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

Supreme Court briefOct 16, 2018

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NO. 18-355

IN THE

PRISON LEGAL NEWS,

Petitioner,

SECRETARY, FLORIDA DEPARTMENT

OF CORRECTIONS,

Respondent.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Eleventh Circuit

BRIEF FOR AMERICAN FRIENDS SERVICE

COMMITTEE AND OTHER PRISON LEGAL

NEWS’ ADVERTISERS AS AMICI CURIAE IN

SUPPORT OF PETITIONER

Bruce E. H. Johnson

Counsel of Record

Caesar Kalinowski

Davis Wright Tremaine LLP

Attorneys for Amici Curiae

1201 Third Avenue, Suite 2200

Seattle, WA 98101

(206) 757-8069

brucejohnson@dwt.com

caesarkalinowski@dwt.com

TABLE OF CONTENTS

Page

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

INTEREST OF AMICI CURIAE ............................ 1

SUMMARY OF ARGUMENT.................................. 2

ARGUMENT ............................................................ 3

I. Florida’s Suppression of Free Speech in the

Prison Context Is Unconstitutional Because

It Is Not Reasonably Related to Neutral

Penological Objectives ........................................ 7

A. Florida’s Regulations and Their

Application Are Overbroad, Arbitrary,

Underinclusive, and Only Remotely or

Indirectly Related to Its Avowed

Objectives....................................................... 8

1. Florida’s regulations are overbroad ........ 9

2. Florida’s regulations are arbitrary ........ 11

3. Florida’s regulations are

underinclusive ........................................ 13

4. Florida’s regulations are too remote

and attenuated from their purported

objectives ................................................ 15

B. Florida’s Avowed Penological Objectives

Are Not Neutral in this Context ................. 17

II. Affirming the Eleventh Circuit’s Suppression

of First Amendment Rights in this Context Is

Inconsistent with Other Circuits and Would

Lead to Absurd Results .................................... 18

CONCLUSION ....................................................... 20

APPENDIX (DESCRIPTIONS OF AMICI

CURIAE) .......................................................... A-1

TABLE OF AUTHORITIES

Page(s)

Cases

Ahlers v. Rabinowitz,

684 F.3d 53 (2d Cir. 2012) ...................................19

Aikens v. Jenkins,

534 F.2d 751 (7th Cir. 1976)................................13

Allen v. Coughlin,

64 F.3d 77 (2d Cir. 1995) .....................................13

Amatel v. Reno,

156 F.3d 192 (D.C. Cir. 1998) ..............................19

Ashker v. California Dep’t of Corr.,

350 F.3d 917 (9th Cir. 2003)..................................9

Bantam Books, Inc. v. Sullivan,

372 U.S. 58 (1963)..................................................2

Beard v. Banks,

548 U.S. 521 (2006)................................................5

Bigelow v. Virginia,

421 U.S. 809 (1975)................................................4

Clement v. Cal. Dep’t of Corr.,

364 F.3d 1148 (9th Cir. 2004)......................3, 9, 10

Crime Justice & Am., Inc. v. Honea,

876 F.3d 966 (9th Cir. 2017)................................17

iii

Crofton v. Roe,

170 F.3d 957 (9th Cir. 1999).................... 10, 11, 12

Edenfield v. Fane,

507 U.S. 761 (1993)................................................2

Gregory v. Auger,

768 F.2d 287 (8th Cir. 1985)................................19

Griffin v. Lombardi,

946 F.2d 604 (8th Cir. 1991)............................8, 19

Jacklovich v. Simmons,

392 F.3d 420 (10th Cir. 2004)................................9

Jackson v. Pollard,

208 F. App’x 457 (7th Cir. 2006) .........................14

Lindell v. Frank,

377 F.3d 655 (7th Cir. 2004)..........................10, 11

Manual Enterprises, Inc. v. Day,

370 U.S. 478 (1962)................................................4

Martucci v. Johnson,

944 F.2d 291 (6th Cir. 1991)................................19

Morrison v. Hall,

261 F.3d 896 (9th Cir. 2001)................................11

Muhammad v. Pitcher,

35 F.3d 1081 (6th Cir. 1994)..........................12, 14

Murphy v. Missouri Dep’t of Corr.,

814 F.2d 1252 (8th Cir. 1987)........................10, 11

Nasir v. Morgan,

350 F.3d 366 (3d Cir. 2003) .................................16

Pell v. Procunier,

417 U.S. 817 (1974)..........................................4, 21

Pepperling v. Crist,

678 F.2d 787 (9th Cir. 1982)................................10

Perry v. Sec’y, Fla. Dep’t of Corr.,

664 F.3d 1359 (11th Cir. 2011)..............................4

Pitt News v. Pappert,

379 F.3d 96 (3d Cir. 2004) ......................... 4, 15, 16

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)................................15

