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

No. 18-355

In the

PRISON LEGAL NEWS,

Petitioner,

v.

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

Respondent.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Eleventh Circuit

BRIEF OF CIVIL RIGHTS ADVOCACY ORGANIZATION

AMICI CURIAE IN SUPPORT OF PETITIONER PRISON

LEGAL NEWS’ PETITION FOR WRIT OF CERTIORARI

Joseph E. Bringman

Counsel of Record

1201 Third Avenue, Suite 4900

Seattle, WA 98101-3099

JBringman@perkinscoie.com

206.359.8000

Attorneys for Civil Rights

Advocacy Organization Amici

Curiae

October 19, 2018

-iTABLE OF CONTENTS

Page

STATEMENT OF INTEREST................................ 1

SUMMARY OF ARGUMENT................................. 3

ARGUMENT ........................................................... 7

I.

The Court Should Grant PLN’s

Petition to Clarify or, if

Necessary, Reconsider the

Turner Test, to Require

Evidence and Not Speculation

to Support Prison Censorship

Decisions, and to Align Turner’s

Standards with the Minimal

Requirements for Pleading a

Claim.................................................. 7

II.

The Eleventh Circuit’s Decision

Is Inconsistent with This

Court’s Decisions Recognizing

the Constitutional Right of

Incarcerated Persons to

Meaningful Court Access ................ 12

-iiTABLE OF CONTENTS

(continued)

Page

III.

The Eleventh Circuit’s Decision

Conflicts with This Court’s

Recognition of the Substantial

Penological and Societal

Interest in Rehabilitation of

Incarcerated Persons ....................... 16

IV.

The Eleventh Circuit’s Decision

Is Inconsistent with This

Court’s Precedents Which

Require that FDOC

Demonstrate a “Reasonable”

Relation Between Purported

Security Concerns and the

Regulations that Resulted in a

Blanket Ban of Prison Legal

News................................................. 22

V.

A Decision Not to Review this

Case Could Signal that Extreme

Deference to Corrections

Officials Is Appropriate and

that Bans on a Publication

Solely Because of Its

Advertisements Is Defensible ......... 25

CONCLUSION...................................................... 26

-iiiTABLE OF CONTENTS

(continued)

Page

APPENDIX

DESCRIPTION OF AMICI CURIAE ........ 1a

-ivTABLE OF AUTHORITIES

Page

CASES

Abdul Wali v. Coughlin,

754 F.2d 1015 (2d Cir. 1985),

abrogated on other grounds by

O’Lone v. Estate of Shabazz, 482

U.S. 342 (1987).................................................. 18

Beard v. Banks,

548 U.S. 521 (2006)........................................... 22

Bell Atlantic Corp. v. Twombly,

550 U.S. 544 (2007)........................................... 10

Bounds v. Smith,

430 U.S. 817 (1977)......................................13, 14

Bradley v. Hall,

64 F.3d 1276 (9th Cir. 1995),

overruled on other grounds by

Shaw v. Murphy, 532 U.S. 223

(2001)................................................................. 13

-vTABLE OF CONTENTS

(continued)

Page

Conley v. Gibson,

355 U.S. 41 (1957), overrruled by

Bell Atlantic Corp. v. Twombly, 550

U.S. 544 (2007).................................................. 10

Graham v. Florida,

560 U.S. 48 (2010)............................................. 16

Human Rights Def. Ctr. v. Bd. of Cty.

Comm’rs,

No. 18 CV 00355, 2018 WL

3972922 (D.N.M. Aug. 20, 2018) .................15, 21

Kleindienst v. Mandel,

408 U.S. 753 (1972)............................................. 2

Lewis v. Casey,

518 U.S. 343 (1996)........................................... 14

Morrison v. Hall,

261 F.3d 896 (9th Cir. 2001) .......................17, 18

Pell v. Procunier,

417 U.S. 817 (1974)......................................16, 21

-viTABLE OF CONTENTS

(continued)

Page

Prison Legal News v. Cook,

238 F.3d 1145 (9th Cir. 2001) .......................... 12

Prison Legal News v. Lehman,

397 F.3d 692 (9th Cir. 2005) ............................ 24

Prison Legal News v. Lindsey,

No. 3:07-CV-0367-P, 2007 WL

9717318 (N.D. Tex. June 18, 2007).................. 15

Prison Legal News v. McDonough,

200 F. App’x 873 (11th Cir. 2006) .................... 21

Prison Legal News v. Stolle,

Civ. No. 2:13cv424, 2014 WL

6982470 (E.D. Va. Dec. 8, 2014)..................15, 21

Procunier v. Martinez,

416 U.S. 396 (1974), overruled in

part on other grounds by

Thornburgh v. Abbott, 490 U.S. 401

(1989)................................................................. 16

Thornburgh v. Abbott,

490 U.S. 401 (1989)............................................. 2

-viiTABLE OF CONTENTS

(continued)

Page

Turner v. Safley,

482 U.S. 78 (1987)......................................passim

OTHER AUTHORITIES

Alicia Bianco, Prisoners’ Fundamental

Right to Read: Courts Should

Ensure that Rational Basis Is

Truly Rational, 21 ROGER

WILLIAMS U. L. REV. 1 (2016) ................20, 21, 22

Alphonse A. Gerhardstein, False

Teeth? Thornburgh’s Claim that

Turner’s Standard for Determining

a Prisoner’s First Amendment

Rights Is Not “Toothless,” 17 N. Ky.

L. Rev. 527 (1990) ............................................. 11

David M. Shapiro, Lenient in Theory,

Dumb in Fact: Prison, Speech and

Scrutiny, 84 GEO. WASH. L. REV.

972 (2016).....................................................11, 12

-viiiTABLE OF CONTENTS

(continued)

Page

Giovanna Shay, Response, One Market

We Do Not Need, 160 U. PA. L. REV.

PENNUMBRA 319 (2012),

http://www.pennumbra.com/respon

ses/3-2012/Shay. pdf. ........................................ 16

James S. Vacca, Educated Prisoners

Are Less Likely to Return to Prison,

55 J. CORRECTIONAL EDUC. 297

(2004)............................................................19, 20

John M. Sands, Book Review, FED.

