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

No. 18-355

In the

Supreme Court of the United States

_______________

PRISON LEGAL NEWS,

Petitioner,

v.

JULIE L. JONES, SECRETARY, FLORIDA DEPARTMENT OF

CORRECTIONS,

Respondent.

_______________

On Petition For A Writ Of Certiorari To The

U.S. Court Of Appeals For The Eleventh Circuit

_______________

BRIEF IN OPPOSITION

_______________

OFFICE OF THE

ATTORNEY GENERAL

State of Florida

The Capitol – PL-01

Tallahassee, FL

32399-1050

Phone: (850) 414-3688

amit.agarwal@

myfloridalegal.com

PAMELA JO BONDI

Attorney General of

Florida

AMIT AGARWAL

Solicitor General

*Counsel of Record

EDWARD M. WENGER

Chief Deputy Solicitor

General

DANIEL W. BELL

Deputy Solicitor General

Counsel for Respondent

December 3, 2018

i

QUESTION PRESENTED

The Florida Department of Corrections (“FDOC”)

is charged with punishing and rehabilitating

prisoners while ensuring prison security and

protecting the public from inmates in its custody. To

carry out those mandates, FDOC bars inmates from

engaging in certain conduct that facilitates criminal

activity—including three-way calling, soliciting pen

pal services, and using postage stamps as currency. It

is undisputed that those restrictions are permissible.

Because prisoners do not always follow prison

rules, FDOC also seeks “to reduce the temptation for

prisoners to commit more crimes and to curtail their

access to the means of committing them.” App.2. As

relevant here, FDOC impounds an incoming

publication if ads promoting prohibited services are

prominent or prevalent throughout the publication.

After a four-day bench trial, the district court

found that FDOC’s facially neutral rules are

rationally related to legitimate penological goals and

have not been misapplied to suppress Petitioner’s

views. Petitioner does not claim that any of the district

court’s factual findings are clearly erroneous; nor does

Petitioner ask this Court to overrule or modify any of

its prior precedents. See Pet.i. Accordingly, the

question presented is:

Whether, applying settled legal principles to the

detailed factual findings made by the district court,

FDOC’s impoundment policy violates the First

Amendment.

ii

PARTIES TO THE PROCEEDINGS

The following were parties to the proceedings in

the Eleventh Circuit:

1) Prison Legal News, Petitioner in this Court,

was the plaintiff-appellee and cross-appellant

below.

2) Julie L. Jones, Secretary, Florida Department

of Corrections, respondent in this Court, was

the defendant-appellant and cross-appellee

below.

iii

TABLE OF CONTENTS

QUESTION PRESENTED...........................................i

PARTIES TO THE PROCEEDINGS ......................... ii

TABLE OF CONTENTS ........................................... iii

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

STATEMENT .............................................................. 1

REASONS FOR DENYING THE PETITION .......... 15

I. THE ELEVENTH CIRCUIT’S DECISION DOES NOT

CONFLICT WITH THIS COURT’S PRECEDENTS OR

THE DECISIONS OF ANY OTHER CIRCUIT. ........ 15

A. The Eleventh Circuit’s Decision Does Not

Conflict With This Court’s Precedents. .... 15

B. The Eleventh Circuit’s Decision Does Not

Create A New Conflict Between The

Federal Courts Of Appeals........................ 23

II. THE DECISION BELOW IS CORRECT. ................. 28

III.THE QUESTION PRESENTED IS NOT ONE OF

EXCEPTIONAL IMPORTANCE .............................. 34

CONCLUSION .......................................................... 38

iv

TABLE OF AUTHORITIES

Cases

Beard v. Banks,

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

Brown v. Phillips,

801 F.3d 849 (7th Cir. 2015) ...................... 25, 26, 27

California First Amendment Coalition v. Woodford,

299 F.3d 868 (9th Cir. 2002) ............................ 24, 25

Holt v. Hobbs,

135 S. Ct. 853 (2015) ........................................ 16, 18

Overton v. Bazzetta,

539 U.S. 126 (2003) ........................................ passim

Prison Legal News v. Cook,

238 F.3d 1145 (9th Cir. 2001) ................................ 24

Prison Legal News v. McDonough,

200 F. App’x 873 (11th Cir. 2006) ............................ 3

Procunier v. Martinez,

416 U.S. 396 (1974) .................................... 16, 18, 25

Ramirez v. Pugh,

379 F.3d 122 (3d Cir. 2004) ................................... 27

Turner v. Cain,

647 F. App’x 357 (5th Cir. 2016) ...................... 27, 28

Turner v. Safley,

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

v

Statutes

42 U.S.C. § 1983 .......................................................... 5

Florida Statutes § 20.315 ............................................ 1

Rules

Florida Administrative Code r. 33-210.101 ............ 1, 2

Florida Administrative Code r. 33-501.401(3)(l)

........................................................................ passim

Florida Administrative Code r. 33-501.401(3)(m)

........................................................................ passim

Florida Administrative Code r. 33-501.401(5) ........... 3

Florida Administrative Code r. 33-501.401(8) ........... 2

Florida Administrative Code r. 33-602.201 app. 1 ..... 1

Florida Administrative Code r. 33-602.205(1). .......... 1

Florida Administrative Code r. 33-602.207 ................ 1

Constitutional Provisions

U.S. Const. amend. I ................................. 5, 15, 16, 18

1

STATEMENT

1. The Florida Department of Corrections

(“FDOC”) employs 16,700 officers to oversee 100,000

inmates in 123 facilities throughout the State. App.3.

Florida law requires FDOC to “protect the public

through the incarceration and supervision of

offenders,” to protect offenders “from victimization

within the institution,” and to rehabilitate offenders.

Fla. Stat. § 20.315(1), (1)(d). Pursuant to its

rehabilitation mandate, FDOC grants inmates phone,

pen pal, and correspondence privileges so they can

stay in touch with family and friends. Fla. Admin.

Code r. 33-210.101(9); id. r. 33-602.201 app. 1; id. r.

33-602.205(1).

Because those privileges “may open doors to

criminal activity,” App.5, FDOC carefully limits them.

Specifically, FDOC prohibits “three-way calling,

which includes any type of call transferring,” because

such services enable “inmates to circumvent the

regulations FDOC has in place to stop them from

using prison phones to harass the public, arrange

contraband smuggling, and conduct other criminal

activity.” App.6-7. Given the risk of fraud and the

attendant burden associated with monitoring

voluminous business mail and phone correspondence,

FDOC bars inmates from conducting business while

confined, including “any activity in which the inmate

engages with the objective of generating revenue or

profit while incarcerated.” Fla. Admin. Code r. 33602.207(1)-(2); see App.7. For similar reasons, while

inmates may have pen pals, they are prohibited from

“solicit[ing] or otherwise commercially advertis[ing]

for money, goods, or services,” which includes

2

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

pen-pals” on social media and inmate pen pal

websites. Fla. Admin. Code r. 33-210.101(9). Finally,

inmates cannot use “postage stamps as currency to

pay for products or services.” Id. r. 33-210.101(22).

To reduce inmates’ temptation to violate these

rules and their access to means of doing so, FDOC

mailroom staff flag incoming publications for

contraband and prohibited communications and

forward such materials to the warden or assistant

warden, who have exclusive authority to impound

publications. See Fla. Admin. Code r. 33-501.401(8).

