Opposition Brief — Arsberry v. Illinois

No. 01-352

IN THE

Supreme Court of the United States

KATIE ARSBERRY, et aZ.,

Petitioners,

v.

STATE OF ILLINOIS, et al.,

Respondents.

ON PETITION FOR Writ OF CERTIORARI TO THE

Unitep States Court OF APPEALS FOR THE SEVENTH CIRCUIT

BRIEF IN OPPOSITION FOR

TELEPHONE COMPANY RESPONDENTS

CHARLES H.R. Peters*

SCHIFF HARDIN & WaAITE

6600 Sears Tower

Chicago, IL 60606

(312) 258-5600

Counsel for Respondent

* Counsel of Record AT&T Corp.

(Additional Counsel for Telephone Company

Respondents listed on signature page)

170269 g

5 © (NOM

1

RULE 29.6 STATEMENTS

Respondent Ameritech Services, Inc. is a wholly owned

subsidiary of Ameritech Corporation.

Respondent AT&T Corporation has no parent

corporation, and no publicly held company owns 10% or

more of its stock.

Respondent Consolidated Communications Public

Services, Inc. is a subsidiary of Consolidated Communication,

Inc. and McLEODUSA, Incorporated, and no publicly held

company owns 10% or more of its stock.

Respondent Evercom Systems, Inc. as successor in

interest to Invision Telecom is a subsidiary of Evercom, Inc.,

and no publicly held company owns 10% or more of its stock.

Respondent MCI WORLDCOM Network Services, Inc.

(formerly known as MCI Telecommunications Corporation),

is a Wholly owned, indirect subsidiary of WorldCom, Inc.

WorldCom, Inc. is a publicly traded company on the

NASDAQ National Market under the symbols “WCOM” and

“MCIT.” WorldCom, Inc. has no parent corporations.

No publicly held company owns 10% or more of WorldCom,

Inc.’s stock. WorldCom, Inc. owns controlling interests in

Embratel Participacoes, S.A., and Digex, Incorporated, both

of which issue shares to the public.

il

TABLE OF CONTENTS

Page

Rule 29.6 Statements ......................... i

i I ee Fae eh eee il

Table of Cited Authorities ..................... iv

Counterstatement of the Case .................. |

Reasons for Denying the Writ.................. 4

I. The Seventh Circuit Did Not Rule That

Prisoners Have No First Amendment Right

To Use A Telephone, And Did Not Create

PO ee 4

A. The Seventh Circuit Did Not Pronounce

A New Rule Regarding Prisoners’ First

Amendment Rights. ................ 4

B. The Seventh Circuit’s Rolding Is

Consistent With Other Circuits. ...... 7

II. Petitioners Do Not State A Valid First

Amendment Claim. .................... 9

A. Petitioners’ First Amendment And Other

Constitutional Claims Fail Under Turner

Pr re a nes see 10

iil

Contents

Page

B. The Restricted Access Telephone

Systems Are Content-Neutral And

Have No Impact On Other Means Of

EOP Pere Terry 12

NST ES pt ae ee Oe ee Lee 7 ee

iv

TABLE OF CITED AUTHORITIES

Page

Cases:

Adams v. McGee, 1994 WL 544381 (D. Or. Sept. 26,

BODES in ndcccbcesdecscdadvenbuswabasedeeces 12

Allen v. Josephine County, 1993 WL 11948 (D. Or.

Jan. 13, 1993), aff’d, 15 F.3d 1082 (9th Cir.

rrr rer rrr: rrr rrr rr rr rrr 12

Arney v. Simmons, 26 F. Supp. 2d 1288 (D. Kan.

DOOD icc decree c ni nsncccassceendeds 11, 12, 13, 14

Bell v. Wolfish, 441 U.S. 520 (1979) ..........-. 12, 13

Benzel v. Grammar, 869 F.2d 1105 (8th Cir.), cert.

denied, 493 U.S. 895 (1989) ........ 8, 9, 10, 11, 13

Brock v. Bishop Robinson, No: S-99-3129 (D. Md.

