ct. at 2262.

App-38

As we’ve explained, the Department impounded

every monthly issue of Prison Legal News during the

five-year period for which there is evidence in the

record because the magazine’s ads give inmates the

opportunity to use prohibited services, which creates

security problems. It follows that if the Department

admits an issue of the magazine, it would have to

allocate more time, money, and personnel in an

attempt to detect and prevent security problems

engendered by the ads in the magazines. See Simpson,

879 F.3d at 281 (“Requiring Cape Girardeau to

abandon the postcard-only policy would force the jail

to dedicate more time and resources to searching the

mail, which would detract from the officers’ other

duties related to security and inmate welfare.”);

Woods, 652 F.3d at 750 (stating that a ban on pen pal

websites passed the third Turner factor because pen

pal scams “unduly distract[ed] prison officials from the

day-to-day affairs they must manage in order to

maintain a safe atmosphere for everyone in the prison

environment”). PLN’s subscribers could share copies

of the magazine and its ads with non-subscribing

inmates or spread information by word-of-mouth

about the companies offering the prohibited services.

See Thornburgh, 490 U.S. at 412, 109 S. Ct. at 1881

(stating that periodicals “reasonably may be expected

to circulate among prisoners, with the concomitant

potential for coordinated disruptive conduct”). As

Upchurch testified, that “ripple effect” increases the

burden on Department staff. See Turner, 482 U.S. at

90, 107 S. Ct. at 2262 (“When accommodation of an

asserted right will have a significant ripple effect on

fellow inmates or on prison staff, courts should be

particularly deferential to the informed discretion of

App-39

corrections officials.”) (quotation marks omitted). The

third factor favors the Department.

d.

The Fourth Turner

Exaggerated Response

Factor:

The final Turner factor requires us to consider

whether the impoundments of Prison Legal News are

“an exaggerated response to prison concerns.” Id.

(quotation marks omitted). The “existence of obvious,

easy alternatives may be evidence that the

regulation . . . is an exaggerated response” to a

problem, while the “absence of ready alternatives is

evidence of the reasonableness of a prison regulation.”

Id. (quotation marks omitted). PLN argues that the

Department’s decision to impound the magazine is an

exaggerated response to its security concerns because

no other corrections department in the nation

impounds this particular magazine based on its ad

content. And it points to several supposedly simple

alternatives to impoundment that would alleviate the

Department’s security concerns: prohibiting inmates

from calling out to cell phones, switching to a stampless system, or attaching a flyer to each issue of Prison

Legal News to remind inmates not to use the

prohibited services.

The Department’s decision to impound Prison

Legal News is not an exaggerated response to its

security concerns. Although the “policies followed at

other well-run institutions [are] relevant to a

determination of the need for a particular type of

restriction,” such policies are not “necessarily

controlling.” Procunier v. Martinez, 416 U.S. 396, 414

n.14, 94 S. Ct. 1800, 1812 n.14 (1974), overruled on

other grounds by Thornburgh, 490 U.S. at 413-14, 109

App-40

S. Ct. at 1881-82. “[T]he Supreme Court has made it

patently clear that the Constitution does not mandate

a lowest common denominator security standard

whereby a practice permitted at one penal institution

must be permitted at all institutions.”17 Pope, 101 F.3d

at 1385; see also Crime Justice & Am., Inc. v. Honea,

876 F.3d 966, 971, 978 & n.6 (9th Cir. 2017) (rejecting

the plaintiff’s argument that a ban on its magazine

coming into a county’s jail was an exaggerated

response to safety concerns, even though the magazine

was “widely distributed at other jails,” because the

county did not have as much control over the inmates

17 There is no support for PLN’s argument that the Department

has the burden of showing something unique about its

institutions to justify its impoundment decisions. Cf. Overton,

539 U.S. at 132, 123 S. Ct. at 2168 (“The burden . . . is not on the

State to prove the validity of prison regulations but on [the

challenger] to disprove it.”). PLN cites Holt v. Hobbs, 574

U.S. ___, 135 S. Ct. 853, 859 (2015), where the Supreme Court

held that Arkansas’ ban on prisoners having 1/2 inch beards

substantially burdened a Muslim inmate’s religious exercise. The

Supreme Court observed that most states and the federal

government permitted inmates to grow beards of that length, and

stated that “when so many prisons offer an accommodation, a

prison must, at a minimum, offer persuasive reasons why it

believes that it must take a different course . . . .” Id. at 866. The

Court analyzed that claim under the Religious Land Use and

Institutionalized Persons Act, which requires the government to

show that its regulation is the least restrictive means of

furthering a compelling interest. Id. at 863. Turner, by contrast,

does not require the Department to use the “least restrictive

means” to promote prison security. Turner, 482 U.S. at 90-91, 107

S. Ct. at 2262. And even under RLUIPA, a state need not permit

an accommodation just because others do. See Knight v.

Thompson, 796 F.3d 1289, 1291, 1293 (11th Cir. 2015) (rejecting

the argument that the policies of 39 other prison systems

rendered invalid the challenged prison policy).

App-41

in its jail compared to other counties). There is no onesize-fits-all approach to prison management. As

Upchurch testified, every institution faces different

security problems and deals with those problems in

different ways. For example, some prisons put

microwaves in communal inmate living areas, while

others would never allow that arrangement out of fear

that an inmate would heat up hot water and use it as

a weapon. Upchurch explained that what matters to

the Department is not the policies of corrections

departments in other states, but maintaining prison

security and public safety.18 In his view, the

impoundments of Prison Legal News help accomplish

those goals.

PLN’s proposed alternatives range from bad to

worse. Prohibiting inmates from calling cell phones

would make it difficult for them to keep in touch with

family and friends (because of the decline in landline

use), which in turn would undermine efforts to

rehabilitate inmates. Switching to a stamp-less

system would cost $70,000 (to change the

Department’s banking system), require changing two

state statutes, and force the Department to solve the

18 One reason that the policies of departments in other states

do not matter so much is that circumstances vary from state to

state. For example, PLN’s evidence shows that the Arizona

Department of Corrections does not impound Prison Legal News.

PLN’s expert admitted, however, that Arizona’s “physical

structures and facilities are more secure than” Florida’s, which

tends “to use dormitories for certain categories of prisoners that

many other states would not put in a dormitory.” Because of

differences in physical structures and facilities, the Department’s

security concerns differ from those of Arizona’s corrections

department.

App-42

logistical challenge of how inmates could send letters

from prison canteens. See Thornburgh, 490 U.S. at

419, 109 S. Ct. at 1885 (stating that courts must

consider the administrative inconvenience of proposed

alternatives).

Last and most definitely least, PLN proposes that

the Department follow New York’s lead and simply

attach to each issue of Prison Legal News a flyer

reminding inmates not to use the prohibited services.

Really? If all New York has to do to prevent inmate

misconduct and crime is gently remind them not to

misbehave, one wonders why that state’s prisons have

fences and walls. Why not simply post signs reminding

inmates not to escape? If New York wants to engage

in a fantasy about convicted criminals behaving like

model citizens while serving out their sentences, it is

free to do so, but the Constitution does not require

Florida to join New York in la-la-land. Though it was

hardly necessary to state the obvious, Upchurch

testified that a reminder flyer on the magazine would

not alleviate security concerns. See id. at 419, 109 S.

Ct. at 1884-85 (“In our view, when prison officials are

able to demonstrate that they have rejected a less

restrictive alternative because of reasonably founded

fears that it will lead to greater harm, they succeed in

demonstrating that the alternative they in fact

selected was not an ‘exaggerated response’ under

Turner.”). Like the first three factors, this final factor

favors the Department.

e. The Turner Factors: Conclusion

Upchurch summed up the relationship between

the impoundment of Prison Legal News and the

Department’s prison security and public safety

App-43

interests by stating that those rules “certainly help[ ]”

advance those interests. And that’s the point. The

impoundment of Prison Legal News is not a silver

bullet guaranteeing that inmates will not break the

rules and commit crimes while incarcerated. But the

record shows that a “reasonable relationship” does

exist between the Department’s decision to impound

the magazine and its prison security and public safety

interests. Turner, 482 U.S. at 91, 107 S. Ct. at 2262.

That is all Turner requires. Id. at 90-91, 107 S. Ct. at

2262. Because all four Turner factors favor the

Department, we hold that the impoundments of

Prison Legal News under Rules (3)(l) and (3)(m) do not

violate the First Amendment.

B. Due Process Claim

That the Department’s impoundments of Prison

Legal News do not violate the First Amendment

doesn’t let the Department entirely off the

constitutional hook. The district court ruled that the

Department violated PLN’s right to due process by

failing to provide it with notice for each impounded

issue, and the court entered an injunction requiring

the Department to do that. That was not an abuse of

discretion.

PLN must receive notice and an opportunity to be

heard each time the Department impounds an issue of

the magazine. See Perry, 664 F.3d at 1367; Montcalm

Publ’g Corp. v. Beck, 80 F.3d 105, 106 (4th Cir. 1996)

(“We hold that publishers are entitled to notice and an

opportunity to be heard when their publications are

disapproved for receipt by inmate subscribers.”);

Jacklovich v. Simmons, 392 F.3d 420, 433 (10th Cir.

2004) (following Montcalm); see also Londoner v. City

App-44

& Cty. of Denver, 210 U.S. 373, 385, 28 S. Ct. 708, 714

(1908) (“[D]ue process of law requires that . . . the

[party] shall have an opportunity to be heard, of which

he must have notice . . . .”).19 As the district court

ruled, the Admissible Reading Material Rule on its

face satisfies those requirements. When the

Department impounds an issue of a publication, the

rule requires that it send the publisher a notice form

listing the “specific reasons” for the impoundment of

that issue. Fla. Admin. Code r. 33-501.401(8)(b).20 The

We held in the Perry decision that there is a lower due

process standard for mass mailings (that is, bulk

correspondence). 664 F.3d at 1368. We reject the Department’s

argument that magazines sent to subscribers are mass mailings.

See Montcalm, 80 F.3d at 109 & n.2 (contrasting magazines sent

to individual subscribers with mass mailings, which are sent to

“each and every inmate at a given institution”). It is also not

enough that publishers may receive notice of an impoundment

from inmates. See Jacklovich, 392 F.3d at 433-34 (“[The]

publisher’s rights must not be dependent on notifying the

inmate[,] who in all likelihood will never see the

publication . . . .”).

19

20 PLN and the amici argue that the Department must provide

PLN with notice for each individual copy of Prison Legal News

that the Department impounds, even if the Department has

already sent notice that it has impounded a copy of that same

issue sent to another inmate. In other words, if the Department

impounds the January 2018 issue of Prison Legal News and

withholds 70 copies of that issue from its inmate subscribers,

then PLN wants notice forms for all 70 copies, not just one notice

for the January issue. Due process does not demand that much.