As relevant here, the warden or assistant warden may

impound a publication that

contains an advertisement promoting

any of the following where the

advertisement is the focus of, rather

than being incidental to, the publication

or the advertising is prominent or

prevalent throughout the publication.

1. Three-way calling services;

2. Pen pal services;

3. The purchase of products or services with

postage stamps; or

4. Conducting a business or profession while

incarcerated.

Id. r. 33-501.401(3)(l). The warden or assistant

warden may also impound a publication that

“otherwise presents a threat to the security, order or

rehabilitative objectives of the correctional system or

the safety of any person.” Id. r. 33-501.401(3)(m).

3

FDOC “cannot impound all issues of an entire

publication in advance”; instead, prison officials “must

separately review and decide whether each issue of a

publication violates the” rule. App.10. (citing Fla.

Admin. Code r. 33-501.401(5)). The decision to

impound an issue of a publication is subject to review

by FDOC’s Literature Review Committee. Fla. Admin.

Code rr. 33-501.401(5), (8), (14)(a).

2. Prison Legal News “is a monthly magazine

founded in 1990 that reports on legal developments in

the criminal justice system and other topics that affect

inmates.” App.10-11. Prison Legal News also features

commercial advertising, including advertising for

“three-way-calling services,” “pen pal services,” and

“cash-for-stamps services.” Pet.6. In 2003, FDOC

began impounding issues of Prison Legal News that

contained such advertisements because they violated

Rule 33-501.401(3)(l). App.11-12.

In 2004, PLN sued FDOC to enjoin the

impoundments. The next year, after FDOC’s

telephone vendor assured the Department that it

could block inmates’ three-way calls, FDOC agreed

not to impound issues of Prison Legal News as long as

any problematic ads were incidental to the overall

publication. App.12, 57. The district court therefore

dismissed the lawsuit as moot, and the Eleventh

Circuit affirmed. See Prison Legal News v.

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

2006). The district court in this case found “[t]he Rule

was not . . . amended to ‘moot’ the 2005 case.” App.47.

4

3. Three subsequent developments abrogated

FDOC’s rationale for allowing inmates access to

issues of Prison Legal News:

First, FDOC administrators concluded that the

prior policy did not meet the needs of the Department,

because certain “changes in technology proved wrong

the FDOC’s belief that it had adequate security

measures to curb three-way calling and callforwarding.” App.60.

Second, FDOC sought to mitigate the perceived

“vagueness of subsection (3)(l),” which “provided that

a publication would not be impounded as long as the

ads were ‘merely incidental to, rather than being the

focus of, the publication.’” App.15 n.8. FDOC’s

clarifying amendment “provided that a magazine

could also be impounded if the rule-defying ad was

‘prominent or prevalent throughout the publication.’”

Id.; App.60-61.

Third, PLN “went from 48 pages to 56 pages per

issue,” App.62, and both “the number and size of ruledefying ads” appearing in Prison Legal News

“increased after 2005, resulting in their becoming less

incidental and more prominent.” App.13. For

example, “since 2010, PLN has run an offending

advertisement on the back cover of [each issue of] the

magazine.” App.63. At the same time, “officials

noticed an increase in the number of inmates sending

stamps to cash-for-stamps companies.” App.13. They

also became concerned about new types of

advertisements that began to appear in Prison Legal

News after 2005. App.67. Specifically, officials were

concerned about ads for “a phone technology called

5

Voice over Internet Protocol, which makes it harder to

detect three-way call attempts by transferring calls

over the internet,” and ads for “prisoner concierge”

and “people locator” services that began to appear in

Prison Legal News during that period. App.13. FDOC

therefore resumed impounding issues of Prison Legal

News in 2009.

4. PLN filed this lawsuit, raising two claims under

42 U.S.C. § 1983: that Rules 33-501.401(3)(l) and

(3)(m), as applied to Prison Legal News, violate the

First Amendment, and that FDOC had failed to

provide PLN with proper notice for each impounded

monthly issue, in violation of PLN’s right to

procedural due process. After a four-day bench trial,

the district court issued detailed findings of fact and

ruled against PLN on the First Amendment claim and

for PLN on the due process claim, entering an

injunction requiring FDOC to provide PLN with

notice each time it impounds an issue of the magazine

and the reason for the impoundment. See App.48-114.

As a threshold matter, the court rejected PLN’s

argument that FDOC’s impoundments of Prison Legal

News constituted impermissible content-based

regulation of expression. Citing this Court’s caselaw,

the court explained that a rule is “neutral” so long as

it “‘draw[s] distinctions between publications solely on

the basis of their potential implications for prison

security.’” App.83. The court found that FDOC had

done precisely that. Id.

The court also found that FDOC had not targeted

Prison Legal News because of the viewpoints

expressed therein. App.83. “PLN did not show, for

6

instance, that the FDOC disparately censors

publications critical of its institutions.” Id. In

addition, “PLN failed to offer any evidence showing

that the FDOC does not censor other publications

containing similar advertising content, or that the

only other publications that the FDOC censors

contain editorial content similar to Prison Legal

News.” App.65. By contrast, FDOC produced evidence

“that it has repeatedly rejected other publications on

(3)(l) grounds, some of which on their face do not

resemble Prison Legal News.” Id. The court therefore

found that PLN had not shown “unlawful animus on

the part of FDOC administrators” or that “FDOC

applies Rule 33-501.401(3)(l) and (m) in a biased

fashion.” App.84.

The court then turned to the four-factor test

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

explaining that FDOC was required to identify

“legitimate governmental interests underlying its

regulation,” and that PLN had “the ultimate burden

of showing that the regulation in question, as applied,

is not reasonably related to legitimate penological

objectives.” App.82.

FDOC, the court concluded, “identified public

safety and prison security as the underlying

legitimate governmental interests.” App.82. Based on

its assessment of the record, the court found that PLN

had not carried its burden of disproving the “rational

connection between the censorship at issue and the

stated penological objectives.” App.84-92. The court

had little difficulty finding that FDOC’s policy served

legitimate penological interests: “[E]ven PLN’s

expert,” the court noted, “agree[d] that the underlying

7

services addressed in Rule 33-501.401(3)(l) and (m),”

such as three-way calling and stamps-for-cash

services, “unquestionably compromise public safety

and prison security,” which “is why the FDOC forbids

prisoners from using them.” App.85 (citations

omitted). “The logic is straightforward. Without

question, the proper, initial response to the dangerous

services is forbidding prisoners from using them.

Though not surprisingly, [prisoners] do so anyway. So

the FDOC has adopted prophylactic safeguards in

addition to bare proscription.” Id. (citations omitted).

The court found that “Rule 33-501.401 is such a

safeguard. Advertisements compromise security

because they convert a publication into a ‘one-stop

shop’ . . . for dangerous services. By limiting inmates’

exposure, the Rule seeks to reduce the likelihood that

inmates will use those services.” App.85-86 (citation

omitted). And while “‘Turner requires prison

authorities to show more than a formalistic logical

connection between a regulation and a penological

objective,’” “FDOC met that burden by providing the

testimony of several administrators who, ‘relying on

their professional judgment, reached an experiencebased conclusion that [censorship] . . . further[s] [the]

legitimate prison objectives.’” App.86 (quoting Beard

v. Banks, 548 U.S. 521, 533, 535 (2006)). “And, as

additional support, the FDOC provided expert

testimony to establish that [censorship] will help curb

prisoners’ use of the services.” App.86 (citation and

internal quotation marks omitted).