Prison Legal News v. Sec’y, Fla. Dep’t of

Corr.,

890 F.3d 954 (11th Cir. 2018)...................... passim

Procunier v. Martinez,

416 U.S. 396 (1974)...................................... passim

Ramirez v. Pugh,

379 F.3d 122 (3d Cir. 2004) ...........................10, 11

Rowe v. Shake,

196 F.3d 778 (7th Cir. 1999)................................19

Simon & Schuster, Inc. v. Members of

New York State Crime Victims Bd.,

502 U.S. 105 (1991)................................................4

Sutton v. Rasheed,

323 F.3d 236 (3d Cir. 2003) .................................13

Thongvanh v. Thalacker,

17 F.3d 256 (8th Cir. 1994)..................................12

Thornburgh v. Abbott,

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

Turner v. Safley,

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

Constitutional Provisions

U.S. Constitution, First Amendment ............... passim

Codes

Florida Administrative Code 33501.401(3) .............................................................10

Florida Administrative Code 33501.401(3)(l) .................................................6, 8, 12

Florida Administrative Code 33501.401(3)(m) ...............................................6, 8, 13

Rules

Supreme Court Rule 37.6 ...........................................1

INTEREST OF AMICI CURIAE 1

Prison Legal News is an award-winning monthly

publication that focuses on prisoners and content

related to prisons, prison reform, and legal issues.

Sometimes critical in its reporting on prisons and

prisoner abuses, the publication is disfavored by

many prison administrations and has often been

forced to vindicate its First Amendment rights in

court. Prison Legal News is funded by

advertisements, which are purchased by law firms,

human rights organizations, and other persons and

organizations offering prison-related services. Amici

are comprised of many of those advertisers, and seek

to vindicate Petitioner’s, and their own, First

Amendment rights.

Amici believe that this case presents an

opportunity for this Court to vindicate the right to

free speech—an essential and explicit part of the

liberty guaranteed by the First Amendment—

against arbitrary government suppression, where

the State of Florida has sought to dramatically

curtail the rights of a disfavored population. We urge

this Court to grant certiorari to protect Petitioner’s

free speech rights, as well as the attendant rights of

Prison Legal News’ advertisers and incarcerated

readers.

1 Pursuant to Rule 37.6, amici affirm that no counsel for

any party authored this brief in whole or in part. Further, no

person other than amici, its members, or its counsel made a

monetary contribution to fund its preparation or submission.

Both parties were notified and have consented to the filing of

this brief.

SUMMARY OF ARGUMENT

“Any system of prior restraints of expression

comes to this Court bearing a heavy presumption

against its constitutional validity.” Bantam Books,

Inc. v. Sullivan, 372 U.S. 58, 70 (1963). So when a

state government tramples the constitutionally

protected speech rights of a disfavored group—

especially in favor of arbitrary regulations and

remotely related objectives—this Court rightfully

should be skeptical. Otherwise, we risk crushing

fundamental and enumerated rights “in a headlong

rush to strip inmates of all but a vestige of free

communication with the world beyond the prison

gate.” Thornburgh v. Abbott, 490 U.S. 401, 422

(1989) (Stevens, J., concurring in part and dissenting

in part).

It is beyond argument that Petitioner Prison

Legal News (“PLN”), its contributing writers, and its

advertisers have a First Amendment right to reach

prisoners with their speech. See Edenfield v. Fane,

507 U.S. 761, 765 (1993). Here, however, the

Eleventh Circuit eviscerated those constitutional

rights. Based on nothing more than total deference

to prison administrators’ self-serving statements, the

court upheld the Florida Department of Corrections’

(“FDOC”) absurdly broad ban on all issues of Prison

Legal News. See Prison Legal News v. Sec’y, Fla.

Dep’t of Corr., 890 F.3d 954, 975 (11th Cir. 2018).