LAW., Oct. 2011, at 70 (reviewing

AVI STEINBERG, RUNNING THE

BOOKS: THE ADVENTURES OF AN

ACCIDENTAL PRISON LIBRARIAN

(2010)) ............................................................... 20

-1STATEMENT OF INTEREST

Amici Citizens United for Rehabilitation of

Errants (“CURE”); the Civil Rights Clinic, Michigan

State University College of Law; the Corrections

Accountability Project of the Urban Justice Center;

Equal Justice Under Law; the Florida Institutional

Legal Services Project of Florida Legal Services;

Just Detention International; JustLeadershipUSA;

Morningside Heights Legal Services, Inc.; the

National Incarceration Association; the National

Police Accountability Project; The Prison Law Office;

the Prison Policy Initiative; Prisoners’ Legal

Services of New York; The Sentencing Project; the

Southern Center for Human Rights; the Southern

Poverty Law Center; the U.C. Davis School of Law

Immigration Law Clinic; the Uptown People’s Law

Center; the Washington Lawyers’ Committee for

Civil Rights and Urban Affairs; and Working

Narratives respectfully submit this brief in support

of the petition for writ of certiorari filed by Petitioner

Prison Legal News (“PLN”).1 Amici do so with the

consent of all parties.2

In its petition PLN, from a publisher’s

perspective, discusses application of the four-part

1 No party or counsel to a party has authored this brief

in whole or in part. Furthermore, other than Amici and their

counsel, no person or entity has made any monetary

contribution toward the preparation or submission of this brief.

2 PLN filed a blanket consent to the filing of amicus

curiae briefs on September 27, 2018. Respondent Secretary,

Florida Department of Corrections (“FDOC”) filed a blanket

consent on October 5, 2018.

-2test established in Turner v. Safley, 482 U.S. 78

(1987), to the First Amendment issues raised by

FDOC’s suppression of Prison Legal News. Amici —

nonprofit organizations who, among other things,

advocate in support of civil rights and access to

justice for incarcerated persons, including persons

convicted of crimes and persons held in detention

while awaiting trial or completion of immigrationrelated processes — submit this brief because

incarcerated persons also have First Amendment

rights and interests that the Court should consider.3

Just as publishers have a First Amendment right

to communicate with incarcerated persons by mail,

incarcerated persons have a First Amendment right

to receive that mail. Thornburgh v. Abbott, 490 U.S.

401, 408 (1989); see Kleindienst v. Mandel, 408 U.S.

753, 762 (1972) (holding that the Constitution

“protects the rights to receive information and

ideas”). Amici believe that courts should be

especially protective of First Amendment rights in

the case of a publication like Prison Legal News,

which “teaches inmates their rights and informs

them of unconstitutional prison practices.” Pet. App.

107.

As civil rights advocates, Amici have a significant

interest in ensuring, among other things, that

incarcerated persons are treated fairly and

humanely, that their constitutional rights are

protected and enforced, that their right to access the

3 A description of each of the Amici is set out in the

Appendix to this Brief.

-3courts is not impeded, that they receive appropriate

programming and education — including access to

appropriate reading materials — and that they are

adequately prepared for reintegration into their

communities. In carrying out their missions, Amici

assist incarcerated persons to enforce their

constitutional rights or otherwise work to protect or

advocate for the constitutional rights of incarcerated

persons and/or their loved ones.

Amici recognize Prison Legal News as one of the

leading publications that provides to incarcerated

persons the most informative updates on prisonrelated litigation and other matters of direct interest

to them. They understand the vital role that Prison

Legal News plays in assisting incarcerated persons

to understand their constitutional and other rights,

to recognize when those rights have been violated,

and to appreciate the administrative and judicial

processes through which they can seek relief for

those violations. Accordingly, consistent with their

central missions and core values, Amici have a

strong interest in seeing that incarcerated persons

throughout the United States who desire to receive

Prison Legal News and similar publications may do

so unimpeded by correctional policies that directly or

indirectly preclude their access to the important and

relevant information published therein.

SUMMARY OF ARGUMENT

This case presents issues of national and

constitutional importance requiring this Court’s

attention.

-41. The Eleventh Circuit’s decision highlights a

conflict between the judicial approach to censorship

in the prison context, as permitted by decisions of

this Court dating from the 1980s, and more recent

decisions of the Court regarding the pleading of civil

claims. Specifically, the highly deferential approach

to corrections officials’ mail censorship decisions

permitted by the Court’s existing First Amendment

jurisprudence, including Turner, allows corrections

officials to justify their censorship of mail based on

little more than speculation — as happened here —

even though speculation would not be sufficient to

state a claim for relief under Federal Rule of Civil

Procedure 8(a). Prison officials should not be able to

defend their decisions to deprive incarcerated

persons of their First Amendment rights with the

kind of speculation that would not be sufficient to

support a claim in a civil complaint. The Court

should use this case to clarify and, if necessary,

modify the approach to be taken in prison censorship

cases and thereby reconcile that approach with the

approach required by its more recent pleading

jurisprudence.

2. Elements of the Eleventh Circuit’s decision

conflict with, are at odds with, or ignore important

considerations discussed in decisions of this Court.

First, the Eleventh Circuit did not account for the

negative impact that the ban on Prison Legal News

has on the right and ability of incarcerated persons

to access the courts in order to obtain redress for

violations by corrections officials of their

constitutional and other rights pertaining to

conditions of their confinement. Indeed, without

-5access to Prison Legal News or similar publications,

persons in prison face significant hurdles even to

know what rights they possess and how they may

access the courts to protect, vindicate and enforce

those rights when they have been violated. Second,

the Eleventh Circuit did not consider the positive

impact that reading Prison Legal News has on the

penological

goal

of

rehabilitation

and,

concomitantly, the negative impact on rehabilitation

of cutting off access by incarcerated persons to

Prison Legal News. The Eleventh Circuit’s failure to

take these matters into consideration makes suspect

that court’s evaluation of the reasonableness of the

FDOC regulation at issue.