Oct. 25, 1999), aff’d sub nom, Lloyd v. Robinson,

217 F.3d 839 (4th Cir. 2000) ................ 11

Carter v. O'Sullivan, 924 F. Supp. 903 (C.D. Til.

SOD sh ivniwi cgi a ereeciatekeisaseses 11, 12, 14

Clark v. Plummer, 1995 WL 317015 (N.D. Cal. May

te.) vere rrrerrrrrero rer srr oe. re 12

Daleure v. Kentucky, 119 F. Supp. 2d 683 (W.D. Ky.

2000), app. dismissed on other grounds, 2001

WL 1230558 (6th Cir. Oct. 17,2001) ......... 11

Vv

Cited Authorities

Demits v. Tuso, 1996 WL 33972 (N.D. Cal. Jan. 17,

CORI td a eal Ri ed ads IN

FONE c vies ied tale eee

Israel v. Cohn, 248 F.3d 1158, 2001 WL 300710

(Pa Gee, RE By BED io vice akdo smn dacs

Johnson v. California, 207 F.3d 650 (9th Cir.

a OEE eR eer Pint Saas wer hee D

Jones v. North Carolina Prisoners’ Labor Union,

DRG. ED es WT ns ch vb aka

Joost v. Cornell Corrections, Inc., 1998 WL 939531

(pe Bs OE, DE ois i oo Cis

Keeby v. Indiana, No. 3:99-CV-0277 (N.D. Ind. June

SPEED. 6 accadiinukievekeiiee tee

Keenan vy. Hall, 83 F.3d 1083 (9th Cir. 1996) .....

Lane v. Hutcheson, 794 F. Supp. 877 (E.D. Mo.

SOME: FA baks des Kade Daes RoR ced cee anaes

Levingston v. Plummer, 1995 WL 23945 (N.D. Cal.

ip OE hak 4d Be a ee

Loden v. Peters, 1995 WL 89951 (N.D. Ill. March 1,

RP aR ReN Erg petri Non Ohms Faeyr ey

Page

12

12

12

vi

Cited Authorities

Page

Lopez v. Reyes, 692 F.2d 15 (Sth Cir. 1982) ...... 9

McDonald v. Armontrout, 908 F.2d 388 (8th Cir.

SU Webnsccatecukacsdsen essai 8

McNeil v. Springborn, 1994 WL 48611 (N.D. Ill. Feb.

a SN oss 006000s0d¥4deneeadree ee 12

Minneapolis Star & Tribune Co. v. Minnesota

Commissioner of Revenue, 460 U.S. 575

CREED 600053 0006dnd4eenkeunss daeneeeeee 5, 6

O'Lone v. Estate of Shabazz, 482 U.S. 342 (1987) . .. 10

Pell v. Procunier, 417 U.S. 817 (1974) .......... 13

Pope v. Hightower, 101 F.3d 1382 (11th Cir.

a PETE Er rr er re 8,9, 11, 13

Shaw v. Murphy, 121 S. Ct. 1475 (2001) ......... l

Shimer v. Washington, 100 F.3d 506 (7th Cir.

FOU ovessedesssenvenesaks sevaesnee 9

Spies v. Voinovich, 173 F.3d 398 (6th Cir. 1999) .. 12

Strandberg v. City of Helena, 791 F.2d 744 (9th Cir.

BOD 66000.00008000600s0008608ben 7,9

vil

Cited Authorities

Page

Turner v. Safley, 482 U.S. 78 (1987) .. 1, 7,9, 10,11, 12

Washington v. Reno, 35 F.3d 1093 (6th Cir. 1994)

MPTVITIOVI TTT eT Terrier er ree 7,9, 10, 11

Wooden v. Norris, 637 F. Supp. 543 (M.D. Tenn.

