Petition for Writ of Certiorari — Askari Danso MS Lumumba, fka Dale Lee Pughsley, Petitioner v. Jeffrey Kiser
Supreme Court briefDec 5, 2024
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No. ___
IN THE
SUPREME COURT OF THE UNITED STATES
——————
ASKARI DANSO MS LUMUMBA
F/K/A DALE LEE PUGHSLEY,
PETITIONER,
V.
JEFFREY KISER,
RESPONDENT.
——————
ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
——————
PETITION FOR A WRIT OF CERTIORARI
——————
J. Scott Ballenger
Counsel of Record
Appellate Litigation Clinic
University of Virginia School of Law
580 Massie Road
Charlottesville, VA 22903
sballenger@law.virginia.edu
(202) 701-4925
QUESTIONS PRESENTED
1. Whether the Fourth Circuit erred by holding, in conflict with this Court’s
decision in United States v. Stevens, 559 U.S. 460 (2010), that a prison regulation
was not overbroad because facially expansive terms could be narrowed by
reference to “context.”
2. Whether the Fourth Circuit erred by holding, in conflict with other Circuits, that
prison regulation of outbound inmate correspondence is governed by the
extremely deferential balancing test of Turner v. Safley, 482 U.S. 78 (1987),
rather than the more speech-protective standard this Court adopted in Procunier
v. Martinez, 416 U.S. 396 (1974).
3. Whether the Fourth Circuit erred by applying Turner balancing to a First
Amendment overbreadth claim.
i
TABLE OF CONTENTS
JURISDICTIONAL STATEMENT AND OPINIONS BELOW ................................... 1
STATEMENT OF THE CASE ....................................................................................... 3
Statement Of The Facts ............................................................................................. 3
Procedural History ..................................................................................................... 6
REASONS FOR GRANTING THE WRIT................................................................... 10
I.
THE FOURTH CIRCUIT ERRED, IN CONFLICT WITH DECISIONS OF
THIS COURT AND OTHER CIRCUITS, BY READING OFFENSE CODE 128
NARROWLY TO AVOID ITS FACIAL OVERBREADTH ……………………..11
II.
THE FOURTH CIRCUIT ERRED, IN CONFLICT WITH DECISIONS OF
OTHER CIRCUITS, BY HOLDING THAT TURNER RATHER THAN
MARTINEZ GOVERNS PUNISHMENT FOR THE CONTENT OF
OUTGOING COMMUNICATIONS………………………………………………..18
III.
THE FOURTH CIRCUIT ERRED BY GIVING RESPONDENT TURNER
DEFERENCE IN THE OVERBREADTH ANALYSIS………………………….23
CONCLUSION ............................................................................................................. 27
PETITION APPENDIX
Decision of the Fourth Circuit ....................................................................................... 1
District Court Order Granting Certificate of Appealability ...................................... 28
District Court Order Granting Motion to Dismiss ..................................................... 30
Petition for Habeas Corpus .......................................................................................... 39
Memorandum in Support of Petition for Habeas Corpus
....................................................................................................................................... 56
Affidavit of Hearing Officer Counts ............................................................................ 61
Affidavit of Hearing Officer Counts ............................................................................ 61
Disciplinary Offense Report......................................................................................... 67
Order Granting Leave To Proceed In Forma Pauperis…………………………………71
ii
TABLE OF AUTHORITIES
Cases
Antonelli v. Rios, No. 06-cv-00283, 2009 WL 790171(E.D. Ky. Mar. 24, 2009) ........ 17
Bahrampour v. Lampert,
356 F.3d 969 (9th Cir. 2004) ..................................................................................... 27
Benning v. Comm’r, Ga. Dep’t of Corr.,
71 F.4th 1324 (11th Cir. 2023) ................................................................................. 22
Best v. Lake, No. 19-cv-00026, 2019 WL 3409868 (E.D. Cal. July 29, 2019), report
and recommendation adopted, 2019 WL 5420208 (E.D. Cal. Oct. 23, 2019) ......... 17
Brewer v. Wilkinson,
3 F.3d 816 (5th Cir. 1993) ......................................................................................... 21
Broadrick v. Oklahoma,
413 U.S. 601 (1973) ................................................................................................... 15
Erznoznick v. City of Jacksonville, 422 U.S. 205 (1975)............................................. 15
Forsyth County v. Nationalist Movement,
505 U.S. 123 (1992) ................................................................................................... 16
Johnson v. California,
543 U.S. 499 (2005) ......................................................................................... 3, 23, 26
Lane v. Feather,
610 F. App’x 628 (9th Cir. 2015) .............................................................................. 21
Lane v. Salazar,
911 F.3d 942 (9th Cir. 2018) ..................................................................................... 26
Lane v. Swain,
910 F.3d 1293 (9th Cir. 2018) ................................................................................... 21
Martinez v. Procunier,
354 F. Supp. 1092 (N.D. Cal. 1973) .......................................................................... 19
iii
Morgan v. Quarterman,
570 F.3d 663 (5th Cir. 2009) ............................................................................... 19, 22
Nat’l Fed’n of the Blind v. FTC,
420 F.3d 331 (4th Cir. 2005) ..................................................................................... 19
Near v. Minnesota,
283 U.S. 697 (1931) .................................................................................................. 19
Patel v. Zenk,
447 F. App'x 337 (3rd Cir. 2011) .............................................................................. 26
Pitts v. Thornburgh,
866 F.2d 1450 (D.C. Cir. 1989) ................................................................................. 24
Prison Legal News v. Ryan,
39 F.4th 1121 (9th Cir. 2022) ................................................................................... 27
Procunier v. Martinez,
416 U.S. 396 (1974) ........................................................................................... 3, 7, 19
Reynolds v. Quiros,
25 F.4th 72 (2nd Cir. 2022)....................................................................................... 26
Rodriguez de Quijas v. Shearson/Am. Express, Inc.,
490 U.S. 477 (1989) ................................................................................................... 22
Samford v. Dretke,
562 F.3d 674 (5th Cir. 2009) ..................................................................................... 22
Lane v. Swain,
910 F.3d 1293 (9th Cir. 2018) ................................................................................... 21
Serafine v. Branaman,
810 F.3d 354 (5th Cir. 2016) ..................................................................................... 15
Sisney v. Kaemingk,
15 F.4th 1181 (8th Cir. 2021), cert. denied, 142 S. Ct. 1454 (2022).................. 15, 27
Thornburgh v. Abbott,
490 U.S. 401 (1989) ............................................................................................. 18, 20
iv
Turner v. Safley,
482 U.S. 78 (1987) ........................................................................................... 3, 10, 25
United States v. Beason,
523 F. App'x 932 (4th Cir. 2013) .............................................................................. 26
United States v. Hansen,
599 U.S. 762 (2023) ................................................................................................... 16
United States v. Stevens,
559 U.S. 460 (2010) ................................................................................... 2, 15, 16, 23
Virginia v. Hicks,
539 U.S. 113, 119 (2003) ........................................................................................... 16
Statutes
18 U.S.C. § 48 ............................................................................................................... 11
28 U.S.C. § 1254 ............................................................................................................. 1
28 U.S.C. § 1291 ............................................................................................................. 1
28 U.S.C. § 2241 ............................................................................................................. 1
28 U.S.C. § 2253 ............................................................................................................. 1
28 U.S.C. § 2254 ............................................................................................................. 1
Other Authorities
Demetria D. Frank, Prisoner-to-Public Communication, 84 Brook. L. Rev.