3. Even if the Court does not clarify or modify

the Turner test, it should conclude under that test

that the ban on Prison Legal News due to some of its

advertising is unconstitutional, and that FDOC is

liable to PLN, because there is no reasonable

relationship between any legitimate governmental

interest and the advertising regulation that resulted

in the blanket exclusion of Prison Legal News from

Florida correctional institutions. FDOC could

present no evidence that advertisements in Prison

Legal News had ever influenced incarcerated

persons to use the services or products that are the

subject of those advertisements. To the contrary,

evidence admitted in the trial court showed that

thousands of attempted uses of prohibited services

and products have occurred despite the absence of

Prison Legal News and its advertisements from

Florida prisons. Under the circumstances, including

the availability of alternatives available to FDOC

-6that would not impinge on First Amendment and

other rights and the fact that no other correctional

system in the United States prohibits receipt of

Prison Legal News based solely on the content of its

advertisements,

FDOC’s

advertising-related

blanket ban of Prison Legal News can only be viewed

as an exaggerated response.

4. The Court should further hear this case

because of the potential impact on incarcerated

persons in jurisdictions outside Florida if the

Eleventh Circuit decision is allowed to stand.

Jurisdictions across the country may interpret a

denial of PLN’s petition as a tacit approval of both

FDOC’s advertising-based restriction on access to

publications such as Prison Legal News and the

extreme deference granted to FDOC officials by the

Eleventh Circuit. The result, potentially, is more

widespread violations of First Amendment rights

that will impede the ability of incarcerated persons

to access the judicial system to enforce and vindicate

their constitutional and other legal rights.

-7ARGUMENT

I.

The Court Should Grant PLN’s Petition

to Clarify or, if Necessary, Reconsider

the Turner Test, to Require Evidence

and Not Speculation to Support Prison

Censorship Decisions, and to Align

Turner’s Standards with the Minimal

Requirements for Pleading a Claim

As PLN explains, in considering the Turner test’s

first factor — the rational connection component —

the Eleventh Circuit placed substantial reliance on

speculation by FDOC’s inhouse expert regarding the

“possibility” of negative impacts on prison security if

Prison Legal News and the advertisements it

contains were allowed into Florida prisons. Pet. 13,

14, 23; see Pet. App. 27, 29. In other respects as well,

the Eleventh Circuit’s decision emphasized

conjecture, free of experiential or other evidentiary

support, that certain types of advertisements justify

FDOC’s blanket ban of Prison Legal News. See, e.g.,

Pet. App. 33 (describing FDOC’s expert’s testimony

regarding what prisoners “could” do if allowed to

view advertisements for concierge or people-locator

services); Pet. App. 38 (referencing “opportunity to

use prohibited services”). Indeed, there was nothing

other than speculation that FDOC could offer to

justify its ban of Prison Legal News, given (1) the

absence of evidence that, in the years before Prison

Legal News was banned, similar advertisements had

caused the adverse consequences to security about

which FDOC officials hypothesize, and (2) evidence

-8that substantial numbers of attempts to use banned

products and services during the years that Prison

Legal News and its advertisements were not allowed

inside Florida prisons. Pet. 21, 30; Pet. App. 8, 26,

30, 32-33.4

But FDOC can hardly be blamed for turning to

speculation, in an effort to establish a connection

between the advertisements in Prison Legal News

and purported security concerns, in order to justify

its decision to ban Prison Legal News, given the

absence of evidence of an actual tie between those

advertisements and instances where the purported

security concerns were implicated. Similarly, the

Eleventh Circuit and the District Court cannot be

blamed for showing deference to the speculation

engaged in by FDOC. As Justice Stevens’ dissent in

Turner pointed out, the Turner factors lend

themselves to this kind of speculative assessment.

482 U.S. at 101 n.1 (Stevens, J., dissenting in part)

(“The Court’s rather open-ended ‘reasonableness’

standard makes it much too easy to uphold

restrictions on prisoners’ First Amendment rights on

the basis of administrative concerns and speculation

about possible security risks rather than on the

Curiously, while the District Court and Eleventh

Circuit accepted FDOC’s speculation, the District Court

rejected as “conjecture” PLN’s theory that the multiple changes

to the FDOC censorship rule from 2005 to 2009 were a façade

to hide “institutional bias against a publication that informs

prisoners of their rights.” Pet. App. 65.

4

-9basis of evidence that the restrictions are needed to

further an important governmental interest.”).5

More recent decisions of this Court cast doubt on

the continued validity of the Turner test to the

extent it allows corrections officials to rely on

speculation to support decisions to censor or ban a

publication like Prison Legal News. Ironically, the

type of speculation in which FDOC officials engaged

to justify their blanket prohibition of Prison Legal

News would not be sufficient to get past a Rule

12(b)(6) motion if FDOC were a plaintiff asserting a

claim to enjoin PLN from mailing Prison Legal News

to persons in Florida detention facilities

When Turner was decided in 1987, a complaint

would survive a Rule 12(b)(6) motion “unless it

appears beyond doubt that the plaintiff can prove no

set of facts in support of his claim which would

5 See also Turner, 482 U.S. at 100-01 (Stevens, J.,

dissenting in part) (“But if the [majority’s] standard can be

satisfied by nothing more than a ‘logical connection’ between

the regulation and any legitimate penological concern

perceived by a cautious warden, it is virtually meaningless.

Application of the standard would seem to permit disregard for

inmates’ constitutional rights whenever the imagination of the

warden produces a plausible security concern and a deferential

trial court is able to discern a logical connection between that

concern and the challenged regulation. Indeed, there is a

logical connection between prison discipline and the use of

bullwhips on prisoners; and security is logically furthered by a

total ban on inmate communication, not only with other

inmates but also with outsiders who conceivably might be

interested in arranging an attack within the prison or an

escape from it.” (emphasis omitted) (citations omitted)).