SD névécdvebegeecesenansakineuseceetes 12, 13

Young v. Lane, 922 F.2d 370 (7th Cir. 1991) ...... 10

Young-Bey v. Swanson, 246 F.3d 684, 2001 WL

179798 (10th Cir. Feb. 23, 2001) ............. 8

United States Constitution:

POs v's d Ucbaseeckudncasscxiuneees passim

Eighth Amendment ........0.cccccccccccccces 8

Statutes:

Ill. Admin. Code tit. 20, § 525.120 ............. 3

Ill. Admin. Code tit. 20, § 525.150 ............. 2

Rule:

Uh Os GA OE Kn ccbendaeaudcucesenkeces 11

l

This petition for a writ of certiorari rests on the false

premise that the Seventh Circuit held below that prison and

jail “inmates possess no First Amendment right to use the

telephone.” Pet. at 9. The Seventh Circuit did not so hold.

Rather, the Seventh Circuit ruled that the telephone systems

selected by Illinois correctional authorities that result in more

costly calls do not impermissibly infringe on inmates’ First

Amendment and other constitutional rights — a decision fully

consistent with other federal authority.

Petitioners attempt to create the appearance of a circuit

split by focusing on one sentence in the Seventh Circuit’s

opinion, taken wholly out of context. There is no circuit split.

The Seventh Circuit’s decision in Arsberry comports with

this Court’s decisions in Turner v. Safley, 482 U.S. 78 (1987)

and Shaw v. Murphy, 121 S. Ct. 1475 (2001), as well as the

many federal decisions holding that restricted access prison

telephone systems do not violate the constitutional rights of

inmates or the people they call.

The petition asks this Court to find that the Seventh

Circuit has drastically departed from settled First Amendment

precedent. That is simply untrue. The Seventh Circuit held,

correctly, that petitioners’ First Amendment rights have not

been violated. There is no compelling reason to grant the

petition for a writ of certiorari, and the petition should be

denied.

COUNTERSTATEMENT OF THE CASE

Respondents provide the Court with the following

additional facts material to consideration of the questions

presented.

2

The State of Illinois and Cook, DuPage, and Kane

Counties administer prisons and jails within Illinois.

The State and the counties have adopted regulations to

facilitate the orderly operation of those facilities and to ensure

the safety and security of inmates, prison and jail employees,

and the public. Among other things, the State and the counties

restrict the means by which inmates communicate by

telephone. Record in the Seventh Circuit (“R.”) 39 at 1, 3,

6-7, 19.

Inmate misuse of telephones is widespread. R. 40, Ex. 1

at 2-3 of Exec. Sum. The United States Department of Justice,

Office of Inspector General reported in 1999 that inmates

frequently attempt to use telephones to commit fraud, threaten

witnesses, conduct criminal activity including the attempted

murder of witnesses and judges, and obtain contraband while

behind bars. /d. Inmate use of telephones to operate wide-

ranging criminal enterprises has been reported by prison

officials, law enforcement personnel, prosecutors, and

inmates themselves. Jd.

To avoid the potential misuse of telephones, the State

and the counties restrict inmates to making collect calls using

a provider approved by the correctional authorities. See, e.g.,

R. 39 at 1, 3, 6-7, 19. Illinois Department of Corrections

regulations prohibit inmates from calling “1-800” numbers,

emergency numbers (e.g., “911”), or directory assistance, as

well as numbers belonging to parolees, ex-offenders, or

numbers “restricted for legitimate penological reasons,

including security and order.” Ill. Admin. Code tit. 26,

§ 525.150. The regulations also forbid inmates from

dialing long-distance carriers, arranging to have their calls

forwarded, or entering onto a conference call. Jd. Inmates’

calls may be monitored. Jd.

3

The State and the counties have entered into contracts

with telephone companies to provide collect-calling services

for inmates. The telephone companies comply with the

Illinois regulations and the State’s and the counties’

requirements by implementing specialized, automated

security features that are not found in the general public phone

system. See, e.g., R. 40, Ex. 3 at A000023. For example,

certain inmate phone systems allow prison administrators to

monitor and control calls based on the duration of the call,

time of day, number of calls placed per individual, and

telephone number called. /d. The system also provides prison

administrators with the capacity to block restricted calls,

monitor and record phone conversations, and generate call-

detail reports. Jd. The rates that the telephone companies

charge for inmate collect calls are comparable to, and in some

instances actually lower than, the rates they charge the public

for automated operator-assisted collect calls from a payphone.

