Reply Brief — Arsberry v. Illinois

No. 01-352 J oe

a 4 Supreme Court, U °

IN THE | Freep

Supreme Court of the Gnited Sfates nov y

OCTOBER TERM, 2001

Katie Arsberry, Phyllis Brooks, Jeanne Gammonj Guadalupe |

Giron, Willie Mae Haggard, Linda Goodman, ‘Gearelyn——. —

Hawthorne, Susan Hazely, Mary High, Akua Hope, Arlene

Johnson, Anthony Maltese, Sandy Markiewicz, Catherine

Nystrom, Annie Ross, Jamillah Fields, Brenetta Glass, June

Dylla, Elizabeth Stewart, Midwest Center for Justice, Ltd.,

Lonnie Arsberry, Maya Haggard, John High, John Markiewicz,

Rodney Nystrom, Nathson Fields, Chris Brown, John Below,

Justin Wilcox, and Mary Weekly, on behalf of themselves and all

others similarly situated,

Petitioners,

-against-

State of Dlinois, Michael S. Schwarz, Director, Central

Management Services, Donald N. Snyder, Director, Illinois

Department of Corrections, Cook County, Dupage County, Kane

County, Ameritech Services, Inc., AT&T, Invision Telecom,

MCI Telecommunications Corporation, and Consolidated

Communications Public Services, Inc.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FOR THE SEVENTH CIRCUIT

REPLY BRIEF IN SUPPORT OF PETITION

FOR A WRIT OF CERTIORARI

Barbara J. Olshansky Stephen G. Seliger

Counsel of Record Seliger, Elkin & Dolan, Ltd.

Robert T. Perry 155 North Michigan Avenue

Center for Constitutional Rights Chicago, Illinois 60622

666 Broadway, Seventh Floor (312) 616-4244

New York, New York 10012

(212) 614-6439

Attorneys for Petitioners

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ........ccccccccccscccces ii

Fn POO TTT Te TTT TT CTO TT CTeT ET TTP ET OTT eT 1

I. THE SEVENTH CIRCUIT SQUARELY HELD

Il.

Il.

THAT INMATES HAVE NO FIRST

AMENDMENT RIGHTS TO USE THE

NTT POTEET TCT OPCC TTT OCTET 2

THE SEVENTH CIRCUIT’S DECISION

CREATES A SPLIT AMONG THE CIRCUITS

PETITIONERS HAVE STATED A VALID

FIRST AMENDMENT CLAIM .............. 5

CREME 05056600500 04006nbbsenenesneeasecess 7

ii

TABLE OF AUTHORITIES

FEDERAL CASES

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

OO, SIS TB, GES CUGGD) ncssesccerescnesccacscnsnsssressssscsies 4

Grossjean v. American Press Co., 297 U.S. 233 (1936) 0.0.2.2... 3

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

ee MIE i SINUIED sctitasinsciinpittstatictcnrinssnarisonteinin 5

Johnson v. California, 207 F.2d 650 (9th Cir. 2000) ................ 4

Minneapolis Star & Tribune Co. v. Minnesota Commissioner

of Revenue, 460 U.S. 575 (1983) .......cccccessescescecesceseee. 2

Pell v. Procunier, 417 U.S. 817 (1974) sessoocssssssssssssnsssssssneseeees 6

Procunier v. Martinez, 416 U.S. 396 (1974) ........cccccscsssseesseeees 6

Seminole Tribe of Florida v. Florida,

Ta PR ITED cs esarescnstchocthsnsedakaninsaiesesesiblaaseiannt 2

Turner v. Safley, 482 U.S. 78 (1987) ..........csscscssssessessseeeees 3, 4,6

Washington v. Reno, 35 F.3d 1093 (6th Cir. 1994) oo... 5

STATUTES

First Amendment to the

En MII IIIT osncsisntneccccsncnseseshicnsisecninesnaacest passim

REPLY BRIEF IN SUPPORT OF PETITION FOR WRIT

OF CERTIORARI

Petitioners Katie Arsberry, et al. respectfully submit this

reply brief in further support of their petition for a writ of

certiorari to review the judgment and opinion of the United States

Court of Appeals for the Seventh Circuit in Arsberry v. State of

Illinois, 244 F.3d 558 (7th Cir. 2001). ~

ARGUMENT

Petitioners have previously shown that the Seventh

Circuit’s Arsberry decision, holding that inmates have no First

Amendment rights to use the telephone, completely confounds

this Court’s First Amendment jurisprudence, and squarely

conflicts with the decisions of all other circuit courts of appeals

that have addressed the issue and acknowledged the First

Amendment rights of prisoners to speak with their families via

the telephone. The Seventh Circuit’s reasoning is premised —

either implicitly or explicitly - on four “rules” of the court

below’s own making: (i) that private conversations are generally

unworthy of First Amendment protection; (ii) that the First

Amendment generally only protects speech on matters of public

concern; (iii) that the opportunity to write letters and have visitors

extinguishes altogether any First Amendment rights that inmates

and their families may have in other means of communication

with each other; and (iv) that restrictions on inmate telephone

access, no matter how severe and no matter how unrelated to

valid penological interests, do not implicate the First Amendment

rights of inmates’ family members. These “rules” are completely

at odds with this Court’s First Amendment jurisprudence.