-10entitle him to relief.” Conley v. Gibson, 355 U.S. 41,

45-46 (1957). But the Court “retire[d]” this pleading

standard more than ten years ago, Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 563 (2007), and in

its place held that to survive a motion to dismiss, a

complaint must present a claim that is plausible and

not merely “conceivable” or “consistent with”

wrongful conduct. Id. at 557, 570. A complaint’s

allegations accordingly must raise a right to relief

“above the speculative level” and show more than a

“possibility” that the plaintiff may later discover

facts that will support liability. Id. at 555, 557, 561.

If speculation and conjecture are not enough for a

claim to survive a Rule 12(b)(6) motion, they should

not be enough to uphold a decision by corrections

officials to deprive incarcerated persons of their

constitutional right under the First Amendment to

receive information and ideas from third parties,

especially when the information and ideas are vital

for incarcerated persons to understand the rights

that they possess in the prison context and to seek

relief from the courts to enforce and protect those

rights. Thus, although this case does not come before

the Court in the pleading context, the standard

established in Twombly is probative as to the

reasonableness of FDOC’s speculation-laden

decision to preclude incarcerated persons from

receiving Prison Legal News.

Twombly and the decisions that have followed it

counsel the Court to modify the Turner test — at the

least, to require that corrections officials establish

with real evidence more than a possibility that

-11incarcerated persons might engage in prohibited

activity if they obtain access to reading material that

those officials find objectionable. See Alphonse A.

Gerhardstein, False Teeth? Thornburgh’s Claim that

Turner’s Standard for Determining a Prisoner’s

First Amendment Rights Is Not “Toothless,” 17 N.

Ky. L. Rev. 527, 529 (1990) (arguing “that deference

to prison administrators should not cause courts to

accept watered-down evidence in support of

challenged regulations”); id. at 545-46 (“[I]t is

evident that the Turner factors and the

reasonableness test are merely false teeth unless a

solid evidentiary record is presented. Trial courts

must insist on such a record to ensure that First

Amendment challenges to prison regulations receive

the greatest scrutiny possible.”).

The great deference that Turner grants to

corrections officials, including the ability to rely on

speculation to justify censorship decisions, long has

been a source of criticism of the Turner test and has

led to calls for its modification or even its

abandonment. See generally David M. Shapiro,

Lenient in Theory, Dumb in Fact: Prison, Speech and

Scrutiny, 84 GEO. WASH. L. REV. 972, 977 (2016)

(“What this Article shows, through numerous

examples of unjustified prison speech restrictions

imposed throughout the country, is that prison and

jail officials often act as if unconstrained by judicial

review and impose arbitrary (indeed, nonsensical)

restrictions on speech.”); id. at 972 (“Exercising their

discretion under Turner, correctional officials have

saddled prisoners’ expressive rights with a host of

arbitrary restrictions — including prohibiting

-12President Obama’s book as a national security

threat; using hobby knives to excise Bible passages

from

letters;

forbidding

all

non-religious

publications; banning Ulysses, John Updike,

Maimonides, case law, and cat pictures.”); id. at 976

n.20 (cataloging articles in which other legal

commentators have critically assessed the Turner

standard).

The Eleventh Circuit’s (and the District Court’s)

broad deference to the speculative assertions of

FDOC’s inhouse expert is inconsistent with the

requirement of Twombly that, even at the pleading

stage, a claim must have some basis in nonspeculative fact, and demonstrates how easily the

reasonableness requirement of Turner can be turned

on its head. This alone is reason for the Court to

grant PLN’s petition. Doing so will give the Court

the opportunity to clarify that the Turner

reasonableness test cannot be satisfied by conjecture

that is not based on experience or, if necessary, to

modify the Turner test to ensure that it is consistent

with the requirements of Twombly and its progeny.

II.

The Eleventh Circuit’s Decision Is

Inconsistent with This Court’s Decisions

Recognizing the Constitutional Right of

Incarcerated Persons to Meaningful

Court Access

Prison Legal News contains “core protected

speech, not commercial speech or speech whose

content is objectionable on security or other

grounds.” Prison Legal News v. Cook, 238 F.3d 1145,

-131149 (9th Cir. 2001). Indeed, even as it objects to

some of its advertising content, FDOC purports not

to object to the substantive content of Prison Legal

News. And because Prison Legal News facilitates

incarcerated persons’ access to the courts, any

decision to censor or ban the receipt of Prison Legal

News should receive more than the highly

deferential and perfunctory review that the

Eleventh Circuit employed when it found prison

officials’ speculation sufficient to uphold censorship

decisions.

As this Court stated in Bounds v. Smith, it is

“established beyond doubt that prisoners have a

constitutional right of access to the courts.” 430 U.S.

817, 821 (1977); accord Bradley v. Hall, 64 F.3d

1276, 1280 (9th Cir. 1995) (“The reality and

substance of any of a prisoner’s protected rights are

only as strong as his ability to seek relief from the

courts or otherwise to petition the government for

redress of the deprivation of his rights.”), overruled

on other grounds by Shaw v. Murphy, 532 U.S. 223,

230 n.2 (2001). That access must be “adequate,

effective, and meaningful.” Bounds, 430 U.S. at 822.

Access is meaningful only if a potential plaintiff

knows the basis for potential claims:

Most importantly, of course, a

lawyer must know what the law

is in order to determine whether

a colorable claim exists, and if

so, what facts are necessary to

state a cause of action.

If a lawyer must perform such

-14preliminary research, it is no

less vital for a pro se prisoner.

Id. at 825-26.

Particularly important to incarcerated persons is

“[a] source of current information . . . so that

prisoners could learn whether they have claims at

all . . . .” Id. at 826 n.14.6 As the District Court in

this case found, Prison Legal News fills this critical

role:

The Supreme Court has made it

clear that “[p]rison walls do not

form a barrier separating prison

inmates from the protections of

the Constitution.” Turner, 482

U.S. at 84. Yet these protections

mean little if inmates do not

understand them. Cue PLN.

