Amicus Curiae Brief — Hammer v. Ashcroft

Supreme Court, U.S.

FILED

25 2008

No. 09-504 Nov

OFFICE OF THE CLERK

IN THE

Supreme Court of the Anited States

DAVID PAUL HAMMER, PETITIONER,

Vv.

JOHN D. ASHCROFT, ET AL.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF AMICI CURIAE OF THE REPORTERS

COMMITTEE FOR FREEDOM OF THE PRESS AND

TWENTY-THREE NEWS MEDIA ORGANIZATIONS

IN SUPPORT OF PETITIONER

Lucy A. Dalglish

Counsel of Record

Gregg P. Leslie

John Rory Eastburg

The Reporters Committee for

Freedom of the Press

1101 Wilson Blvd., Suite 1100

Arlington, Va. 22209

(703) 807-2100

(Additional counsel for amici listed in Appendix B.)

i

TABLE OF CONTENTS

TRIS OF AUOTIIIID vosinesiccsiscriesscconuenananee il

Statement of Interest................. cece cee ceceeecceeeeeeeceseenees 1

Summary Of ARGO wise nisiseccicsesssiccsocceneee 3

PPBUIIOI sccvinissdcisneresncenccsevdcesapeaeeeneeeeee 5

I. The decision below imperils valuable

communication between inmates‘and the press.. 5

A. Inmate interviews expose abuse and spur

PURI, POTN ao os ccencovssacreintsieaniveaneeea ee 6

B. Inmate interviews provide unique

insight into prison conditions.................cc.cee0e 8

C. Inmate interviews help citizens monitor

how their tax dollars are spent...................08. 10

II. The court below erred in approving a policy

that allows no method of uncensored

communication with the press..................0ccc0000s 12

A. Previous limits on inmate speech allowed

some means of uncensored communication .. 12

B. The Media Policy, as enforced, allows no

unfettered communication with the press .... 14

III. Public oversight of prisons will suffer if this

decision, allowing the content-based

suppression of speech, stands .......................005 17

A. The record shows the rules were an attempt

to keep the viewpoints of death row

inmates from the public..........................000000+ 19

B. The government failed to justify its

‘jail celebrity” rationale in this context ........ 22

CONROE UI II oo ova cicicskici'cveeacccasenediczeseee ae 24

il

TABLE OF AUTHORITIES

Abu-Jamal v. Price,

164 F.36 128 (Srd Cir. 1998)........cccccccscsssccrecesss 19

Beard v. Banks, 548 U.S. 521 (2006)...............:ccceeeeee 4

Bell v. Wolfish, 441 U.S. 520 (1979)....................000 17

Houchins v. KQED, 438 U.S. 1 (1978) ................. 5, 22

Johnson v. Avery, 393 U.S. 483 (1969).................006 13

Johnson v. Stephan,

6 F.3d 601 (10th Cir. 1998).............cccccsssecsesscess 14

Kimberlin v. Quinlan,

199 F.3d 496 (D.C. Cir. 1999)..................... 18, 19

Nolan v. Fitzpatrick,

ee ee ee COOE Ciar.. BOTTI) cecccncecdvsscsccessovescsces 13

Pell v. Procunier, 417 U.S. 817 (1974) .......0...02.. passim

Prison Legal News v. Cook,

Zo0 F.06 1146 (Oth Cir. 2001)..........:cccsscccsceconse 16

Procunier v. Martinez, 416 U.S. 396 (1974)....... 13, 22

Procunier v. Navarette, 434 U.S. 555 (1978).............. 6

Quinn v. Nix,

ee ee 116 Cth Cle. 1008).....iecesissesscccdccccsnvee 18

Salahuddin v. Goord,

OF Fat BOO CANE Cir. BO0G) ....ccscceccsscceseccccscess 18

Saxbe v. Washington Post Co.,

ME CBWE GD isc ssvenssessdescsesicandecessnbay passim

Sheppard v. Maxwell, 384 U.S. 333 (1966).............. 13

Shaw v. Murphy, 532 U.S. 223 (2001) ........ arate rr |

il

Swift v. Lewis, 901 F.2d 730 (9th Cir. 1990) ........... 18

Thornburgh v. Abbott, 490 U.S. 401 (1989)............. 13

Turner v. Safley, 482 U.S. 78 (1987) ..............006 passim

Walker v. Sumner,

917 F.2d 382 (Sth Cir. 19090).............c0ccccecccenee 18

STATUTES AND REGULATIONS

es eR ied as ee ae 20

Institution Supplement THA-1480.05A.............. passim

U.S. Supreme Court Rule 10(a)...............ccccsceeeeeeeeees 19

U.S. Supreme Court Rule 37 .......cccccccsccsccscccscccscssconses 1

OTHER

Noah Bierman and John Pacenti, State drops

effort to try guards for inmate’s death,

THE PALM BEACH POST,

BN iy, Mes We BO oesncecansatcencsovesssyrasscisicntarsesers 8

Barbara Brotman, Hard Time: Killer Says Prison