Although “this Court has afforded considerable

deference to the determinations of prison

administrators who . . . regulate the relations

between prisoners and the outside world,”

Thornburgh, 490 U.S. at 408, a prison regulation

that suppresses speech must still be “‘reasonably

related’ to legitimate penological objectives” to be

constitutional. Turner v. Safley, 482 U.S. 78, 87

(1987). Unlike here, other circuits have struck down

similar bans when the regulation, its objectives, or

its application are overbroad, arbitrary, remote or

speculative, underinclusive, or unrelated to

penological goals. See Clement v. Cal. Dep’t of Corr.,

364 F.3d 1148, 1152 (9th Cir. 2004). Because FDOC’s

regulations suppressing PLN’s freedom of speech are

all of those, and upholding them would lead to

absurd results, this Court should grant PLN’s

petition, reverse the Eleventh Circuit, and vindicate

the First Amendment.

ARGUMENT

“[T]here is no question that publishers who wish

to communicate with [subscribing prisoners] . . .

have a legitimate First Amendment interest in

access to prisoners.” Thornburgh, 490 U.S. at 408.2

“[S]ensitive to the delicate balance that prison

administrators must strike between the order and

security of the internal prison environment and the

legitimate demands of those on the ‘outside’ who

seek to enter that environment,” id. at 407, this

constitutional guarantee of freedom of speech and

press “assures the maintenance of our political

“Access is essential to lawyers and legal assistants

representing prisoner clients . . . [and] to journalists seeking

information about prison conditions[.]” Thornburgh, 490 U.S. at

407 (emphasis added).

system and an open society, . . . and secures the

paramount public interest in a free flow of

information to the people concerning public officials,”

Pell v. Procunier, 417 U.S. 817, 832 (1974) (internal

citations and quotations omitted).

publication’s

advertisements

are

also

unquestionably protected by the First Amendment.

Bigelow v. Virginia, 421 U.S. 809, 818 (1975)

(“[S]peech is not stripped of First Amendment

protection merely because it appears in [paid

commercial advertisements].”). And advertisers’

“First Amendment right to access inmates give[s

them] a liberty interest in seeing that their

advertisements reach the inmates.” Perry v. Sec’y,

Fla. Dep’t of Corr., 664 F.3d 1359, 1367–68 (11th Cir.

2011). In fact, an advertiser’s free speech rights are

often bound with its publisher’s because imposing

content-related restrictions on advertisements

“establishes a financial disincentive to create or

publish works with [that] particular content.” See

Simon & Schuster, Inc. v. Members of N.Y. State

Crime Victims Bd., 502 U.S. 105, 118 (1991).3

3 PLN

avers that it has lost advertisers as a result of

FDOC’s regulations because those groups cannot reach their

key demographic. Therefore, allowing a publication to be

targeted through its advertising revenue in this case implicates

both groups’ First Amendment rights. See also Pitt News v.

Pappert, 379 F.3d 96, 106 (3d Cir. 2004) (“If government were

free to suppress disfavored speech by preventing potential

speakers from being paid, there would not be much left of the

First Amendment.”); Manual Enters., Inc. v. Day, 370 U.S. 478,

493 (1962) (“Since publishers cannot practicably be expected to

investigate each of their advertisers, and since the economic

In the prison context (like here), administrators

are shown deference in creating security and

rehabilitation-related regulations that may infringe

on constitutional rights. Thornburgh, 490 U.S. at

408. That deference, while considerable, is not

insurmountable. As this Court stated in Turner,

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

prison inmates from the protections of the

Constitution.” 482 U.S. at 84.

To determine if deference should be afforded to a

specific regulation, however, “we must determine

whether the governmental objective underlying the

regulations at issue is legitimate and neutral, and

that the regulations are rationally related to that

objective.” Turner, 482 U.S. at 87; Thornburgh, 490

U.S. at 414 (adopting the Turner standard in

incoming prison mail First Amendment challenges).

Prison authorities are required “to show more than a

formalistic logical connection between a regulation

and a penological objective.” Beard v. Banks, 548

U.S. 521, 535 (2006). Instead, they must show “a

reasonable relationship” that is not “so remote as to

render the policy arbitrary or irrational,” Turner,

482 U.S. at 89–90, in light of the “importance of the

rights at issue,” Banks, 548 U.S. at 533.

consequences of an order barring even a single issue of a

periodical from the mails might entail heavy financial sacrifice,

a magazine publisher might refrain from accepting

advertisements from those whose own materials could

conceivably be deemed objectionable[.]”).