Through its publications PLN

6 Although the Court later “disclaim[ed]” some of this

language from Bounds, it did so only with respect to

information that supported claims unrelated to an

incarcerated person’s conviction or constitutional issues

pertaining to conditions of confinement. See Lewis v. Casey, 518

U.S. 343, 354-55 (1996). As discussed below, articles in Prison

Legal News focus on issues that are directly relevant to an

incarcerated person’s circumstances, including articles

concerning convictions and conditions of confinement, and not

on matters that might lead to the filing of “shareholder

derivative actions” or “slip-and-fall claims.” See Lewis, 518 U.S.

at 355. It is, in the words of Lewis, a tool that incarcerated

persons “need in order to attack their sentences, directly or

collaterally, and in order to challenge the conditions of their

confinement.” Id.

-15teaches inmates their rights and

informs

them

of

unconstitutional

prison

practices. With this knowledge

inmates become another check

to government encroachment on

constitutional rights. This in

turn helps prison administrators

correct

insidious

practices,

ensuring long-term stability.

Everyone ultimately benefits

when knowledge grows from

more to more.

Pet. App. 106-07 (footnote omitted). Other courts

likewise recognize Prison Legal News’ vital role in

delivering news about current matters of interest to

incarcerated persons. E.g., Human Rights Def. Ctr.

v. Bd. of Cty. Comm’rs, No. 18 CV 00355 JAP/SCY,

2018 WL 3972922, at *2 (D.N.M. Aug. 20, 2018)

(Prison Legal News “contains news and analysis

about prisons, jails and other detention facilities,

prisoners’ rights, court opinions, management of

prison facilities, prison conditions, and other

matters pertaining to the rights and/or interests of

incarcerated individuals”); Prison Legal News v.

Stolle, Civ. No. 2:13cv424, 2014 WL 6982470, at *1

(E.D. Va. Dec. 8, 2014) (Prison Legal News “includes

articles and news about various legal issues, access

to courts, prison conditions, mail censorship,

prisoner litigation, visitation rights, religious

freedom, and prison rape, among other things”);

Prison Legal News v. Lindsey, No. 3:07-CV-0367-P,

2007 WL 9717318, at *1 (N.D. Tex. June 18, 2007)

-16(“The magazine contains information of interest to

prison inmates concerning access to courts, prison

conditions, mail censorship, jail litigation, prisoners’

rights, and related subjects.”); see also Giovanna

Shay, Response, One Market We Do Not Need, 160

U. PA. L. REV. PENNUMBRA 319, 326 (2012),

http://www.pennumbra.com/responses/3-2012/Shay.

pdf. (describing Prison Legal News as the “leading

publication for prisoner rights”).

The Eleventh Circuit’s omission to take into

account this Court’s rulings regarding incarcerated

persons’ right of access to the courts, and the impact

of the blanket ban of Prison Legal News on that

right, provides substantial reason to grant review.

III.

The

Eleventh

Circuit’s

Decision

Conflicts with This Court’s Recognition

of the Substantial Penological and

Societal Interest in Rehabilitation of

Incarcerated Persons

The Court long has recognized that rehabilitation

of incarcerated persons is a “substantial

governmental interest[ ].” Procunier v. Martinez, 416

U.S. 396, 413 (1974), overruled in part on other

grounds by Thornburgh v. Abbott, 490 U.S. 401, 41314 (1989); accord Graham v. Florida, 560 U.S. 48, 71

(2010) (recognizing rehabilitation as one of the

“goals of penal sanctions that have been recognized

as legitimate”); Pell v. Procunier, 417 U.S. 817, 823

(1974) (identifying “rehabilitation of those

committed to its custody” as a “paramount objective

of the corrections system”).

-17The relationship of reading to rehabilitation is

also well established. Thus, in Morrison v. Hall, 261

F.3d 896, 904 (9th Cir. 2001), the Ninth Circuit

rejected the argument of corrections officials that

allowing incarcerated persons to watch television or

listen to the radio was an adequate substitute for

reading newspapers and magazines. Recognizing

that neither television nor radio will improve

literacy within prisons, the court cited studies

showing the beneficial effect of reading on

rehabilitation:

According to The Los Angeles

Times, the 1992 National Adult

Literacy Survey “found that twothirds of adult prisoners were

not able to write a letter

explaining a billing error or

extract information from the

average

sports-page

story.”

Richard Lee Colvin, Reading by

9 Young Offenders Learn ABCs

the Hard Way: Caged, L.A.

Times, Nov. 8, 1998, at A1. The

Los Angeles Times also noted the

link between higher rates of

literacy and lower rates of

recidivism. See id. (discussing

the fact that “literacy programs

reduce recidivism”); see also

Willoughby Mariano, Reading

Books Behind Bars Reading

Programs for State Prison

Inmates and Juvenile Hall

-18Wards are Critical to Helping

Offenders Develop Literacy and

Avoid Return to Crime, Experts

Say, L.A. Times, Jan. 30, 2000,

at B2 (discussing illiteracy rates

among inmates and citing

“correlation between reading,

writing

and

inmate

rehabilitation”).

Id. at 904 n.7; see also Abdul Wali v. Coughlin, 754

F.2d 1015, 1034 (2d Cir. 1985) (“The rehabilitative

goals for which we strive are furthered by efforts to

inform and educate inmates, and foster their

involvement in the world outside the prison gates.

Although committing an illegal act may require the

physical segregation of an individual from the

society at large, it does not dictate that the prisoner’s

mind be similarly locked away to atrophy during the

period of his incarceration.”), abrogated on other

grounds by O’Lone v. Estate of Shabazz, 482 U.S. 342

(1987).

Commentators likewise have noted the

connection between reading and rehabilitation. For

example, in extolling the benefits of education on

incarcerated persons, Professor James Vacca stated:

Inmates who are released from

prison are frequently unable to

find jobs because they either

lack experience and/or literacy

skills. With the high cost of

incarceration and the large

increase

in

the

prison

-19population, it seems that

mastery of literacy skills may be

a proactive way to address the

problem

of

reincarceration.

Literacy skills are important to

prisoners

in

many

ways.

Inmates need these skills to fill

out forms, to make requests and

to write letters to others in the

outside world. In addition, some

prison jobs require literacy skills

and inmates can use reading as

a way to pass their time while

they are behind bars (Paul,

1991). Thus, education programs

initially should stress practical

applications of literacy so that

prisoners can use newly gained

skills and insights.