R. 40, Ex. 2-6; R. 36 Ex. A-D.

Inmates who do not wish, or who are not able, to make

collect calls have other communications options. R. 31 § 68.

They are free to send mail to and receive mail from almost

anyone they choose, and may receive visitors. Ill. Admin.

Code tit. 20, § 525.120.

Petitioners sued five telephone companies, the State of

Illinois, the Director of the Illinois Department of

Corrections, the Director of Central Management Services -

for the State of Illinois, and Cook, DuPage, and Kane

Counties. Petitioners complained that they are only able to

make collect calls, are unable to take advantage of various

telephone calling options available to the general public and,

as a result, have been forced to pay allegedly excessive rates.

4

The district court dismissed petitioners’ complaint in its

entirety, ruling that the claims were barred by the filed rate

doctrine and within the primary jurisdiction of federal and

state regulatory agencies. The Seventh Circuit affirmed the

dismissal of petitioners’ claims in their entirety, holding, inter

alia, that the restricted access telephone systems at issue do

not violate petitioners’ rights under the First Amendment.

REASONS FOR DENYING THE WRIT

I. THE SEVENTH CIRCUIT DID NOT RULE THAT

PRISONERS HAVE NO FIRST AMENDMENT

RIGHT TO USE A TELEPHONE, AND DID NOT

CREATE A CIRCUIT SPLIT.

A. The Seventh Circuit Did Not Pronounce A New

Rule Regarding Prisoners’ First Amendment

Rights.

Petitioners have distorted the Seventh Circuit’s holding

to create the false impression that this Court must intervene

to address a significant departure from First Amendment

precedent. Petitioners rely on the Seventh Circuit’s.discussion

of the First Amendment rights of inmates and people they

call, in particular the court’s statement that “[n]ot to allow

[inmates] access to a telephone might be questionable on

other grounds, but to suppose that it would infringe the First

Amendment would be doctrinaire in the extreme.”

Pet. at 8. Contrary to petitioners’ portrayal, this statement

does not mean ‘that “the court below squarely held that

prisoners have no [First Amendment] rights.” /d. at 12.

‘First, the Seventh Circuit’s actual ruling was that costly

telephone use — or, in the Seventh Circuit’s language,

te pee SF OPA STOR ,

5

imposition of a “tax” on inmates’ telephone use — is not

actionable under the First Amendment. This ruling does not

“depart[] from this Court’s prior First Amendment decisions,”

as petitioners suggest. Pet. at 13. Indeed, the language

petitioners cite is found in the middle of the panel’s

discussion of Minneapolis Star, in which this Court held that

a use tax on the cost of paper and ink products violated the

First Amendment because it impermissibly burdened

newspapers’ freedom of press. Minneapolis Star & Tribune

Co. v. Minnesota Commissioner of Revenue, 460 U.S. 575,

591 (1983).

The Seventh Circuit distinguished Minneapolis Star,

reasoning that the special concerns present in that case

concerning the political process and the Framers’ desire to

ensure that any differential treatment of the press were not

at issue in Arsberry. Pet. App. at 49. Thus, the fact that

inmates want to use the telephone to communicate with

people outside the prison is not an “excuse for bringing the

taxation and regulation of telecommunications under

comprehensive judicial surveillance in the name of free

speech.” Jd.

Viewed in context, the statement petitioners challenge

simply reflects the panel’s holding that more expensive

telephone rates for inmates and people they call do not rise

to the level of a First Amendment violation. Contrary to

Minneapolis Star, there are no special circumstances here

that render the tax unduly burdensome in violation of the

First Amendment.

Second, the Seventh Circuit expressly acknowledged that

“communications the content of which ds protected by the

First Amendment are often made over the phone.” Pet. App.