Here, Florida requires a publication to be

impounded if it contains an advertisement that is

the focus of the publication, or is “prominent or

prevalent throughout the publication,” and promotes

three-way calling services, pen pal services, the

purchase of products or services with postage

stamps, or conducting a business in prison. Fla.

Admin. Code R. (“Code”) 33-501.401(3)(l). Likewise,

an entire publication may be impounded if a single

advertisement “presents a threat to the security,

order or rehabilitative objectives of the correctional

system or the safety of any person.” Code 33501.401(3)(m).

FDOC contends that these regulations relate to

“prison security and public safety” objectives because

prisoners could use the prohibited services to “harass

the general public,” “open doors to criminal activity,”

“solicit[] kind-hearted but gullible people and then

defraud[] them,” “us[e] their stamps as a currency in

the underground prison economy,” and “arrange

contraband smuggling” on the outside. Prison Legal

News, 890 F.3d at 975, 958–59.

PLN now challenges the Eleventh Circuit’s

decision to uphold FDOC’s practice of impounding

PLN’s flagship publication directed to inmates,

Prison Legal News. Since 2009, FDOC has enforced

its prohibition based on its claim that the publication

contains certain types of “problematic” advertising

that are “prominent or prevalent throughout the

publication.” See Code 33-501.401(3)(l). Because the

Eleventh Circuit’s holding was overly deferential to

FDOC in ruling that its regulation was reasonably

related to legitimate penological interests, it conflicts

with other circuits’ jurisprudence and leads to

absurd results. This Court should grant certiorari to

resolve those inconsistencies, clarify the law, and

vindicate PLN’s constitutional rights.

I. Florida’s Suppression of Free Speech in the

Prison Context Is Unconstitutional Because

It Is Not Reasonably Related to Neutral

Penological Objectives

In order to survive PLN’s challenge, FDOC is

required to show that its regulation suppressing all

of PLN and its advertisers’ speech—including

acceptable

and

objectionable

portions—is

(1) reasonably and rationally related to a

(2) legitimate, (3) neutral, (4) penological objective,

and not an (5) arbitrary, irrational, or an

exaggerated response. It cannot do so.

Here, FDOC’s regulation results in the total

prohibition of one publication’s legal articles, legal

services

advertising,

and

“objectionable”

advertisements that promote entirely benign and

lawful services. Because the deprivation of rights

here is so severe and FDOC’s reasons are so

attenuated and arbitrary, FDOC cannot meet its

legal burden to validate its unconstitutional

suppression of speech. Furthermore, because the

Eleventh Circuit’s decision is inconsistent with other

circuits’ First Amendment prison jurisprudence, this

Court should grant certiorari.

A. Florida’s

Regulations

and

Their

Application Are Overbroad, Arbitrary,

Underinclusive, and Only Remotely or

Indirectly Related to Its Avowed

Objectives

FDOC’s regulations are inherently arbitrary,

arbitrary as applied, overbroad, underinclusive, and

are not reasonably related to the proffered objectives

of the government. This Court and the circuit courts

have provided guidance as to whether a regulation is

reasonably or arbitrarily related to an objective. In

Procunier v. Martinez, 416 U.S. 396 (1974), for

example, this Court held that “outgoing personal

correspondence from prisoners-did not, by its very

nature, pose a serious threat to prison order and

security” and therefore was not related to the

defendant’s objectives. Thornburgh, 490 U.S. at 411.

But the reasonableness of the regulation has been

examined in other terms, including where the

regulation or its application is overbroad, arbitrary,

underinclusive, remote or speculative, or unrelated

to a penological objective.

The regulations at issue in this case, Codes 33501.401(3)(l), (m), are all of the above: unreasonably

overbroad, arbitrary, underinclusive, too remote and

speculative to be related, and only indirectly related

at best to penological objectives. That FDOC’s

regulation stands alone amongst the nation’s prisons

for its unconstitutional policy should signal as much.

See Griffin v. Lombardi, 946 F.2d 604, 608 (8th Cir.

1991) (“We can only say that the conflict between the

policies described in the affidavits ultimately filed by

prison officials, and the practices followed with

respect to other inmates and at other penitentiaries,

should give the officials some pause.”). In light of the

cases below, this Court should resolve the

inconsistencies created by the Eleventh Circuit and

hold that Codes 33-501.401(3)(l), (m) fail to meet the

standard for the first Turner factor.4

1. Florida’s regulations are overbroad

Overbroad regulations are not reasonably related

to government objectives because they prohibit or

censor more constitutionally protected materials

than necessary. See Thornburgh, 490 U.S. at 412

(commenting on Martinez and stating that “the

regulations at issue were broader than ‘generally

necessary’ to protect the interests at stake”).