Under the administrative rule, once one facility impounds a

monthly issue, every other facility must impound that same issue

on the same grounds until the Literature Review Committee can

decide whether that issue can be admitted into the prisons. Id.

rr. 33-501.401(8)(c), (14)(a), (14)(c). Copy-by-copy notice is not

necessary for PLN to learn the reason(s) for the impoundment as

App-45

Literature Review Committee reviews every

impoundment decision, id. r. 33-501.401(14)(c), and

the publisher can independently appeal an

impoundment decision to that committee, id. r. 33501.401(15)(a).21

Those procedures, if applied, would have ensured

that for each impounded issue PLN received a notice

form listing the reasons for the impoundment. As the

Department acknowledges, however, that did not

happen for 26 out of the 62 monthly issues (42%)

impounded between November 2009 and December

2014. That failure rate increases to 87% when we take

into account defective notice forms that did not list the

reasons for the impoundment. Despite that

remarkable failure rate, the Department argues that

the Secretary cannot be enjoined because there is no

long as all copies are impounded for the same reason(s). See

Livingston, 683 F.3d at 223 (holding that due process does not

require copy-by-copy notice because later “denials of identical

publications amount to the routine enforcement of a rule with

general applicability”).

We also reject PLN’s and the amici’s argument that it is

entitled to more due process protections because of the content of

its magazine. See Shaw, 532 U.S. at 230, 121 S. Ct. at 1480

(rejecting the argument that courts should “enhance

constitutional protection [under Turner] based on their

assessments of the content of the particular communications”).

PLN argues that when the committee reviews an

impoundment decision it cannot reasonably gauge whether ads

are “prominent or prevalent” in the magazine because it receives

only a publication’s front cover and a copy of the pages with

problematic content. Fla. Admin. Code r. 33-501.401(8)(b). That

argument fails because publishers must send a copy of the entire

impounded issue when the publisher files its own appeal with the

committee. Id. r. 33- 501.401(15)(a)(2).

21

App-46

evidence that the failure to send the forms was a result

of a Department policy or custom to deprive PLN of

notice.22 The Department asserts that PLN should

find the mailroom workers who are responsible for the

failure to provide notice and sue them. No.

PLN doesn’t have to hunt and peck throughout

Florida’s correctional system for negligent mailroom

workers to sue. The buck stops with the Secretary. See

Fla. Stat. § 20.315(3) (“The head of the Department of

Corrections is the Secretary of Corrections. . . . The

secretary shall ensure that the programs and services

of the department are administered in accordance

with state and federal laws, rules, and

regulations . . . .”). This is not a case of one or two

notice letters lost in the mail or mailroom. PLN did not

receive notice forms for 42% of the impounded issues,

and many forms it received for other issues were

defective. PLN’s effort to enjoin the ongoing violation

of its right to due process is appropriate, and it seeks

only prospective relief against the Department. See

Friends of Everglades v. S. Fla. Water Mgmt. Dist., 570

F.3d 1210, 1215 (11th Cir. 2009) (stating that the Ex

Parte Young doctrine permits “lawsuits against state

officials as long as the plaintiffs seek only prospective

The Department argues that PLN did not receive the

required notice because of negligent mailroom staff, and that the

negligent deprivation of notice cannot give rise to a procedural

due process violation. Cf. Jones v. Salt Lake County, 503 F.3d

1147, 1162-63 (10th Cir. 2007) (concluding that PLN’s due

process claim failed where a prison’s mailroom staff negligently

failed to deliver the magazine to inmate subscribers). But the

Department deliberately impounded Prison Legal News, which

means that it had to provide notice to PLN for each impounded

issue.

22

App-47

injunctive relief to stop ongoing violations of federal

law”). And as the district court pointed out, its

injunction “essentially requires compliance with the

[Department’s] own rule.” The Secretary should not

protest too loudly an order to enforce a rule she is

statutorily required to enforce. See Fla. Stat.

§ 20.315(3).

IV. Conclusion

The Department’s concerns with the ads in Prison

Legal News are reasonably related to its legitimate

interests in prison security and public safety, so we

defer to its decision and hold that the impoundments

of Prison Legal News under Rules (3)(l) and 3(m) do

not violate the First Amendment. But with the power

to impound Prison Legal News comes the duty to

inform PLN of the reasons for the impoundments. The

Department did not do that, which is why the district

court did not abuse its discretion in entering an

injunction to require the Department to adhere to its

own notice rules.

AFFIRMED.

App-48

Appendix B

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

________________

No. 4:12cv239-MW/CAS

________________

PRISON LEGAL NEWS,

v.

Plaintiff,

JULIE L. JONES, in her official capacity as Secretary of

the Florida Department of Corrections,

Defendant.

________________

Filed: Oct. 5, 2015

________________

AMENDED ORDER1

________________

This case involves an as-applied First

Amendment challenge to Florida Administrative Code

Rule 33-501.401(3)(l) and (m), as well as a procedural

due process claim brought under 42 U.S.C. § 1983.

Prison Legal News2 and Julie L. Jones, on behalf of

the Florida Department of Corrections, litigated this

case to a four-day bench trial beginning on January

1 The original order, ECF No. 251, is amended as a result of

Plaintiff’s motion to alter or amend the judgment, ECF No. 258.

2

In 2009, PLN, the corporation, changed its name to the

Human Rights Defense Center. Tr. of Trial 36:24-:25 (Jan. 5,

2015). This order continues to refer to the entity as PLN.

App-49

5th, 2015.3 This order sets forth the findings of fact,

analysis of law, and verdict.

I.

The parties dispute the constitutionality of the

FDOC’s impoundment and rejection of PLN’s

magazine, Prison Legal News, a monthly publication

comprising writings from legal scholars, attorneys,

inmates, and news wire services. FDOC regulates

inmate mail with Rule 33-501.401 of the Florida

Administrative Code, titled “Admissible Reading

Material.” Rule 33-501.401 authorizes the FDOC to

screen all mail entering its facilities and sets forth a

detailed process by which it may impound that mail.

Section (3) of Rule 33-501.401 contains thirteen

subsections, labeled (a) through (m), providing distinct

criteria by which incoming publications “shall be

rejected” from the prison population. The First

Amendment action specifically challenges subsections

(l) and (m), ECF No. 14 ¶ 22, which state:

[A] [p]ublication[] shall be rejected when . . .

(l) It contains an advertisement promoting

any of the following where the advertisement

3 The sole remaining defendant in this action, Julie L. Jones, is

the current Secretary of the FDOC. Two other secretaries have

cycled through the FDOC during this litigation, Kenneth S.

Tucker and Michael D. Crews. Some early documents are

directed at these individuals. The Secretary of the FDOC is

responsible for the overall management of the Florida prison

system and has ultimate responsibility for the promulgation and

enforcement of all FDOC rules, policies and procedures, and

administrative code provisions. See ECF No. 14 ¶ 15; ECF No. 68

¶ 15. For simplicity, this order refers to Defendant Jones as the

FDOC.

App-50

is the focus of, rather than being incidental to,

the publication or the advertising is

prominent or prevalent throughout the

publication.

1. Three-way calling services;

2. Pen pal services;

3. The purchase of products or services

with postage stamps; or

4. Conducting a business or profession

while incarcerated.

[or]

(m) It otherwise presents a threat to the

security, order or rehabilitative objectives of

the correctional system or the safety of any

person.

Fla. Admin. Code R. 33-501.401(3)(l), (m) (2009)

(amended 2010).4

As relief, PLN requests a declaratory judgment

that Rule 33-501.401(3) is unconstitutional as applied

to Prison Legal News. ECF No. 14, at 13. PLN also

4 That is the 2009 version. The Rule was amended in 2010. That

amendment did not change subsections (3)(l) and (m). In the

version before 2009, the prohibition against advertisements for

three-way calling services, pen pal services, the purchase of

products or services with postage stamps, and conducting a

business while incarcerated appeared in section (4), not

subsection (3)(l). See Fla. Admin. Code R. 33-501.401(4) (2006)

(amended 2009). For clarity, this Court refers to these

prohibitions as (3)(l). The other subsection at issue in this case is

(3)(m), the Rule’s residual clause. Prior to 2009, the residual

clause appeared under subsection (3)(l). See Fla. Admin. Code R.

33-501.401(3)(l) (2006) (amended 2009). This Court refers to the

residual clause as (3)(m).

App-51

seeks an injunction that prohibits the impoundment

and rejection of Prison Legal News, orders the delivery

of all previously censored and withheld issues, and

requires individualized notice and an opportunity to

be heard whenever a copy of an issue is rejected.5

Finally, PLN seeks the same due process remedies for

the books and information packets it has mailed to

FDOC inmates, which it maintains the FDOC

impounded without notice. Tr. of Trial 4-5 (Jan. 8,

2015).

II.

This part of the order sets forth background facts

that help situate the lawsuit in the broader contest

between the parties.

A.

This is not the parties’ first rodeo—that would

have been in February 2003, when the FDOC began

censoring Prison Legal News due to its advertisement

of services accepting postage stamps as payment,

three-way calling services, pen pal services, and offers

to purchase inmate artwork. See Prison Legal News v.

Crosby, No. 3:04-cv-14-JHM-TEM, slip op. at 5-8, ¶¶ 4,

7, 14-16 (M.D. Fla. July 28, 2005), Pl.’s Trial Ex. 23

(the “Moore Order”). PLN sued the FDOC in January

5 PLN attempted to add a void-for-vagueness claim. It sought

leave to file a second amended complaint on February 19, 2013.

ECF No. 119. That motion was denied for failure to show good

cause. ECF No. 127, at 3. At the time, the trial was set for May

13, 2013. ECF No. 106. The trial would eventually be delayed by

more than a year. Had this Court known, perhaps it would have

ruled differently on the motion to amend. Either way, PLN did

not again move to amend the complaint until trial. By then it was

far too late, and the motion was denied.

App-52

2004 challenging that censorship under the First

Amendment.6 Id. at 2.

While the suit was pending in March 2005, the

FDOC amended Rule 33-501.401 to clarify that

publications would not be rejected for the advertising

content in that case, so long as those ads are “merely

incidental to, rather than being the focus of, the

publication.”7 Moore Order 15. Following this

6 The First Amendment challenge to the censorship was not the

sole claim. PLN also argued that Rule 33-602.207 of the Florida

Administrative Code, which prohibits prisoners from engaging in

outside businesses or professions and which the FDOC

interpreted as proscribing compensation for writing for Prison

Legal News, infringes on PLN’s First Amendment rights as a

publisher. Moore Order 17. The Eleventh Circuit would

eventually disagree. See Prison Legal News v. McDonough, 200

F. App’x 873, 875 (11th Cir. 2006). Lastly, PLN had originally

asserted a due process claim under the Fifth and Fourteenth

Amendments, but abandoned that claim at the start of the bench

trial. Moore Order 2 n.1.

Rule 33-501.401 has been amended several times. The

FDOC’s interpretation of the Rule has also fluctuated. In the first

lawsuit, “the FDOC changed its position several times as to

whether PLN’s magazine contained prohibited material. In early

2003, the FDOC began impounding issues of PLN’s magazine

because they contained ads for three-way calling services, which

are prohibited for Florida inmates because they pose a threat to

prison security. In November 2003, the FDOC reversed its

decision and allowed for delivery of eight issues that it had

previously impounded. However, a month later, in December

2003, the FDOC again decided to impound the magazine for

including three-way calling service ads due to ongoing security

concerns. By March 2004, the FDOC was satisfied that its

telephone provider could properly monitor prisoners’ calls and

that the three-way calling service ads were no longer a security

concern. Therefore, the FDOC again approved delivery of the

magazine.” McDonough, 200 F. App’x at 875.