115, (2018) ................................................................................................................. 20
Demonstration, American Heritage Dictionary, https://www.ahdictionary.com/word/
search.html?q=demonstration (last visited Nov. 8, 2023) ...................................... 12
Demonstration, Merriam-Webster,
https://www.merriam-webster.com/dictionary/demonstration (last visited Nov. 8,
2023) .......................................................................................................................... 11
v
Demonstration, Oxford English Dictionary (Sept. 2023),
https://doi.org/10.1093/OED/5416852043 ................................................................ 12
Evan Bianchi & David Shapiro, Locked Up, Shut Up: Why Speech in Prison Matters,
92 St. John’s L. Rev. 1 (2018) ................................................................................... 13
Group, Merriam-Webster,
https://www.merriam-webster.com/dictionary/group
(last visited Nov. 8, 2023) ......................................................................................... 12
Samuel J. Levine, Note, Restricting the Right of Correspondence in the Prison
Context: Thornburgh v. Abbott and Its Progeny, 4 Fordham Intell. Prop. Media &
Ent. L.J. 891 (1994)................................................................................................... 22
Va. Dep’t of Corr., Operating Procedure 830.5 (Nov. 1, 2020),
https://vadoc.virginia.gov/files/operating-procedures/800/vadoc-op-830-5.pdf. ....... 5
Work Stoppage, American Heritage Dictionary,
https://www.ahdictionary.com/word/search.html?q=work+stoppage (last visited
Nov. 8, 2023) .............................................................................................................. 13
Work Stoppage, Merriam-Webster,
https://www.merriam-webster.com/dictionary/work%20stoppage (last visited Nov.
8, 2023) ...................................................................................................................... 13
vi
JURISDICTIONAL STATEMENT AND OPINIONS BELOW
Petitioner Askari Lumumba filed a petition for a writ of habeas corpus under
28 U.S.C. § 2254 in the U.S. District Court for the Western District of Virginia. The
district court had subject matter jurisdiction pursuant to 28 U.S.C. § 2241 and 28
U.S.C. § 2254. The district court granted Respondent’s motion to dismiss the petition.
Pet.App.30a-38a (2022 WL 228318). The district court granted a certificate of
appealability. Pet.App.28a-29a. The Fourth Circuit had jurisdiction pursuant to 28
U.S.C. § 2253(c)(1)(A) and 28 U.S.C. § 1291, and granted Petitioner in forma pauperis
status. Pet.App.103a. The Fourth Circuit issued its opinion on September 6, 2024.
Pet.App.1a-27a (reported at 116 F.4th 269). This Court has jurisdiction over this
timely petition for certiorari pursuant to 28 U.S.C. § 1254.
CONSTITUTIONAL PROVISIONS INVOLVED
The First Amendment provides that “Congress shall make no law respecting
an establishment of religion, or prohibiting the free exercise thereof; or abridging the
freedom of speech, or of the press; or the right of the people peaceably to assemble,
and to petition the Government for a redress of grievances.”
INTRODUCTION
Virginia Department of Corrections (“VDOC”) regulation Offense Code 128
prohibits “participating in, or encouraging others to participate in, a work stoppage
or a group demonstration.” On its face, that regulation is breathtakingly broad. It
prohibits inmates from encouraging others to pray in groups, and from writing a
letter to the newspaper in support of labor strikes or political protest outside the
prison. Petitioner Askari Lumumba (“Lumumba”) lost one hundred eighty days of
1
statutory good time credit—an additional six months in prison—because he
expressed, in abstract terms and in communications to persons outside the prison, a
desire to educate other inmates and to accomplish reform through non-violent
protest. The district court and Fourth Circuit considered only whether Offense Code
128 is facially overbroad or facially void-for-vagueness, and held that it is not.
The Fourth Circuit’s decision conflicts with decisions of this Court and other
Circuits in several respects that merit review. First, the Fourth Circuit held that
Offense Code 128 is not overbroad only by giving the facially expansive language of
that regulation an artificially narrow construction based on ostensible clues from the
regulatory context. That is exactly the approach this Court rejected in United States
v. Stevens, 559 U.S. 460 (2010), when holding that the Depictions of Animal Cruelty
Act could not be limited to depictions of animal cruelty as conventionally understood
in the law but instead should be read, literally and expansively, to embrace images
of lawful hunting. The Fourth Circuit’s limiting construction is inconsistent with how
the Federal Bureau of Prisons (“BOP”) interprets its almost identically worded rule,
as revealed in reported decisions across the country. And that construction is not even
binding on VDOC or the state courts, so it will not prevent the literal sweep of Offense
Code 128 from chilling the constitutionally protected speech of Virginia prisoners.
Second, the Fourth Circuit erred and exacerbated an existing Circuit split by
holding that a regulation punishing prisoners for the content of outgoing
correspondence is governed by the highly deferential balancing test of Turner v.
2
Safley, 482 U.S. 78 (1987), rather than the more speech-protective standard this
Court adopted in Procunier v. Martinez, 416 U.S. 396 (1974).
Finally, by applying Turner’s deferential standard the Fourth Circuit
effectively read the overbreadth doctrine out of the law entirely in the prison context.
This Court has made clear that Turner is the standard for assessing individual rights
claims when full protection of the right in question is inconsistent with the needs of
incarceration. But the overbreadth doctrine is not about the individual rights of the
litigant before the court, and it is not inconsistent with the needs of incarceration.