Rejecting the government’s argument that “a fourmonth complete denial of access to constitutionally

protected materials (regardless of behavior) furthers

behavior management or rehabilitation,” the Tenth

Circuit in Jacklovich v. Simmons also based its

decision in part on the inadequacy of relationship

evidence and the availability of other reading

material. 392 F.3d 420, 429 (10th Cir. 2004).

Similarly, the Ninth Circuit in Clement held that

“security concerns” regarding coded messages were

overbroad and not sufficiently related to a

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

Cir. 2003) (“[I]f the prison fails to show that the regulation is

rationally related to a legitimate penological objective, we do

not consider the other factors.”).

prohibition of all internet-generated mail. 364 F.3d

at 1152.5

The regulations here are entirely overbroad

and

this

Court

should

presume

them

unconstitutional. Pepperling v. Crist, 678 F.2d 787,

791 (9th Cir. 1982) (“[T]he blanket prohibition

against receipt of the publications by any prisoner

carries

heavy

presumption

unconstitutionality.”). FDOC’s regulations mandate

that the entirety of Prison Legal News be impounded

if an issue contains one or more offending

advertisements. Code 33-501.401(3). So along with

allegedly objectionable material (which is still

protected by the First Amendment), the regulations

drag down and censor important legal and prisonrelated information contained in Prison Legal News

articles.

5 See also Lindell v. Frank, 377 F.3d 655, 660 (7th Cir.

2004) (holding that a ban on all newspaper clippings was

overbroad); Ramirez v. Pugh, 379 F.3d 122, 128 (3d Cir. 2004)

(refuting “that rehabilitation legitimately includes the

promotion of ‘values,’ broadly defined, with no particularized

identification of an existing harm towards which the

rehabilitative efforts are addressed”); Crofton v. Roe, 170 F.3d

957, 960 (9th Cir. 1999) (rejecting blanket ban on the receipt of

all gift publications because prison regulations already

demanded that publications originate with the publisher);

Murphy v. Mo. Dep’t of Corr., 814 F.2d 1252, 1256 (8th Cir.

1987) (accepting the government’s contention that Aryan

literature is “a clear and present danger to security of the

prison,” but holding “that a total ban is too restrictive a mail

censorship policy”).

What’s more, non-offending or innocuous

advertisements of all kinds are also suppressed

regardless of whether they promote or harm prison

objectives. Lawyers and civil rights organizations

seeking to inform prisoners of their rights have their

content blocked because they happen to appear in a

publication that advertises three-way calling.

Articles informing prisoners of important Supreme

Court cases are suppressed because pen pal services

have been advertised. Because there is no federal

constitutional right to counsel in federal habeas

proceedings (something routinely advertised in the

publication),

the

regulation

effectively

disenfranchises and blocks a disfavored group from

accessing legal assistance. Like banning all

newspaper clippings, Lindell, 377 F.3d at 660, or all

gift publications, Crofton, 170 F.3d at 960, “a total

ban is too restrictive a mail censorship policy” to be

constitutional in this instance. Murphy, 814 F.2d at

1256.

2. Florida’s regulations are arbitrary

When the government’s objectives or regulations

are arbitrary, irrational, or simply unrelated to a

penological interest, courts are invited to reject them

because they invite “prison officials and employees to

apply their own personal prejudices and opinions as

standards for prisoner mail censorship.” Martinez,

416 U.S. at 415. See also Ramirez v. Pugh, 379 F.3d

122, 128 (3d Cir. 2004) (rejecting a regulation that

makes “prisoners’ First Amendment rights . . .

subject to the pleasure of their custodians”);

Morrison v. Hall, 261 F.3d 896, 902–04 (9th Cir.

2001) (holding that “prohibiting inmates from

receiving mail based on the postage rate at which

the mail was sent is an arbitrary means of achieving

the goal of volume control”); Prison Legal News v.

Cook, 238 F.3d 1145, 1149–50 (9th Cir. 2001)

(holding that “tying the receipt of subscription nonprofit

newsletters

postal

service

rate

classifications” is arbitrary because that does not

promote security or relate to penological concerns).6

Like those other cases, the regulations here and

their application to Prison Legal News are entirely

arbitrary, focusing their ire on random services.