The court rejected PLN’s argument that FDOC

was required to show “a concrete, unfortunate

incident caused by an inmate using a banned service,

8

which the inmate learned about in Prison Legal

News.” App.86-87. “[E]ven if such evidence were

required,” moreover, the court found that “FDOC

administrators provided examples, both in Florida

and throughout the country, of problems associated

with specific services that adverti[s]e, or have

adverti[s]ed, in Prison Legal News.” App.87. For

example, “FDOC officials learned of a company that

had been sending prisoners money for stamps, and

how such companies could distribute money for

prisoners to people in the outside world in exchange

for stamps; this company had previously adverti[s]ed

in Prison Legal News.” Id.

The court also rejected PLN’s argument that “other

FDOC regulations undermine the Rule to such a great

extent that they render the Rule’s connection to

security irrational,” because the court credited the

testimony of an FDOC administrator who “explained

each conflicting rule” to the court’s satisfaction.

App.90. Specifically, PLN identified “a regulation

permitting inmates to list cell phone numbers on their

preapproved contact list and another allowing

inmates up to 40 stamps at any given time.” Id. While

“[c]ell phones have three-way calling and call

forwarding capabilities identical to, or better than, the

services adverti[s]ed [i]n Prison Legal News,” cell

phones are also “ubiquitous in modern society.” Id. at

90-91. The court therefore found that “[p]rohibiting

inmates from calling cell phones would effectively

preclude them from speaking with many of their loved

ones who no longer carry land lines. The FDOC could

theoretically impose such a draconian rule, but it

would surely lead to increased tension within

prisons.” Id. at 91.

9

Likewise, “FDOC allows inmates to have stamps

and allows families to send inmates stamps despite

their contention that they are a serious hazard in

prisons.” Id. at 91. FDOC had previously considered

“a rule that would have embargoed stamps sent by

family members,” but “[f]amilies and friends of

prisoners vehemently opposed the proposal,

expressing concern that the rule would increase the

likelihood that their imprisoned loved ones would

either be victimized or simply not purchase any

stamps at all.” Id. “Moreover, FDOC officials testified

that implementing the accounting measures proposed

by PLN to counteract the problems with stamps would

be too costly and require amending state statutes.” Id.

The court found that “[t]he remaining [Turner]

factors tilt in the FDOC’s favor as well.” App.92. First,

“[t]he Rule leaves open sufficient alternatives for PLN

to express their point of view to inmates,” as “the Rule

does not completely prevent PLN from corresponding

with inmates. There are countless other written

materials that PLN may send prisoners.” App.92

(citation omitted). Moreover, “even Prison Legal News

is not invariably censored.” App.92. While the Court

agreed “that advertisements are necessary,” “PLN

ha[d] not proven that it is unable to adopt advertising

rubrics that would help bring its magazine in line with

prison regulations.” App.92-93.

As for the third factor, “[t]he evidence

demonstrate[d] that accommodating the specific way

in which PLN seeks to exercise its right—through a

publication containing dangerous amounts of

advertising content—would ‘significantly less[en]

10

liberty and safety for everyone else, guards and other

prisoners alike.’” App.93.

The final factor—whether there are “‘easy

alternatives’ indicating that the regulation is not

reasonable, but rather an ‘exaggerated response’ to

prison concerns,” App.93 (quoting Turner, 482 U.S. at

90)—also weighed in FDOC’s favor. PLN pointed to

New York’s decision not to censor Prison Legal News

and to instead “attach[] a notice warning prisoners

that the services adverti[s]ed are prohibited.” App.94.

However, “[e]ven if this is the sounder policy,” the

court explained, “FDOC is not required to implement

the least restrictive regulation.” Id. “[T]he

alternatives suggested by PLN to eliminate the

security concerns either have equally unattractive

side effects or are costly to implement.” Id. “Moreover,

the FDOC may be constrained in ways that New

York’s department of corrections is not.” Id. at 94-95.

“Comparing

different states’ department

of

corrections is difficult, and in this case the parties did

not submit sufficient evidence to do so.” App.95.

Because “all Turner factors support[ed] the

FDOC,” the court ruled that “PLN failed to show that

the FDOC’s censorship of Prison Legal News is not

‘reasonably related to legitimate penological

interests.’” App.97 (quoting Turner, 482 U.S. at 89).

The district court accepted Petitioner’s due process

claim, holding that FDOC violated the Fourteenth

Amendment insofar as it failed to notify Petitioner

when it impounded issues of Prison Legal News for the

first time. App.107-10.

11

5. A three-judge panel of the Eleventh Circuit

unanimously affirmed. The Eleventh Circuit found

the impoundments of Prison Legal News “content

neutral” under this Court’s decision in Thornburgh

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

potential implications for prison security.’” App.24

(quoting Thornburgh, 490 U.S. at 415-16). “And PLN

[did] not dispute that the Department’s asserted

interests for the impoundments—prison security and

public safety—are legitimate.” Id. Thus, the court

explained, the only remaining question was “whether

the Department’s impoundments of Prison Legal

News are ‘reasonably related’ to prison security and

public safety.” App.25 (quoting Turner, 482 U.S. at

89).

Addressing the first Turner factor, the court

rejected Petitioner’s argument that FDOC had to

“present evidence of an actual security breach” in

order to show a rational connection between its policy

and its legitimate interest in protecting prison

security and ensuring compliance with prison rules.

App.26. Under Turner, the court explained, “prison

officials must be able to ‘anticipate security problems

and . . . adopt innovative solutions’ to those problems

to manage a prison effectively.” App.26 (quoting

Turner, 482 U.S. at 89; emphasis omitted). The court

cited decisions of the Seventh, Eighth, and Ninth

Circuits reaching the same conclusion. App.26-27.

At any rate, the court explained, there was “plenty

of evidence that preventing inmates from viewing

prominent or prevalent ads for prohibited services will

reduce the possibility that they will use those

services.” App.27.

12

The ads not only make the prohibited services

available to inmates but also appear along with

articles about inmate phone scams, the role of

Green Dot cards in prison gang extortion

schemes, and the nationwide problem with

smuggling contraband like drugs and cell

phones into prisons. An inmate reading Prison

Legal News not only reads articles about

inmates putting the prohibited services to

dangerous use, but also sees ads that enable

him to obtain those same prohibited services.

App.27-29.

In addition, the court stressed, expert testimony

supported a finding that “the ads ‘create [the] . . . real

possibility’ of inmates doing an end run around prison

rules.” Id. at 29. Notably, FDOC’s expert provided

detailed testimony explaining “how that possibility

exists for each type of ad at issue in this case: (1)

three-way calling ads, (2) pen pal solicitation ads, (3)

cash-for-stamps exchange ads, and (4) prisoner

concierge and people locator ads.” Id. The court

provided an extended analysis of that and other

pertinent evidence supporting the district court’s

factual findings as to each of those four categories of

ads. App.29-34.