6

at 48. That the telephone can be used to convey

constitutionally protected communications, however, did not

compel the Seventh Circuit to accept petitioners’ more

extreme view of “the telephone excise tax [as] an

infringement of free speech.” Jd. To the contrary, the Seventh

Circuit noted, “[a]ny regulation direct or indirect of

communications can have an effect on the market in ideas

and opinions, but that possibility in itself does not raise a

constitutional issue.” Jd. (citing, inter alia, Minneapolis Star,

460 U.S. at 581-83). “Otherwise, the entire tax and regulatory

operations of American government would be brought under

the rule of the First Amendment.” Jd.

Third, left unmentioned in the certiorari petition is the

Seventh Circuit’s observation that petitioners themselves

alleged that greed, not any desire to limit free speech, was

the motivation behind the collect-only telephone system —

thus taking the case outside the purview of Grosjean v.

American Press Co., 297 U.S. 233 (1936). Pet. App. at 48-

49. The Seventh Circuit noted that “greed” appeared to be a

curious accusation in this context, “considering that prisons

are costly to build, maintain, and operate, and that the

residents are not charged for their room and board.” Pet. App.

at 49. In this regard, the panel recognized that “[b]y what

combination of taxes and user charges the state covers the

expense of prisons is hardly an issue for the federal courts to

resolve.” Jd. If the Seventh Circuit had actually held that

prisoners and those with whom they communicate possess

no First Amendment rights, then the panel would have had

no reason to address the motivation underlying the challenged

conduct in dismissing petitioners’ First Amendment claim.

Fourth, petitioners fail to inform the Court that the

telephone company respondents have never argued that

é

t

7

inmates have no First Amendment right to use a telephone.

Respondents have always recognized that right, as limited

by the principles that the Supreme Court expressed in Turner

v. Safley and like case iaw. The Seventh Circuit’s holding

that petitioners’ First Amendment rights were not violated

responded to the arguments respondents advanced below.

In sum, the Seventh Circuit did not make any blanket

pronouncement that prisoners have no First Amendment right

to telephone access.

B. The Seventh Circuit’s Holding Is Consistent With

Other Circuits.

Petitioners attempt to isolate the Seventh Circuit by

arguing that other circuits have held that inmates have a First

Amendment right to telephone access. Pet. at 13-16. In their

zeal to conjure a circuit split, petitioners overlook the

holdings of the cases they cite. Every one of the prisoner

telephone acceSs cases petitioners present to this Court is

consistent with the Seventh Circuit’s holding in Arsberry:

¢ The three Ninth Circuit cases petitioners cite all

affirmed dismissal of inmates’ First Amendment

claims because the right to telephone access is

- subject to rational limitations. Johnson v. California,

207 F.3d 650, 656 (9th Cir. 2000); Keenan v. Hall,

83 F.3d 1083, 1092 (9th Cir. 1996); Strandberg v.

City of Helena, 791 F.2d 744, 747-48 (9th Cir. 1986).

See Pet. at 14.

¢ In Washington v. Reno, 35 F.3d 1093, 1100, 1104

(6th Cir. 1994), the Sixth Circuit held that plaintiffs

were unlikely to succeed on their First Amendment

8

claim that the prison phone system violated

their rights of free expression and association.

See Pet. at 14.

¢ The Eighth Amendment cases petitioners cite

likewise rejected First Amendment claims. Benzel

v. Grammar, 869 F.2d 1105, 1109 (8th Cir.), cert.

denied, 493 U.S. 895 (1989) (rejecting First

Amendment claims because internal security and

rehabilitation concerns justified prison telephone

policy); McDonald v. Armontrout, 908 F.2d 388, 392

(8th Cir. 1990) (restricting inmates to one hour per

week for personal telephone calls did not violate

First Amendment). See Pet. at 14.

¢ The same is true with respect to petitioners’ Tenth

Circuit cases. Young-Bey v. Swanson, 246 F.3d 684,

2001 WL 179798, *2 (10th Cir. Feb. 23, 2001)

(dismissing First Amendment claims for failure to

state a claim); Pope v. Hightower, 101 F.3d 1382,

1385 (11th Cir. 1996) (no First Amendment violation

because telephone restrictions were reasonably

related to legitimate penological objectives).