There is no penological reason to write prison regulations in a way that chills
protected inmate speech, just as there is no penological justification for racial
discrimination. See Johnson v. California, 543 U.S. 499 (2005). Certainly the
overbreadth analysis in the prison context would look to the Turner standard (in part)
when deciding whether the rule’s unconstitutional applications are substantial in
relation to its legitimate sweep, because many (though not necessarily all) of the
rule’s applications may be governed by Turner. But the Turner factors cannot be
applied again to nullify the overbreadth doctrine itself.
Certiorari is warranted.
STATEMENT OF THE CASE
Statement Of The Facts
The state court expressly declined to consider Lumumba’s claims, Pet.App.7a8a n.3, and the district court granted defendants’ motion to dismiss, Pet.App.30a-38a.
3
Accordingly, there are no factual findings to defer to, and the following summary
credits the allegations of Lumumba’s federal habeas petition. See Pet. App. 39a-60a.
At the time of this incident, Lumumba was incarcerated at Sussex I State
Prison. Pet.App.67a. While incarcerated, Lumumba used the means lawfully
available to him, particularly the JPay email system and the telephone at the prison,
to communicate with persons outside the facility. Pet.App.67a-68a.
On July 6, 2018, Lumumba sent an email to Margaret Breslau, a nonincarcerated third party. Id. Part of Lumumba’s email was titled “For H,” who prison
officials allege is “H. Shabazz,” an offender incarcerated at a different institution in
Virginia. Id. In this email sent to Breslau, Lumumba wrote, “Look, these S1/S2 joints
are severely understaffed! Word! Burh, I’ve been talking to brothers about a
Gandhian Attica. Word, ‘Blood in the Water’ you feel me? Hundreds of people check
in at once! We all want to go to the STAR1 program!” Pet.App.68a. Then he stated,
“Man, I’m telling you it’s time to use the Art of War!” Pet.App.68a.
The next day, Lumumba sent another email to Breslau, which was forwarded
to an inmate housed at a female facility in Virginia. Id. This email read, “This
involves a radical re-education! I use the religious institutions that are legitimized by
the state to do this.” Id. Further, the communication stated that “I’m New Afrikan
and so I personally like to sue the Rastafarian (sic) class to teach New Afrika(sic)/Pan
1 STAR appears to be a reference to “Steps to Achieve Reintegration” program, which
VDOC explains is “[a] program operated at designated institutions for offenders who,
motivated by fear, refuse to leave restorative housing and enter general population.”
See Va. Dep’t of Corr., Operating Procedure 830.5 (Nov. 1, 2020),
https://vadoc.virginia.gov/files/operating-procedures/800/vadoc-op-830-5.pdf.
4
Afrikanism(sic)/Afrikan(sic) Internationalism. It’s tricky and require[s] a bit of
Artistry but people will begin to respond.” Id. Lumumba made no mention of
organizing any specific inmates for any particular cause or purpose.
During an investigation into these emails, prison administrators discovered a
phone call made days earlier, on July 2, 2018, where Lumumba was speaking to his
wife, who also is not incarcerated. Pet.App.68a-69a. During that call, Lumumba said,
“Do you know how hard I’m fighting not to organize? Seeing you is the only reason
I’m not acting crazy.” Pet.App.68a. Lumumba also stated that some gang members
had approached him about being their “Big Homie,” and he noted that “[n]igg*s is
primed and ready. These young boys are ready to go.” Id.
The Intelligence Unit at Sussex I became aware of these communications on
July 9, 2018—after they had been sent out. Pet.App.67a. The following day,
Lumumba was interviewed by Intelligence Officers. Id. Although he acknowledged
that he was the author of the emails and phone calls, Pet.App.65a, Lumumba
asserted that he was not attempting to organize anything amongst the other
offenders. Pet.App.68a. Rather, he clarified that he was writing to Breslau, who is a
member of the public. Id. Additionally, Lumumba told the investigators that he is “all
about peaceful reformations of the prison system,” so he “tell[s] other offenders to
write up their issues, without using violence.” Id. When asked about his use of the
term “Gandhian Attica,” Lumumba stated that he was referring to Gandhi, the
political figure known for non-violent protest. Id.
5
On July 10, 2018, Lumumba was transferred to Red Onion State Prison and
served with a disciplinary offense report. Pet.App63a. The report accused him of
violating Disciplinary Offense Code 128, which prohibits “[p]articipating in, or
encouraging others to participate in, a work stoppage, or a group demonstration.”
JA66. Lumumba plead not guilty to the charge. Pet.App.64a.
On July 19, 2018, Officer Counts conducted Lumumba’s disciplinary hearing.
Pet.App.69a. At the hearing, Lumumba told the officer that he is a non-violent person
and that he did not intend to cause a disruption. Id. But Officer Counts relied
primarily on the conclusions of Investigator Issac, who determined that Lumumba
had “attempted to garner support for a group demonstration that would disrupt the
orderly operation of the institution.” Id. Neither official identified the type of
“demonstration” for which they alleged Lumumba was gathering support.
Nevertheless, the hearing officer characterized these communications as an
invitation to violence. Id. (“[T]he intentions of offender [Lumumba] was to encourage
others to participate in acts of violence against DOC” which would “severely disrupt
the operations of the state facilities.”). The hearing officer found Lumumba guilty and
imposed a penalty of one hundred eighty (180) days of lost statutory good time
credit—the equivalent of adding an additional six months to his sentence—and thirty
days disciplinary segregation. Pet.App.69a-70a. That punishment was upheld in
administrative appeals.
Procedural History
6
Lumumba sought relief by a petition for habeas corpus in the Supreme Court
of Virginia, but that Court held that challenges to the revocation of good time credits
are not cognizable under state law. See Pet.App.7a-8a n.3.
After exhausting his claim in the Virginia state courts, Lumumba filed a timely
28 U.S.C. § 2254 petition in the U.S. District Court for the Western District of
Virginia. Pet.App.39a-60a. Lumumba presented both First Amendment and
vagueness arguments, all subsumed within the due process guarantees of the
Fourteenth Amendment. Pet.App.43a, 60a-60.2a. Lumumba argued that “[t]he
present case involves a dispute over the scope of the Petitioner’s constitutionally
protected free speech liberty” and that “Petitioner contends that he has a right to
speak critically of the government in outgoing correspondence even if inflammatory
language is used when doing so.” Pet.App.60a. Citing Martinez, Lumumba argued
that “[t]he government does not have a right to restrain the Petitioner’s First
Amendment liberty or censor his ‘outgoing’ correspondence” unless doing so “furthers
an important substantial government interest unrelated to the suppression of
expression” and “is no greater than necessary o[r] essential to the protection of the
government interest involved.” Id. (citing Martinez, 416 U.S. at 413). Lumumba also
contended that Offense Code 128 is both void-for-vagueness and overbroad.
