Amicus Curiae Brief — Prison Legal News, Petitioner v. Julie L. Jones, Secretary, Florida Department of Corrections

No. 18-355

================================================================

In The

Supreme Court of the United States

-----------------------------------------------------------------PRISON LEGAL NEWS,

Petitioner,

v.

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

Respondent.

-----------------------------------------------------------------On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

-----------------------------------------------------------------BRIEF OF 18 ORGANIZATIONS THAT

FAVOR FREEDOM OF THE PRESS AND

OPPOSE CENSORSHIP AS AMICI CURIAE

IN SUPPORT OF THE PETITIONER

-----------------------------------------------------------------THOMAS R. JULIN

Counsel of Record

TIMOTHY J. MCGINN

GUNSTER, YOAKLEY &

STEWART, P.A.

600 Brickell Avenue,

Suite 3500

Miami, FL 33131

(305) 376-6007

tjulin@gunster.com

Counsel for Amici Curiae

================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...................................

ii

INTEREST OF AMICI CURIAE ...........................

1

SUMMARY OF THE ARGUMENT .......................

10

ARGUMENT ...........................................................

10

I.

The Court Should Grant the Writ Because

the Eleventh Circuit Upheld a Rule that

Lacks Specific Criteria To Prevent its Use

for Improper Censorship ............................. 10

II.

The Court Should Grant the Writ to Clarify

That Content-Based Prison Correspondence

Rules are Subject to Stricter Scrutiny Than

Turner v. Safley Provides ............................ 17

CONCLUSION .......................................................

25

ii

TABLE OF AUTHORITIES

Page

CASES

Barrett v. Orman, 373 F. App’x 823 (10th Cir.

2010) ........................................................................13

Bates v. State Bar of Ariz., 433 U.S. 350 (1977) ...........6

Beard v. Banks, 548 U.S. 521 (2006) ..........................19

Bigelow v. Virginia, 421 U.S. 809 (1975) ....................23

Bose Corp. v. Consumers Union of U.S., Inc., 466

U.S. 485 (1984) ........................................................11

Burns v. Martuscello, 890 F.3d 77 (2d Cir. 2018) .......21

City of Lakewood v. Plain Dealer Publishing Co.,

486 U.S. 750 (1988) ........................................... 15, 16

Daker v. Warren, 660 F. App’x 737 (11th Cir.

2016) ........................................................................13

Davis v. Goord, 320 F.3d 346 (2d Cir. 2003) ...............21

F.C.C. v. Fox Television Stations, Inc., 567 U.S.

239 (2012) ................................................................13

Fed. Elections Comm’n v. Wis. Right to Life, 551

U.S. 449 (2007) ........................................................12

Freedman v. Maryland, 380 U.S. 51 (1965) ................15

Grayned v. City of Rockford, 408 U.S. 104 (1972) ........14

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

2004) ........................................................................13

Meriwether v. Coughlin, 879 F.2d 1037 (2d Cir.

1989) ........................................................................21

iii

TABLE OF AUTHORITIES—Continued

Page

Miniken v. Walter, 978 F. Supp. 1356 (E.D. Wash.

1997) ........................................................................21

Perry v. Secretary, Florida Dep’t of Corr., 664

F.3d 1359 (11th Cir. 2011) .......................................13

Prison Legal News v. Columbia County, Case

No. 3:12-cv-00071-SI, 2012 WL 1936108 (D.

Or. May 29, 2012) ....................................................20

Prison Legal News v. Columbia Cty., 942 F. Supp.

2d 1068 (D. Or. 2013)...............................................21

Prison Legal News v. Cook, 238 F.3d 1145 (9th

Cir. 2001) .................................................................20

Prison Legal News v. County of Ventura, No. 140773-GHK (EX), 2014 WL 2736103 (C.D. Cal.

June 16, 2013) .........................................................21

Prison Legal News v. Crosby, No. 3:04-cv-14-J16TEM (M.D. Fla. July 28, 2005) .............................7

Prison Legal News v. Lehman, 397 F.3d 692 (9th

Cir. 2005) .................................................................20

Prison Legal News v. McDonough, 200 F. App’x

873 (11th Cir. 2006) ...................................................8

Prison Legal News v. Secretary, Florida Dep’t of

Corr., 890 F.3d 954 (11th Cir. 2018) .................... 9, 14

Prison Legal News v. Secretary, No. 15-14220

(11th Cir. May 10, 2016)............................................1

Procunier v. Martinez, 416 U.S. 396

(1974) ................................................. 2, 10, 13, 14, 18

Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) .........19

iv

TABLE OF AUTHORITIES—Continued

Page

Shakur v. Selsky, 391 F.3d 106 (2d Cir. 2004) ............21

Sorrell v. IMS Health Inc., 564 U.S. 552 (2011) ...... 6, 23

Susan B. Anthony List v. Driehaus, 134 S. Ct.

