# Opposition Brief — Arsberry v. Illinois

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2001
- **Citation:** 534 U.S. 1062

## Text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_2373%3A2. Public record. Not legal advice.