Pet.App.59a-60.2a. He contended that an evidentiary hearing was necessary for “a
determination on the factual basis of the petitioners claim.” Pet.App.60.2a.
The district court held that Offense Code 128 is not overbroad. Pet.App.36a37a. Despite the petition’s request for an evidentiary hearing and its clear
7
identification of a dispute about “the scope of the Petitioner’s constitutionally
protected free speech liberty” and his “right to speak critically of the government in
outgoing correspondence,” Pet.App.60a, the district court treated the case as
presenting only whether Offense Code 128 is “facially unconstitutional.” Pet.App.34a.
The court held that Martinez did not provide the proper standard of review for the
overbreadth question because “VDOC officials did not burden Lumumba’s ability to
send or receive mail.” Pet.App.36a. Rather, VDOC only “punished [Lumumba] for
what he said in his outgoing communications.” Id. Instead, the court applied the
Turner v. Safley multi-factor test for evaluating prison regulations that burden
inmates’ individual constitutional rights, and concluded that there is a “valid,
rational connection” between prohibiting advocacy of group demonstrations and the
prison’s interest in maintaining order. Pet.App.36a-37a. Following a remand from the
Fourth Circuit, the district court granted a certificate of appealability on January 25,
2022. Pet.App.28a-29a. It held that Lumumba “has shown a substantial denial of a
constitutional right that reasonable jurists might disagree about,” concerning both
the overbreadth and void-for-vagueness doctrines. Id.
The Fourth Circuit affirmed. The Court of Appeals acknowledged that
Lumumba had requested an evidentiary hearing, Pet.App.6a, but nonetheless held
that his pro se habeas petition had failed to present any as applied claim and that the
certificate of appealability did not encompass one. Pet.App.8a n.4. Judge Wynn
dissented on that issue, arguing that the majority misunderstood Lumumba’s
8
reference to Martinez and should have interpreted his petition generously.
Pet.App.24a-27a.
The Fourth Circuit “refuse[d] to abandon Turner in this context,” holding that
this Court’s decision in Johnson did not “distinguish[] between rights based and
‘structural’ challenges” but instead between “rights inconsistent and consistent with
proper incarceration.” Pet.App.10a. It held that “First Amendment rights—including
the freedom of speech—do fall within Turner’s ambit,” without distinguishing
between claims that a prisoner’s own First Amendment rights have been violated and
claims that a regulation is facially void because of its chilling effects on others.
Pet.App.10a-11a. The Fourth Circuit also held that the less deferential standard this
Court articulated in Martinez applies only “to cases involving censorship of outgoing
personal correspondence from prisoners.” Pet.App.11a n. 7. “For all other First
Amendment free-speech claims brought by prisoners, Turner supplies the controlling
standard.” Id.
Relying heavily on “context” clues from the “surrounding language,” the Fourth
Circuit held that the word “demonstration” in Offense Code 128 “is most plausibly
read to prohibit only” a “public display of group opinion on political or other issues,
such as a protest or rally” and “not the broader kind of individual demonstration that
Lumumba identifies.” Pet.App.12a-13a. Although the text of Offense Code 128
broadly prohibits encouraging “others” to participate in group demonstrations, the
Fourth Circuit also held that “context” shows that “[t]he most plausible reading of
‘others,’ . . . is that it refers only to other Virginia prisoners, not to anyone in the
9
world.” Pet.App.14a-15a. The Court of Appeals acknowledged that “Lumumba may
be right that Offense Code 128, read in a vacuum, has a wide ambit,” but held that
when “read in context” the regulation only “prohibits prisoners from participating in
or encouraging other prisoners to participate in public displays of group opinion on
political or other social issues within Virginia correctional facilities.” Pet.App.15a.
Against the backdrop of that limiting construction, and applying the highly
deferential Turner balancing test, the Fourth Circuit held that Offense Code 128 has
“a valid, rational connection” to a “legitimate penological interest.” Pet.App.15a
(quoting Turner, 482 U.S. at 89).
REASONS FOR GRANTING THE WRIT
The Fourth Circuit’s decision conflicts with decisions of this Court and other
Circuits on three important issues that merit review.
1. The Fourth Circuit approached the overbreadth analysis as if its task was
to find a “plausible” way to read the facially broad language of Offense Code 128 as
narrowly as possible. That approach is flatly inconsistent with this Court’s decision
in Stevens. On its face, Offense Code 128 is exceptionally broad and will chill
constitutionally protected speech. The Federal Bureau of Prisons does not understand
its nearly-identical regulation in a manner consistent with the Fourth Circuit’s
limiting construction, and there is no reason to think Virginia officials will either.
2. The Fourth Circuit also erred by holding that a prison regulation punishing
prisoners for the content of outgoing communications should be evaluated under the
Turner balancing test rather than the more searching review required by Martinez.
10
The Fourth Circuit held that Martinez governs only actual censorship of outgoing
correspondence, not after-the-fact punishment for the content of that speech. That
distinction makes no sense and is inconsistent with precedent of other Circuits.
3. Finally, the Fourth Circuit erred by applying Turner deference to a First
Amendment overbreadth claim. The overbreadth doctrine asks whether the
unconstitutional applications of a regulation are substantial in relation to its plainly
legitimate sweep. Turner and Martinez certainly feed into that analysis by supplying
the as-applied standards governing many potential applications of Offense Code 128.
But it is not appropriate to use Turner deference again to give VDOC a free pass on
the overbreadth analysis itself—as if the needs of the penological environment
somehow justify writing prison rules in a way that prohibits substantial inmate
speech that would be constitutionally protected even under the Turner standard. The
Fourth Circuit’s approach effectively writes the overbreadth doctrine out of the law
in the prison context.
I.
THE FOURTH CIRCUIT ERRED, IN CONFLICT WITH DECISIONS OF
THIS COURT AND OTHER CIRCUITS, BY READING OFFENSE CODE
128 NARROWLY TO AVOID ITS FACIAL OVERBREADTH
On its face, Offense Code 128 applies to a remarkable range of constitutionally
protected speech. It prohibits “[p]articipating in, or encouraging others to participate
in, a work stoppage, or a group demonstration.” JA66. To date, Virginia courts do not
appear to have construed the scope of Offense Code 128. And the terms “encourage,”
“others,” “work stoppage,” “group,” and “demonstration” are not defined in the
Offense Code. JA59–60, JA66.