James S. Vacca, Educated Prisoners Are Less Likely

to Return to Prison, 55 J. CORRECTIONAL EDUC. 297,

301-02 (2004).7 Professor Vacca noted the

importance of providing incarcerated persons with

reading materials that are of interest to them,

including materials written by persons in a similar

situation:

III. Prison literacy programs

must

emphasize

7 At the time of the article, the author was the Chair of

Special Education and Literacy at C.W. Post College in New

York. See James S. Vacca, supra, 55 J. CORRECTIONAL EDUC. at

305.

-20instruction that includes

engaging

topics

that

motivate and sustain the

inmates’ interest.



The programs should use

literature that deals with

subject matter that is

relevant to the academic

needs of the inmates.



The programs should be

taught, when possible,

with literature that is

written by inmates to

serve as effective models

for reading and writing

skills development.

Id. at 303, fig. 1; see also Alicia Bianco, Prisoners’

Fundamental Right to Read: Courts Should Ensure

that Rational Basis Is Truly Rational, 21 ROGER

WILLIAMS U. L. REV. 1, 34 (2016) (“Reading habits

correlate with being an active participant in one’s

community and foster the free flow of ideas. These

benefits are key to democratic functioning and can

aid in the penological objective of rehabilitation by

keeping a prisoner’s mind engaged.” (footnote

omitted)); John M. Sands, Book Review, FED. LAW.,

Oct. 2011, at 70 (reviewing AVI STEINBERG, RUNNING

THE BOOKS: THE ADVENTURES OF AN ACCIDENTAL

PRISON LIBRARIAN (2010)) (“Th[e] tradition of inmate

rehabilitation and transformation through libraries

and of turning a new page in one’s life by reading

worn copies of books is a venerable one. Malcolm X

-21is the most famous prisoner who did so; Wilbert

Rideau is a more recent example of an inmate who

was changed by books.”).

Prison Legal News meets many of the

requirements identified by Professor Vacca for

effective rehabilitation. It is written in large part by

persons who themselves are incarcerated. See Prison

Legal News v. McDonough, 200 F. App’x 873, 875

(11th Cir. 2006) (“PLN is a not-for-profit charitable

corporation that publishes a monthly magazine

containing articles about prison legal issues written

mostly by prison inmates.”). More important, it

discusses topics that are of special interest to

persons in prison. E.g., Human Rights Def. Ctr. v.

Bd. of Cty. Comm’rs, 2018 WL 3972922, at *2; Prison

Legal News v. Stolle, 2014 WL 6982470, at *1; see

Alicia Bianco, supra, 21 ROGER WILLIAMS U. L. REV.

at 13 (“The goal of PLN is to increase political

awareness and inform prisoners of their rights.”).

When corrections officials bar incarcerated persons

from access to Prison Legal News, they effectively

work against “one of the paramount objective[s] of

the corrections system,” Pell v. Procunier, 417 U.S.

at 823. As Ms. Bianco states:

Informing prisoners of their

rights and transforming them

into more engaged citizens is a

step toward their rehabilitation.

. . . Banning informative

publications such as PLN can

actually threaten the same goal

that institutions are seeking to

-22accomplish.

21 ROGER WILLIAMS U. L. REV. at 13-14.

The Eleventh Circuit did not consider the

negative impact on rehabilitation caused by FDOC’s

blanket ban of Prison Legal News, nor did it balance

that impact against the “possible” security concerns

that it stressed. This raises additional concerns

about the Turner test and its application, further

warranting review by the Court.

IV.

The Eleventh Circuit’s Decision Is

Inconsistent

with

This

Court’s

Precedents Which Require that FDOC

Demonstrate a “Reasonable” Relation

Between Purported Security Concerns

and the Regulations that Resulted in a

Blanket Ban of Prison Legal News

In Beard v. Banks, the plurality opinion

emphasized that a penal institution’s regulations

that impinge on constitutional rights must bear

more than a “logical” relation to the justifications

asserted for the regulation. 548 U.S. 521, 533 (2006).

Rather, the regulation must bear a “reasonable”

relation to the purported justifications. Id. This

requirement is stated in Turner itself. 482 U.S. at

89-91.

Despite the Eleventh Circuit’s lip service to

following the reasonable-relationship standard, Pet.

App. 43, the evidence it considered shows that

FDOC’s blanket ban on Prison Legal News does not

bear a reasonable relation, and is an exaggerated

-23response to, its expressed concerns about prison

security. That ban began in September 2009. Pet.

App. 16. Thus, for the past nine years not a single

advertisement for three-way calling, pen-pal

solicitation, cash-for-stamps exchange, or concierge

or people-locator services has entered a Florida

correctional facility through Prison Legal News. Yet

despite the ban on Prison Legal News and its

advertisements, incarcerated persons in Florida

attempt 700,000 three-way calls each year, “succeed

in posting online profiles with the same [pen-pal]

companies that advertise in Prison Legal News,”

received over $50,000 in deposits to their accounts

from just one cash-for-stamps exchange company

over a several-year period, and, in one instance, sent

threatening letters to a judge. Pet. App. 6, 8, 30, 32,

33, 34.8 These facts demonstrate the absence of any

reasonable relation between advertisements in

Prison Legal News and the likelihood that

incarcerated persons will engage in the prohibited

practices that FDOC cites to support its ban. It is

pure speculation that reintroducing Prison Legal

News would exacerbate this problem beyond, at

most, a de minimis amount. That no other state or

local corrections department in this country has

seen fit to institute a ban on Prison Legal News due

8 The Eleventh Circuit does not say that the threatened

judge was located through a concierge or people-locator service,

suggesting they were not at issue in that case. Pet. App. 34.

The only other indication presented regarding potential ill

effects of access to a concierge or people-locator service, besides

speculation, concerned a person in Colorado who committed a

murder following his release. Id.

-24to the content of its advertising, and that other

corrections departments have found reasonable

alternatives that do not adversely impact First

Amendment rights and do not cut off incarcerated

persons from a unique source of information that is

of particular relevance to them, shows that FDOC’s

blanket ban of Prison Legal News is not reasonable,

but rather an exaggerated response to a situation

that Prison Legal News did not create and does not

contribute to. Pet. App. 39.