7

App-53

amendment, the FDOC promised to no longer

impound Prison Legal News for its advertising

content. Id. at 13-15. The FDOC ceased impounding

and rejecting Prison Legal News for the duration of the

litigation and argued that PLN’s First Amendment

challenge to the Rule was moot.

This convinced the district court. Four months

after the amendment was implemented, it found that

the FDOC had “shown that the [newly adopted]

procedures . . . allow for distribution of [Prison Legal

News] in its current format” and that the magazine

would not be rejected solely on the basis of the

advertising content at issue. Id. at 15-16. The

Eleventh Circuit reiterated these sentiments on

appeal. In rejecting PLN’s argument that an

injunction was necessary to prevent further

censorship, the Eleventh Circuit stated:

We agree with the district court’s finding

that, although the FDOC previously wavered

on its decision to impound the magazine, it

presented sufficient evidence to show that it

has “no intent to ban PLN based solely on the

advertising content at issue in this case” in

the future. The FDOC demonstrated that its

current impoundment rule does allow for

distribution of PLN in its current format and

that the magazine will not be rejected based

on its advertising content. The FDOC

officially revised its impoundment rule and

has not refused to deliver issues of the

magazine since this amendment. . . . We have

no expectation that FDOC will resume the

App-54

practice of impounding publications based on

incidental advertisements.

McDonough, 200 F. App’x at 878. Since the Eleventh

Circuit disposed of the claim as moot, it further

declared that, “[a]s to the current rule, we offer no

opinion on its constitutionality.” Id.

B.

Less than three years after the Eleventh Circuit’s

ruling in McDonough, the FDOC amended the Rule to

provide an additional ground for rejection under (3)(l).

Under the revised Rule, publications with “prominent

or prevalent” advertisements for services prohibited by

(3)(l) would also be rejected. Fla. Admin. Code R. 33501.401(3)(l) (emphasis added).

The 2009 amendments became effective on June

16, 2009. Def. Crews’ Obj. to Pl.’s First Set of

Interrogs. to Def. Crews 2-3 (Jan. 18, 2013), Pl.’s Trial

Ex. 30. The FDOC has impounded every issue of

Prison Legal News since September 2009. Tr. of Trial

105:24-106:2 (Jan. 6, 2015).

PLN initiated this suit on November 17, 2011.

ECF No. 1. On December 16, 2011, PLN filed its First

Amended Complaint. ECF No. 14. Only two counts

remain, both against the FDOC. See ECF No. 117

(confirming the dismissal of the other two original

defendants under a settlement agreement). Count III

is a First Amendment as-applied challenge to

subsections (3)(l) and (m) of the Rule. ECF No. 14, at

11, ¶¶ 40-43. PLN alleges that the FDOC’s actions “in

refusing to deliver or allow delivery of Plaintiff’s

publications to Florida inmates in its custody, solely

because of the presence of certain advertisements

within these publications, violate Plaintiff’s rights to

App-55

free speech, press and association as protected by the

First and Fourteenth Amendment to the U.S.

Constitution and 42 U.S.C. § 1983.” Id. ¶ 43. And, in

Count VI, PLN contends that the FDOC’s “failure and

refusal to provide Plaintiff with constitutionally

required notice and an opportunity to be heard and/or

protest the decision each time Plaintiff’s publications

are censored . . . violates Plaintiff’s rights to due

process of law protected by the Fifth and Fourteenth

Amendments . . . and by 42 U.S.C. § 1983.” Id. at 14,

¶¶ 52-55.

On January 5, 2015, the parties began a four-day

bench trial on these two counts. ECF No. 235. At its

conclusion, the Court extended the parties an

opportunity to brief certain key issues. See ECF Nos.

241-44, 246.

III.

In this part are the facts of the case, as found by

this Court after careful consideration of all the

evidence presented at trial. Most facts are undisputed.

For those in dispute, the order lays out the competing

views before resolving them.

A.

Established in 1990 by Paul Wright and Ed

Meade, Prison Legal News is a monthly magazine that

reports on news and legal developments related to the

criminal justice system. Tr. of Trial 32:8-:22 (Jan. 5,

2015).8 PLN, a nonprofit with its principal place of

8 The magazine was initially titled Prisoner’s Legal News. Tr.

of Trial 122:22-123:5 (Jan. 5, 2015). In 1992, the editors changed

the name to Prison Legal News because they “thought that [the]

App-56

business in Lake Worth, Florida, publishes Prison

Legal News. Tr. of Trial 36:18-37:2 (Jan. 5, 2015). Its

mission is to inform the public about events in prisons

and jails and the need for progressive criminal justice

reform, to inform prisoners and their advocates about

these events and how to advocate for their rights, and

to enhance rehabilitation for prisoners, ensure

transparency and increase accountability of prison

officials. Tr. of Trial 32:23-33:9 (Jan. 5, 2015).

Over the past 25 years, Prison Legal News has

published over 700 articles on the FDOC and Florida

prisons and jails, with coverage ranging from

misconduct by FDOC contractors to individual cases

involving a host of legal issues. Tr. of Trial 51:15-:22

(Jan. 5, 2015). Prisoners are the magazine’s primary

audience. Tr. of Trial 123:6-:10 (Jan. 5, 2015).

Prison

Legal

News

started

carrying

9

advertisements in 1996. Tr. of Trial 41:16-:22 (Jan. 5,

2015). But it was not until February 2003 that the

FDOC censored Prison Legal News for its advertising

content. Tr. of Trial 41:23-42:8, 184:9-:10 (Jan. 5,

2015). The FDOC specifically took issue with the

publication’s advertisement of services accepting

postage stamps as payment, three-way calling

services, pen pal services, and offers to purchase

news and information was too important to . . . restrict it to

prisoners.” Id.

9 The FDOC says that advertisements are unnecessary. The

evidence overwhelmingly refutes that argument. This Court

finds that without advertisements PLN could not print Prison

Legal News. This Court further finds that printing a Florida-only

edition of Prison Legal News would be cost-prohibitive. Tr. of

Trial 60:23-71:14 (Jan. 5, 2015).

App-57

inmate artwork; proscribed mostly by subsection (3)(l).

Moore Order 5-8. The justification was that those

advertisements presented a security risk because they

promoted prohibited services. Id. at 3.

PLN sued and the FDOC subsequently amended

the Rule several times during the 2005 litigation,

vacillating between admitting publications containing

(3)(l) advertisements and rejecting them. Moore Order

7. Eventually the FDOC settled on a rule that would

not reject publications such as Prison Legal News for

advertising services prohibited by subsection (3)(l), so

long as the advertisements were “merely incidental to,

rather than being the focus of, the publication.” Id. at

8.

This Court finds that there were several reasons

for this change. First, the FDOC believed that it had

in place security measures to alleviate some of the

concerns associated with the prohibited services

advertized in Prison Legal News. Significantly, the

FDOC trusted that its telephone vendor, at the time

MCI, could detect and block three-way calls and callforwarding. See, e.g., id. at 7; Tr. of Trial 78:11-:22

(Jan. 6, 2015). Second, the FDOC recognized that

“incidental” advertisement did not pose a significant

security threat to the prisons. Moore Order 15.

Following this recognition, the FDOC promised that it

would no longer impound and reject Prison Legal

News “in its current format.” Id. at 16. The Rule was

not, as PLN claims, amended to “moot” the 2005 case.

Tr. of Trial 78:11-:22 (Jan. 6, 2015).

Finally, this Court finds that the 2005 litigation

did not concern services prohibited by subsection

(3)(m). See Tr. of Trial 69:9-70:8 (Jan. 6, 2015)

App-58

(discussing the major concerns in the prior litigation);

Tr. of Trial 214 (Jan. 7, 2015) (testifying that prior

litigation was not about subsection (3)(m)). This

litigation does.

B.

From 2005 to 2009 the FDOC, proceeding under

the revised Rule, did not reject Prison Legal News.

Then, in June 2009, the FDOC once again amended

subsection (3)(l) of the Rule. Along with this revision

came the decision to resume rejection of publications

such as Prison Legal News for advertising services

App-59

prohibited by subsection (3)(l).10 11 At trial, the parties

vigorously disputed what prompted these changes.

At times during this litigation the FDOC has taken the

position that the 2009 revisions were not substantive—that is,

that the sole purpose was to clarify “incidental” to assist

mailroom staff. The witnesses at trial could not agree on whether

the change was substantive, and the parties never directly

addressed the issue.

10

If truly not substantive, adding “prominent or prevalent”

should not have resulted in heightened censorship, generally. Yet

that is precisely what happened. Within a few months the FDOC

resumed rejection of Prison Legal News, even though there was

no noticeable change in the magazine between June 2009, when

the rule was implemented, and September 2009, the first issue

impounded since 2005. See Def.’s Trial Ex. 1; Pl.’s Trial Ex. 79.

What explains this inconsistency? First, it may not be an

inconsistency at all. It could be the case that Prison Legal News’

advertising content had ballooned well beyond “incidental” back

in October 2008, when it made the permanent jump from 48

pages per issue to 56. See Pl.’s Trial Ex. 79, at 38. This would

mean that FDOC mailroom staff mistakenly admitted Prison

Legal News for nearly a year. Under this view, the 2009

amendment worked. The staff has gotten it right ever since,

impounding and rejecting every issue of the magazine from

September 2009 to the present.

This Court finds, however, that the true and more obvious

answer is that the 2009 amendment was not a simple

“restyling”—to borrow from the judicial Committee on Rules of

Practice and Procedure—of the Rule. The evidence at trial bears

this out. For instance, Susan Hughes, chairwoman of the

Literature Review Committee from 2012 to October 2013,

testified that she understood the 2009 revision to be a change in

the rule. Tr. of Trial 2:13-:17, 6:9-7:8 (Jan. 7, 2015). And, as this

Court will discuss, the FDOC provided additional justifications

for the substantive decision to again reject Prison Legal News,

such as renewed security concerns.

11 The FDOC also began censoring Prison Legal News for

advertisements prohibited by subsection (3)(m).

App-60

Everyone agrees it was not any major incident or

tragedy related to (3)(l) services, since none occurred

between 2005 and 2009.12 Tr. of Trial 5:9-:12 (Jan. 6,

2015).

FDOC administrators gave three primary reasons

for amending subsection (3)(l) in 2009, each of which

this Court deems credible. See Tr. of Trial 58:20-:21

(Jan. 6, 2015). The first was a disagreement among the

administrators “over whether the prior policy met the

needs of the department.” Tr. of Trial 59:8-:10 (Jan. 6,

2015). According to James Upchurch, new technology,

such as the advent of Voice over Internet Protocol

(“VoIP”) technology, forced the FDOC to reconsider

previous security decisions. Tr. of Trial 19:12-:22 (Jan.

6, 2015). Securus is the FDOC’s current telephone

vendor. Like MCI, it works by detecting noises and

clicks made on a phone line that signal the initiation

of three-way calls and call-forwarding. Tr. of Trial 1516 (Jan. 6, 2015). Circumventing the system generally

requires obfuscating those specific noises or

transferring calls without any noise at all. VoIP

employs the latter. Tr. of Trial 19:12-:22 (Jan. 6, 2015).