The court rejected Petitioner’s argument that, “if

the ads are as dangerous as the Department makes

them out to be, then the Department should impound

a publication with even one suspect ad, which it could

do.” App.34. FDOC’s expert “testified that the

Department adopted the ‘prominent or prevalent’

standard to ‘moderate[ ]’ the ‘focus of’ requirement in

13

Rule 3(l) and provide ‘some leeway’ to Prison Legal

News and other publications with questionable

ads, . . . even though that more moderate approach

amounted to ‘giv[ing] in on some security concerns.’”

App.34. The Court rejected Petitioner’s implicit

contention that “moderation in pursuit of safety is a

constitutional vice” and declined to “condemn the

Department for permitting more expression than it

was required to.” App.34-35.

In sum, the court concluded, the extensive factual

findings made by the district court after a four-day

bench trial supported its determination that there is

“a

rational

connection

between

[FDOC’s]

impoundments of Prison Legal News based on the

magazine’s ad content and prison security and public

safety interests.” App.35.

Petitioner argued that the second Turner factor—

“‘whether there are alternative means’ available to

PLN to exercise its right of access to its inmate

subscribers,” Turner, 482 U.S. at 90—weighs in PLN’s

favor “because the district court found that PLN could

not afford to publish its magazine without advertising

revenue, and publishing a separate Florida-only

version without the rule-defying ads would be cost

prohibitive.” App.35. The court rejected that

argument because it focused “solely on [PLN’s] ability

to send Prison Legal News to Florida inmates.”

App.37. This Court, the Eleventh Circuit explained,

“has made clear that prisons do not have to provide

exact, one-for-one substitutes to provide alternative

means.” App.36 (citing Turner, 482 U.S. at 92).

14

The

third

factor—“‘the

impact

[that]

accommodation of the asserted constitutional right

will have on guards and other inmates, and on the

allocation of prison resources generally,’” Turner, 482

U.S. at 90, weighed in FDOC’s favor because “if the

Department admits an issue of [Prison Legal News], it

would have to allocate more time, money, and

personnel in an attempt to detect and prevent security

problems engendered by the ads in the magazines.”

App.38.

The final factor, “whether the impoundments of

Prison Legal News are ‘an exaggerated response to

prison concerns,’” App.39, also weighed in FDOC’s

favor. Petitioner argued that “no other corrections

department in the nation impounds this particular

magazine based on its ad content.” App.39. This

Court, however, “has made it patently clear that the

Constitution does not mandate a lowest common

denominator security standard whereby a practice

permitted at one penal institution must be permitted

at all institutions.” App.40 (citations and internal

quotation marks omitted). The court rejected the

suggestion that every state is required to adopt the

same approach as New York, which merely “remind[s]

inmates not to use the prohibited services.” App.42.

Mandating such an approach, the court noted, could

have troubling implications for prison security: After

all, a prison could “simply post signs reminding

inmates not to escape,” but that does not mean that

prison officials may not deny prisoners access to tools

and information that may help them to escape. See id.

Because the record favored FDOC with respect to

every Turner factor, the court held “that the

15

impoundments of Prison Legal News under Rules

(3)(l) and (3)(m) do not violate the First Amendment.”

REASONS FOR DENYING THE PETITION

I.

THE ELEVENTH CIRCUIT’S DECISION DOES NOT

CONFLICT WITH THIS COURT’S PRECEDENTS OR

THE DECISIONS OF ANY OTHER CIRCUIT.

A.

The Eleventh Circuit’s Decision Does

Not Conflict With This Court’s

Precedents.

1. Petitioner argues that the decision below

conflicts with this Court’s precedents because those

precedents “recognize that First Amendment rights

are not extinguished within prison walls and that

outlying policies like the FDOC’s ban demand closer

scrutiny.” Pet.18 (capitalizations omitted). That

argument fails.

Contrary to Petitioner’s suggestion, the Eleventh

Circuit expressly and repeatedly recognized that

“First Amendment rights are not extinguished within

prison walls,” id. Quoting this Court, for example, the

Eleventh Circuit explained that “‘[p]rison walls do not

form a barrier separating prison inmates from the

protections of the Constitution.’” App.18 (quoting

Turner, 482 U.S. at 84); see id. at 2, 19. Similarly, the

Eleventh Circuit affirmed that “publishers like PLN

have a First Amendment right of access to their

inmate subscribers.” Id. at 19.

Petitioner is wrong to argue that the Eleventh

Circuit’s decision conflicts with this Court’s

16

precedents because policies of the kind at issue here

“demand closer scrutiny” than the Court of Appeals

applied. Pet.18; see id. at 19-20. As a threshold matter,

this case is not a good vehicle for resolving that issue.

In the proceeding below, both parties to this case

“agree[d] that the deferential standard established by

[this] Court in Turner v. Safley, 482 U.S. 78, 107 S. Ct.

2254 (1987), governs PLN’s First Amendment

challenge to the impoundments” at issue here, App.18;

that is the standard the Eleventh Circuit applied, see

id. at 24-43; and Petitioner should not now be heard

to complain that the Court of Appeals should have

applied a more demanding standard.

At any rate, the cases Petitioner cites do not

support its assertion that “the nature of the FDOC’s

policy should also have triggered more demanding

scrutiny under this Court’s case law.” Pet.20 (citing

Overton v. Bazzetta, 539 U.S. 126, 134 (2003);

Procunier v. Martinez, 416 U.S. 396, 413 n.14 (1974);

Holt v. Hobbs, 135 S. Ct. 853 (2015)). In Overton, this

Court held that certain regulations limiting prison

visitation did not violate the First Amendment

because they had “a rational relation to legitimate

penological interests.” 539 U.S. at 132. Far from

establishing that “more demanding scrutiny” is

required in the circumstances present here, Overton

stressed that courts “must accord substantial

deference to the professional judgment of prison

administrators, who bear a significant responsibility

for defining the legitimate goals of a corrections

system and for determining the most appropriate

means to accomplish them.” Id. As the Court of

Appeals recognized, the same principle applies here.

See App.20; id. at 21-24.

17

Petitioner does not establish a conflict with

Overton by noting that this Court “might” have

“reach[ed] a different conclusion” if it had been

presented with “a de facto permanent ban on all

visitation for certain inmates” in the context of a

challenge to “a particular application” of the inmatevisitation regulation there at issue. Overton, 539 U.S.

at 134; see Pet.20. That “suggest[ion],” Pet.20, was not

the holding of Overton, and Petitioner does not argue

otherwise. In addition, the Court did not say that it

would have applied a different legal standard if it had

been reviewing a “permanent ban on all visitation”;

instead, it suggested that application of the Turner

standard “might” have yielded a different result in

materially different circumstances—i.e., that “the

[two-year] restriction on visitation for inmates with

two substance-abuse violations” might not have had a

rational connection to a legitimate penological goal if

that already “severe” restriction had been permanent

rather than temporary in duration. 539 U.S. at 134.

In any event, this case does not involve any

restriction on prisoner “visitation,” and still less does

it involve “a de facto permanent ban on all visitation

for certain inmates,” id. Under the challenged

regulations, all inmates are allowed access to

publications that do not contain prominent

advertisements for prohibited services; the district

court found that the challenged rules do not have the

purpose or effect of banning, temporarily or

permanently, disfavored views (App. 65, 83-84); and

Petitioner does not ask this Court to rule that that

factual finding was clearly erroneous.