2334 (2014) ..............................................................12

Thornburgh v. Abbott, 490 U.S. 401 (1989) .... 13, 18, 20

Turner v. Safley, 482 U.S. 78 (1987) ................... passim

United States v. Playboy Entm’t Grp., Inc., 529

U.S. 803 (2000) ........................................................23

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. I ........................................... passim

U.S. Const. amend. XIV ........................................ 10, 25

RULES

Rules of the Supreme Court

Rule 37.2 ....................................................................1

Rule 37.6 ....................................................................1

OTHER AUTHORITIES

David M. Reutter, Prison Food and Commissary

Services: A Recipe for Disaster, 29 PRISON LEGAL

NEWS (Aug. 2018) ......................................................1

David A. Franklin, Looking Through Both Ends

of the Telescope: Facial Challenges and the

Roberts Court, 36 HASTINGS CONST. L.Q. 689

(2009) .......................................................................12

1

INTEREST OF THE AMICI CURIAE1

Many of the amici filing this brief filed an amicus

brief in support of Prison Legal News in the District

Court. They also sought leave to file an amicus brief in

the United States Court of Appeals for the Eleventh

Circuit to reiterate their concerns regarding the vagueness of the rule at issue and, specifically, how that

vagueness can be used to conceal that official decisions

to impound Prison Legal News are based on disagreement with editorial content, rather than violations of

the rule.2 The Secretary of the Florida Department of

Corrections objected to the filing of that amicus brief

and the Eleventh Circuit refused to allow it. Prison

Legal News v. Secretary, No. 15-14220 (11th Cir. May

10, 2016) (Order Denying Motion for Leave to File

Amicus Brief ). This brief reiterates the concerns of

the institutional media that the rule violates the First

Amendment for the reasons stated in the petition

and suggests that an additional question should be

accepted for review, namely:

1

Pursuant to Rules 37.2 and 37.6 of the Rules of the Supreme Court, all parties have consented to the filing of this amici

curiae brief. No counsel for any party authored this brief in whole

or in part, nor did any person or entity, other than amici or their

counsel, make a monetary contribution to the preparation of this

brief. The parties have received notice of this filing.

2

A recent front-page article illustrates why prison officials

might be tempted to use the vagueness of the challenged rule to

impound the publication for an improper purpose. David M. Reutter, Prison Food and Commissary Services: A Recipe for Disaster,

29 PRISON LEGAL NEWS 1 (Aug. 2018) https://www.prisonlegal

news.org/news/2018/aug/4/prison-food-and-commissary-servicesrecipe-disaster/ (last visited Oct. 3, 2018).

2

Does a state prison rule which relies on vague

standards to screen incoming mail facially violate the First and Fourteenth Amendments?

This brief also shows that, because the rule at issue squarely targets the content of advertising, the

standard of review set forth in Turner v. Safley, 482

U.S. 78 (1987), has no application here. The Turner

standard applies solely to rules which are themselves

content-neutral. Where rules target content, a heightened standard of review is required by Procunier v.

Martinez, 416 U.S. 396 (1974). The Eleventh Circuit ignored this fundamental principle and reviewed the

substance of the rule at issue under the Turner standard.

Allied Daily Newspapers of Washington and

Washington Newspaper Publishers Association are

trade associations for newspapers. Washington newspapers are particularly interested in this matter because Paul Wright, the editor and co-founder of Prison

Legal News, was imprisoned in Washington for 17

years prior to his release in 2003. Mr. Wright founded

Prison Legal News in 1990 while imprisoned.

The American Society of News Editors was

founded in 1922 to “defend the profession from unjust

assault” and is primarily an organization of news leaders in the United States.

Association of Alternative Newsmedia is a 501(c)(6)

organization that represents 112 alternative newsmedia organizations throughout North America. AAN

3

member publications reach more than 38 million active, educated, and influential adults.

The Authors Guild, Inc., was founded in 1912 and

is a national non-profit association of more than 9,000

professional, published writers of all genres.

The Citrus County Chronicle was founded in the

1890s and is the oldest business in Citrus County, Florida.

Criminal Justice Journalists is the first national

organization of journalists who cover crime, court, and

prison beats. It was founded by Ted Gest, then of U.S.

News and World Report, and David Krajicek, who has

covered crime for the New York Daily News and other

newspapers.

First Amendment Foundation, Inc., believes that

government openness and transparency are critical to

citizen trust and involvement in our democratic society—without Government in the Sunshine, civic engagement cannot bloom. Through ongoing monitoring

of Florida’s public records and open meetings laws and

the education of government officials and the citizens

they serve about those laws, the Foundation promotes

the public’s constitutional right to oversee and to participate in the governance process.

Florida Press Association, Inc., was founded in

1879 as a nonprofit corporation to protect the freedoms

and advance the professional standards of the press of

Florida.