The changes in technology proved wrong the FDOC’s

belief that it had adequate security measures to curb

three-way calling and call-forwarding.

The second reason given was dissatisfaction with

the vagueness of subsection (3)(l). FDOC

administrators sought to clarify the circumstances

12 While no single, major incident prompted the amendment,

this Court finds that there is evidence that companies and

prisoners disregarded prison rules against exchanging stamps for

money and services. See, e.g., Tr. of Trial 36:18-40:13 (Jan. 6,

2015).

App-61

under which publications should be censored for their

advertising content. See Tr. of Trial 59:11-:14 (Jan. 6,

2015); see also Pl.’s Trial Ex. 30 (identifying clarity as

the goal of the 2009 revisions). They did so with the

antonyms “prominent or prevalent,” which the FDOC

believed would assist mailroom staff in their decisionmaking. Lastly, the FDOC had noticed an increase in

the volume of advertisements related to postage

stamps. Tr. of Trial 59:16-:18 (Jan. 6, 2015).

A major theme in PLN’s First Amendment

challenge is that the FDOC had no legitimate reasons

for amending subsection (3)(l). So, PLN endeavored to

undermine these reasons all through trial.

PLN asserts that the first reason—the purported

circumvention of Securus—is false. Securus, like MCI,

is contractually obligated to block the call services at

issue. This contract was recently renewed by the

FDOC. That means the system works, says PLN.

Otherwise, the FDOC would not have renewed the

contract.

FDOC offers evidence to refute PLN’s argument.

First, Securus itself admits it is not 100% effective.

Second, FDOC personnel monitoring phone calls have

heard inmates successfully transfer calls. Third,

hundreds of thousands of attempted calls have been

detected by Securus. According to the FDOC, this

means that some prisoners successfully transfer calls,

or else there would not be so many attempts.

FDOC officials also said that increasing Securus’

effectiveness would be too costly. They explained that

Securus could be made more effective by increasing its

sensitivity to noise. The heightened sensitivity would

capture more attempts, but also result in more false

App-62

positives. It would shutdown inmates placing ruleabiding phone calls. This would lower prisoner morale

and increase tension to untenable levels. Tr. of Trial

15-16:25 (Jan. 6, 2015). So it goes.

With respect to the first reason, this Court makes

the following determinations. At the time of the 2005

litigation, the FDOC believed that its telephone

vendor could detect all attempts at three-way calling

and call-forwarding. After all, Securus, its current

vendor, is contractually obligated to block three-way

calls and call-forwarding attempts. Yet it is unable to

do so. Some calls, including those transferred using

VoIP technology, elude the system. There is no

evidence to suggest that any other provider could do a

better job than Securus. And while it is theoretically

possible to increase Securus’ efficacy, any benefit from

doing so would be offset by attendant prison

instability.

As to the third reason, PLN points out that the

FDOC never ran a study to determine whether

advertisements accepting stamps as payment

increased between 2005 and 2009. Tr. of Trial 59:1960:7 (Jan. 6, 2015). The FDOC instead relied on plain

observations and noticed that the number of such

advertisements had grown “substantially.” Tr. of Trial

59:19-60:18 (Jan. 6, 2015); accord Tr. of Trial 8:22-9:1

(Jan. 6, 2015).

That is beside the point. In fact the magazine did

increase in size. Tr. of Trial 109:18-110:6 (Jan. 5,

2015). In four years the magazine went from 48 pages

to 56 pages per issue, containing both more

substantive, non-offending content and prohibited

advertisements. See Pl.’s Trial Ex. 79 (providing total

App-63

number of pages for every issue of Prison Legal News

dating back to January 2002); Def.’s Trial Ex. 7.

Qualitatively, the advertisements have changed as

well. The number of “half page or greater” (3)(l) ads

have increased. Def.’s Trial Ex. 7. And since 2010,

PLN has run an offending advertisement on the back

cover of the magazine. Id. Today, Prison Legal News is

64-pages long. See Pl.’s Trial Ex. 79. No formal study

is necessary to see that.

PLN additionally argues that the FDOC is wrong

to look to the total number of advertisements. Tr. of

Trial 49:9-:12 (Jan. 7, 2015). Instead, as PLN would

have it, the proper measure is the percentage of the

magazine that is prohibited advertisement. Tr. of

Trial 49:14-50:2 (Jan. 7, 2015). The merits of this

argument are explored later. For now, suffice to say

that the percentage of advertisements for three-way

calling services, stamps as payment, pen pal services,

and conducting a business services—that is, those

prohibited by subsection (3)(l) of the Rule—increased

only slightly from 9.21% in 2005 to 9.8% in 2009. See

Pl.’s Trial Ex. 79, at 85. In 2014, (3)(l)-prohibited

advertisements averaged 15.07% of the publication.

Id.13

Notably, neither this “study” nor anything else

introduced by the parties examines the percentage for

advertisement prohibited by (3)(m). See Tr. of Trial

242, 250:9-:15 (Jan. 5, 2015) (explaining methods,

13 Evidence before this Court shows that advertising content in

Prison Legal News has been on the rise since 2005. Paul Wright

testified that PLN does not intend to further increase the number

and size of offending advertisements. Tr. of Trial 59:8-:10 (Jan. 5,

2015). This Court has no reason to disbelieve Mr. Wright.

App-64

which excluded (3)(m) ads); see also Def.’s Trial Ex. 7

(providing number of advertisements forbidden by

other rules, including (3)(m), and showing that, by

2009, Prison Legal News’ advertising content had

widened to include more types of prohibited

advertisements; but still not revealing the percentage

of (3)(m) advertisements).

Another contention made by PLN, which it hopes

this Court will adopt as fact, is that FDOC officials

amended the Rule in 2009 specifically to exclude

Prison Legal News. PLN cites email exchanges among

FDOC administrators where they discuss the 2009

amendment and how the new rule might “run afoul” of

the promises made in the 2005 litigation. See, e.g., Tr.

of Trial 61-66 (Jan. 6, 2015); Pl.’s Trial Ex. 57a-57i. To

PLN, these emails are a smoking gun of the ulterior

motive animating the 2009 revisions. See Tr. of Trial

135-136 (Jan. 5, 2015) (accusing the FDOC of

censoring Prison Legal News for its editorial content).

At minimum, the emails reveal that FDOC

officials were aware that the 2009 changes would lead

to rejection of Prison Legal News. This supports the

finding that the FDOC intended the 2009

amendments to be substantive. And perhaps when

placed, as PLN does, in the broader context of FDOC

prevarication and inconsistent application of the Rule,

they hint at chicanery (more on this later). But it is

still a stretch to say that the emails demonstrate that

FDOC officials amended the Rule in 2009 specifically

to exclude Prison Legal News.

These emails are the closest thing PLN presented

to direct evidence that the FDOC targets Prison Legal

News. Other circumstantial evidence relies heavily on

App-65

inference to support this theory. PLN reasons, for

example, that security concerns could not possibly

underlie the amendment because no major incident or

tragedy related to the services advertised occurred

between 2005 and 2009. The Rule must then be a

façade, masking institutional bias against a

publication that informs prisoners of their rights.

Such a finding would be nothing less than

conjecture. There are many reasons, not the least of

which is that there is some evidence of stamp-related

problems. Animus is not the only inference that can be

drawn from the fact that the FDOC amended

subsection (3)(l) before a calamity transpired. Plus,

the FDOC unequivocally denies any malice, its

officials going as far as saying that they view Prison

Legal News favorably. See, e.g., Tr. of Trial 212:9-:13

(Jan. 7, 2015). More importantly, PLN failed to offer

any evidence showing that the FDOC does not censor

other publications containing similar advertising

content, or that the only other publications that the

FDOC censors contain editorial content similar to

Prison Legal News. To the contrary, the FDOC

produced evidence, though limited, that it has

repeatedly rejected other publications on (3)(l)

grounds, some of which on their face do not resemble

Prison Legal News. See, e.g., Def.’s Trial Ex. 12, at 3739 (censoring American Arab Message for advertising

services for stamps), 63-65 (censoring Cellmates for

pen pal advertisement), 69-71 (censoring Butterwater

catalog for advertising services for stamps), 72-74

(censoring Picture Entertainment for advertising

services for stamps); Def.’s Trial Ex. 15.

App-66

Here, the more limited conclusion is the soundest.

And that conclusion is that FDOC officials did not

amend subsection (3)(l) in 2009 because they disliked

Prison Legal News’ “editorial” content.14 And there is

no evidence, this Court finds, that the FDOC censors

Prison Legal News but not other publications with

similar advertising content. Lastly, with respect to

subsection (3)(l), this Court finds, consistent with the

expert

testimony

presented

at

trial,

that

advertisements for such services implicate legitimate

security concerns. Tr. of Trial 69-147 (Jan. 7, 2015).

Turning to subsection (3)(m), this Court makes

the following findings. Subsection (3)(m) contains a

residual clause requiring the FDOC to reject

publications that otherwise present a threat to

security, order, rehabilitative objectives, and safety.

From 2009 onward, the FDOC became increasingly

concerned with services falling outside the ambit of

(3)(l) and within the purview of (3)(m). See, e.g., Tr. of

Trial 15:14-:20 (Jan. 7, 2015). Chiefly troubling among

these services—at least to the FDOC—are prisoner

concierge services, which enable inmates to establish

outside bank accounts, run background checks, and

locate people, among other things. See Tr. of Trial

69:9-70:8 (Jan. 6, 2015); see also Tr. of Trial 73:13-:21

(Jan. 7, 2015) (listing services falling under umbrella

term “prisoner concierge services”). This Court finds,

14 It is not entirely clear how much “motive” matters, if at all,

in the First Amendment analysis. The order later explores the

divergent case law on this issue. Ultimately, this Court does not

decide whether motive matters because, even if it does, PLN

failed to present sufficient evidence that FDOC officials acted

with ill will in 2009 when they amended the Rule and resumed

impounding Prison Legal News.

App-67

consistent with the expert testimony produced by the

FDOC, that advertisements for these services

constitute legitimate security risks. See Tr. of Trial 69147 (Jan. 7, 2015).

Prison Legal News contained these sorts of

advertisements in 2009. See Def.’s Trial Ex. 7. It did

not back in 2005. See id. Indeed, the largest increase

in advertisements in Prison Legal News has been for

prisoner concierge services. Tr. of Trial 73:13-:21 (Jan.

7, 2015). Unremarkably, then, the FDOC began

invoking subsection (3)(m) to censor the publication.

Not all of PLN’s evidentiary arguments are duds.

The following is largely undisputed. Florida is the only

state that censors Prison Legal News because of its

advertising content. Tr. of Trial 71:15-:20, 198-200

(Jan. 5, 2015). The private prison corporations censor

Prison Legal News only in Florida as well. Tr. of Trial

75:14-:20 (Jan. 5, 2015). Some states that previously

censored the publication because of its advertising

content have found less restrictive ways of furthering

their legitimate penological goals without banning it.