See Pet. at 14-15.

If any doubt remained about the Seventh Circuit’s

position on prisoners’ rights vis a vis other circuits, the

Seventh Circuit extinguished that doubt with its decision in

Israel v. Cohn, 248 F.3d 1158, 2001 WL 300710 (7th Cir.

March 27, 2001), issued approximately one week after

Arsberry. Judge Posner, who wrote the Arsberry opinion, was

on the Jsrael panel. In Jsrael, the Seventh Circuit affirmed

dismissal of an inmate’s First Amendment challenge to a

telephone policy that required pre-approval of telephone

9

numbers inmates wished to call. Jd. at *3. The Seventh Circuit

evaluated the policy under the standard set forth in Turner v.

Safley — the standard that petitioners claim the Seventh

Circuit abandoned. /d. at *1. In support of their decision, the

Seventh Circuit cited Thornburgh v. Abbott, 490 U.S. 401

(1989), Pope v. Hightower, 101 F.3d 1382 (11th Cir. 1996),

Washington v. Reno, 35 F.3d 1093 (6th Cir. 1994), Benzel v. -

Grammar, 869 F.2d 1105 (8th Cir. 1989), Strandberg v. City

of Helena, 791 F.2d 744 (9th Cir. 1986), Lopez v. Reyes, 692

F.2d 15 (Sth Cir. 1982), and Shimer v. Washington, 100 F.3d

506 (7th Cir. 1996) — cases that petitioners claim the Seventh

Circuit ignored. Jd. at *1-2.

Finally, the Seventh Circuit cited Arsberry, and the

particular language in Arsberry that petitioners challenge,

as part of its Turner v. Safley analysis. Jd. at *2. The Jsrael v.

Cohn decision makes clear that the Seventh Circuit stands

in line with the many other courts across the country that

have recognized inmates do have First Amendment rights,

but those rights may be limited by correctional authorities’

policies that are reasonably related to legitimate penological

interests.

II. PETITIONERS DO NOT STATE A VALID FIRST

AMENDMENT CLAIM.

The Court need go no further. It should deny the petition

for a writ of certiorari because there are no compelling

reasons to grant it: the Seventh Circuit has not entered a

decision that conflicts with the decision of another United

States Court of Appeals on the same important matter, and

the Seventh Circuit has not decided an important federal

question in a way that conflicts with the relevant decisions

of this Court. Courts across the country have consistently

10

reached the same conclusion that the Seventh Circuit reached

in this case: restricted access prison telephone systems that

result in costlier telephone calls do not violate anyone’s

constitutional rights. There are no burning, unresolved issues

that should compel the Court to grant the petition.

A. Petitioners’ First Amendment And Other

Constitutional Claims Fail Under Turner v. Safley.

In Turner, this Court firmly established the standard for

reviewing a prison regulation: “[W]Jhen a prison regulation

impinges on inmates’ constitutional rights, the regulation is

valid if it is reasonably related to legitimate penological

interests.” 482 U.S. at 89. “Legitimate penological interests”

include, for example, deterrence of crime and institutional

security. O’Lone v. Estate of Shabazz, 482 U.S. 342, 348

(1987). The Turner standard is “not demanding” and is “less

restrictive than the test ordinarily applied to the alleged

infringement of fundamental constitutional rights.” Young v.

Lane, 922 F.2d 370, 375 (7th Cir. 1991). Federal courts defer

even more to prison authorities when a state penal system is

involved. Turner, 482 U.S. at 85. The Turner standard applies

with equal force to the constitutional claims of persons

outside the prison environment who are affected by prison

regulations. Thornburgh v. Abbott, 490 U.S. 401, 411 n.9

(1989) (Turner standard applies to both inmates and outsiders

who interact with inmates).