Most arbitrary, however, is the broad latitude and

powers of prison staff to apply the rules in disparate

and discriminatory ways, determining if (1) “the

advertisement is the focus of, rather than being

incidental to, the publication,” Code 33-501.401(3)(l),

(2) “the advertising is prominent or prevalent

throughout the publication,” id., or (3) “otherwise

presents a threat to the security, order or

6 See also Muhammad, 35 F.3d at 1085 (treating legal mail

from the Attorney General’s Office differently than “legal mail

from private attorneys, courts, and legal assistance

organizations” is arbitrary); Crofton, 170 F.3d at 960 (blanket

ban on the receipt of all gift publications is unrelated to

penological interests because “[t]he issue is not whether an

overall restriction on other gift items is legitimate. . . . the issue

is whether there is a penological justification for the restriction

on First Amendment rights”); Thongvanh v. Thalacker, 17 F.3d

256, 259 (8th Cir. 1994) (“English only” correspondence rule

was arbitrarily applied because languages other than Lao were

permitted, and blocking certain languages is not reasonably

related to a legitimate government interest).

rehabilitative objectives of the correctional system or

the safety of any person,” Code 33-501.401(3)(m).

This type of expansive, vague guidance gives

government employees unfettered control over

prisoners’ First Amendment rights, “invit[ing] prison

officials and employees to apply their own personal

prejudices and opinions as standards for prisoner

mail censorship.” Martinez, 416 U.S. at 415. See

Aikens v. Jenkins, 534 F.2d 751, 756–57 (7th Cir.

1976) (invalidating a regulation that generally

prohibits publications that are “in any way

subversive of institutional discipline”). Moreover, it

permits censorship of writings that “unduly

complain” about prison issues and thus “present[] a

threat to the [undefined] security, order or

rehabilitative objectives,” as determined by the sole

discretion of the prison officials. See Martinez, 416

U.S. at 415. Neither this Court nor any other circuit

courts have applied such broad deference to

decidedly discretionary suppression of speech.

3. Florida’s regulations are

underinclusive

Underinclusive regulations are often considered

unreasonable, especially when they ignore “the

existence of obvious, easy alternatives[.]” Turner,

482 U.S. at 90. In Sutton v. Rasheed, the Third

Circuit found it difficult “to discern a legitimate

penological interest in the denial of Nation of Islam

texts” when the prison allowed other religious texts.

323 F.3d 236, 254 (3d Cir. 2003). See also Allen v.

Coughlin, 64 F.3d 77, 80 (2d Cir. 1995) (rejecting ban

on newspaper clippings because the prison already

allowed full newspapers); Muhammad v. Pitcher, 35

F.3d 1081, 1085 (6th Cir. 1994) (rejecting mail policy

that only applied to one type of legal mail); Jackson

v. Pollard, 208 F. App’x 457, 461 (7th Cir. 2006)

(rejecting a prohibition on the “delivery of printed email responses” because “inmates may freely

influence the public by soliciting and receiving from

the public handwritten responses”).

The regulations here are as underinclusive as

they are overbroad. See Turner, 482 U.S. at 90.

Three-way calling advertisements are penalized, but

calling cellphones (which permit three-way calling)

is not. Pen pal service advertisements are

prohibited, yet the services themselves, as well as

having or writing to pen pals, are not. Cash-forstamps advertisements are prohibited, but stamps

are still made available despite the prison knowing

they will be used for currency. Business assistance

service advertisements are objectionable, yet finding

employment and gaining job skills is a critical part of

rehabilitative efforts. Effectively, FDOC’s policy

targets speech in the form of advertisements,

punishes that speech and any associated speech, and

then continues to ignore other ways that the

objectives are circumvented.

Thus, prisoners continue to have a plethora of

means to “harass the general public,” defraud “kindhearted but gullible people,” “arrange contraband

smuggling,” and “us[e] their stamps as a currency in

the underground prison economy.” Prison Legal

News, 890 F.3d at 958–59. Had the FDOC felt the

services offered in these advertisements were so

detrimental to prison security as to require a total

ban on publications featuring them, it entirely

missed more obvious and less restrictive means that

did not require trampling PLN or its advertisers’

First Amendment rights.

4. Florida’s

regulations

are

too

remote and attenuated from their

purported objectives

A regulation’s relation to an objective can also be

unreasonable when it is too remote or attenuated.