4

The Marshall Project is a nonprofit, nonpartisan

online journalism organization focusing on issues related to criminal justice in the United States, led by

former hedge fund manager Neil Barsky and former

New York Times executive editor Bill Keller.

National Association for Rational Sexual Offense

Laws distributes The Digest bimonthly to 1,000 inmates. It is the nation’s oldest regularly published

journal exclusively dedicated to issues concerning sex

offenders and sex offender registries.

National Coalition Against Censorship was

formed in 1973 to promote freedom of thought, inquiry,

and expression and oppose censorship in all its forms.

The National Press Photographers Association is

the leading voice advocating for the work of visual journalists today.

New England First Amendment Coalition is a

broad-based organization of people who believe in the

power of transparency in a democratic society. Its

members include lawyers, journalists, historians, librarians, and academicians, as well as private citizens

throughout New England.

Pacific Northwest Newspaper Association is an association of daily newspapers in Alaska, Idaho, Montana, Oregon, Utah, Washington, Alberta, and British

Columbia advancing the newspaper industry through

information, education, and service.

The Press Freedom Defense Fund supports journalists, news organizations, and whistleblowers who

5

are targeted by powerful figures because they have

tried to bring to light information that is in the public

interest and necessary for a functioning democracy.

The Reporters Committee for Freedom of the

Press is an unincorporated nonprofit association. The

Reporters Committee was founded by leading journalists and media lawyers in 1970, when the nation’s

news media faced an unprecedented wave of government subpoenas forcing reporters to name confidential

sources. Today, its attorneys provide pro bono legal representation, amicus curiae support, and other legal resources to protect First Amendment freedoms and the

newsgathering rights of journalists.

The Joseph L. Brechner Center for Freedom of Information at the University of Florida exists to advance understanding, appreciation, and support for

freedom of information in the state of Florida, the nation, and the world.

Although this case involves a prison rule that has

had a particularly harsh impact on Prison Legal News

because it specializes in serving the prison community,

the case is of importance to the Amici because the rule

threatens every publication that is distributed in Florida prisons, such as the Tallahassee Democrat, the

Gainesville Sun, and the Miami Herald. All of these

publications carry extensive advertising for goods and

services that prisoners might wish to use now or in the

future but which they are prohibited from obtaining

while in prison. The vagueness of the challenged rule

permits prison officials to impound any of these

6

publications for putative noncompliance with the rule

even if the actual basis for impoundment is officials’

disagreement with editorial content.

In addition, regulations that target advertising

based on content are as offensive to First Amendment

principles as regulations that target editorial material

based on content. Advertising informs readers about

products and services that may be of vital importance

to them. In this case, the advertising in Prison Legal

News advises prisoners about products and services

that are commonly available to prisoners outside of

Florida. Awareness of these products and services may

assist prisoners who wish to challenge the validity of

restrictions on those goods or services or to advocate

for the lifting of those restrictions. Advertising also

helps keeps costs to readers low. This Court invalidated restrictions on speech vital to advertising in Sorrell v. IMS Health Inc., 564 U.S. 552 (2011). The Court

commented that a “ ‘consumer’s concern for the free

flow of commercial speech often may be far keener than

his concern for urgent political dialogue’ ” and pointed

out that the marketing data at issue in that case could

“save lives.” Id. at 566 (quoting Bates v. State Bar of

Ariz., 433 U.S. 350, 364 (1977)).

This case also is of importance to the Amici because the history of the litigation shows that First

Amendment principles are seriously endangered when

federal courts decline to adjudicate issues during the

temporary cessation of unconstitutional restrictions on

speech. Prison Legal News filed an action similar to

this one in 2004. It sought a declaration that the

7

Florida Department of Corrections (“the Department”

or “FDOC”) had violated the First Amendment by (1)

refusing to allow delivery of Prison Legal News to prisoners because it contained ads for three-way calling

services and pen-pal services and accepted postage

stamps as payment for subscriptions, and (2) prohibiting prisoners from accepting compensation for articles

they wrote for newspapers and magazines. See Prison

Legal News v. Crosby, No. 3:04-cv-14-J-16TEM (M.D.

Fla. July 28, 2005) (DE-87 (Order, Findings of Fact and

Conclusions of Law) at 2–3).

In apparent reaction to the suit, the Department

amended its rules effective March 16, 2005, to provide

that a publication such as Prison Legal News would

not be rejected based on its inclusion of advertisements

for prohibited products or services, as long as those

advertisements were “ ‘merely incidental to, rather

than being the focus of, the publication.’ ” (Id. at 8–9

¶¶ 18–19.) After the amendment, the Department allowed distribution of Prison Legal News to continue.