Courts have had no difficulty applying the

Turner standard to prison rules related to telephone use. They

have consistently held that inmates do not have a

constitutional right to use prison telephones on their own

terms. See, e.g., Washington, 35 F.3d at 1100 (quoting Benzel,

869 F.2d at 1108 (“A prisoner has no right to unlimited

1]

telephone use.”’)). Rather, “a prisoner’s right to telephone

access is ‘subject to rational limitations in the face of

legitimate security interests of the penal institution.’ ” Jd.

(citation omitted). Prison administrators may decide the exact

nature of telephone service to be provided to inmates, as long

as any restrictions are reasonably related to legitimate

penological interests. Washington, 35 F.3d at 1100; see also

Turner, 482 U.S. at 89.

Courts repeatedly have determined that prisons restrict

inmates’ telephone access for security reasons and to prevent

telephone fraud. Washington, 35 F.3d at 1100; Pope, 101 F.3d

at 1385; Benzel, 869 F.2d at 1108-09; Arney v. Simmons, 26

F. Supp. 2d 1288, 1293-94 (D. Kan. 1998) (“In many court

opinions, it appears to be assumed that a legitimate

penological purpose is served by restrictions on telephone

access.... In this court’s opinion such a common sense

assumption is warranted.”). They repeatedly have held that

these restrictions help ensure that inmates do not harass

outsiders, including victims and witnesses, or conduct illegal

activity by telephone. Carter, 924 F. Supp. at 910; see also

Clark v. Plummer, 1995 WL 317015, *1 (N.D. Cal. May 18,

1995). Collect-only inmate telephone systems, in particular,

have repeatedly survived constitutional challenges.'

1. Johnson, 207 F.3d at 650; Daleure v. Kentucky, 119 F. Supp.

2d 683 (W.D. Ky. 2000), app. dismissed on other grounds, 2001

WL 1230558 (6th Cir. Oct. 17, 2001) (court of appeals lacked

jurisdiction because district court failed to explain determination to

enter judgment on fewer than all claims under Fed. R. Civ. P. 54(b));

Brock v. Bishop Robinson, No. S-99-3129 (D. Md. Oct. 25, 1999),

aff'd sub nom Lloyd v. Robinson, 217 F.3d 839 (4th Cir. 2000); Keeby

v. Indiana, No. 3:99-CV-0277 (N.D. Ind. June 17, 1999); Joost v.

Cornell Corrections, Inc., 1998 WL 939531 (D.R.I. Dec. 11, 1998);

(Cont’d)

12

Because other courts have repeatedly recognized that

restricted access telephone systems advance a prison’s

interest in security, there appears to be little need for the

Court’s guidance.’

B. The Restricted Access Telephone Systems Are

Content-Neutral And Have No Impact On Other

Means Of Communication.

This Court also already has made clear that inmates’ First

Amendment rights are not as extensive as non-inmates’

rights: “[MJaintaining institutional security and preserving

internal order and discipline are essential goals that may

require limitation or retraction of the retained constitutional

rights of ... convicted prisoners. .. .” Bell v. Wolfish, 441

U.S. 520, 546 (1979).

Where a plaintiff alleges that a prison restriction violates

the First Amendment, this Court has instructed courts to

consider, in particular, whether the restriction is content-

neutral, and whether there are alternative means of expression

(Cont'd) .

Arney, 26 F. Supp. 2d at 1288; Carter, 924 F. Supp. at 903; Demits v.

Tuso, 1996 WL 33972 (N.D. Cal. Jan. 17, 1996); Clark, 1995 WL

317015; Levingston v. Plummer, 1995 WL 23945 (N.D. Cal. Jan. 9,

1995); Loden v. Peters, 1995 WL 89951 (N.D. Ill. March 1, 1995);

McNeil v. Springborn, 1994 WL 48611 (N.D. Ill. Feb. 16, 1994);

Adams v. McGee, 1994 WL 544381 (D. Or. Sept. 26, 1994); Allen v.

Josephine County, 1993 WL 11948 (D. Or. Jan. 13, 1993), aff'd, 15

F.3d 1082 (9th Cir. 1994); Lane v. Hutcheson, 794 F. Supp. 877 (E.D.

Mo. 1992); Wooden v. Norris, 637 F. Supp. 543 (M.D. Tenn. 1986).