18

Petitioner’s contention that the decision below

conflicts with footnote 14 of this Court’s decision in

Martinez, Pet.20, is similarly unavailing. For one

thing, this Court overruled Martinez in Thornburgh,

which left Martinez intact only insofar as that decision

addresses “outgoing correspondence,” 490 U.S. at 413,

a subject not at issue here. In addition, Martinez did

not hold or opine that a prison policy “warrants closer

scrutiny” if the policy is a “complete outlier.” See

Pet.20. Instead, the Court simply noted that, “[w]hile

not necessarily controlling, the policies followed at

other well-run institutions would be relevant to a

determination of the need for a particular type of

restriction.” 416 U.S. at 414 n.14 (emphasis added).

The Eleventh Circuit expressly acknowledged that

principle. App.39 (“Although the ‘policies followed at

other well-run institutions [are] relevant to a

determination of the need for a particular type of

restriction,’ such policies are not ‘necessarily

controlling.’”).

Finally, Petitioner’s passing citation to Holt v.

Hobbs, 135 S. Ct. 853 (2015), Pet.20, does not help to

show a conflict with this Court’s precedents. The

Court there held that a grooming policy violated

RLUIPA insofar as it prevented a prisoner from

growing a 1/2-inch beard in accordance with his

religious beliefs. 135 S. Ct. at 861-67. As Petitioner’s

“cf.” citation (Pet.20) indicates, Holt did not address a

First Amendment challenge under Turner. Indeed,

the Court faulted the district court for “improperly

import[ing] a strand of reasoning from cases involving

prisoners’ First Amendment rights,” including

Turner, in assessing the RLUIPA claim before it. 135

S. Ct. at 862.

19

2. Petitioner next claims that, “contrary to this

Court’s precedents, the Eleventh Circuit granted

complete deference to Florida prison authorities” and

thus “made it impossible for Petitioner to succeed.”

Pet.20 (capitalizations omitted); see Pet.20-24. That is

wrong. The Eleventh Circuit expressly and

unambiguously affirmed its understanding that this

Court’s caselaw calls on courts “[t]o balance judicial

deference with ‘the need to protect constitutional

rights.’” App.19 (quoting Turner, 482 U.S. at 85).

Petitioner is free to disagree with the outcome of the

Eleventh Circuit’s careful and fact-intensive

balancing inquiry, see App.24-43; but Petitioner

should not ask this Court to review the decision below

on the erroneous premise that the Court of Appeals

either articulated the wrong legal standard or else did

not mean what it said.

Contrary to Petitioner’s argument, the ruling

below is consistent with this Court’s decisions in

Beard and Thornburgh.

The decision below does not conflict with Beard.

See Pet.20-21, 23. There, six members of this Court

rejected a First Amendment challenge to a

Pennsylvania policy forbidding certain dangerous

inmates any access to newspapers, magazines, and

photographs. 548 U.S. at 524-35 (plurality opinion of

Breyer, J.); id. at 536-42 (Thomas, J., concurring in

the judgment). Prison officials testified that the policy

would “provid[e] increased incentives for better prison

behavior” and “that the regulations do, in fact, serve

the function identified.” Id. at 530-31 (plurality

opinion). A plurality of four Justices deferred to that

conclusion because the connections “between

20

newspapers and magazines, the deprivation of

virtually the last privilege left to an inmate, and a

significant incentive to improve behavior, are logical

ones.” Id. at 531-32.

Two members of the Court concluded that the

prisoner’s First Amendment challenge failed because

the state had “sentenced respondent against the

backdrop

of

its

traditional

conception

of

imprisonment,” which did not afford prisoners

unfettered access to magazines, newspapers, and

photographs.” Id. at 540 (Thomas, J., concurring in

the judgment); see id. at 537-40. In their view, the

deferential standard employed by the plurality paid

too little deference to prison authorities. See id. at 536

(“Judicial scrutiny of prison regulations is an

endeavor fraught with peril.”); id. at 536-37, 540-42.

The Beard plurality’s passing reference to

“experience-based conclusion[s],” 548 U.S. at 533,

does not support Petitioner’s assertion that prison

officials’ judgments concerning the need for particular

security measures “must be ‘experience-based’” in the

sense that they must be supported by empirical data

comparing results with and without such measures.

Pet.21 (emphasis added); see id. at 16, 24. The solitary

sentence on which Petitioner so heavily relies simply

notes that, in Overton and Beard, “prison officials,

relying on their professional judgment, reached an

experience-based conclusion that the [challenged]

policies help to further legitimate prison objectives.”

548 U.S. at 533 (emphasis added). The four-Justice

plurality did not rule that, to uphold a challenged

prison regulation, a court must find that prison

administrators

reached

an

“experience-based

21

conclusion” supported by empirical data—not just

“professional

judgment”

rooted

in

practical

experience, see id.

Petitioner’s contrary interpretation cannot be

reconciled with the reasoning the plurality employed

in approving the challenged policy. The plurality

deferred to a prison official’s testimony that the policy

would “provid[e] increased incentives for better prison

behavior” and “that the regulations do, in fact, serve

the function identified,” because the official’s

conclusion was logical. 548 U.S. at 530-31. The Court

of Appeals, by contrast, had “placed too high an

evidentiary burden upon” prison officials, declining to

defer to the testifying official’s “professional judgment

that the Policy deprived ‘particularly difficult’

inmates of a last remaining privilege and that doing

so created a significant behavioral incentive.” Id. at

535.

Consistent with the plurality’s analysis in Beard,

FDOC’s expert in this case, relying on professional

judgment rooted in practical experience, testified that

the prohibited ads “‘create the . . . real possibility’ of

inmates doing an end run around prison rules.”

App.29. FDOC witnesses also testified to specific

reasons, discussed in detail above, why the ban

reduces the likelihood that inmates will circumvent

prison rules and why alternatives are less effective or

cost prohibitive. See, e.g., App.4, 8-9, 29, 31-35.

In short, Beard “confirms that [federal courts] owe

deference to the decisions of wardens and other prison

officials,” App.22; at a minimum, this Court’s decision

to uphold a policy denying certain prisoners any

22

access to newspapers does not compel the conclusion

that the court below was bound to reject a policy

granting all prisoners access to newspapers that do

not prominently display advertisements for discrete

services that prison officials concededly have the right

to prohibit. That is why, in the court below,

Petitioner’s amici “attempt[ed] to distinguish Beard”

from this case. App.23 n.10. Nevertheless, Petitioner

and its amici now urge that a case they previously

recognized as unhelpful to their cause—and even

sought to distinguish as “exceptional,” see id.—

conflicts with the decision below.

The ruling below likewise does not conflict with

this Court’s decision in Thornburgh. Applying

Turner’s four-factor test, Thornburgh upheld

regulations allowing federal prisons to reject any

outside publication found “detrimental to the security,

good order, or discipline of the institution or if it might

facilitate criminal activity.” Id. at 404 (citation and

quotation marks omitted). “Where the regulations at

issue concern the entry of materials into the prison,”

the Court explained, “a regulation which gives prison

authorities broad discretion is appropriate.” Id. at

416. In particular, “the broad discretion accorded

prison wardens” by the challenged regulations was

“rationally related to security interests” because

“publications can present a security threat,” and “a

more closely tailored standard could result in

admission of publications which, even if they did not

lead directly to violence, would exacerbate tensions

and lead indirectly to disorder.” Id. (citation and

quotation marks omitted). The federal government

was not required to provide publishers alternative

means of communicating the same message to the

23

same inmates. It was sufficient that “the regulations

at issue in the present case permit a broad range of

publications to be sent, received, and read.” Id. at 417.