See, e.g., Tr. of Trial 81:19-82:14 (Jan. 5, 2015)

(explaining that New York staples a notice to the

magazine before delivering it to inmates warning

them that certain services are prohibited).

Other prison rules seem in tension with the

penological grounds upon which the FDOC censors

Prison Legal News. Inmates may call up to 10

numbers preapproved by the FDOC. Tr. of Trial 13:1:7 (Jan. 6, 2015). The FDOC claims that three-way

calling and call-forwarding present a security risk

because these services mask the identity and location

of the true recipient of a call. Tr. of Trial 197-200 (Jan.

App-68

5, 2015). Yet the FDOC allows inmates to list cell

phone numbers, for which it has no way of knowing

the location and identity of the person on the other

end. Id.; see also Tr. of Trial 22:5-:10 (Jan. 6, 2015).

The assignment of a cell phone number likewise does

not depend on geography. Tr. of Trial 49-50 (Jan. 6,

2015) (explaining how someone in Miami can obtain a

cell phone number with a Tallahassee area code).

Similarly, even though the FDOC has stamp-related

security concerns, it allows inmates to possess up to

40 stamps at any given time. Tr. of Trial 188:3-:4 (Jan.

5, 2015). And, as PLN stresses, there are many ways

for inmates to obtain the information advertized in

Prison Legal News despite its censorship.

These

inconsistencies

aside,

this

Court

determines that the FDOC’s stated penological

objectives for censoring Prison Legal New have been

steadfast: security, rehabilitation, and protecting the

public, FDOC staff and inmates.

C.

The FDOC’s literature review process can be

broken down into two groups. The first group consists

of incoming publications that have not previously been

rejected by the Literature Review Committee (“LRC”),

the body that reviews impoundment decisions made

by FDOC institutions. As to that group, the process

works as follows.

An issue of Prison Legal News enters an FDOC

facility or institution. Mailroom personnel initially

flag potential advertising violations. If they think the

advertising content violates the Rule, the publication

is sent to the warden or the warden’s designee (“[f]or

the purposes of approving the impoundment of

App-69

publications,” the designee is limited to the assistant

warden), who makes the impoundment decision for

the FDOC institution. Fla. Admin. Code R. 33501.401(8)(a). If that official believes the publication

violates the Rule, he or she completes “Form DC5-101,

Notice of Rejection or Impoundment of Publications.”

Id. The form is supposed to indicate the “specific

reasons” for impoundment. Id.

Several copies of this form are made. Not everyone

is entitled to a copy. Under the Rule, the inmate is

always entitled to notice whenever a copy of any

publication addressed to him or her is impounded. But

the Rule only requires that the institution that

“originated the impoundment . . . also provide a copy

of the completed form to the publisher, mail order

distributor, bookstore or sender, and to the literature

review committee.” Fla. Admin. Code R. 33501.401(8)(b). “[A] copy of the publication’s front cover

or title page and a copy of all pages cited on [the form],”

are attached to the copy sent to the LRC.15 Id.

(emphasis added).

FDOC personnel do not mark down every

offending advertisement. So the LRC never receives a

photocopy of the entire impounded publication.16 The

LRC reviews the institution’s decision—in (3)(l) cases,

15 Briefly, the parties dispute the burden of making a copy for

the publisher every time an FDOC facility impounds a copy of an

issue. The dispute centered on whether doing so would impose a

de minimus burden on the FDOC. This Court has considered the

evidence and now finds that making a copy for the publisher

every time would be minimally burdensome.

16 The FDOC does not copy the entire publication for fear that

doing so infringes copyright protections.

App-70

reviewing to see whether offending advertisement is

“prominent

or

prevalent

throughout

the

publication”—without ever knowing the number and

size of all offending advertisements in any given issue

of Prison Legal News, nor the issue’s total page count.

It may affirm or overturn the institution’s decision on

different or additional grounds. Tr. of Trial 113:20-:25,

120:20-:23 (Jan. 6, 2015). The LRC does not use Form

DC5-101 to make its decision. Tr. of Trial 120 (Jan. 6,

2015). Instead, the LRC uses a different form that it

keeps internally. Id. These internal forms have not

been provided to this Court by either party.

Once an initial impoundment decision is made,

the Rule requires all other institutions to impound the

same publication pending review by the LRC. Fla.

Admin. Code R. 33-501.401(8)(c). The initial

impounding institution is supposed to notify other

institutions of the impoundment through a centralized

database that explains why a specific publication was

impounded. This reduces duplicative efforts.

Institutions that subsequently receive the same

publication should automatically reject it on the same

grounds as the initial institution.

Group two concerns publications that have

previously been rejected by the LRC. Once the LRC

affirms an initial impoundment, it rejects the specific

issue of a publication and informs all institutions of its

decision. Future recipient institutions are then

required to reject other copies of that issue. The LRC

does not notify publishers when it upholds an

impoundment decision unless the publisher appealed

the initial impoundment decision. Tr. of Trial 86:3-:8

(Jan. 6, 2015).

App-71

D.

The FDOC has impounded every issue of Prison

Legal News since September 2009. Pursuant to its

policy, it admits not providing PLN a notice of

impoundment for every copy of each issue it has

impounded.17

The FDOC says that it has provided PLN at least

one impoundment notice per issue since 2009. As

evidence, the FDOC called two witnesses who worked

in the mailroom at Florida State Prison. Tr. of Trial

154, 180 (Jan. 7, 2015). One of them, Ms. Patricia

Goodman, has been working there since at least 2009.

Tr. of Trial 154:22-155:7 (Jan. 7, 2015). The two

witnesses are responsible for mailing out the

impoundment notices originating at Florida State

Prison. Both testified about the impoundment protocol

at their institution and how closely these procedures

are followed by mailroom staff. See, e.g., Tr. of Trial

158:5-:7 (Jan. 7, 2015). Neither could independently

recall actually sending PLN an impoundment notice

every single time. As further support, the FDOC

provided documentation of notices of impoundment

from 2009 to the present. See Def.’s Trial Ex. 5.

None of this, says PLN, demonstrates that the

FDOC provided PLN with an impoundment notice for

every issue since 2009. PLN is absolutely correct.

First, the testimonial evidence submitted by the

FDOC is limited to one of its institutions, Florida

State Prison. No one argues that Florida State Prison

was always the original impounding institution. There

17 Whether due process requires individualized notice per copy

will be discussed later.

App-72

is no evidence that the other institutions regularly

followed protocol like Ms. Goodman. Second, even for

the Florida State Prison, the witnesses admitted that

they could not recall whether they notified PLN every

time. Third, the notices of impoundment submitted

are reproductions of notices received by PLN from

prisoners, not the FDOC. See ECF No. 241, at 9-10

(explaining that the notices reproduced in Defendant’s

Trial Exhibit 5 contained PLN Bates numbers; PLN

originally disclosed these notices to the FDOC during

discovery).

This Court finds in favor of PLN on these facts.

PLN proved that it did not receive an impoundment

notice for every issue impounded since November

2009. ECF No. 241, at 9. Two of its witnesses

explained PLN’s mail protocol, credibly establishing

PLN’s meticulous recordkeeping. Tr. of Trial 252, 268

(Jan. 5, 2015). From November 2009 to June 2013, Mr.

Zachary Phillips was responsible for filing mail

concerning censorship or possible censorship of Prison

Legal News. Tr. of Trial 253:8-254:6 (Jan. 5, 2015). He

reviewed notices of rejection or impoundment from

November 2009 to May 2013. Tr. of Trial 257-263 (Jan.

5, 2015). PLN did not receive a notice of impoundment

from the FDOC for many of those months. See, e.g., Tr.

of Trial 257:13-:14 (Jan. 5, 2015) (stating that in 2010

PLN did not receive notices in May, June, July,

August, September, and October).

In summary, for 26 issues between November

2009 and December 2014, PLN did not receive any

notice from the FDOC that Prison Legal News had

App-73

been impounded.18 That is roughly 42% of all issues

during that period where the FDOC withheld Prison

Legal News without notifying PLN. ECF No. 241, at 9.

Of the notices PLN did receive, many did not list the

page numbers containing advertisements allegedly in

violation of the Rule. Id. Some did not even state the

subsection allegedly breached. Id. And at least three

times PLN received a notice of rejection without

having first received a notice of impoundment,

meaning that the LRC had made its decision before

PLN had an opportunity to appeal. Id.

Lastly, this Court finds that the FDOC failed to

provide notice every time it impounded the Prisoners’

Guerilla Handbook and the information packets sent

to its inmates by PLN. See Tr. of Trial 261-262 (Jan.

5, 2015); Tr. of Trial 4-5 (Jan. 8, 2015); Pl.’s Trial Ex.

46; Pl.’s Trial Ex. 86.

IV.

There are three principal issues to be resolved.

The first is preliminary and does not address the

merits of PLN’s lawsuit. That issue is whether the

FDOC should be judicially estopped from censoring

Prison Legal News under Rule 33-501.401(3)(l).

Resolving that issue does not completely dispose of the

case because PLN also brought an as-applied First

Amendment challenge to subsection (3)(m) of the Rule.

The two remaining issues are: first, whether the

FDOC’s censorship of Prison Legal News under Rule

33-501.401(3)(l) and (m) unconstitutionally abridges

18 This is the summary provided by PLN in its post-trial brief.

See ECF No. 241, at 9. This Court has independently reviewed

the evidence submitted at trial and agrees with the summary.

App-74

PLN’s First Amendment rights;19 and second, whether

the FDOC violated PLN’s procedural due process

rights.

A.

The preliminary question is whether judicial

estoppel bars the FDOC from censoring Prison Legal

News on the basis that its advertising content violates

Rule 33-501.401(3)(l).

The doctrine of judicial estoppel generally

“prevents a party from asserting a claim in a legal

proceeding that is inconsistent with a claim taken by

that party in a previous proceeding.” New Hampshire

v. Maine, 532 U.S. 742, 749 (2001) (quoting 18 Moore’s

Federal Practice § 134.30, p. 134-62 (3d ed. 2000)). It

is designed “to protect the integrity of the judicial

process.” Id. To that end, the doctrine, in its “simplest

manifestation[],” estops a party from asserting “a

present position because [that] party had earlier

persuaded a tribunal to find the opposite.” 18B

Charles Alan Wright et al., Federal Practice &

Procedure § 4477 (2d ed. 2015).

The Supreme Court in New Hampshire explained

that while “[t]he circumstances under which judicial

estoppel may appropriately be invoked are probably

not reducible to any general formulation of principle,”

“several factors typically inform the decision whether

to apply the doctrine in a particular case.” 532 U.S. at

750 (alteration in original) (quoting Allen v. Zurich

Ins. Co., 667 F.2d 1162, 1166 (4th Cir. 1982)).

19 Applied to the State of Florida by the Fourteenth

Amendment.

App-75

First, a party’s later position must be “clearly

inconsistent” with its earlier position. Second,

courts regularly inquire whether the party

has succeeded in persuading a court to accept

that party’s earlier position, so that judicial

acceptance of an inconsistent position in a

later proceeding would create “the perception

that either the first or the second court was

misled.” Absent success in a prior proceeding,

a party’s later inconsistent position

introduces no “risk of inconsistent court

determinations,” and thus poses little threat

to judicial integrity. A third consideration is

whether the party seeking to assert an

inconsistent position would derive an unfair

advantage or impose an unfair detriment on

the opposing party if not estopped.