When you add this evidence, including the

absence of any evidence of actual — as opposed to

hypothetical — wrongdoing tied to the advertising in

Prison Legal News at issue here, and the Eleventh

Circuit’s need to rely on speculation to justify

FDOC’s ban of Prison Legal News, it is evident that

FDOC has failed the reasonable-relationship test.

Even if the Court determines that there is no need

to clarify or modify the four-part Turner test, this

factor should be dispositive. See Turner, 482 U.S. at

89-90 (“a regulation cannot be sustained where the

logical connection between the regulation and the

asserted goal is so remote as to render the policy

arbitrary or irrational”); Prison Legal News v.

Lehman, 397 F.3d 692, 699 (9th Cir. 2005) (because

the first Turner factor is sine qua non, “if a

regulation is not rationally related to a legitimate

and neutral governmental objective, a court need not

reach the remaining three factors”). Consequently,

FDOC’s inability to satisfy this factor should have

required both the District Court and the Eleventh

Circuit to conclude that FDOC is liable for violating

PLN’s First Amendment rights (not to mention, the

-25First Amendment rights of those Florida subscribers

who for nine years have been denied access to Prison

Legal News).

V.

A Decision Not to Review this Case

Could Signal that Extreme Deference to

Corrections Officials Is Appropriate and

that Bans on a Publication Solely

Because of Its Advertisements Is

Defensible

The First Amendment concerns raised by this

case are not limited to Florida. There is risk that

once restrictions on access by incarcerated persons

to certain types of mail are upheld in one

jurisdiction, other jurisdictions interested in

restricting access to the same types of mail — in this

instance, publications like Prison Legal News — will

jump on the bandwagon, follow the newly

established precedent, and implement similar

restrictions. See Pet. 32-33. To leave the Eleventh

Circuit’s decision unreviewed and undisturbed may

also inadvertently signal to prison officials and

courts throughout the United States that the

Eleventh Circuit’s broadly deferential approach to

FDOC’s advertising-related ban of Prison Legal

News, and its willingness to accept FDOC’s

speculative reasons in defense of the advertising

restriction, are both reasonable and a correct

application of Turner. As such, unless reviewed and

reversed, the Eleventh Circuit’s decision could be

the launching pad of an ill-advised direction for First

Amendment law in the prison context.

-26CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

Joseph E. Bringman

Counsel of Record

PERKINS COIE LLP

1201 Third Avenue, Suite 4900

Seattle, Washington 98101

JBringman@perkinscoie.com

206.359.8000

Attorneys for Civil Rights

Advocacy Organization Amici

Curiae

October 19, 2018

APPENDIX

-1aDESCRIPTION OF AMICI CURIAE

The following private, nonprofit civil rights

advocacy organizations join in the filing of this

amicus curiae brief:

Citizens United for Rehabilitation of

Errants (“CURE”) has made access to the courts a

top priority throughout its almost 50-year history.

From working during its early years with jailhouse

lawyers in Texas to obtain basic reforms to the

criminal justice system, to working now with

persons throughout the country who are serving life

sentences or convicted of sex offenses, CURE has

turned to the courts for initial reform, as the first

step toward broader reform by the legislature and

the executive. Today, CURE’s operations are

international in scope, and it has received

consultative status by the United Nations.

The Civil Rights Clinic, Michigan State

University College of Law (the “Clinic”), was

created at the request of the United States District

Court for the Western District of Michigan, which

had not been able to find lawyers willing to handle

the large volume of pro se cases that survived

dispositive motions and were ready to be tried. The

Clinic accepts appointment to some of these cases

and provides representation through settlement or

trial. The Director of the Clinic, Daniel E. Manville,

is an ex-offender who has dedicated his life to

litigating and lobbying on behalf of those who are

incarcerated.

-2aThe Corrections Accountability Project of

the Urban Justice Center is dedicated to

eliminating the influence of commercial interests on

our criminal legal system and ending the

exploitation of those that system touches. It does so

by exposing the harms caused by the

commercialization of justice and empowering and

equipping change agents with the tools to challenge

the system’s exploitation of vulnerable communities.

Equal Justice Under Law (“EJUL”) works to

eliminate wealth-based discrimination in the

criminal justice system through litigation and

advocacy. EJUL recognizes that most incarcerated

persons cannot afford ongoing legal representation,

and that cutting them off from access to the best

source of free and up-to-date information on how

they may know and vindicate their rights will

disadvantage them vis-à-vis wealthier prisoners,

epitomizing how access to the justice system is

restricted for those lacking financial resources.

The Florida Institutional Legal Services

Project of Florida Legal Services (“FLS”) uses

impact litigation, community lawyering, and policy

advocacy to defend and advance the civil rights of

adults and children who are incarcerated in prisons,

jails, juvenile justice facilities, civil commitment,

and immigration detention throughout Florida. FLS

also provides self-help materials to incarcerated

persons so they may better understand and advocate

for their rights.

Just Detention International (“JDI”) is the

world’s only organization dedicated exclusively to

-3aending sexual abuse behind bars. JDI works to hold

government officials accountable for prisoner rape,

to promote public attitudes that value the dignity

and safety of people in detention, and to ensure that

survivors of this violence receive the crisis services

and other help they need and deserve to heal. JDI’s

activities in support of these objectives include

educating incarcerated persons about their rights

and formulating policies to increase safety for LGBT

and other especially vulnerable persons.

JustLeadershipUSA (“JLUSA”) seeks to cut in

half the number of people under correctional control

in the United States by 2030 by empowering and

elevating the voices of leaders who have been

directly impacted by the criminal justice system —

people who best understand how the system works

and what must be done to transform it — so that

they can drive criminal justice reform at all levels of

government. JLUSA recognizes that few things are

as vital to empowering reform and the preservation

of humanity as providing accurate and accessible

information, something that Prison Legal News does

for thousands of incarcerated people.

Morningside Heights Legal Services, Inc.

(“MHLS”) is the legal body under which clinics at the

Columbia University School of Law operate.