11
Merriam-Webster defines a “demonstration” to include any “outward
expression or display,” or “public display of group feelings toward a person or cause.”
Demonstration,
Merriam-Webster,
https://www.merriam-webster.com/dictionary/
demonstration (last visited Nov. 8, 2023). Definitions in the Oxford English
Dictionary include “[a]n exhibition or outward display of a quality or feeling,”
“outward exhibition of feeling; demonstrative behaviour,” and “a public march or rally
expressing an opinion about a political or other issue; esp. one in protest against or
support of something.” Demonstration, Oxford English Dictionary (Sept. 2023),
https://doi.org/10.1093/OED/5416852043. The American Heritage Dictionary defines
“demonstration” as “[a] public display of group opinion, as by a rally or march: peace
demonstrations.”
Demonstration,
American
Heritage
Dictionary,
https://www.ahdictionary.com/word/search.html?q=demonstration (last visited Nov.
8, 2023). A “group” is just “two or more figures forming a complete unit in a
composition” or “a number of individuals assembled together or having some unifying
relationship.”
Group,
Merriam-Webster,
https://www.merriam-
webster.com/dictionary/group (last visited Nov. 8, 2023).
All of those definitions encompass a broad range of conduct and statements
that are plainly constitutionally protected, even in prison. Inmates participating in a
worship service, sitting in a prayer circle, organizing a workout, creating an art
project, composing music, or observing a religious or patriotic holiday are all engaging
in a group display of feeling or the expression of an opinion. Inviting other inmates
to participate in such activities would be “encouraging” a forbidden “group”
12
“demonstration.” Indeed, a single inmate inviting another individual inmate to pray
together could be punished under Offense Code 128.
Offense Code 128 is not even facially limited to encouragement of “group”
“demonstration” within that prison, or any other prison facility. And since “others” is
also not limited to inmates, the regulation facially applies to an inmate who
encourages persons outside the prison to attend a political rally or march, organize a
letter-writing campaign to Congress, or attend worship services. Prisons have no
legitimate penological interest in preventing prisoners “from participating in public
discourse, especially with regard to criminal justice and mass incarceration matters,”
and “unrestrained prison censorship excludes prisoners’ voices from the discussion of
political and public issues that is central to facilitating democratic decision-making.”
Evan Bianchi & David Shapiro, Locked Up, Shut Up: Why Speech in Prison Matters,
92 St. John’s L. Rev. 1, 3 (2018).
“[W]ork stoppage” is similarly defined as a “concerted cessation of work by a
group of employees usually more spontaneous and less serious than a strike,” Work
Stoppage,
Merriam-Webster,
https://www.merriam-webster.com/dictionary/work
%20stoppage (last visited Nov. 8, 2023), and as “[a] cessation of work by a group of
employees as a means of protest,” Work Stoppage, American Heritage Dictionary,
https://www.ahdictionary.com/word/search.html?q=work+stoppage (last visited Nov.
8, 2023). Even assuming that prisons would be entitled to punish prisoners for the
advocacy of non-violent work stoppages within the prison system, nothing about
Offense Code 128 is so limited. It permits punishment of an inmate who emails
13
relatives working in the automobile industry to encourage them to participate in the
United Auto Workers strike.
The Fourth Circuit reached a different conclusion only by adopting an
elaborate limiting gloss on the plain text of Offense Code 128, based on a variety of
supposed “context” clues. The Court of Appeals concluded, for example, that although
the words “demonstration” and “group” may have very broad meanings, when used
together they necessarily refer to a “public display of group opinion on political or
other issues, such as a protest or rally.” Pet.App.12a-13a. It also held that “context”
shows that “[t]he most plausible reading of ‘others,’ . . . is that it refers only to other
Virginia prisoners, not to anyone in the world.” Pet.App.14a-15a. The Fourth Circuit
repeatedly acknowledged that much broader understandings of Offense Code 128
were “plausible;” it simply held that its narrow limiting construction was the “most
plausible.” Pet.App.12a-14a.
That approach to interpretation is inconsistent with this Court’s decision in
Stevens, and with the core purposes of the overbreadth doctrine, and with precedent
of other Circuits. In Stevens, this Court considered the constitutionality of the
Depictions of Animal Cruelty Act, 18 U.S.C. § 48, which then criminalized trafficking
in visual depictions in which “a living animal is intentionally maimed, mutilated,
tortured, wounded, or killed.” Stevens argued that the words “wounded” and “killed”
could embrace constitutionally protected depictions of lawful hunting. The
government argued that the statute reached only depictions of cruelty to animals as
conventionally understood, pointing to context clues from the Act’s title (the
14
“Depictions of Animal Cruelty Act”) from the noscitur a sociis implications of the
words “maimed, mutilated, [and] tortured,” and from the statute’s requirement that
the depicted conduct must be “illegal.” Stevens, 579 U.S. at 474-75. This Court
rejected those arguments, pointing out that the words “wounded” and “killed,” read
in isolation, “contain[ed] little ambiguity” and “should be read according to their
ordinary meaning,” and that a depiction of a wounded animal could show conduct
that is “illegal” for a reason other than animal cruelty. Id. The interpretation of 18
U.S.C. § 48 advanced by the Solicitor General on behalf of the United States in
Stevens was certainly “plausible,” and grounded in context clues at least as
persuasive as anything the Fourth Circuit pointed to here. Nonetheless this Court
insisted on reading the words according to their broad plain meaning.
The Fourth Circuit’s approach implicates an existing circuit split concerning
whether this Court’s decision in Stevens modified prior precedent. In older cases, this
Court has suggested that the overbreadth doctrine should not be invoked “when a
limiting construction has been or could be placed on the challenged statute.”
Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973); see also, e.g., Erznoznick v. City of
Jacksonville, 422 U.S. 205, 216 (1975) (“a state statute should not be deemed facially
invalid unless it is not readily subject to a narrowing construction by the state
courts”). Circuits regularly invoke that principle. But as the Fifth Circuit pointed out
in Serafine v. Branaman, this Court elected “not to ‘rely upon’ the canon of
constitutional avoidance in the overbreadth context” in Stevens. 810 F.3d 354, 369
(5th Cir. 2016) (quoting Stevens, 559 U.S. at 481). In Sisney v. Kaemingk, the Eighth
15
Circuit “respectfully disagree[d] with the Fifth Circuit’s reading of Stevens” on that
issue. 15 F.4th 1181, 1198 (8th Cir. 2021). Although the Fourth Circuit did not
explicitly invoke the canon in this case, its elaborate efforts to narrow Offense Code
128 seem clearly motivated by constitutional avoidance.