Id. at 750-51 (citations omitted).

In this Circuit, courts consider two additional

factors. “First, it must be shown that the allegedly

inconsistent positions were made under oath in a prior

proceeding. Second, such inconsistencies must be

shown to have been calculated to make a mockery of

the judicial system.” Burnes v. Pemco Aeroplex, Inc.,

291 F.3d 1282, 1285 (11th Cir. 2002) (quoting Salomon

Smith Barney, Inc. v. Harvey, 260 F.3d 1302, 1308

(11th Cir. 2001), cert. granted, judgment vacated on

other grounds, 537 U.S. 1085 (2002)). “[T]hese . . .

enumerated factors are not inflexible or exhaustive.”

Id. at 1286. And, courts have discretion in invoking

the doctrine. New Hampshire, 532 U.S. at 750. But

they “must always give due consideration to all of the

circumstances of a particular case when considering

App-76

[its] applicability.”

(emphasis added).

Burnes,

291

F.3d

at

1286

The FDOC currently maintains that the

advertisements for (3)(l) services in Prison Legal News

present a security threat, justifying the publication’s

censorship under that subsection. PLN insists that

this position is clearly inconsistent with the 2005

representation that “such ‘incidental’ ads do not pose

a significant security threat to the prisons.” Moore

Order 15. It would be different if the underlying facts

changed, but according to PLN, the only thing that has

changed is the FDOC’s “interpretation of the evidence

or its decisions on how to enforce the rules at issue.”

ECF No. 241, at 20. It points out that the percentage

of (3)(l) advertising content in Prison Legal News did

not increase significantly from 2005 to 2009, and that

no major incident or tragedy linked to (3)(l) services

occurred during that time period. The FDOC’s “flipflopping” “over the same rule and same security

concerns,” PLN claims, is precisely the sort of

inveiglement of the judiciary that judicial estoppel is

supposed to ward against.

But because circumstances have changed, the two

FDOC positions are not clearly inconsistent. First,

technology changed. In 2005, the FDOC decided not to

censor publications containing advertisements for

three-way calling and call-forwarding services

because it believed that its telephone vendor could

detect and block all such attempts. See Moore Order

14. Yet inmates have continued to bypass the FDOC’s

security measures using technology such as VoIP that

previously was not so widely available. The FDOC was

clearly mistaken about the efficacy of its security

App-77

measures. Judicial estoppel simply does not apply

“when the prior position was taken because of a good

faith mistake rather than as part of a scheme to

mislead the court.” Ryan Operations G.P. v. SantiamMidwest Lumber Co., 81 F.3d 355, 362 (3d Cir. 1996).

Second, the extent to which Prison Legal News

advertizes services prohibited by (3)(l) has also

changed. PLN stresses that the proportion of the

magazine that is (3)(l) advertisement barely increased

from 9.21% in 2005 to 9.8% in 2009. To PLN, these

percentages demonstrate that in 2009 such

advertisements were no less “incidental” than they

had been in 2005. PLN thus equates “incidental” to

proportional.

A strictly proportion-based metric, however,

overlooks significant differences. For starters, Prison

Legal News ran larger ads in 2009. A chart submitted

by the FDOC tallies the number of “half page or

greater” (3)(l) ads. Def.’s Trial Ex. 7. From April 2005,

the last issue censored in the previous litigation, to

September 2009, the number of such ads increased by

100%, from 2 to 4. Id. at 1. That number rose even

more, now hovering around 6 per issue. Id. at 3. So

while the overall proportion of (3)(l) advertisement

had not increased significantly in 2009, the number of

larger, more conspicuous ads did.

The magazine also shifted away from advertising

three-way calling services to advertisements enabling

inmates to purchase products or services with postage

stamps. By PLN’s own account, the number of these

so-called “stamp” advertisements went from 2 in April

2005 to 7 in September 2009. Compare Pl.’s Trial Ex.

79, at 17-18, with id. at 43-44. That number has

App-78

steadily ticked upward: 8 by November 2009; 9 in

February 2010; 10 in March 2010; a slight decrease

before rebounding to 11 in July 2010; 13 by August

2010; peaking at 17 in March 2013; and steadying at

the lower end of the teens ever since. Id. at 44-84.

Advertisements for three-way calls have not seen this

growth, but they have not decreased either. Id.

Although PLN argues that the overall percentage of

(3)(l) advertisements has not changed much,20 the

magazine clearly emphasizes a different type of (3)(l)

ad today than it did in 2005.

The most obvious shortcoming with equating

“incidental” to proportional is that it misses the

absolute increase of advertisements for services

prohibited by (3)(l). See id.; Def.’s Trial Ex. 7. Perhaps

a 10-page publication with one page of advertisement

is functionally equivalent to a 100-page publication

with ten pages of advertisement. This Court, however,

refuses to supplant FDOC officials’ judgment on

whether one of these equally proportionate, but

qualitatively different publications presents any more

of a security risk than the other. See Jones v. N.

Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119,

125 (1977) (admonishing the lower court for “not

giving appropriate deference to the decisions of prison

administrators and appropriate recognition to the

peculiar and restrictive circumstances of penal

confinement”).

20 This is not actually true. The overall percentage in 2005 was

9.21%. Pl.’s Trial Ex. 79, at 85. By 2011 that number had gone up

to 10.19%. Id. It hit 12.66% in 2012, and now hovers above 15%.

Id.

App-79

All of these changes to the content and format of

Prison Legal News matter for judicial estoppel. PLN

paints the FDOC’s representations in 2005 as a

blanket promise that Prison Legal News would never

again be censored for advertising services prohibited

by (3)(l). But that is not what the Moore Order

articulates. The FDOC represented that “such

‘incidental’ ads” did not pose a security threat. Moore

Order 15 (emphasis added). This is a direct reference

to the advertising content at issue in that case. See

Black’s Law Dictionary 1661 (10th ed. 2014) (defining

“such” as “That or those; having just been

mentioned”). By limiting its representation, the

FDOC’s promise cannot fairly be read as extending to

all future iterations of such advertisements,

particularly those different in kind.

Furthermore, the Moore Order itself reflects the

limited finding that the FDOC had promised not to

impound Prison Legal News “in its current format.”

Moore Order 21 (emphasis added). The Eleventh

Circuit reiterated this understanding on appeal.

McDonough, 200 F. App’x at 878 (“The FDOC

demonstrated that its current impoundment rule does

allow for distribution of PLN in its current format.”)

(emphasis added). The format changed in four years.

It has changed even more since then. Consequently,

the FDOC’s current position is not clearly inconsistent

with the position it took before Judge Moore, and this

Court’s acceptance of that position would not “create

the perception that . . . the first . . . court was misled.”

New Hampshire, 532 U.S. at 750-51.

Accordingly, the FDOC is not judicially estopped

from adopting the current position that Prison Legal

App-80

News must be censored because its (3)(l) advertising

content presents a security risk.21

B.

This Court must also decide whether the FDOC’s

censorship of Prison Legal News pursuant to Rule 33501.401(3)(l) and (m) violates PLN’s rights under the

First Amendment.

PLN has a legitimate First Amendment interest

in accessing prisoners “who, through subscription,

willingly seek [the] point of view” expressed in Prison

Legal News. Thornburgh v. Abbott, 490 U.S. 401, 408

(1989). Prison regulations limiting that access must be

analyzed under the reasonableness standard

developed by the Supreme Court in Turner v. Safley,

482 U.S. 78 (1987). Thornburgh, 490 U.S. at 413-14

(holding that regulations affecting the sending of a

“publication” to a prisoner must be analyzed under

Turner; refusing to distinguish between incoming

correspondence from prisoners and incoming

correspondence

from

nonprisoners);

accord

Washington v. Harper, 494 U.S. 210, 224 (1990)

(“[T]he standard of review we adopted in Turner

applies to all circumstances in which the needs of

21 The FDOC additionally contends that judicial estoppel does

not apply against states when doing so would “compromise a

governmental interest in enforcing the law” and “where broad

interests of public policy [are] at issue.” ECF No. 242, at 4-5

(quoting New Hampshire, 532 U.S. at 755-56). It argues this case

implicates both concerns. First, estoppel would compromise the

FDOC’s interest in enforcing prison safety rules. Second, broad

interests of public safety and prison security are at issue. PLN

responds that neither interest is at play in this litigation. This

Court need not decide this issue because it finds that the totality

of the circumstances counsel against judicial estoppel.

App-81

prison administration implicate constitutional

rights.”); Perry v. Sec’y, Florida Dep’t of Corr., 664 F.3d

1359, 1365 (11th Cir. 2011). Under Turner, such

regulations are “valid if [they are] reasonably related

to legitimate penological interests.” Thornburgh, 490

U.S. at 413 (alteration in original) (quoting Turner,

482 U.S. at 89).

Several factors are relevant to the reasonableness

inquiry. The first factor is multifold, requiring courts

to “determine whether the governmental objective

underlying the regulations at issue is legitimate and

neutral, and that the regulations are rationally

related to that objective.” Id. at 414. This “‘factor’ is

more properly labeled an ‘element’ because it is not

simply a consideration to be weighed but rather an

essential requirement.” Salahuddin v. Goord, 467

F.3d 263, 274 (2d Cir. 2006); accord Shaw v. Murphy,

532 U.S. 223, 229-30 (2001) (“[After stating the first

Turner factor:] If the connection between the

regulation and the asserted goal is ‘arbitrary or

irrational,’ then the regulation fails, irrespective of

whether the other factors tilt in its favor.”).

A second factor “is whether there are alternative

means of exercising the right that remain open to [the

plaintiff].” Turner, 482 U.S. at 90. “A third

consideration is the impact accommodation of the

asserted constitutional right will have on guards and

other inmates, and on the allocation of prison

resources generally.” Id. Finally, Turner instructs

lower courts to inquire whether there are “easy

alternatives” indicating that the regulation is not

reasonable, but rather an “exaggerated response” to

prison concerns. Id.

App-82

After the impinged constitutional right has been

identified, as is the case here, the state must “put

forward” the legitimate governmental interests

underlying its regulation. Id. at 89. Once this is done,

the plaintiff bears the ultimate burden of showing that

the regulation in question, as applied, is not

reasonably related to legitimate penological

objectives. Overton v. Bazzetta, 539 U.S. 126, 132

(2003) (“The burden, moreover, is not on the State to

prove the validity of prison regulations but on the

[plaintiff] to disprove it.”).

The FDOC identified public safety and prison

security as the underlying legitimate governmental

interests.22 No one questions whether those are

legitimate governmental interests. Any suggestion to

the contrary would be fruitless. See Thornburgh, 490

U.S. at 415 (holding that regulation promulgated with

the purpose of “protecting prison security” is

legitimate, since that “purpose . . . is central to all

other corrections goals”); Perry, 664 F.3d at 1366

(acknowledging that “protecting the public and

ensuring internal prison security” are legitimate

penological interests).