The reasoning of Thornburgh supports the decision

below. FDOC’s “prominent or prevalent” standard is

no more “standardless,” see Pet. 22-23, than the

federal government’s rule allowing the warden to

reject any outside publication found “detrimental to

the security, good order, or discipline of the institution

or if it might facilitate criminal activity,” 490 U.S. at

404. Indeed, because this case involves a state penal

system, “federal courts have,” if anything, “additional

reason to accord deference to prison authorities.”

Turner, 482 U.S. at 85.

B.

The Eleventh Circuit’s Decision Does

Not Create A New Conflict Between

The Federal Courts Of Appeals.

Petitioner contends that the Eleventh Circuit’s

decision is more deferential to prison officials than the

decisions of other circuits, which, according to

Petitioner, require proof of a “correlation” “between [a

prison policy] and actual incidents of violence (or some

other actual threat to security).” App.26; see Pet.24.

To the contrary, the decisions cited in the Petition do

not require such proof as a matter of course and are

entirely consistent with the decision below, requiring

a higher threshold of evidence only where, unlike

here, the regulation either does not implicate prison

security or bears no logical or common-sense

connection to the asserted justification.

24

1. The Ninth Circuit. The decision below does

not conflict with Prison Legal News v. Cook, 238 F.3d

1145 (9th Cir. 2001). PLN happened to be the plaintiff

in Cook, just as it is here; but, as Petitioner

acknowledges, the Ninth Circuit in Cook and the

Eleventh Circuit in this case “assessed different

prison policies,” Pet.25. Cook struck down a blanket

policy “prohibiting the receipt of standard rate mail,

as applied to subscription non-profit organization

mail.” 238 F.3d at 1146. Thus, and as the Ninth

Circuit stressed, Cook did not involve a targeted

restriction on “speech whose content is objectionable

on security or other grounds”; instead, the case

addressed a sweeping ban on the delivery of wholly

“unobjectionable mail” that did not, in the Ninth

Circuit’s view, so much as “implicate penological

interests,” legitimate or otherwise. Id. at 1149. In

stark contrast, the issue here is whether the

challenged regulations permissibly allow FDOC “to

screen all incoming publications for content that

might enable them to break prison rules,” App.9; and

the Eleventh Circuit accordingly focused its analysis

on whether “[t]here is a rational connection between

[FDOC’s] impoundments of Prison Legal News based

on the magazine’s ad content and prison security and

public safety interests.” App.35.

The Ninth Circuit’s decisions “[i]n other contexts,”

Pet.25, likewise do not conflict with the decision

below. In California First Amendment Coalition v.

Woodford,

for

example,

the

court

found

unconstitutional a restriction on public access to

executions, ruling that officials “must at a minimum

supply some evidence that . . . potential problems are

real, not imagined.” 299 F.3d 868, 882 (9th Cir. 2002).

25

That decision is not in tension with the decision below,

because Woodford found the rule at issue “analogous

to

the

outgoing

correspondence

restriction

in [Procunier v.] Martinez,” in that “neither restriction

reasonably implicates security inside the prison.” Id.

at 882 (citing 416 U.S. 396 (1974)). The court therefore

applied a less deferential standard, requiring a

“‘closer fit’ between [the rule] and defendants’

legitimate penological interest.” Id. at 879.

2. The Third and Seventh Circuits. The

decision below does not conflict with Brown v.

Phillips, which addressed a challenge by certain

civilly committed detainees to the Rushville

Treatment

and

Detention

Center’s

policies

“restricting their access to movies, video games, and

video game consoles.” 801 F.3d 849, 851 (7th Cir.

2015). Assessing the summary-judgment record

before it, the court found that “[t]he record at this

point does not contain a basis for linking the ban on

media content to Rushville’s therapeutic or security

goals.” Id. at 854 (emphasis added). In that context,

the Seventh Circuit concluded, “a bare assertion that

Rushville’s ban on sexual material promotes

treatment [was] insufficient to justify summary

judgment” for defendants as to the claim challenging

the ban on movies and video games, id. at 854;

summary judgment as to that claim was “premature,”

the court explained, because “further proceedings

[were] needed to see what the defendants based their

opinions on.” Id. at 855.

Significantly, the Seventh Circuit affirmed the

grant of summary judgment for defendants as to the

ban on video game consoles. Id. Of particular

26

relevance here, that ban was approved based on

“record evidence” that does not appear to have

included any empirical “data” assessing the

effectiveness of that restriction, see id. at 852-53, 855;

instead, the court relied on assertions in sworn

affidavits explaining, based on the knowledge and

experience of the treatment facility’s employees, that

“consoles capable of accessing the internet allow

detainees to contact victims of their crimes” and

“permit inmates to download, manipulate, share, and

store illegal pornography.” Id. at 855 (emphasis in

original).

Those rulings are entirely consistent with the

decision below. For one thing, the Seventh Circuit in

Brown applied a “modified” version of the Turner

standard, because civil detainees “‘who have been

involuntarily committed are entitled to more

considerate treatment and conditions of confinement

than criminals whose conditions of confinement are

designed to punish.’” Id. at 853. The Eleventh Circuit

in this case applied the ordinary Turner standard,

App.18, and it did not rule out the possibility that a

less deferential standard might apply to civil

detainees raising First Amendment claims.

Assuming arguendo that the “modified” Turner

standard the Seventh Circuit purported to apply is the

same as the traditional Turner inquiry applicable to

prisons “designed to punish” criminals, but see 801

F.3d at 853, the Seventh Circuit did not hold that a

prison policy that seeks to limit the means by which

prisoners may break prison rules and commit crimes

must be supported by empirical data. Just the

opposite: The court approved the treatment center’s

27

ban on video game consoles based on evidence that

access to such consoles would enable or facilitate

conduct that the treatment center had the right to

prevent. That is just what the Eleventh Circuit did

here. See App.2 (explaining that “this case is about”

the validity of prison rules that seek to “reduce the

temptation for prisoners to commit more crimes and

to curtail their access to the means of committing

them”) (emphasis added).

Along the lines of the Seventh Circuit’s decision in

Brown, the Third Circuit has held that a bare

assertion of “rehabilitative interests” is insufficient to

justify a ban on the use of federal funds to distribute

certain sexually explicit material to the general

population of federal prisoners. Ramirez v. Pugh, 379

F.3d 122, 128 (3d Cir. 2004). As the Third Circuit

stressed, however, “[w]here the link between the

regulation at issue and the legitimate government

interest is sufficiently obvious, no evidence may be

necessary to evaluate the other Turner prongs,” id. at

130. In this case, the Eleventh Circuit relied on

abundant

record

evidence

supporting

the

reasonableness of the challenged prison restrictions,

see App.3-16, 55-73; and nothing additional in the way

of empirical data was required to justify prison

policies that reasonably seek to effectuate a prison’s

“sufficiently obvious” and legitimate interest in

“reduc[ing] the temptation for prisoners to commit

more crimes and to curtail their access to the means

of committing them,” App.2; see Ramirez, 379 F.3d at

128.

3. The Fifth Circuit. In Turner v. Cain, 647 F.

App’x 357 (5th Cir. 2016), the court held that an

28

inmate’s speech was not a “grievance” and therefore

was not per se unprotected by the First Amendment.