Prison Legal News insisted that the amended rule

posed a continuing threat to it, notwithstanding that

its distribution was being permitted. U.S. District

Judge John H. Moore, II, conducted a three-day bench

trial and found that the Department’s prior prohibition

of distribution served no governmental purpose whatsoever because the Department effectively could stop

the inmates from using the advertised services

whether they saw advertising for them or not. (Id. at

14–15.) But Judge Moore also entered judgment as a

matter of law for the Department because it was no

8

longer prohibiting distribution. (Id. at 16–17.) The

Eleventh Circuit agreed that the Department had

mooted the challenge by adopting an amended regulation and then not invoking the new rule to prohibit further distribution. Prison Legal News v. McDonough,

200 F. App’x 873, 877–78 (11th Cir. 2006). The Eleventh

Circuit held the Department had shown “ ‘no intent to

ban PLN based solely on the advertising content at issue in this case’ in the future.” Id. at 878. But the Eleventh Circuit added: “We have no expectation that

FDOC will resume the practice of impounding publications based on incidental advertisements. As to the

current rule, we offer no opinion on its constitutionality.” Id. at 878. This ruling allowed the Department to

escape an adjudication that its amended rule violates

the First Amendment.

In light of this history, the Department’s invocation of its new rule, as it was amended in 2009, should

have been viewed with great skepticism, given that the

2009 amendment greatly exacerbated the problems

found in the 2005 rule.3 The new rule: (1) contained no

3

The amended rule provides:

(3) Inmates shall be permitted to receive and possess publications per terms and conditions established in this rule

unless the publication is found to be detrimental to the security, order or disciplinary or rehabilitative interests of any

institution of the department, or any privately operated institution housing inmates committed to the custody of the department, or when it is determined that the publication

might facilitate criminal activity. Publications shall be rejected when one of the following criteria is met:

*

*

*

9

procedural safeguards to prevent its use for improper

censorship, (2) utilized such vague standards that procedural safeguards could not be effective, and (3) targeted advertising based on content. The district court

recognized the first of these problems and imposed a

mandatory injunction to cure it, but failed to recognize

that procedural safeguards are useless in the absence

of specific standards for the safeguards to apply. The

district court also ignored this Court’s rulings that the

Turner v. Safley standard is not sufficient for the purpose of reviewing content-based restrictions on prison

correspondence. The Eleventh Circuit then affirmed all

aspects of the district court’s decision. Prison Legal

News v. Secretary, Florida Dep’t of Corr., 890 F.3d 954

(11th Cir. 2018).

------------------------------------------------------------------

(l) It contains an advertisement promoting any of the following where the advertisement 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.

(m) It otherwise presents a threat to the security, order or

rehabilitative objectives of the correctional system or to the

safety of any person.

10

SUMMARY OF THE ARGUMENT

The Court should grant the writ because:

Point I. The challenged rule violates the First and

Fourteenth Amendments due to vagueness. It allows

prison officials to impound and reject publications sent

to prison subscribers for improper censorial purposes

that cannot be detected even when the procedural safeguards mandated by the district court are put in place.

Point II. The challenged rule prohibits publication

on the basis of content. The standard applied in Turner

v. Safley applies solely to content-neutral prison correspondence rules. The stricter standard established in

Procunier v. Martinez governs content-based prison

correspondence rules, but that standard was not applied by the Eleventh Circuit or the district court. The

rule challenged in this case targets content and therefore should have been evaluated in accordance with

the Martinez standard. In any event, the rule is invalid

under either the Martinez or Turner standards.

------------------------------------------------------------------

ARGUMENT

I.

The Court Should Grant the Writ Because

the Eleventh Circuit Upheld a Rule that

Lacks Specific Criteria To Prevent its

Use for Improper Censorship

At the heart of this case is a vague regulation of

advertising in a news magazine sent to subscribers in

11

prison. The district court recognized as much, noting

the Department’s “inconsistent censorship decisions,”

the “[i]nconsistent application [of the rule] by mailroom

staff,” that “vagueness is principally responsible for

the Rule’s disparate application,” and that the “most

disconcerting,” “worrisome fact[ ] uncovered at trial” “is

the Rule’s vagueness.” (DE-279 at 43, 47 n.24, 50.)4

Yet, the district court upheld the rule, contending

that the publisher of Prison Legal News had asserted

its vagueness claim too late—three months before the

trial date of May 13, 2013. (DE-279 at 3 n.5.) In essence, the district court held that it could easily discern

the facial invalidity of the rule, but was constrained to

uphold the rule because the vagueness challenge had

not been precisely labeled as such early enough in the

litigation. The vagueness of the rule should not have

been skirted in this manner because vagueness played

a critical role in all aspects of the publisher’s challenge.

The Eleventh Circuit should have addressed the rule’s

vagueness.