See Turner, 482 U.S. at 89–90 (stating that a

regulation cannot stand if “the logical connection

between the regulation and asserted goal is so

remote as to render the policy arbitrary or

irrational”). In Pitt News, the Third Circuit

examined whether alcohol venders could be banned

from placing advertisements with “those media

affiliated with [public] educational institutions[.]”

379 F.3d at 107 (Alito, J.). Holding that the

advertisers’ First Amendment rights had been

violated (in an admittedly non-prison context), the

court stated that “[i]n contending that underage and

abusive drinking will fall if alcoholic beverage ads

are eliminated . . ., the Commonwealth relies on

nothing more than ‘speculation’ and ‘conjecture.’” Id.

at 107–08. See also Prison Legal News v. Lehman,

397 F.3d 692, 695–96 (9th Cir. 2005) (striking down

a Washington regulation that prohibited receipt of

“non-subscription bulk mail and catalogs” because no

one had ever tried to “flood” a prison with

publications).

Like the government’s reasons for prohibiting the

advertisements in Pitt News, FDOC’s reasons for

suppressing speech are also too remotely related to

its objectives to be reasonable. See 379 F.3d at 107–

08. Invoking “prison security and public safety”

goals, FDOC asserts that there is a logical

connection between the regulations and its

penological goals. Not so. Unlike other constitutional

suppressions of the First Amendment in the prison

context, none of the “objectionable” advertisements

here pose a direct threat to anyone—much less

prisoners or staff. Accord Nasir v. Morgan, 350 F.3d

366, 372 (3d Cir. 2003) (regulation that prohibits

correspondence between current and former inmates

related to objectives because letters could contain

escape-related information or threats).

In fact, the only real connection between stopping

these advertisements from reaching prisoners and

penological objectives is an indirect one, speculative

and remote. To accept FDOC’s rationale, this Court

would have to assume that a prisoner might

(1) subscribe to an otherwise unobjectionable

publication, (2) see an advertisement for one of these

lawful-but-problematic services, (3) call the service,

(4) pay or otherwise secure funds for the service

itself, and (5) misuse the service (6) in a way that

could affect the prison’s safety and security. Surely

the connection between the regulations and

objectives must be more closely linked to permit the

suppression of PLN’s free speech for years on end.

B. Florida’s Avowed Penological Objectives

Are Not Neutral in this Context

This Court mandates that “the governmental

objective . . . be a legitimate and neutral one.”

Turner, 482 U.S. at 90. “PLN does not dispute that

the

[FDOC’s]

asserted

interests

for

the

impoundments—prison security and public safety—

are legitimate.” Prison Legal News, 890 F.3d at 967.

“Neutrality,” this Court has said, also means “the

regulation or practice in question must further an

important or substantial governmental interest

unrelated to the suppression of expression,”

Thornburgh, 490 U.S. at 415 (quoting Martinez, 416

U.S. at 413). See Crime Justice & Am., Inc. v. Honea,

876 F.3d 966, 978 n.2 (9th Cir. 2017) (finding the

regulation neutral because it did not distinguish

between content, but rather between manner of

solicitation).

Invoking the talismanic phrase “safety and

security” does not relieve FDOC of all duty to respect

PLN, its advertisers, or prisoners’ free speech rights.

While those oft-repeated objectives are legitimate

and facially neutral, see Thornburgh, 490 U.S. at

415, the regulations must further those objectives “in

a neutral fashion, without regard to the content of

the expression,” Turner, 482 U.S. at 90. As

previously discussed, the regulations are not

reasonably related and therefore cannot “further an

important or substantial governmental interest

unrelated to the suppression of expression.”

Thornburgh, 490 U.S. at 415 (quoting Martinez, 416

U.S. at 413).

Additionally, because these regulations can (and

are) arbitrarily applied, their application necessarily

is biased as to fulfilling FDOC’s objectives. Prison

officials are free to interpret the prominence,

prevalence, or threat of advertisements in ways that

discriminate against disfavored or critical content.

That the regulations target the prisoners’ ability to

communicate (with otherwise permissible services

and lawyers) by prohibiting a specific type of speech

(commercial advertisements), which are displayed in

a constitutionally protected medium (a prison and

law-related publication), to the detriment of other

unobjectionable speech (the entirety of Prison Legal

News and its other advertisers), conveys an illicit

relationship between FDOC’s true objectives and its

unconstitutional suppression of free speech.