Id. at 363-64. The court expressly declined to decide

whether the alleged retaliation was permissible under

the four-factor test established by Turner v. Safley;

instead, it remanded the case and instructed the

district court to conduct that inquiry in the first

instance. Id. at 364. In a separate opinion, Judge

Weiner offered his view that the warden had not

“produced evidence of any legitimate penological

interest that would have permitted him to restrict”

the inmate’s speech. Id. at 367-68 (Weiner, J.,

concurring) (emphasis in original). Contrary to

Petitioner’s assertion, that view was not the “holding”

of the case. Pet.27; see 647 F. App’x at 364. And, even

if it was, that would not help Petitioner here. Judge

Weiner’s concurrence addresses only “the absence of

any justification” by the defendant, id. at 368; it does

not endorse or apply Petitioner’s proposed

“requirement that prison officials come forth with”

particular kinds of evidence to show a reasonable

relationship between a prison’s policy and its asserted

justification. See Pet.27; 647 F. App’x at 368.

II.

THE DECISION BELOW IS CORRECT.

“The burden . . . is not on the State to prove the

validity of prison regulations but on [the challenger]

to disprove it.” App.40 n.17 (quoting Overton, 539 U.S.

at 132). After “careful consideration of all the evidence

presented” at a four-day bench trial, the district court

made detailed findings of fact germane to Petitioner’s

First Amendment claim. App.55; see id. at 55-73.

Applying settled law to those facts, the Eleventh

29

Circuit correctly concluded that Petitioner failed to

carry its burden of proof. App.24-43.

Petitioner’s arguments to the contrary are not

persuasive. As to the first Turner factor, Petitioner

asserts that FDOC failed to show a valid, rational

connection with legitimate prison objectives. That is

wrong. “Everyone, even PLN’s expert, agree[d] that

the underlying services addressed in Rule 33501.401(3)(l) and (m),” such as three-way calling and

stamps-for-cash

services,

“unquestionably

compromise public safety and prison security.”

App.85. And, as the district court explained, “the

FDOC provided expert testimony” to establish that its

impoundments “will help curb prisoners’ use of the

[prohibited] services.” App.86 (citation and internal

quotation marks omitted). In addition, FDOC

presented testimony by “several administrators who,

‘relying on their professional judgment, reached an

experience-based conclusion’” that the challenged

impoundments further legitimate prison objectives.

App.86 (emphasis in original).

Petitioner argues that there is no valid, rational

connection between FDOC’s rule and its security

objectives because “FDOC’s various loopholes for

primary conduct” “undermine its policy.” Pet.28. This

argument fails because the district court credited the

trial testimony “explain[ing] each conflicting rule.”

App.90. Specifically, Petitioner identified “a

regulation permitting inmates to list cell phone

numbers on their preapproved contact list and

another allowing inmates up to 40 stamps at any

given time.” Id. While “[c]ell phones have three-way

calling and call-forwarding capabilities identical to, or

30

better than, the services adverti[s]ed on Prison Legal

News,” cell phones are also “ubiquitous in modern

society.” Id. at 90-91. The court therefore found that

“[p]rohibiting inmates from calling cell phones would

effectively preclude them from speaking with many of

their loved ones who no longer carry land lines. The

FDOC could theoretically impose such a draconian

rule, but it would surely lead to increased tension

within prisons.” Id. at 90. Likewise, “FDOC allows

inmates to have stamps and allows families to send

inmates stamps despite their contention that they are

a serious hazard in prisons.” Id. FDOC had previously

considered such “a rule that would have embargoed

stamps sent by family members,” but “[f]amilies and

friends of prisoners vehemently opposed the proposal,

expressing concern that the rule would increase the

likelihood that their imprisoned loved ones would

either be victimized or simply not purchase any

stamps at all.” Id. at 91. “Moreover, FDOC officials

testified that implementing the accounting measures

proposed by PLN to counteract the problems with

stamps would be too costly and require amending

state statutes.” Id.

Petitioner also argues that there is no rational

connection between FDOC’s policy and its security

objectives because FDOC “made no showing that it

experienced an uptick in security threats while

allowing Prison Legal News into its prisons, or a

downturn in such threats once it began censoring the

publication again.” Pet.28-29. The Eleventh Circuit

correctly concluded that “[r]equiring proof of such a

correlation” would conflict with this Court’s

precedents because it would insufficiently defer “to

the judgment of the prison authorities with respect to

31

security needs.” App.26. It “would seriously hamper

their ability to anticipate security problems and to

adopt innovative solutions to the intractable problems

of prison administration,” contrary to Turner, 482

U.S. at 89. Indeed, Turner, Thornburgh, and Beard all

upheld prison policies based on the testimony of

officials that the policies made sense. In none of those

decisions did the Court require empirical data

measuring the practical effectiveness of the

challenged security policies.

Moreover, “even if such evidence were required,”

the district court found that “FDOC administrators

provided examples, both in Florida and throughout

the country, of problems associated with specific

services that advertize, or have advertized, in Prison

Legal News.” App.87. For example, FDOC officials

learned of a company that had been sending prisoners

money for stamps, and how such companies could

distribute money for prisoners to people in the outside

world in exchange for stamps; this company had

previously advertized in Prison Legal News. Id. In

addition, as PLN’s ads for prohibited services became

more prominent, FDOC “officials noticed an increase

in the number of inmates sending stamps to cash-forstamps companies.” App.13.

The second question under Turner is whether

“‘other avenues’ remain available for the exercise of

the asserted right.” 482 U.S. at 90. If they do, “courts

should be particularly” deferential to prison officials.

Id. Petitioner argues that this factor weighs in its

favor because it would be “cost-prohibitive for PLN . . .

to produce a Florida-specific issue or to produce Prison

Legal News without the problematic advertisements.”

32

Pet.29. That argument is directly contrary to the

district court’s finding that, while “advertisements are

necessary,” “PLN has not proven that it is unable to

adopt advertising rubrics that would help bring its

magazine in line with prison regulations.” App.92-93.

Moreover, the district court found that FDOC’s “Rule

leaves open sufficient alternatives for PLN to express

their point of view to inmates,” as “[t]here are

countless other written materials that PLN may send

prisoners.” App.92 (internal citation omitted). That

determination was required by Thornburgh, 490 U.S.

at 401, in which the Court upheld similar regulations

allowing federal prisons to reject outside publications

because the regulations “permit[ted] a broad range of

publications to be sent, received, and read.” Id. at 418.

As Thornburgh makes clear, the State is not required

to provide publishers alternative means of

communicating precisely the same message to the

same prisoners. See id. at 417-18.

The third Turner factor provides that courts

“should be particularly deferential to the informed

discretion of corrections officials” when prison rules

have “ramifications on the liberty of others or on the

use of the prison’s limited resources for preserving

institutional order.” 482 U.S. at 90. The district court

found that “[t]he evidence demonstrate[d] that

accommodating the specific way in which PLN seeks

to exercise its right—through a publication containing

dangerous amounts of advertising content—would

‘significantly less[en] liberty and safety for everyone

else, guards and other prisoners alike.’” App.93

(quoting Thornburgh, 490 U.S. at 418). Moreover,

addressing those security problems would require the

FDOC “to allocate more time, money, and personnel

33

in an attempt to detect and prevent security problems

engendered by the ads in the magazines.” App.38.