As this Court has explained, judges, as “expositors

of the Constitution,” must conduct an independent review of the entire record to ensure that a judgment

does not result in a “ ‘forbidden intrusion on the field of

free expression.’ ” Bose Corp. v. Consumers Union of

U.S., Inc., 466 U.S. 485, 499, 511 (1984) (citations omitted). The avoidance below of a patent vagueness problem (as specifically found by the district court) on

procedural grounds is distinct, of course, from a district

4

The notation “DE” indicates a citation to a docket entry in

the district court.

12

court judgment which violates the First Amendment

through the imposition of a damage award. But the result is no less problematic. In both instances, the First

Amendment is violated. Amici urge the Court to cut

through the fog that arises from the district court’s

narrow focus on the petitioner’s as-applied challenge

and to grant certiorari to address the problem at the

heart of this case: the fatal vagueness of an advertising

regulation that gives prison officials so much discretion that they can conceal actions taken to prevent the

distribution of editorial content with which they disagree. This is a particularly acute problem for the publisher of Prison Legal News, given the nature of its

editorial content—articles that inform prisoners about

their legal rights—and the small number of subscribers (70 Florida prisoners at the time of trial). Of course,

if the rule is facially invalid, then it goes without saying that it also is invalid as applied, as Prison Legal

News contends.

This Court has recognized that an as-applied challenge can result in effective facial invalidation of a

challenged law or regulation, even when the parties

ask only for a ruling as applied.5 Facial invalidation is

particularly appropriate in First Amendment cases in

5

E.g., David A. Franklin, Looking Through Both Ends of the

Telescope: Facial Challenges and the Roberts Court, 36 HASTINGS

CONST. L.Q. 689 (2009) (citing Fed. Elections Comm’n v. Wis.

Right to Life, 551 U.S. 449 (2007), a case arising from an as-applied challenge to advertising regulation, as an example of this

phenomenon); see also Susan B. Anthony List v. Driehaus, 134

S. Ct. 2334, 2340 n.3 (2014) (“petitioners’ as-applied claims ‘are

better read as facial objections to Ohio’s law.’ . . . Accordingly, we

do not separately address the as-applied claims.”).

13

which a holding that a statute is unconstitutional as

applied will allow a vague and overly broad statute to

chill speech. F.C.C. v. Fox Television Stations, Inc., 567

U.S. 239, 253–54 (2012) (“When speech is involved, rigorous adherence to [specificity] requirements is necessary to ensure that ambiguity does not chill protected

speech”). If certiorari is granted, the parties should be

directed to address this fundamental vagueness issue

as well as whether the Eleventh Circuit provided the

appropriate level of scrutiny to the challenged rules.

This Court held in Martinez that an inmate must

be notified of the rejection of material written by or addressed to him, that the author of the material must

be given a reasonable opportunity to protest the decision, and that complaints must be referred to a prison

official other than the person who originally rejected

the correspondence. Martinez, 416 U.S. at 418–19. The

Martinez procedural safeguards, unlike the Martinez

scrutiny standard, have not been lowered or changed

by subsequent decisions and they remain binding today.6 The Eleventh Circuit has regularly recognized

this proposition7 and did so in this case. Prison Legal

6

Jacklovich v. Simmons, 392 F.3d 420, 433 (10th Cir. 2004)

(holding in case filed by Prison Legal News that the procedural

requirements set forth in Martinez survived the ruling in Thornburgh v. Abbott, 490 U.S. 401 (1989), partially overruling Martinez); Barrett v. Orman, 373 F. App’x 823, 826 (10th Cir. 2010)

(same).

7

Daker v. Warren, 660 F. App’x 737, 742 (11th Cir. 2016)

(quoting Perry v. Secretary, Florida Dep’t of Corr., 664 F.3d 1359,

1368 n.2 (11th Cir. 2011), which relied on Martinez) (“[W]hen a

correctional facility is going to reject a letter, mail, or package it

must (1) provide written notice to the inmate of mail addressed to

14

News, 890 F.3d at 976. Indeed, the Eleventh Circuit affirmed the district court’s injunction requiring FDOC

to provide the procedural safeguards that the rule

lacks. But those safeguards cannot prevent unconstitutional censorship where the underlying rule or regulation is fatally vague.

In Martinez, the plaintiff argued that the regulations allowing censorship of prisoner mail in that case

were vague enough to allow “censorship of constitutionally protected expression without adequate justification.” Martinez, 416 U.S. at 401–02. This Court did

not address the argument in Martinez because the regulations had not been challenged below on vagueness

grounds. Id. Here, the publisher of Prison Legal News

did attack the rule on vagueness grounds. (DE-14 at

13.) During the pleadings stage, the publisher did not

specifically denominate one of its counts as a vagueness challenge. When it sought to do so in order to alleviate any doubt about the nature of its challenge, the

district court refused to allow the amendment and

then declined to adjudicate the vagueness of the rule

(while still expressing its opinion that the rule was

vague). In doing so, the district court shirked its obligation to decide whether the rule suffered from undue

vagueness. The requirement of clear and specific criteria is a fundamental component of both due process,

Grayned v. City of Rockford, 408 U.S. 104, 108 (1972)

him; (2) provide the author of the mailing with a ‘reasonable opportunity to protest th[e] decision;’ and (3) have an official other

than the one who made the initial rejection of the correspondence

review the complaint.”).