Lawyers and law-student interns at MHLS perform

legal services in the public interest, provide legal

assistance, and assist legal services programs in

representation of their clients. MHLS has regularly

provided

legal

representation

to

persons

incarcerated at state and federal prisons and jails for

-4amore than 25 years. MHLS lawyers accept

appointment by federal courts in civil cases

challenging conditions of confinement.

The National Incarceration Association

(“NIA”) focuses on the impact of incarceration on the

families of persons in prison and works to support

them in their difficult journey. Through the lens and

perspective of these families, NIA fervently supports

freedom of speech and press and is devoted to

allowing incarcerated persons access to the valuable

news and analysis of legal developments that

directly affect them and their families, about which

Prison Legal News reports.

The National Police Accountability Project

(“NPAP”), founded by members of the National

Lawyers Guild, coordinates with and assists civilrights lawyers to represent victims of misconduct by

law-enforcement and detention-facility officials.

NPAP also supports legislative efforts to increase

accountability of law-enforcement and detentionfacility officials and appears regularly as an amicus

curiae to present issues important to its member

lawyers and their clients, who include persons

whose constitutional rights have been infringed by

detention-facility officials.

The Prison Law Office (“PLO”) engages in class

action impact litigation to improve conditions in

prisons, jails, and juvenile halls for adults and

children, represents individual prisoners, educates

the public about prison conditions, and provides

technical assistance to advocates across the country.

PLO has litigated numerous large-scale prisoner

-5aand parolee class actions in the last 40 years,

including Brown v. Plata, 563 U.S. 493 (2011)

(holding that court-mandated population limits for

California prisons were necessary to ensure

incarcerated persons’ constitutional right to

adequate medical and mental health care), and

Pennsylvania Dep’t of Corrections v. Yeskey, 524 U.S.

206 (1998) (unanimously holding that the

Americans with Disabilities Act applies to state

prisoners).

The Prison Policy Initiative (“PPI”) challenges

over-criminalization and mass incarceration

through research, advocacy, and organizing. PPI

shows how the United States’ excessive and unequal

use of punishment and institutional control harms

individuals and undermines our communities and

national well-being. PPI’s research includes the

impact

of

communications

restrictions

on

individuals and communities, recognizing that

contact with the outside world, including access to

publications, is an important component of reducing

mass incarceration.

Prisoners’ Legal Services of New York

(“PLS”) has provided civil legal services for over 40

years to indigent persons incarcerated in New York

on claims concerning conditions of confinement,

including First Amendment claims. PLS also

publishes over 75 educational form memos and a bimonthly newsletter (“Pro Se”) which it sends to all

New York State prisons for placement in their law

libraries and to over 7,500 individual prisoners who

asked to be placed on its mailing list. Like Prison

-6aLegal News, Pro Se educates incarcerated persons

about changes in the law, statutory and regulatory

requirements, and legal-practice issues relating to

incarceration so that they may understand and

navigate the legal system.

The Sentencing Project conducts research and

advocacy on criminal justice and juvenile justice

reform. The organization is recognized for its policy

research documenting trends and racial disparities

within the justice system and for developing

recommendations for policy and practice to

ameliorate those problems. The Sentencing Project

has produced policy analyses documenting the

increasing use of sentences of life without parole for

both juveniles and adults and has assessed the

impact of such policies on public safety, fiscal

priorities, and prospects for rehabilitation.

Organization staff frequently testify in Congress

and before various policymaking bodies and

practitioner audiences.

The Southern Center for Human Rights

(“SCHR”) is committed to upholding the

constitutional rights of incarcerated people and

works for equality, justice, and dignity in the

criminal justice system. Its mission is to end capital

punishment, mass incarceration, and other criminal

justice practices used to control the lives of poor

people, people of color, and other marginalized

groups in the southern United States. SCHR does

this through death penalty representation, impact

litigation, policy advocacy, and public education.

-7aThe Southern Poverty Law Center (“SPLC”) is

one of the nation’s leading civil rights organizations

and is dedicated to fighting hate and bigotry and to

seeking justice for vulnerable members of our

society. In addition, SPLC has a 40-year history of

protecting the rights of prisoners, with SPLC

attorneys serving as lead or co-counsel in dozens of

major prison cases, including significant First

Amendment cases.

The U.C. Davis School of Law Immigration

Law Clinic (“The Clinic”) is an academic institution

dedicated to defending the rights of detained

noncitizens in the United States. The Clinic provides

direct representation to detained immigrants who

are placed in removal proceedings. In addition, the

Clinic screens unrepresented individuals to

facilitate placement with pro bono attorneys and

presents legal orientation programs for detained

individuals in removal proceedings who are unable

to obtain direct representation.

The Uptown People’s Law Center (“UPLC”)

provides legal representation, advocacy, and

education for poor and working people in Chicago,

and legal assistance to people housed in Illinois

prisons in cases related to their confinement. UPLC

has provided direct representation to over 100

persons confined in Illinois prisons pertaining to

their civil rights, including in seven class-action or

putative class-action cases that are currently

pending. UPLC has litigated several cases involving

the First Amendment, censorship of publications,

-8aand similar issues, including one pending case

regarding censorship of Prison Legal News.

The Washington Lawyers’ Committee for

Civil Rights and Urban Affairs (“WLC”) was

founded 50 years ago to provide pro bono legal

services to address issues of discrimination and

entrenched poverty, and has successfully handled

thousands of civil rights cases on behalf of

individuals and groups, including incarcerated

persons. WLC engages in extensive individual

advocacy and class-action litigation on behalf of

individuals held in custody in local jails and state

and federal prisons. WLC has litigated at least one

case involving First Amendment censorship of

publications by the federal Bureau of Prisons and

similar issues in federal and state prisons.

Working Narratives is an arts and social justice

organization that works with prisoners, formerly

incarcerated persons, their families, and policy

makers to advance positive criminal justice reform.

Each year arts and education programming reaches

thousands of prisoners working with them through

the humanities. Working Narrative’s work focuses

on building connections with those inside prisons

and working to create community driven solutions.