Petitioner’s argument to the contrary is the same as

its argument regarding the first factor—that “there

was no evidence whatsoever that the FDOC had to

bear any of those additional burdens during the 55month interregnum between the FDOC’s censorship

of Prison Legal News.” Pet.30. That argument fails for

the reasons discussed above.

As for the fourth factor, “the absence of ready

alternatives is evidence of the reasonableness of a

prison regulation. By the same token, the existence of

obvious, easy alternatives may be evidence that the

regulation is not reasonable.” Turner, 482 U.S. at 90

(internal citation omitted). “This is not a ‘least

restrictive alternative’ test: prison officials do not

have to set up and then shoot down every conceivable

alternative method of accommodating the claimant’s

constitutional complaint.” Id. at 90-91 (citation

omitted).

Petitioner contends that this factor weighs in its

favor because other prisons in the United States have

not impounded Prison Legal News and because New

York instead “attach[es] a notice warning prisoners

that the services advertized are prohibited.” App.94.

As the district court explained, however, “the

alternatives suggested by PLN to eliminate the

security concerns either have equally unattractive

side effects or are costly to implement.” App.94. Even

assuming New York’s approach “is the sounder

policy,” “FDOC is not required to implement the least

restrictive regulation.” App.94. “Moreover, the FDOC

may be constrained in ways that New York’s

34

department of corrections is not.” Id. at 94-95.

“Comparing

different states’ department

of

corrections is difficult, and in this case the parties did

not submit sufficient evidence to do so.” App.95.

Because Petitioner had the burden on that issue, see

Overton, 539 U.S. at 132, the failure to present such

evidence tilted that factor in FDOC’s favor.

*

*

*

Because all four Turner factors weigh in favor of

FDOC, the Eleventh Circuit correctly rejected PLN’s

First Amendment claim.

III.

THE QUESTION PRESENTED IS NOT ONE OF

EXCEPTIONAL IMPORTANCE

Petitioner asks this Court to decide “whether the

Florida Department of Corrections’ blanket ban of

Prison Legal News violates Petitioner’s First

Amendment right to free speech and a free press.”

Pet.i. The premise of that question is incorrect: FDOC

has not adopted a “blanket ban.” Nor could it have:

Under applicable regulations, prison officials “must

separately review and decide whether each issue of a

publication violates” the admissible reading rule.

App.9-10.

Petitioner’s

publication

has

been

consistently impounded in recent years, but only

because its issues have consistently promoted ads for

prohibited services. “[S]ince 2010,” for example, “PLN

has run an offending advertisement on the back cover

of [each issue of] the magazine.” App.63 (emphasis

added).

35

Notwithstanding its inaccurate assertion of a

“complete ban,” Petitioner’s formulation of the

question presented is instructive: Petitioner does not

frame its disagreement with the Eleventh Circuit in

terms of any clearly articulated legal issue of general

applicability; instead, Petitioner asks this Court to

decide the case-specific question whether the

particular FDOC regulations at issue here comport

with the requirements of the First Amendment. See

Pet.i. In other words, Petitioner calls on the Nation’s

court of last resort to apply settled legal principles to

an “outlier” policy that, according to Petitioner, no

other prison system in the country has adopted. See

Pet.i, 32.

Four federal judges have already conducted that

fact-intensive inquiry; all four agree on the result.

Assuming arguendo that reasonable jurists might

come to a different conclusion, Petitioner offers no

good reason for this Court to conduct the same inquiry

anew. See Pet.32-34.

For example, and even assuming that the courts

below erred in rejecting Petitioner’s First Amendment

claim, speculation that the Eleventh Circuit’s decision

will serve as an “invitation and a roadmap for other

jurisdictions to curtail important First Amendment

freedoms,” Pet.32 (alterations omitted), merely

underscores Petitioner’s inability to point to any other

jurisdiction that has committed the alleged legal

errors of which Petitioner complains. Pet.32. The sole

example Petitioner proffers does not back up its

prediction that the decision below will be used to

justify otherwise indefensible arguments. Petitioner

cites only one brief filed in federal district court that

36

even refers to the decision below, and that brief cites

the Eleventh Circuit’s ruling for the unobjectionable

proposition that “‘the Supreme Court has not adopted

a damn-the-deference, full-speed-approach to First

Amendment rights within prison walls.’” Pet.33

(citation omitted).

Petitioner is wrong to claim that, absent this

Court’s intervention, “thousands of FDOC inmates

will not receive a publication designed to inform them

of their legal right[s] and of abuse within the FDOC

system,” Pet.33. In fact, “[o]nly about 70, or one

percent of [PLN’s] 7,000 subscribers [nationwide], are

Florida inmates.” App.11. It is no answer to forecast

that the decision below “paves the way for censorship”

affecting “many more thousands of individuals

currently detained within the confines of the Eleventh

Circuit.” Pet.33. Petitioner chose not to seek rehearing

en banc, which would have afforded the full court of

appeals the opportunity to decide whether there was

a compelling reason to revisit the state of the law

“within the confines of the Eleventh Circuit.”

In any event, Petitioner offers no basis for

prophesizing that the decision below will prompt other

prisons within the Eleventh Circuit to “replicate” an

“outlier” policy that, according to Petitioner, is not

rationally related to any legitimate penological

interests. See Pet.32-33. Petitioner’s casual

intimations of bad faith—i.e., its assertion that FDOC

and other correctional institutions entrusted with

responsibility for protecting prisoners and the public

must be “intent on keeping the important content in

Prison Legal News or other publications away from

inmates” and will jump at the chance to use

37

insubstantial security concerns as a pretext for

censorship, e.g., Pet.33—does not fill that gap. The

policies challenged in this case are neutral on their

face and reasonably calculated to curtail prisoners’

access to the means of committing crimes; the district

court expressly found that those policies do not have

the purpose or effect of suppressing disfavored

viewpoints; Petitioner has not asked this Court to rule

that those factual findings are clearly erroneous; and,

if and when record evidence supports a finding of

invidious discrimination or other comparable

malfeasance on the part of prison officials, nothing in

the Eleventh Circuit’s decision would bar a newspaper

or prisoner from proving such a claim and obtaining

appropriate judicial relief.

Finally, the Petition’s bare allegation of “harm [to]

the First Amendment rights of PLN and others to

reach this critical audience and inform them about

legal developments outside of prison walls and illegal

abuses within them,” Pet.33-34, is not a persuasive

reason for granting review. All four judges to have

considered the issue have concluded that the

challenged FDOC policy does not “harm[] the First

Amendment rights of PLN,” Pet.33-34. Those

carefully considered decisions should not be presumed

erroneous, and this Court should not have to resolve

the question presented in order to assess whether that

question is sufficiently important to “warrant[]

plenary review,” Pet.34.

38

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted,

PAMELA JO BONDI

Attorney General of

Florida

OFFICE OF THE

ATTORNEY GENERAL

State of Florida

The Capitol – PL-01

Tallahassee, FL

32399-1050

Phone: (850) 414-3688

amit.agarwal@

myfloridalegal.com

AMIT AGARWAL

Solicitor General

*Counsel of Record

EDWARD M. WENGER

Chief Deputy Solicitor

General

DANIEL W. BELL

Deputy Solicitor General