PLN instead contends that the FDOC’s

application of Rule 33-501.401(3)(l) and (m) is not

content-neutral, and that censoring Prison Legal

News for its advertising content is not rationally

related to public safety and prison security. And so,

with respect to the first factor, the question becomes

(1) whether the Rule “operate[s] in a neutral fashion,

22 It identified other reasons too, but only the security

objectives are necessary for this analysis.

App-83

without regard to the content of the expression” at

issue; and (2) whether censoring Prison Legal News

due to its advertising content rationally relates to

public safety and prison security. Turner, 482 U.S. at

90.

As to neutrality, the Supreme Court has

explained that Turner requires nothing more than

that “the regulation or practice in question must

further an important or substantial governmental

interest unrelated to the suppression of expression.”

Thornburgh, 490 U.S. at 415 (quoting Procunier v.

Martinez, 416 U.S. 396, 413 (1974)). “Where . . . prison

administrators

draw

distinctions

between

publications solely on the basis of their potential

implications for prison security, the regulations are

‘neutral’ . . . .” Id. at 415-16.

The limited evidence at trial reveals that the

FDOC censors an assorted mix of publications under

subsections (3)(l) and (m). Nothing in the record

implies that such censorship turns on the content of

the publication. PLN did not show, for instance, that

the FDOC disparately censors publications critical of

its institutions.

Lacking this evidence, PLN argues that FDOC

administrators did not amend the Rule in 2009 on

legitimate penological grounds. PLN alleges, citing a

series of emails, that the true motivation behind the

amendment was a dislike of Prison Legal News. See

Pl.’s Trial Ex. 57a-57i.

“It is unclear what role, if any, motive plays in the

Turner inquiry.” Hatim v. Obama, 760 F.3d 54, 61

(D.C. Cir. 2014). Compare Hammer v. Ashcroft, 570

F.3d 798, 803 (7th Cir. 2009) (“It is not clear why one

App-84

bad motive would spoil a rule that is adequately

supported by good reasons. The Supreme Court did

not search for ‘pretext’ in Turner; it asked instead

whether a rule is rationally related to a legitimate

goal.”) (citation omitted), with Salahuddin, 467 F.3d

at 276-77, and Quinn v. Nix, 983 F.2d 115, 118 (8th

Cir. 1993) (“Prison officials are not entitled to the

deference described in Turner and Procunier if their

actions are not actually motivated by legitimate

penological interests at the time they act.”). In this

case, the contours of that role need not be delineated

because “[e]ven if some quantum of evidence of an

unlawful motive can invalidate a policy that would

otherwise survive the Turner test,” the evidence

introduced by PLN is “too insubstantial to do so.”

Hatim, 760 F.3d at 61; see also Prison Legal News v.

Stolle, No. 2:13CV424, 2014 WL 6982470, at *6 n.2

(E.D. Va. Dec. 8, 2014) (rejecting applicability of

motive and holding, in the alternative, that PLN failed

to present sufficient evidence of “unlawful motive”

that could “invalidate a policy that would otherwise

survive the Turner test”). As previously explained, the

emails simply do not evidence unlawful animus on the

part of FDOC administrators. Neither does the other

circumstantial evidence. PLN thus failed to show that

the FDOC applies Rule 33-501.401(3)(l) and (m) in a

biased fashion.

Setting neutrality aside, this Court now turns to

the gravamen of PLN’s First Amendment challenge.

PLN advances three principal reasons for why there is

no rational connection between the censorship at issue

and the stated penological objectives.

App-85

The first argument boils down to a dispute about

the evidentiary burden necessary to establish a

“rational” connection. Everyone, even PLN’s expert,

agrees that the underlying services addressed in Rule

33-501.401(3)(l) and (m) unquestionably compromise

public safety and prison security. See, e.g., Tr. of Trial

68-69 (Jan. 8, 2015) (summarizing how even PLN’s

expert agrees that the underlying services

compromise security); Tr. of Trial 203:9-:15 (Jan. 5,

2015) (admitting that “[those services raise] very

legitimate concerns”). This is why the FDOC forbids

prisoners from using them.

But PLN says that evidence that prohibiting the

use of these services furthers security is not enough.

This case, PLN insists, is not about those services.

This case is about censoring a publication because it

advertizes those services. That is correct. Even so, the

FDOC also articulated a logical connection between

censorship and the penological objectives at stake, and

presented sufficient evidence in support.

The logic is straightforward. Without question,

the proper, initial response to the dangerous services

is forbidding prisoners from using them. Though not

surprisingly, they do so anyway. Tr. of Trial 241-243

(Jan. 7, 2015). See generally Washington, 494 U.S. at

225 (“[A] prison environment, . . . ‘by definition,’ is

made up of persons with ‘a demonstrated proclivity for

antisocial criminal, and often violent, conduct.’”

(quoting Hudson v. Palmer, 468 U.S. 517, 526 (1984))).

So the FDOC has adopted prophylactic safeguards in

addition to bare proscription.

Rule 33-501.401 is such a safeguard.

Advertisements compromise security because they

App-86

convert a publication into a “one-stop shop”—to

borrow from the FDOC’s expert—for dangerous

services. Tr. of Trial 71-72:15 (Jan. 8, 2015). By

limiting inmates’ exposure, the Rule seeks to reduce

the likelihood that inmates will use those services.

PLN responds that such “general or conclusory”

articulation of rationality is insufficient to withstand

constitutional muster. Tr. of Trial 64:17 (Jan. 8, 2015).

This Court agrees, “Turner requires prison authorities

to show more than a formalistic logical connection

between a regulation and a penological objective.”

Beard v. Banks, 548 U.S. 521, 535 (2006). The FDOC

met that burden by providing the testimony of several

administrators who, “relying on their professional

judgment, reached an experience-based conclusion

that [censorship] . . . further[s] [the] legitimate prison

objectives.” Id. at 533 (emphasis added); see also

Prison Legal News v. Livingston, 683 F.3d 201, 216

(5th Cir. 2012) (“[P]rison policies may be legitimately

based

on

prison

administrators’

reasonable

assessment . . . .”) (emphasis added). And, as

additional support, the FDOC provided “expert

testimony to establish that [censorship] will help curb”

prisoners’ use of the services. Perry, 664 F.3d at 1366

(holding that expert testimony is sufficient to

establish rational connection; deferring to the opinion

of FDOC administrator James Upchurch, who is also

a witness in this case).

None of this suffices for PLN. It wants specific

past incidents. And not merely some past example of

an inmate using a prohibited service to do something

bad; PLN demands a concrete, unfortunate incident

caused by an inmate using a banned service, which the

App-87

inmate learned about in Prison Legal News. See, e.g.,

Tr. of Trial 66:2-:8 (Jan. 8, 2015).

No controlling precedent in this Circuit requires

the FDOC to provide evidence of an actual, past

incident. See, e.g., Perry, 664 F.3d at 1363 (affirming

summary judgment in favor of the FDOC on First

Amendment challenge to prison regulation despite

fact that the FDOC failed to cite specific instances of

the alleged problem in Florida). Several other circuits

likewise do not require it. See, e.g., Murchison v.

Rogers, 779 F.3d 882, 890 (8th Cir. 2015) (“[P]rison

officials need not wait until particular prohibited

material causes harm before censoring it . . . .”);

Livingston, 683 F.3d at 216 (“[P]rison policies may be

legitimately based on prison administrators’

reasonable assessment of potential dangers.”). But

even if such evidence were required, FDOC

administrators provided examples, both in Florida

and throughout the country, of problems associated

with specific services that advertize, or have

advertized, in Prison Legal News. See, e.g., Tr. of Trial

5-6, 39-41 (Jan. 6, 2015) (explaining that FDOC

officials learned of a company that had been sending

prisoners money for stamps, and how such companies

could distribute money for prisoners to people in the

outside world in exchange for stamps; this company

had previously advertized on Prison Legal News).

PLN’s second reason is that the FDOC applies the

Rule arbitrarily. PLN introduced evidence of identical

issues of Prison Legal News censored at separate

FDOC facilities on different grounds, as reflected on

the

impoundment

notice

accompanying

the

censorship. There is also some testimony about issues

App-88

that were initially admitted at some facilities while

denied at others. Lastly, PLN stresses that

advertisements for other prohibited services and

products are not censored by the FDOC. PLN

maintains that these inconsistencies amount to an

irrational application of the Rule.

Case law supports the proposition that the

consistency with which a regulation is applied matters

for determining whether it is rationally connected to a

legitimate penological objective. “The existence of

similar material within the prison walls may serve to

show inconsistencies in the manner in which material

is censored such as to undermine the rationale for

censorship or show it was actually censored for its

content.” Murchison, 779 F.3d at 890 (emphasis

added). In addition to inconsistent censorship of

“similar” material, general “inconsistencies could

[also] become so significant that they amount to a

practical randomness that destroys the relationship

between a regulation and its legitimate penological

objectives.” Id. (quoting Livingston, 683 F.3d at 221);

see also Thornburgh, 490 U.S. at 417 n.15.

Although PLN has presented evidence of

inconsistent censorship decisions made by FDOC

mailroom staff, this Court does not believe PLN

demonstrated inconsistencies that rise to a level of

randomness or that undermine the rationale for

censoring Prison Legal News. The fact that mailroom

personnel do not uniformly censor Prison Legal News

on the same grounds is not dispositive. “With the

volume of material that must be screened, we cannot

expect prison officials to perfectly screen all material

that violates prison regulations.” Murchison, 779 F.3d

App-89

at 890. Inconsistent application by mailroom staff goes

more to the vagueness of the Rule.

In any event, mailroom staff decisions are not

final and do not permanently compel censorship of the

magazine throughout Florida. Initial impoundment

decisions are subject to review by the LRC. The LRC

rejects the publication on the grounds it thinks

adequate. That decision is then uniformly applied

throughout Florida because once the LRC makes a

decision, there is no further individualized review by

mailroom staff.

This pares down the risk of randomness and

distinguishes this case from Thornburgh,23 where

each prison warden independently decided censorship,

such that “certain federal prisons had excluded the

very same book that others had allowed.” Livingston,

683 F.3d at 221. Here, the very same issue of Prison

Legal News is eventually censored throughout the

FDOC. Like in Livingston, the LRC’s “system-wide”

“exclusion decisions” make the inconsistencies “only

arguable,” because the only apparent inconsistencies

left to sort out are the decisions to admit, for example,

an advertisement about guns versus one about threeway calling. Id. This Court refuses to engage in such

“one-to-one comparisons” of specific ads. Id. Not

because these inconsistencies are irrelevant. But

rather, due to the substantial deference owed prison

23 Yet, even the inconsistencies in that case did not defeat an

otherwise rational connection. Thornburgh, 490 U.S. at 417 n.15

(addressing the “seeming inconsistencies” in that case and

holding that the regulation at issue struck “an acceptable

balance” between uniformity and individualized review).

App-90

administrators regarding which type of advertisement

is more problematic.

Absent a showing that the FDOC is admitting

other magazines containing advertisements closely

resembling those found in Prison Legal News, which

there is none, this Court holds that the “limited

amount of inconsistency at the margins of [the

FDOC’s] exclusion decisions is not enough to defeat

the reasonableness of [the FDOC’s] practices.” Id.