This Court’s approach to interpretation in Stevens better serves the underlying
purposes of the overbreadth doctrine. As this Court recently reaffirmed, the
overbreadth doctrine “provides breathing room for free expression” because
overbroad laws “may deter or ‘chill’ constitutionally protected speech.’” United States
v. Hansen, 599 U.S. 762, 769–70 (2023) (quoting Virginia v. Hicks, 539 U.S. 113, 119
(2003)). The doctrine is further concerned with the danger that broadly drafted laws
will facilitate standardless and discriminatory decision-making by public officials.
Stevens, 559 U.S. at 467 (noting the court below determined the statute “‘might also
be unconstitutionally overbroad,’ because it . . . ‘sweeps [too] widely’ to be limited only
by prosecutorial discretion” (alteration in original) (quoting 533 F.3d 218, 235 n.16
(3d Cir. 2008))). “The First Amendment prohibits the vesting of such unbridled
discretion in a government official.” Forsyth County v. Nationalist Movement, 505
U.S. 123, 133 (1992). Hunting for “context” clues to hypothesize an artificially narrow
scope for a literally broad regulation, as the Fourth Circuit did here, undermines
those core purposes of the overbreadth doctrine—particularly when a federal court is
evaluating state law rules. The fact that a court can hypothesize a “plausible”
construction of a broad statute does not ameliorate concerns about chilling and
excessive discretion. Persons regulated by the facially broad rule will still be chilled
16
by it, and the officials charged with enforcing it will still have inappropriately broad
discretion.
At least in Stevens this Court could have given 18 U.S.C. § 48 an authoritative
limiting construction that would have bound the Department of Justice and the lower
federal courts. The Fourth Circuit’s “plausible” limiting construction of Offense Code
128 will provide no comfort to Virginia inmates and no constraint on Virginia prison
officials. Offense Code 128 is Virginia law, and the Fourth Circuit’s efforts to narrow
it are purely advisory.
Indeed, as Respondent pointed out below, federal prison regulations include
functionally identical rules prohibiting “[e]ngaging in or encouraging a group
demonstration,”as well as “[e]ncouraging others to refuse to work, or to participate in
a work stoppage.” 28 C.F.R. § 541.3 (213–214). The reported decisions reveal that the
Bureau of Prisons does not understand that regulation as limited in the ways that
the Fourth Circuit hypothesized for Offense Code 128. In Antonelli v. Rios, for
example, the regulation was charged against an inmate who circulated a letter from
the state psychology board that confirmed two counselors at the prison were not
licensed psychologists under state law. See No. 06-cv-00283, 2009 WL 790171, at *1
(E.D. Ky. Mar. 24, 2009). And in Best v. Lake, it was used to charge an inmate who
“fast[ed] to avoid contaminated food and to draw attention to the meal problems” at
the prison. No. 19-cv-00026, 2019 WL 3409868, at *2 (E.D. Cal. July 29, 2019), report
and recommendation adopted, 2019 WL 5420208 (E.D. Cal. Oct. 23, 2019). Neither of
those cases involved a “protest or rally.” Pet.App.12a-13a. If the BOP can interpret
17
this language more broadly than what the Fourth Circuit considers the “most
plausible” interpretation, then so can (and will) the VDOC. So the Fourth Circuit’s
interpretive gymnastics have no bearing on the real-world overbreadth of Offense
Code 128’s actual language. That problem further confirms the wisdom of this Court’s
approach in Stevens.
II.
THE FOURTH CIRCUIT ERRED, IN CONFLICT WITH DECISIONS OF
OTHER CIRCUITS, BY HOLDING THAT TURNER RATHER THAN
MARTINEZ GOVERNS PUNISHMENT FOR THE CONTENT OF
OUTGOING COMMUNICATIONS
In Martinez, this Court held that “censorship of prisoner mail is justified” if it
“further[s] an important or substantial governmental interest unrelated to the
suppression of expression” and “the limitation of First Amendment freedoms [is] no
greater than is necessary or essential to the protection of the particular governmental
interest.” 416 U.S. at 414. Thornburgh v. Abbott clarified that the holding of Martinez
was limited to regulations on outgoing communications, and that regulation of
incoming communications is governed by the more deferential standard articulated
in Turner. 490 U.S. 401, 413–14 (1989). This Court explained that the “implications
of outgoing correspondence for prison security are of a categorically lesser magnitude
than the implications of incoming materials.” Thornburgh, 490 U.S. at 413.
The Fourth Circuit held in this case that the Martinez standard applies only
to the actual censorship of outgoing mail, and that prison regulations punishing
inmates for the content of communications with persons outside the prison are—like
regulation of purely internal prison matters—governed only by Turner. Pet.App.11a
n.7. That holding is incorrect, and deepens an existing circuit split.
18
Neither Martinez nor Thornburgh rested on any distinction between prior
censorship and subsequent punishment. In some contexts (particularly regulation of
the press) First Amendment doctrine has indeed recognized a “long-held distinction
between prior restraints and subsequent punishments,” Nat’l Fed’n of the Blind v.
FTC, 420 F.3d 331, 350 n.8 (4th Cir. 2005) (citation omitted), with the former singled
out as almost categorically barred. See, e.g., Near v. Minnesota, 283 U.S. 697, 716
(1931) (pre-publication restraint is permissible only in “exceptional cases” such as
“publication of the sailing dates of transports or the number and location of troops”
in wartime). But this Court did not apply prior restraint doctrine to the California
policies challenged in Martinez, and did not condemn those policies because they
involved pre-mailing review rather than post-mailing punishment. To the contrary,
the regulations at issue gave prison officials a choice to: “(1) refuse to mail . . . the
letter and return it to the author”; “(2) submit a disciplinary report, which could lead
to suspension of mail privileges or other sanctions”; or “(3) place a copy of the letter
or a summary of its contents in the prisoner’s file.” Martinez, 416 U.S. at 400. The
district court’s injunction against the policy did not distinguish among those options,
see Martinez v. Procunier, 354 F. Supp. 1092, 1099 (N.D. Cal. 1973), and this Court
did not either when it affirmed. Instead, this Court explained that “[t]he issue before
us is the appropriate standard of review for prison regulations restricting freedom of
speech” generally, id. at 406, and held that “any regulation or practice that restricts
inmate correspondence must be generally necessary to protect” legitimate penological
interests, id. at 414.