15

(“It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not

clearly defined.”), and First Amendment challenges,

Freedman v. Maryland, 380 U.S. 51, 56 (1965) (“In the

area of freedom of expression it is well established that

one has standing to challenge a statute on the ground

that it delegates overly broad licensing discretion to an

administrative office[.]”). The publisher of Prison Legal

News attacked the rule on both vagueness and substantive grounds in its First Amended Complaint and

through its appeal to the Eleventh Circuit; it continues

to do so in its petition for a writ of certiorari here. The

Court should require the parties to address this issue.

Amici have a particular interest in ensuring that

the Court does not allow the vague rule at issue here

to stand because, as discussed above, Amici and the

news organizations and journalists they represent

also are subject to the rule when they send their newspapers and magazines to Florida prisoners. Amici recognize that other forms of distribution licensing, such

as newsrack regulations, are constitutionally justifiable by the legitimate interest that a city may have in

safety and aesthetics, see generally City of Lakewood v.

Plain Dealer Publishing Co., 486 U.S. 750 (1988), just

as prison regulations may be justified by legitimate

penological interests. But this Court has recognized

that such regulations sometimes may be used for

improper censorial purposes if the discretion of those

administering the regulations is not carefully restricted by clear and specific guidelines. Id. at 772. This

Court has explained that facial attacks on vagueness

16

grounds are allowed because “a licensing statute placing unbridled discretion in the hands of a government

official or agency constitutes a prior restraint and may

result in censorship. And these evils engender identifiable risks to free expression that can be effectively alleviated only through a facial challenge.” Id. at 757

(citations omitted). Those risks, this Court held, include the risk that the licensor’s discretion will intimidate parties into censoring their own speech and that

such self-censorship will be “immune to an ‘as applied’

challenge.” Id.

The rule at issue has multiple vagueness problems

that can be exploited for improper censorial purposes.

Initially, the rule directs prison officials to determine

whether a publication carries an advertisement promoting “three-way calling services,” “pen-pal services,”

purchases by postage stamps, or “conducting a business or profession.” Yet, none of these terms is defined

by the rule or otherwise. Their meanings are far from

clear. Next, the rule does not entirely ban the advertising that it describes. It only bans advertising that is

the focus of, rather than incidental to, the publication

or that is prominent or prevalent throughout the publication. These highly-subjective words allow prison officials wide discretion to favor certain publications

over others, notwithstanding that they all carry the

same type of advertising. Because the terms are so

vague, they do not provide judges with meaningful

standards by which they can assess whether prison authorities have impounded or rejected a publication because it carried content which constitutionally can be

17

banned or because it carried content that is protected

by the First Amendment, such as political endorsements or criticism of prison regulation or administration. The danger that such censorship will be imposed

is quite apparent from the fact that Prison Legal News

has been a critic of prison policies and practices across

the country since its creation by a former prisoner. A

vague and standardless licensing scheme like the one

before this Court, that allows administrators to

achieve indirectly what they cannot achieve directly,

simply cannot stand.

II.

The Court Should Grant the Writ to Clarify

That Content-Based Prison Correspondence

Rules are Subject to Stricter Scrutiny

Than Turner v. Safley Provides

Ignoring the vagueness of the rule, the Eleventh

Circuit proceeded directly to review of the substance of

the rule and, in doing so, applied the wrong standard—

the four-part standard this Court articulated in Turner

v. Safley for the review of content-neutral prison regulations. The Eleventh Circuit noted that “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.’ ” Prison Legal News, 90 F.3d at

965 (citations omitted).

18

But this Court has been clear that the Turner

standard is to be used only where the challenged regulation is “neutral,” Thornburgh, 490 U.S. 401 at 414–

16, meaning that the regulation applies “without regard to the content of the expression.” Turner, 482 U.S.

at 90. If the regulation is content-based, then the

Turner standard does not apply. Instead, at least the

heightened standard of review established in Martinez

must be applied. In Martinez, the Court had before it

regulations which directed inmates not to write letters

in which they “ ‘unduly complain’ ” or “ ‘magnify grievances.’ ” See Martinez, 416 U.S. at 399. The regulations

defined as contraband those writings “expressing inflammatory political, racial, religious or other views or

beliefs” and “provided that inmates may not send or

receive letters that pertain to criminal activity; are

lewd, obscene, or defamatory; contain foreign matter,

or are otherwise inappropriate.” Id. at 399–400 (internal quotation marks omitted). These content-based

rules necessitated review to assess whether they “further[ed] an important or substantial governmental interest unrelated to the suppression of expression,” and

also were “no greater than is necessary or essential to

the protection of the particular governmental interest

involved.” Id. at 413. The Thornburgh decision overruled Martinez only with respect to its application to

content-neutral rules, not content-based rules.