2. No evidentiary hearing was necessary to decide petitioners’

First Amendment claims under Jurner v. Safley. Spies v. Voinovich,

173 F.3d 398, 403-04 (6th Cir. 1999).

13

available. Bell, 441 U.S. at 551; Pell v. Procunier, 417 U.S.

817, 823-24 (1974) (prison-visitation restrictions do

not violate First Amendment where other means of

communication, such as mail, remain available). The fact

that the prison’s chosen communication system may be more

expensive or less convenient than other methods “does not

fundamentally implicate free speech values.” Jones, 433 U.S.

at 130-31.

Courts have had no difficulty applying this Court’s

standards to the restricted access prison telephone

systems challenged here. The collect-only systems do

not restrict speech or association based on the substance

of their communications: the systems are content-neutral.

Arney, 26 F. Supp. 2d at 1293. Moreover, telephone calls are

not petitioners’ only means of exercising their First

Amendment rights. Inmates may send mail to and receive

mail from almost anyone they choose. Inmates also may

receive visitors, including clergymen and attorneys, during

regular or extended visiting hours. The availability of these

alternatives undermines petitioners’ First Amendment claims.

Pope, 101 F.3d at 1385 (telephone restrictions do not violate

inmate’s First Amendment rights because “he could receive

visitors and correspond with virtually anyone he wished”);

Benzel, 869 F.2d at 1109 (no First Amendment violation

where telephone policy only limited inmates’ right to

communication by telephone, not their mail or visiting

privileges); Wooden, 637 F. Supp. at 555 (collect-only system

did not violate First Amendment rights of inmates or their

families where visitation and mail privileges were

unaffected).’

3. See also Pell, 417 U.S. at 828 n.5 (the fact that inmates may

be inarticulate or illiterate does not foreclose mail as a legitimate

(Cont'd)

14

With remarkable consistency, courts have determined

that restricted access prison telephone systems are content-

neutral and are rationally related to legitimate penological

interests. Moreover, they have determined that such systems

are merely one of several means by which inmates may

communicate with their families. There appears to be no

genuine debate among lower courts that the systems do not

violate petitioners’ First Amendment rights. There simply is

no issue presented that justifies granting the petition.

(Cont’d)

alternative means of communicating from prison, because an illiterate

inmate may ask others to help him write a letter to someone outside

the prison); Arney, 26 F. Supp. 2d at 1294 (plaintiffs’ allegations that

they were unable to write to and receive letters from people outside

the prison were “unconvincing” and insufficient to support First

Amendment claim); Carter, 924 F. Supp. at 911 (plaintiffs’ assertion

that some inmates or outsiders are illiterate is irrelevant to

constitutional inquiry).

15

CONCLUSION

The petition for certiorari should be denied.

Respectfully submitted,

CHARLES H.R. PETERS*

ScuirF HARDIN & WaITE

} 6600 Sears Tower

i Chicago, IL 60606

(312) 258-5683

Counsel for Respondent

AT&T Corp.

LesuiE M. SMITH

Juve B. Ruper

KIRKLAND & ELLIs

200 East Randolph Drive

Chicago, IL 60601

(312) 861-2000

Counsel for Respondent

Ameritech Services, Inc.

Ross B. BRICKER

Davip C. LAYDEN

JENNER & BLock, LLC

One IBM Plaza

Chicago, IL 60611

(312) 222-9350

Counsel for Respondent

MCI WORLDCOM

Network Services, Inc.

* Counsel of Record

16

Jay M. VoGELson

STUTZMAN & BROMBERG

2323 Bryan Street

Suite 2200

Dallas, TX 75201

(214) 969-4900

Counsel for Respondent

Evercom Systems, Inc. as successor in

interest to Defendant Invision Telecom

Gary SENNER

SANFORD M. PASTROFF

SONNENSCHEIN NATH

& ROSENTHAL

8000 Sears Tower

Chicago, IL 60606

(312) 876-8059

Counsel for Respondent —

Consolidated Communications

Public Services, Inc.