19
When Thornburgh limited the Martinez standard to outgoing correspondence,
this Court also drew no distinction between prior review and subsequent punishment,
but held simply that “the logic of our analyses in Martinez and Turner requires that
Martinez be limited to regulations concerning outgoing correspondence.” Thornburgh,
490 U.S. at 413. This Court explained that Martinez had rested on the Court’s
“recognition that the regulated activity centrally at issue in that case—outgoing
personal correspondence from prisoners—did not, by its very nature, pose a serious
threat to prison order and security,” id. at 411, and emphasized that the “implications
of outgoing correspondence for prison security are of a categorically lesser magnitude
than the implications of incoming materials” and are “far more predictable.” Id. at
412–13; see also Demetria D. Frank, Prisoner-to-Public Communication, 84 Brook. L.
Rev. 115, 136 (2018) (“The Supreme Court naturally assumes that intra-prison
speech is more likely to threaten the penological interest of correctional facilities than
speech aimed outside the prison walls.”). This Court spoke broadly about “regulations
concerning outgoing correspondence,” not exclusively about prior restraints by the
prison which censored communications from being mailed. Thornburgh, 490 U.S. at
413 (emphasis added).
A strong distinction between prior censorship and punishment also would
make little sense. Subsequent punishment can chill the protected speech of
individuals just as effectively as prior review and censorship. Indeed, prison
punishment, including a loss of good time credits, is almost certainly a greater
deterrent for most prisoners than a mere refusal to send their outgoing mail.
20
The Fourth Circuit’s holding deepens an existing Circuit split about just how
far Thornburgh limits the holding of Martinez. In Lane v. Swain, for example, an
inmate challenged the revocation of his good time credits for sending letters that
violated the prison’s prohibition on “[t]hreatening another with bodily harm or any
other offense.” 910 F.3d 1293, 1294 (9th Cir. 2018) (alteration in original). Even
though each of the letters was “mailed”—and therefore not censored prior to
delivery—the Ninth Circuit applied Martinez because the case nevertheless involved
“interference with outgoing prisoner mail.” Id. at 1294–95. Similarly, in Lane v.
Feather, the court held that “[w]hen a prisoner is punished for statements made in
outgoing mail, the prisoner’s First Amendment rights are implicated, and the
regulation authorizing the punishment must satisfy the test outlined in Procunier v.
Martinez.” 610 F. App’x 628, 628 (9th Cir. 2015).
The Fifth Circuit, by contrast, clearly holds that after Thornburgh punishment
of inmates for the content of their outgoing communications is governed only by
Turner. Indeed, the Fifth Circuit appears to believe that Martinez has been overruled
entirely. In Morgan v. Quarterman, an inmate challenged the revocation of good time
credits for the use of indecent or vulgar language in a note he mailed to opposing
counsel. 570 F.3d 663, 665 (5th Cir. 2009). The Fifth Circuit held that wherever “a
prison regulation restricts a prisoner’s rights with respect to mail, ‘the appropriate
inquiry is whether the practice is reasonably related to a legitimate penological
interest,’” which is the Turner standard. Id. at 666 (quoting Brewer v. Wilkinson, 3
F.3d 816, 824 (5th Cir. 1993)). As the Fifth Circuit explained, “[a]lthough the
21
[Supreme] Court appeared to draw a distinction between incoming and outgoing mail
and to preserve the viability of Martinez with respect to outgoing mail, its ‘reading’
of Martinez in Thornburgh suggests that Turner’s ‘legitimate penological interest’
test would also be applied to outgoing mail.” Brewer, 3 F.3d at 824; see also Samford
v. Dretke, 562 F.3d 674, 678–79 (5th Cir. 2009) (“Although the Supreme Court has
indicated that [the Turner] standard applies to limitations on prisoners’ incoming
mail and that the standard articulated in Procunier v. Martinez applies to limitations
on prisoners’ outgoing mail, a panel of this court has interpreted Thornburgh to apply
the reasonableness standard set forth in Turner in both instances.” (citations
omitted)); Samuel J. Levine, Note, Restricting the Right of Correspondence in the
Prison Context: Thornburgh v. Abbott and Its Progeny, 4 Fordham Intell. Prop. Media
& Ent. L.J. 891, 917–26 (1994) (discussing the circuit split in connection with the
application of Turner to outgoing correspondence).
To the extent the Fifth Circuit believes that Martinez has been undermined by
the reasoning of subsequent Supreme Court precedent and can no longer be relied on
even on its facts, that conclusion violates this Court’s warning that lower courts must
leave to the Court the prerogative of overruling its own precedent. See, e.g., Rodriguez
de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989). It also conflicts
with Eleventh Circuit precedent, which recently applied Martinez to a case involving
the interception of outgoing email communications. See Benning v. Comm’r, Ga. Dep’t
of Corr., 71 F.4th 1324 (11th Cir. 2023).
That longstanding and entrenched conflict merits this Court’s review.
22
III.
THE FOURTH CIRCUIT ERRED BY GIVING RESPONDENT TURNER
DEFERENCE IN THE OVERBREADTH ANALYSIS
The Fourth Circuit also committed an important conceptual error, with broad
implications meriting this Court’s review, by applying the highly deferential Turner
test to a First Amendment overbreadth claim.
Overbreadth doctrine asks whether a substantial number of the law’s
applications are unconstitutional, judged “in relation to [the law’s] plainly legitimate
sweep.” Stevens, 559 U.S. at 472–73. Of course, that analysis internally takes account
of the ways that Turner and Martinez modify the speech rights of individual inmates.
The “plainly legitimate sweep” of a speech regulation in the prison context must be
judged under the relatively deferential standards that would govern as-applied
claims by inmates in various contexts.
But there is no justification for applying those deference doctrines again, as
the Fourth Circuit did here, to modify or water down the overbreadth doctrine itself.
This Court has emphasized that Turner applies “only to rights that are inconsistent
with proper incarceration,” and that “need necessarily be compromised for the sake
of proper prison administration.” Johnson v. California, 543 U.S. 499, 510 (2005)
(internal quotation marks omitted) (citation omitted). It does not apply, for example,
to the Fourteenth Amendment’s prohibition of discrimination on the basis of race. Id.
at 510-11. We respectfully submit that Turner deference also would not apply to a
violation of the First and Fourteenth Amendment’s prohibitions against the
23
Establishment of a state religion, or of Article I § 10’s prohibition against States
granting titles of nobility. The First Amendment overbreadth doctrine similarly is
more a structural constraint on how States can regulate than a matter of the
individual prisoner’s rights. Cf. Pitts v. Thornburgh, 866 F.2d 1450, 1453–54 (D.C.