Thus, if FDOC had adopted a regulation that

prohibited political advertising that criticized Governor Rick Scott, the rule would not stand if it were

merely reasonably related to a legitimate penological

19

objective. It would be upheld only if it survived Martinez-type intermediate scrutiny, or perhaps even strict

scrutiny. See Reed v. Town of Gilbert, 135 S. Ct. 2218,

2226 (2015) (citations omitted) (“Content-based laws—

those that target speech based on its communicative

content—are presumptively unconstitutional and may

be justified only if the government proves that they are

narrowly tailored to serve compelling state interests.”).

The rule at issue here clearly targets the content

of ads that offer services that are prohibited by FDOC.

Such ads communicate to prisoners in Florida that

those services are available to prisoners in the jails of

other states, likely causing Florida prisoners to wonder: why aren’t those services available to us? In Beard

v. Banks, 548 U.S. 521 (2006), Justice Stevens wrote:

“What is perhaps most troubling about the prison

regulation at issue in this case is that the rule comes

perilously close to a state-sponsored effort at mind control.” Beard, 548 U.S. at 552 (Stevens, J., dissenting).

While the majority found that the regulation at issue

in that case—which had been designed as a form of

punishment and denied most types of publications to

the worst prisoners—did not cross that line, the regulation at issue here does cross that line, and a more

searching form of scrutiny than that afforded by

Turner was required.

This argument should not be misread as expressing any disagreement with the petitioner that the rule

20

should be invalidated under Turner.8 The Turner

standard “ ‘is not toothless.’ ” Thornburgh, 490 U.S. at

414 (citation omitted). In Turner itself, the Court applied the standard to invalidate a regulation that

allowed an inmate to marry only if the prison superintendent found compelling reasons to allow the marriage. Turner, 482 U.S. at 82, 99. In Prison Legal News

v. Lehman, 397 F.3d 692 (9th Cir. 2005), the Ninth

Circuit applied the standard to reject the Washington

Department of Corrections’ arguments that allowing

Prison Legal News in its prisons increased the risk of

contraband in the mail, increased the volume of prison

mail, increased the risk of fire, and reduced the efficiency of inmate cell searches. In Prison Legal News v.

Cook, 238 F.3d 1145 (9th Cir. 2001), the Ninth Circuit

applied the standard to reject the Oregon Department

of Corrections’ arguments that allowing Prison Legal

News in its prisons made it hard to find contraband in

the mail, created an undue fire hazard, allowed inmates to hide contraband in their cells, and reduced

correctional officer efficiency. In Prison Legal News v.

Columbia County, Case No. 3:12-cv-00071-SI, 2012 WL

1936108 (D. Or. May 29, 2012), a district court applied

the standard to preliminarily enjoin a prison rule

8

Amici agree that the rule for review here cannot survive

even the lower standard set by Turner for content-neutral rules

because the Turner standard actually does impose significant limits on discretion. But even if the rule could survive Turner scrutiny, the Eleventh Circuit decision should be reversed because

Martinez scrutiny, at a minimum, is required.

21

forbidding correspondence other than postcards.9 In

Miniken v. Walter, 978 F. Supp. 1356 (E.D. Wash. 1997),

a district court applied the Turner standard to conclude that, although a prohibition against delivery of

bulk mail to inmates may be constitutional, an inmate’s right to receive his personal subscription to

Prison Legal News was violated by application of that

policy. And, in Prison Legal News v. County of Ventura,

No. 14-0773-GHK (EX), 2014 WL 2736103 (C.D. Cal.

June 16, 2013), the court preliminarily enjoined similarly restrictive mail policies under the Turner standard.

In other contexts, the Turner standard also has required invalidation of actions of individual prison officials.10 The standard clearly has teeth and, properly

applied, requires invalidation of the FDOC rule. Judge

John H. Moore’s decision in the initial Prison Legal

News lawsuit cried out for a finding that no rational

9

A final judgment for the plaintiffs later was entered. Prison

Legal News v. Columbia Cty., 942 F. Supp. 2d 1068 (D. Or. 2013).

10

See, e.g., Burns v. Martuscello, 890 F.3d 77, 93 (2d Cir.

2018) (prisoner had First Amendment right not to be punished for

refusing to testify falsely against other prisoners or to snitch

truthfully on other prisoners); Shakur v. Selsky, 391 F.3d 106, 116

(2d Cir. 2004) (guards’ confiscation of New Afrikan political literature “pursuant to personal prejudices” violated an inmate’s First

Amendment rights); Davis v. Goord, 320 F.3d 346, 351 (2d Cir.