In their opposition to this petition, respondents attempt to

transform the critical sentence in the faulty opinion below from

the central holding of the case (on-inmates’ First Amendment

rights) into mere dictum. This, however, utterly distorts the

critical passages inthe Arsberry decision. Try as they might,

respondents cannot show that the Seventh Circuit did not mean

what it plainly said when it stated that inmates have no First

Amendment rights to use the telephone.

2

ARGUMENT

I. THE SEVENTH CIRCUIT SQUARELY HELD

THAT INMATES HAVE NO FIRST

AMENDMENT RIGHTS TO USE THE

TELEPHONE

Respondents urge the Court (at 4) to ignore the

Seventh Circuit’s remarkable statement that “not 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.” (A49)

That statement, however, cannot be ignored because it is the

basis on which the court below rejected petitioners’ First

Amendment claim. While it is true that the Seventh Circuit

ruled that costly inmate telephone service is not actionable

under the First Amendment (Resp’ts Br. at 4-5), that ruling

rested entirely on the court below’ s view that inmates have no

First Amendment rights to use the telephone. That view is as

much a part of the holding in the case as is the ultimate result.

Seminole Tribe of Florida v. Florida, 517 U.S. 44, 68 (1996)

(“When an opinion issues for the Court, it is not only the

result but also those portions of the opinion necessary to that

result by which we are bound”).

Contrary to respondents’ assertion (at 5), the Seventh

Circuit did not distinguish Minneapolis Star & Tribune Co. v.

Minnesota Commissioner of Revenue, 460 U.S. 575, 591

(1983), on the grounds that the “special concerns” present

there regarding the political process and differential treatment

of the press are lacking in this case. Indeed, the court below

never even mentioned those concerns. Rather, the Seventh

Circuit found Minneapolis Star inapposite because, in the

court below’s view, the content of inmate telephone calls,

unlike the content of newspapers, is very rarely entitled to

3

First Amendment protection. (A49) To be sure, the Seventh

Circuit acknowledged that “the telephone can be used to

convey communications that are protected by the First

Amendment.” (A49) Resp’ts Br. at 5. The court below,

however, also stressed -- in the very same sentence -- that “it

is extremely rare for inmates and their callers to use the

telephone for this purpose.” (A49)

Respondents argue (at 6) that the Seventh Circuit’s

discussion of the motivation underlying the adoption of the

inmate telephone system (and commission policy) at issue

here necessarily implies the court below’s recognition of

inmates’ First Amendment rights to use the telephone. To the

contrary, the Seventh Circuit discussed the issue of

motivation for the sole purpose of distinguishing this case

from Grosjean v. American Press Co., 297 U.S. 233 (1936),

not because it assumed that inmates have First Amendment

rights to use the telephone. (A48-49) Indeed, in the very next

paragraph of its opinion, the Seventh Circuit, as-already

noted, expressly stated that “it would be doctrinaire in the

extreme” to suppose that inmates have such First Amendment

rights. (A49)

If the Seventh Circuit had recognized that inmates

have First Amendment rights to use the telephone, as

respondents argue (at 6), it surely would have proceeded to

analyze the constitutionality of the inmate telephone system

(and commission policy) under the analysis set forth in

Turner v. Safley, 482 U.S. 78 (1987), just as respondents

purport to do (at 9-12) in their brief to this Court. The court

below however, never even mentioned, let alone discussed,

Turner. The only conclusion that can be drawn from this

omission is that the Seventh Circuit decided that inmates have

no First Amendment rights to use the telephone. This was

4

plainly the determinative factor in the court below’s decision

not to apply the Turner analysis.

Finally, it is utterly irrelevant that Respondents did not

argue below that inmates have no First Amendment rights to

use the telephone. Resp’ts Br. at 6-7. The critical fact is that

this is what the Seventh Circuit held.