Cir. 1989) (noting that “Turner applies to cases involving regulations that . . . restrict
the exercise of prisoners’ individual rights within prisons” and refusing to apply it to
a case involving “challenges [to] general budgetary and policy choices” (emphasis
added)). And how would a reviewing court even know whether the overbreadth
doctrine should be modified by Turner, or Martinez, or the nearly-inviolate
prohibition against viewpoint discrimination, or any of the other First Amendment
standards that might govern particular situations? Overbreadth is a doctrine of facial
invalidity, not of individual rights, and it asks whether the unconstitutional
applications of the regulation—looking across countless individual situations
governed by different First Amendment standards—are substantial in comparison to
its legitimate sweep. The plaintiff’s own rights and situation are supposed to be all
but irrelevant to that analysis—and yet the Fourth Circuit applied Turner deference
rather than Martinez (or somethig else) to the overbreadth issue because of its
conclusion that Martinez does not apply to Lumumba’s facts. Pet.App.11a n. 7. That
approach conceptually collapsed the critical distinction between a facial and asapplied analysis.
Even if the Fourth Circuit is correct that there is no distinction between
structural constitutional constraints and individual rights, and that the application
24
of Turner therefor always depends simply on whether a particular constitutional
constraint must be “compromised for the sake of proper prison administration,”
Johnson, 543 U.S. at 510, the overbreadth doctrine would not qualify. There is no
legitimate penological justification for writing prison regulations so broadly that they
prohibit broad swaths of speech that would be protected even under the deferential
standards that apply to prison speech regulation. Put another way, there is no
penological justification for writing prison regulations in a way that chills substantial
protected inmate speech and gives prison officials unbridled enforcement discretion
to punish protected inmate speech. The Fourth Circuit held that “[p]risons have a
strong and legitimate interest in adopting prophylactic rules that head off activities
that are likely to cause violence or disruption, even if those activities are not
themselves violent or disruptive.” Pet.App.18a. That is just another way of saying
that the overbreadth doctrine does not apply at all in the prison context—a truly
radical proposition that the Fourth Circuit’s reasoning does not begin to justify.
The Fourth Circuit’s waiver analysis further illustrates the incompatibility
between Turner and an overbreadth analysis. The main reason that an overbroad
regulation would ever flunk the Turner standard is the fourth prong, which asks
whether there are “obvious, easy alternatives.” See Turner, 482 U.S. at 90. And
indeed, there should always be an obvious, easy alternative in the form of a more
narrowly drafted regulation that does not prohibit a substantial scope of
constitutionally protected speech. The Fourth Circuit held that Lumumba forfeited
any argument on the fourth prong by failing to explain, in prison and in the district
25
court, exactly how a narrower rule might have been drafted. Pet.App.18a. But the
facial overbreadth (or not) of a law turns on an objective judicial appraisal of whether
the law’s unconstitutional applications are substantial in relation to its plainly
legitimate sweep—not whether a particular litigant has explained to the rulemaking
or legislating body how it could have done a better job. Again, the Fourth Circuit’s
approach essentially nullifies the overbreadth doctrine in prison as a practical
matter.
The Fourth Circuit also acknowledged the existing Circuit split about whether
vagueness doctrine applies independent of the Turner standard in prison, and
recognized that “there are plausible reasons to think that the right not to be subject
to vague laws is consistent with incarceration.” Pet.App.20a n.10.2 “Providing notice
of prohibited conduct to regulated parties is ‘not only consistent with proper prison
administration,’” the Court of Appeals explained, “but arguably the only way good
administration is possible—people can only follow rules if they know what the rules
demand of them.” Id. (quoting Johnson, 543 U.S. at 510). And “preventing vague
prohibitions ‘bolsters the legitimacy of the entire criminal justice system,’ … as it
ensures that every prisoner is treated with fundamental fairness and respect.” Id.
2 In the leading cases on vagueness in the prison context, courts have analyzed the
Turner factors in a separate inquiry. Reynolds v. Quiros, 25 F.4th 72, 95–96 (2nd Cir.
2022) (“Thus, here . . . we conduct a separate vagueness analysis apart from the
Turner test.”); United States v. Beason, 523 F. App’x 932, 934–36 (4th Cir. 2013)
(considering whether a regulation was void-for-vagueness without mentioning the
Turner factors); Patel v. Zenk, 447 F. App’x 337, 340 (3rd Cir. 2011) (same); Lane v.
Salazar, 911 F.3d 942, 949–51 (9th Cir. 2018) (analyzing whether a prison code
satisfied Martinez and then conducting a separate vagueness analysis).
26
(quoting Johnson, 543 U.S. at 511). Properly understood, all of those observations are
true of the overbreadth doctrine as well—unless the Fourth Circuit means to say that
keeping prisoners uncertain about whether their constitutionally protected speech
will be respected is consistent with “good administration” and “fundamental fairness
and respect.”
Other Circuits appear to have committed the Fourth Circuit’s error. The Ninth
Circuit has held, for example, that the “Turner analysis applies equally to facial and
‘as applied’ challenges.” Bahrampour v. Lampert, 356 F.3d 969, 975 (9th Cir. 2004);
see also Prison Legal News v. Ryan, 39 F.4th 1121, 1129 (9th Cir. 2022). And in Sisney
v. Kaemingk, the Eighth Circuit applied Turner to both a facial and as-applied
challenge to a prison policy that prohibited inmates from receiving pornographic
material, because the regulation “imping[ed] on inmates’ constitutional rights and
Sisney’s constitutional rights in particular.” 15 F.4th 1181, 1191 (8th Cir. 2021), cert.
denied, 142 S. Ct. 1454 (2022). This issue recurs regularly in prisoner litigation and
merits review, even if the case law has rarely (until now) confronted and analyzed
the problem head-on.
CONCLUSION
The petition for certiorari should be granted.
27
Respectfully submitted,
/s/ J. Scott Ballenger
J. Scott Ballenger
UNIVERSITY OF VIRGINIA SCHOOL OF LAW
Appellate Litigation Clinic
580 Massie Rd.
Charlottesville, VA 22903
(434) 924-7582
sballenger@law.virginia.edu
Counsel for Petitioner
28
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.