2003) (“a prisoner’s right to the free flow of incoming and outgoing

mail is protected by the First Amendment”); Meriwether v. Coughlin, 879 F.2d 1037, 1046 (2d Cir. 1989) (upholding jury verdict

finding First Amendment retaliation where inmates who were

“outspoken critics of the [prison] administration” were transferred to new facilities).

22

connection exists between FDOC’s rule and a legitimate and neutral government interest. Judge Moore

ruled after a bench trial that the state is capable of

preventing prisoners from using services that are the

subject of the challenged rule whether the prisoners

see the advertisements or not. No contradictory evidence was offered by the state at the trial in this case.

The rule served no legitimate penological purpose

whatsoever and prevented prisoners from receiving

the entire contents of Prison Legal News that prisoners

might find useful.

The second Turner factor also weighs in favor of

invalidation of the rule because enforcement left the

publisher of Prison Legal News with no alternative

means of distributing the banned advertising and,

worse, no economically viable means of continuing the

distribution of Prison Legal News to Florida prisoners

at all. As the record showed, Prison Legal News has a

small base of approximately 7,000 subscribers across

the country, and its operation is supported by a small

number of advertisers and a small group of employees.

Revenues barely meet expenses. Continued not-forprofit publication is the product of the petitioner’s devotion to serving the informational needs of prisoners

rather than any desire for financial gain. The record

also showed that publication of a separate edition of

the Prison Legal News that excluded restricted advertisements would be cost prohibitive, so the petitioner

had no alternative other than to halt all distribution in

the Florida prison system to comply with the rule as it

had been enforced.

23

The fact that prisoners cannot presently use the

advertised services also does not diminish the magnitude of the violation of the petitioner’s First Amendment right to provide the ads at issue to Florida

prisoners because the rule acts as an effective prohibition of distribution of Prison Legal News entirely.

Even if the burden of creating a separate edition

had not been shown to be cost-prohibitive, the First

Amendment would not allow such a burden on speech

without justification. “[T]he ‘distinction between laws

burdening and laws banning speech is but a matter of

degree’ and [ ] the ‘Government’s content-based burdens must satisfy the same rigorous scrutiny as its

content-based bans.’ . . . Lawmakers may no more silence unwanted speech by burdening its utterance

than by censoring its content.” Sorrell, 564 U.S. at 565–

66 (quoting United States v. Playboy Entm’t Grp., Inc.,

529 U.S. 803, 812 (2000)).

This Court also has made clear that states may

not ban advertising of goods or services that are unlawful if the goods or services may lawfully be sold

elsewhere. See Bigelow v. Virginia, 421 U.S. 809 (1975)

(invalidating conviction for publishing in Virginia an

advertisement for abortion clinics in New York). A

state “may not, under the guise of exercising internal

police powers, bar a citizen of another State from disseminating information that is legal in that State.” Id.

at 824–25. This principle is of vital importance because

newspapers distributed in Florida prisons include advertisements for alcoholic beverages, firearms, and

24

other products the state prohibits prisoners from possessing or using.

A further alternative to halting distribution in

Florida or creating a separate edition for Florida would

be to remove the ads from Prison Legal News both in

Florida and outside of Florida. This would avoid the

cost of creating separate editions, but it also would result in the most grievous violation of First Amendment

rights. Other institutions where Prison Legal News is

distributed do not prohibit three-way calling services,

pen pal services, the purchase of products or services

with postage stamps, conducting a business or profession, or advertising those services to prisoners. Instead, they allow prisoners to engage in these activities

because they find the activities beneficial to the prisoners and society and consistent with penological objectives.

The third Turner factor also weighs against the

constitutionality of the challenged rule because, in the

absence of the rule, the distribution of Prison Legal

News would impose no additional burden on prison

guards’ resources. The Department already has rules

that require monitoring of all correspondence and

these rules will be unaffected if the rule at issue in this

case is invalidated. The primary impact of the invalidation of the rule will be to lighten the Department’s

load by making it unnecessary to determine whether

advertising of restricted services is non-incidental,

prominent, or prevalent throughout every publication

that is sent to prisoners.

25

Finally, as Judge Moore previously ruled, the

fourth factor of Turner weighs against the rule because

the state has readily available means of preventing

prisoners from using the restricted services without

preventing them from viewing advertising concerning

those services.

------------------------------------------------------------------

CONCLUSION

The Court should grant the certiorari petition and

direct the parties to address (1) whether the vagueness

of the challenged rule violates the First and Fourteenth Amendments and (2) whether the substance of

the challenged rule violates the applicable First and

Fourteenth Amendment standards.

THOMAS R. JULIN

Counsel of Record

TIMOTHY J. MCGINN

GUNSTER, YOAKLEY &

STEWART, P.A.

600 Brickell Avenue,

Suite 3500

Miami, FL 33131

(305) 376-6007

tjulin@gunster.com

Counsel for Amici Curiae