Caused the Mental Illness That’s Now

Keeping Him There, CHICAGO TRIBUNE,

EB Wes Say soiree cecancitetite hs sta eskscensecss 9

Amy Goldstein, A Sept. 11 Detainee’s Long

Path to Release; After Final Glitch, Ivory

Coast Native is Home, THE WASHINGTON

POCT, OOM. BE: Beren OE Tae cvcicdscatcnnivcevecsccaccecsas 10

Amy Goldstein, ‘’ Want to Go Home’,

Detainee Tony Oulai Awaits End of

4-Month Legal Limbo, THE WASHINGTON

PUT, CORE, Be Tes OE HE anterior doer satcccecincncssess 10

lv

Amy Goldstein and Dana Priest, Beset by

Medical Probiems as She Fights

Deportation, a U.S. Resident Struggles

to Get the Treatment She Needs, THE

WASHINGTON Post, May 12, 2008, at Al......... 10

Beth Healy, Breakdown: The Prison Suicide

Crisis; A system strains, and inmates die,

THE BOSTON GLOBE, Dec. 9, 2007, at Al............ 8)

Beth Kassab, 5 Guards Go Free in Killing:

Charges will be dropped in the fatal beating

death of death-row inmate Frank Valdes,

ORLANDO SENTINEL, May 11, 2002, at Al.......... 8

Susan Kuklin, NO CHOIRBOY: MURDER, VIOLENCE,

AND TEENAGERS ON DEATH ROW (2008).............. 9

Meg Laughlin, Inmate Letter Warned of Beatings,

THE MIAMI HERALD, July 27, 1999, at Al.......... 8

One in 31: The Long Reach of American

Corrections, THE PEW CENTER ON THE STATES,

March 2, 2009, available at

www.pewcenteronthestates.org ................:.::08 11

Alan Prendergast, Head Games, DENVER

WESTWORD NEWS, September 21, 2006,

available at www.westword.com/2006-09-

21/news/head-games..............cccceseeeseeeeeeeseeenecees 10

Michael Rezendes and Thomas Farragher,

Patrick aide spurns prison policy change;

Rejects call to ban solitary confinement

for the mentally ill, THE BOSTON GLOBE,

ey re Oe va casa desea aeas kaso ucadendadenciadsisiise’ 9

Gloria Romero, Access Needed to Report on Prison

Conditions, THE DAILY NEWS OF LOS

ANGELES, Apri! 29, 2004, at N17....000000.0 cc. 11

Rich Rucker, Prisons work to cut inmate abuse,

FLORIDA TIMES-UNION, Nov. 17, 2001, at B1..... 8

Jonathan Saltzman and Thomas Farragher,

Breakdown: The Prison Suicide Crisis;

Guards, inmates a volatile dynamic, |

THE BOSTON GLOBE, Dec. 11, 2007, at Al.......... )

Charies M. Sennott, AIDS adds a fatal factor

to prison assault: Rape Behind Bars,

THE BOSTON GLOBE, May 2, 1994, at Bl............ 8

Charles M. Sen:. tt, Prison system enacis

reforms to stop inmate rape, THE

BOSTON GLOBE, Nov. 9, 1994, B1 ...................000 8

Charles M. Sennott, Prison’s hidden horror:

Rape Behind Bars, THE BOSTON GLOBE,

By Be Oe Sriasencies Gasaeadsceinenkee colaeteseenes 8

Loretta Tofani, Improved Conditions Reduce

Assaults in P.G. Jail, THE WASHINGTON

POT, Eee. BE, TR, Ge BBE ceeescnsccescsecsccccessccveccevses 7

Loretta Tofani, Terror Behind Bars: Most

Victims of the Sexual Attacks are Legally

Innocent, THE WASHINGTON Post, Sept. 26,

BU IN EE. Gocpacncrrsaniovedigicenosireeereuraasternniesaaeeee 7

Loretta Tofani and Tom Vesey, Seven Are

Indicted in Sexual Assaults at Prince

George's Jail, THE WASHINGTON POST,

UE TE Fis WE TER scshenckccstasivicstsc cee *

1

STATEMENT OF INTEREST!

Amici curiae, described in Appendix A, are

twenty-four of the nation’s leading news media or-

ganizations — The Reporters Committee for Freedom

of the Press, Advance Publications, Inc., The Ameri-

can Society of News Editors, The Association of

American Publishers, Inc., The Citizen Media Law

Project, Community Newspaper Holdings, Inc., Cox

Media Group, Inc., The E.W. Scripps Company, The

First Amendment Coalition, The Foundation for Na-

tional Progress, Gannett Co., Inc., The Hoosier State

Press Association, The Hoosier State Press Associa-

tion Foundation, The Human Rights Defense Center,

MediaNews Group, National Press Photographers

Association, The New York Times Company, News-

paper Association of America, The Newspaper Guild

— CWA, The Radio-Television Digital News Associa-

tion, The Society of Professional Journalists,

Stephens Media LLC, Tribune Company, and The

Washington Post.