II. Affirming

the

Eleventh

Circuit’s

Suppression of First Amendment Rights in

this Context Is Inconsistent with Other

Circuits and Would Lead to Absurd Results

In practical terms, FDOC’s regulations and its

prohibition of Prison Legal News are extremely

severe and if permitted, would lead to an absurd

neutering of the First Amendment in the prison

context. From 2009 through 2014, FDOC impounded

100 percent of all Prison Legal News issues,

unconstitutionally providing notice only 42 percent

of the time. See Prison Legal News, 890 F.3d at 977.

FDOC’s justification: prison security and public

safety related to the harassment or defrauding of

people outside of prison, and the prevention of

criminal activity. Based on these facts, not only does

FDOC’s policy depart from the rest of the country’s

prisons and courts’ jurisprudence, see Griffin, 946

F.2d at 608, but it also illuminates the path for other

prisons to cut off disfavored publishers from

subscribing prisoners and the protections afforded by

the First Amendment.

No other circuit has ever upheld a regulation that

applies such a broad sweeping ban on free speech.

Normally, permissible constitutional suppressions of

speech involve direct threats to prison safety and

security, Martucci v. Johnson, 944 F.2d 291, 296 (6th

Cir. 1991) (upholding regulation that withheld “mail

destined for a prisoner believed to be planning an

escape”), or crime-specific rehabilitation efforts,

Ahlers v. Rabinowitz, 684 F.3d 53, 64 (2d Cir. 2012)

(affirming prohibition on sexually explicit material

from a civilly committed sex offender); Amatel v.

Reno, 156 F.3d 192, 199 (D.C. Cir. 1998) (sexually

explicit material), and are short in duration or scope,

Rowe v. Shake, 196 F.3d 778, 782 (7th Cir. 1999)

(permitting prohibitions that “were relatively shortterm and sporadic”); Gregory v. Auger, 768 F.2d 287,

290 (8th Cir. 1985) (same).

Conversely in this case, the speech being targeted

is not hate speech nor does it represent a direct

threat to anyone at the prison. It is not linked to a

specific rehabilitative effort but instead prohibits

access to an entire publication to preclude viewing

advertisements for “problematic” services. And most

shockingly, the regulations’ duration is much longer

than those that have been upheld in other circuits.

To this day, PLN’s advertisers still cannot reach

their audience. Affirming the Eleventh Circuit, then,

would mean upholding a lengthy, indiscriminately

expansive bar on advertisements (of perfectly lawful

services) on the ground that it will indirectly help

prison goals.

Upholding FDOC’s regulation also means

opening the door for prisons to suppress any and all

incoming mail or publications, removing any vestige

of First Amendment rights in the prison context. All

that would be necessary, at least in the Eleventh

Circuit’s view, is for prisons to ban incoming speech

and invoke an indirect—yet admirable—penological

objective. Language books could be banned because

they enable prisoners to learn a means of

communication that guards cannot understand. The

Bible could be banned because it contains violent

stories, ostensibly leading to more violent prison

confrontations. Case law books could be banned

because they recount gruesome crimes or stoke

prisoners’ animosity towards the legal system.

Effectively, no written work could make its way

through prison bars so long as some portion of that

work included otherwise perfectly legal speech

deemed by a prison official to be “prevalent” and

“detrimental.” The First Amendment’s guarantee

that the government “shall make no law . . .

abridging the freedom of speech, or of the press”

simply demands more.

CONCLUSION

This Court has repeatedly said “there is no

question that publishers [like PLN] . . . have a

legitimate First Amendment interest in access to

prisoners.” Thornburgh, 490 U.S. at 408. With

regard to PLN’s incarcerated reader, he also “retains

those First Amendment rights that are not

inconsistent with his status as a prisoner or with the

legitimate penological objectives of the corrections

system.” Pell, 417 U.S. at 822. FDOC’s regulations—

and the Eleventh Circuit’s decision upholding

them—deny publishers, their advertisers, and prison

inmates their constitutionally protected right to free

speech. Applying that regulation in an overbroad,

arbitrary, and tenuous way, FDOC invokes vague

penological objectives and threats to broadly

suppress related and unrelated speech. We ask that

this Court deny such an affront to the Constitution,

grant PLN’s petition for certiorari, and reverse the

Eleventh Circuit’s decision.

RESPECTFULLY SUBMITTED

this day of October 15, 2018.