Il. THE SEVENTH CIRCUIT’S DECISION

CREATES A SPLIT AMONG THE CIRCUITS

To be sure, every other circuit to consider First

Amendment challenges to restrictions on inmate telephone

service, in the final analysis, has rejected those specific

challenges. Resp’ts Br. at 7-9. In doing so, however, all of

these circuits recognized that inmates have some First

Amendment rights to use the telephone. See, e.g., Johnson v.

California, 207 F.3d 650, 656 (9th Cir. 2000) (“prisoners

have a First Amendment right to telephone access,” subject to

reasonable security concerns); Benzel v. Grammar, 869 F.2d

1105, 1108 (8th Cir.) (“prison inmates have a [First

Amendment] right to use the telephone for communication

with relatives and friends,” subject to reasonable security

concerns), cert. denied, 493 U.S. 895 (1989); Washington v.

Reno, 35 F.3d 1093, 1099-1100 (6th Cir. 1994) (prisoners

retain the First Amendment rights to communicate with

family and friends” via the telephone). Moreover, these

circuits rejected the First Amendment challenges to

restrictions on inmate telephone service only after they

applied the Turner analysis. The Seventh Circuit thus stands

alone, and in direct conflict with the great majority of circuits,

in refusing to recognize that inmates have First Amendment

rights to use the telephone.

2

Respondents (at 8-9) cite Israel v. Cohn, 248 F.3d

1158, 2001 WL 300710 (7th Cir. March 21, 2001) as support

for their position that the Seventh Circuit has not created a

conflict among the circuits. As Respondents concede (at 9),

however, the Seventh Circuit in Israel v. Cohn cited

approvingly the very language in Arsberry that places the

Seventh Circuit in direct conflict with other circuits.

Moreover, even assuming arguendo that the Seventh Circuit’s

decision in Israel v. Cohn implicitly rejects Arsberry’s

reasoning, that decision is unreported and thus entitled to no

precedential value under the Seventh Circuit’s own rules. 7th

Cir. R. 53(b)(4). Finally, the mere fact that a conflict may

exist within the Seventh Circuit on whether inmates have First

Amendment rights to use the telephone does not lessen the

conflict among its sister circuits on that issue.

Ill. PETITIONERS HAVE STATED A VALID

FIRST AMENDMENT CLAIM

Petitioners have previously shown that the inmate

telephone system at issue here is subject to scrutiny, not under

the deferential Turner analysis, but rather under traditional

intermediate scrutiny because the system reflects a purely

“budgetary” choice that does not implicate prison security,

control of inmate behavior, or the internal prison environment

and regime. Pet. at 20. Respondents do not even mention, let

alone address, this part of petitioners’ argument.

Contrary to respondents’ assertion (at 10-12), the

inmate telephone system at issue here even fails to survive

scrutiny even under the deferential Turner analysis.

Respondents, for example, entirely ignore the commission

policy, no doubt because they cannot show a “valid rational

~

6

connection” between that policy and legitimate penological

objectives. Turner, 482 U.S. at 90.

To be sure, inmates generally may send mail to their

families, friends, and loved ones on the outside, and vice-

versa, and inmates generally may receive visitors during

regular or extended visiting hours. Resp’ts Br. at 13. This

Court has made clear, however, that the availability of

alternative means of communication, though a relevant factor,

“does not extinguish altogether” an inmate’s “constitutional

interest” in other means of communication. Pell v. Procunier,

417 U.S. 817, 823-24 (1974). The same can be said of

inmates’ families, friends, and loved ones. For those of

petitioners -- the elderly and ill -- who cannot read or write

letters or leave the home, the telephone is the only means of

communication with family members, friends, or loved ones

in prison. (A18-19). In asserting (at 13) that the availability

of letters and visits undermine the First Amendment claims

here, respondents entirely fail to address -- as did the court

below -- this group of petitioners’ claims.’

' As petitioners have previously observed (Pet. at 18-19), the

inmate telephone system and the commission policy at issue here

implicate the First Amendment rights of both inmates and those

whom they call. This Court has made clear that the rights of

those on the outside who wish to communicate with inmates are

wholly independent and not derivative of an inmate’s rights. See

Procunier v. Martinez, 416 U.S. 396. 409 (1974).

CONCLUSION

For the reasons set forth above and in the petition

for a writ of certiorari, the petition should be granted.

Dated: New York, New York

November 15, 2001

Respectfully Submitted,

Barbara J. Olshansky*

Robert T. Perry

Center for Constitutional Rights

666 Broadway, Seventh Floor

New York, New York 10012

(212) 614-6439

Stephen G. Seliger

Seliger, Elkin & Dolan, Ltd.

155 North Michigan Avenue

Chicago, Ilinois 60622

(312) 614-4244

* Counsel of Record for Petitioners