The last argument PLN advances is that other

FDOC regulations undermine the Rule to such a great

extent that they render the Rule’s connection to

security irrational. To illustrate, among the many

such rules explored at trial is a regulation permitting

inmates to list cell phone numbers on their

preapproved contact list and another allowing

inmates up to 40 stamps at any given time. See Tr. of

Trial 22:5-:10 (Jan. 6, 2015); Tr. of Trial 188:3-:4 (Jan.

5, 2015). PLN asserts that these rules undermine the

logic behind censoring some of the services singled out

in (3)(l). Cell phones have three-way calling and callforwarding capabilities identical to, or better than, the

services advertized on Prison Legal News. The FDOC

has no way of knowing a cell phone user’s location, just

like it does not know the location of the person on the

other end of a forwarded call. Tr. of Trial 197 (Jan. 5,

2015); Tr. of Trial 22:5-:10 (Jan. 6, 2015). Also, the

FDOC allows inmates to have stamps and allows

families to send inmates stamps despite their

contention that they are a serious hazard in prisons.

See Tr. of Trial 188:3-:4 (Jan. 5, 2015).

An FDOC administrator explained each

conflicting rule. Cell phones are ubiquitous in modern

App-91

society. Prohibiting inmates from calling cell phones

would effectively preclude them from speaking with

many of their loved ones who no longer carry land

lines. The FDOC could theoretically impose such a

draconian rule, but it would surely lead to increased

tension within prisons. See Tr. of Trial 102-103 (Jan.

7, 2015) (summarizing practical impossibility).

Likewise, the FDOC once proposed a rule that

would have embargoed stamps sent by family

members to an inmate by mail. Tr. of Trial 23 (Jan. 6,

2015). Under the proposed rule, families would have

been limited to depositing money into inmates’ prison

accounts which the inmate could then use to purchase

stamps. Families and friends of prisoners vehemently

opposed the proposal, expressing concern that the rule

would increase the likelihood that their imprisoned

loved ones would either be victimized or simply not

purchase any stamps at all. Tr. of Trial 23-24 (Jan. 6,

2015). Moreover, FDOC officials testified that

implementing the accounting measures proposed by

PLN to counteract the problems with stamps would be

too costly and require amending state statutes. Tr. of

Trial 25 (Jan. 6, 2015). Nearly every other seemingly

paradoxical regulation in place also had some

corresponding explanation.

Running a prison system is not easy. Prison

administrators, charged with the unenviable task of

“deal[ing] with the difficult and delicate problems of

prison management,” must make considered decisions

that balance order, security and resources.

Thornburgh, 490 U.S. at 407-08. The first Turner

factor requires this Court to determine whether the

censorship at issue is rationally related to legitimate

App-92

penological objectives. Finding that it is both rational

and supported by evidence, this Court declines PLN’s

invitation to disrupt the balance struck by the FDOC.

The remaining factors tilt in the FDOC’s favor as

well. When considering whether alternative means of

exercising the abridged right remain open to the

plaintiff, the Supreme Court instructs courts to view

“‘the right’ in question . . . sensibly and expansively.”

Id. at 417. This means that the alternatives need not

be perfect substitutes. Livingston, 683 F.3d at 218.

The Rule leaves open sufficient alternatives for

PLN to express their point of view to inmates. First,

as in Perry, the Rule does not completely prevent PLN

from corresponding with inmates. 664 F.3d at 1366.

There are countless other written materials that PLN

may send prisoners. As the Fifth Circuit in Livingston

explained, if alternative means existed in O’Lone v.

Estate of Shabazz, 482 U.S. 342 (1987), “where

prisoners were cut off from [a] unique and

irreplaceable

[activity]”—“a

unique

religious

ceremony”—surely there are alternatives to a

magazine. 683 F.3d at 219.

Second, even Prison Legal News is not invariably

censored. The Rule applies only when a particular

issue’s advertising content crosses a certain

threshold.24 And while this Court accepts that

advertisements are necessary, the unfeasibility of

printing Prison Legal News without advertising

content is not dispositive. PLN has not proven that it

24 This threshold, however, is almost impossible to identify. As

this Court will explain shortly, vagueness is principally

responsible for the Rule’s disparate application.

App-93

is unable to adopt advertising rubrics that would help

bring its magazine in line with prison regulations.

The third factor is the impact the accommodation

of the asserted constitutional right will have on

guards, inmates and prison resources. In this case,

“the class of publications” excluded by the Rule “is

limited to those found potentially detrimental to order

and security.” Thornburgh, 490 U.S. at 418. The

evidence demonstrates that accommodating the

specific way in which PLN seeks to exercise its right—

through a publication containing dangerous amounts

of advertising content—would “significantly less[en]

liberty and safety for everyone else, guards and other

prisoners alike.” Id. The Supreme Court has held that

this fact alone pushes the third factor in FDOC’s favor.

Id. (deferring to the “informed discretion of corrections

officials” who had said that accommodating the right

would lessen liberty and safety for “everyone else,

guards and other prisoners”).

The final Turner factor is whether there are “easy

alternatives” indicating that the regulation is not

reasonable, but rather an “exaggerated response” to

prison concerns. 482 U.S. at 90. This is not an inquiry

into whether prison officials adopted the “least

restrictive alternative.” Id. at 90-91. “But if an inmate

claimant can point to an alternative that fully

accommodates the prisoner’s rights at de minimis cost

to valid penological interests, a court may consider

that as evidence that the regulation does not satisfy

the reasonable relationship standard.” Id. at 91.

As this Court explained during its discussion of

rationality, there are no “easy alternatives” available

to the FDOC. The prohibition against using the

App-94

services themselves is not enough. Similarly, the

alternatives suggested by PLN to eliminate the

security concerns either have equally unattractive

side effects or are costly to implement.

Additionally, with respect to subsection (3)(l),

“[a]lthough the FDOC did not need to narrowly tailor

its Rule to only prohibit” publications containing

“prominent or prevalent” offending advertisements, it

adopted a less exaggerated response than censorship

for any amount of offending advertising content.

Perry, 664 F.3d at 1367. And as to subsection (3)(m),

this Court is “comforted by the individualized nature

of the determinations required by the regulation,”

under which a publication is censored only if the LRC

determines that it “presents a threat to the security,

order or rehabilitative objectives of the correctional

system or the safety of any person.” Thornburgh, 490

U.S. at 416.

Admittedly, the fact that Florida is the only state

that currently censors Prison Legal News for its

advertising content is troubling—at least for purposes

of determining whether the Rule is indeed an

exaggerated response. Some states have censored the

publication for its advertising content. New York once

censored it for carrying advertisements about services

accepting stamps as payment. Tr. of Trial 81-82 (Jan.

5, 2015). New York eventually settled on a less

restrictive way of furthering its security interest

without censoring the entire magazine: attaching a

notice warning prisoners that the services advertized

are prohibited. Id. Even if this is the sounder policy,

the FDOC is not required to implement the least

restrictive regulation. Moreover, the FDOC may be

App-95

constrained in ways that New York’s department of

corrections is not. Significant variances would make

comparison futile. Comparing different states’

department of corrections is difficult, and in this case

the parties did not submit sufficient evidence to do so.

This Court is also not blind to the many other

worrisome facts uncovered at trial. The most

disconcerting is the Rule’s vagueness. None of the

witnesses at trial were able to articulate any

reasonably specific guidelines to determining when

advertisements were “prominent or prevalent.” Some

considered whether font was large and bolded to

determine prominence. Others looked to the size of the

advertisements. For prevalence, no one could identify

a cutoff. With no framework handy, this Court would

probably be unable to apply the Rule to those

publications at the margins. Yet FDOC officials felt

very strongly about their ability to determine

prominence and prevalence correctly. It seems that

they, unlike this Court, “know it when [they] see it.”

Jacobellis v. State of Ohio, 378 U.S. 184, 197 (1964)

(Stewart, J., concurring).

To make matters worse, the LRC, the final

decision-maker, never reviews an entire publication or

book when it makes its decision. As this Court

mentioned

earlier,

this

means

that

final

determinations about prevalence are made without

knowing whether, for instance, the four or five pages

copied and attached to the impoundment notice are

four or five out of one hundred, one thousand.

That being said, there is no void-for-vagueness

claim pending. This lawsuit instead focuses on

whether the FDOC has applied subsections (3)(l) and

App-96

(m) to Prison Legal News in a manner reasonably

related to legitimate penological interests. Courts

have wrestled with the role played by general

vagueness in the Turner analysis. See Martinez v.

Fischer, No. CIV S-10-0366 GGH P, 2011 WL 4543191,

at *8 n.4 (E.D. Cal. Sept. 28, 2011) (“[T]he undersigned

has trouble fitting the Turner test, an analysis focused

on the legitimacy of prison regulations, with an

analysis focused on whether regulations are

understandable.”); Miller v. Wilkinson, No. 2:98-CV275, 2010 WL 3909119, at *5 (S.D. Ohio Sept. 30,

2010) (noting that “[p]rison regulations are not often

challenged on vagueness grounds” and that some

courts have held that “the First Amendment

overbreadth doctrine, do not ‘apply with independent

force in the prison-litigation context’ ” (quoting

Waterman v. Farmer, 183 F.3d 208, 213 (3d Cir.

1999))); Bahrampour v. Lampert, 356 F.3d 969, 975-76

(9th Cir. 2004) (applying Turner test despite inmate’s

assertion that vagueness and overbreadth claims

must be considered separate and apart from

application of Turner test.); cf. Sweet v. McNeil, No.

4:08CV17-RH/WCS, 2009 WL 903291, at *7 (N.D. Fla.

Mar. 31, 2009) (Hinkle, J.) (importing deferential

principles to void-for-vagueness suit, in light of

Turner).25

PLN does not argue that the Turner analysis entirely

subsumes the void-for-vagueness inquiry. Moreover, PLN moved

to amend their complaint to add a void-for-vagueness claim. This

implies that PLN also thinks that the two claims are separate

and distinct. In addition, there has not been any argument on the

issue of whether void-for-vagueness and overbreadth claims

apply with independent force in the prison context. This Court

accordingly treats them as separate claims.

25

App-97

In this case, all Turner factors support the FDOC.

This includes the last one, where, instead of banning

any amount of offensive advertisement, the FDOC

elected the less restrictive option of allowing

publications with some advertising content. The

difficulty of applying the more reasonable option

should not, and does not, overcome the other Turner

factors. The uniformity with which the publication has

been rejected by the LRC, both at the time and after

re-reviewing the censored issues in preparation for

trial, further alleviates the concern that the Rule

cannot be applied intelligibly. Finally, the Rule here

seems equally as difficult to apply as the one in

Thornburgh, but that did not preclude a finding in the

government’s favor. See 490 U.S. at 428 (Stevens, J.,

concurring in part and dissenting in part) (addressing

the regulation’s vagueness).

This Court therefore holds that PLN has failed to

show that the FDOC’s censorship of Prison Legal

News is not “reasonably related to legitimate

penological interests.” Turner, 482 U.S. at 89.

C.

The final issue is whether the FDOC violated

PLN’s due process rights in its impoundment of Prison

Leg

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