This case concerns an issue critical to the press

and the public in general: whether the federal gov-

ernment may prohibit death row inmates from talk-

ing to the press about the abuse, mistreatment, and

' Pursuant to Sup. Ct. R. 37, counsel for the amici curiae de-

clare that they authored this brief in total with no assistance

from the parties; that no individuals or organizations other

than the amici made a monetary contribution to the prepara-

tion and submission of this brief; that counsel for all parties

were given timely notice of the intent to file this brief; and that

written consent of all parties to the filing of the brief amici cu-

riae has been filed with the Clerk.

2

actions of other inmates; whether it may prohibit all

in-person interviews with death row inmates; and

whether these draconian restrictions may be valid

even where the officials responsible for the rules ad-

mitted they were motivated by a desire to keep disfa-

vored viewpoints from reaching the public.

3

SUMMARY OF ARGUMENT

David Hammer, like other men on the federal

government’s death row, was prohibited from speak-

ing in person with the press. He also was prohibited

from discussing any other inmate whether in person,

by phone, or by letter. Amici urge the Court to accept

this case and make clear that the Constitution does

not allow prison rules that provide inmates no means

of uncensored communication with the press — espe-

cially rules enacted with the express purpose of sup-

pressing distasteful viewpoints.

Prohibitions on inmate interviews imperil vital

communication. Through interviews with inmates,

journalists regularly expose prison rape and other

abuse, document poor conditions and unhealthy en-

vironments in the nation’s prisons and jails, allow

the public to monitor how its tax duilars are spent

within prisons, and spur reforms across the country.

See infra, Section I.

Recognizing the importance of the First Amend-

ment even in the prison context, this Court in Turner

v. Safley ruled that prisoner speech can be curtailed

only when a regulation “is reasonably related to le-

gitimate penological interests.” 482 U.S. 78, 89

(1987). Among other factors, the test considers

whether there is “a valid, rational connection be-

tween the prison regulation and the legitimate gov-

ernmental interest put forward to justify it,” and

whether “alternative means of exercising” First

Amendment rights “reniain open to prison inmates.”

Id. at 89-91. This Court repeatedly has made clear

that the Turner factors are “the basic substantive le-

gal standards” for judging regulations like the ones

4

at issue here. Beard v. Banks, 548 U.S. 521, 528-29

(2006).

But the en banc majority below did not even pur-

port to apply the Turner test, relying instead on ear-

lier cases.” As a result, the court approved restric-

tions that prevented death row inmates from having

any uncensored contact with the news media. The

Special Confinement Unit (SCU) Media Policy, as en-

forced, prohibited Hammer from speaking by any

means about the treatment, conditions, and activities

of other prisoners. Hammer produced evidence that

this was the case, and requested the opportunity to

develop more via discovery. But the case was dis-

missed before he could do so. See infra, Section II.

Moreover, the en banc court ratified rules that are

unrelated to penological interests. Indeed, there was

not even a pretext of penological concern until after

the rules were implemented. The Attorney General

who ordered the rules announced, at a press confer-

ence, that his interest was in preventing the public

from hearing the distasteful viewpoints of federal

death row prisoners. See infra, Section III.

2 For example, the en banc opinion begins by noting that report-

ers “have no constitutional right of access to prisons or their

inmates beyond that afforded to the general public.” App. la

(quoting Pell v. Procunier, 417 U.S. 817, 834 (1974)). This miss-

es the point. Pell dealt with the rights of reporters to gain ac-

cess to prisons. This case, like Turner, deals with the related

but analytically distinct right of an inmate to speak with the

press.

5

Amici do not dispute that incarceration necessi-

tates some limits on inmate rights and privileges. At

the same time, however, “[p]rison walls do not form a

barrier separating prison inmates from the protec-

tions of the Constitution.” Turner, 482 U.S. at 84.

This is especially important in the death row context,

because journalists generally cannot learn about

prison conditions from former death row inmates.

The Court should accept this case and make clear

that restrictions on prisoner speech must leave open

some means of uncensored communication with the

news media, and they must be motivated by pe-

nological, rather than merely political, interests.

ARGUMENT

I. The decision below imperils valuable com-

munication between inmates and the press.

Inmate interviews are valuable for exposing

abuse, documenting poor conditions and waste in

prisons, and promoting social reform and fiscal re-

sponsibility. In recent decades, prisoner interviews

and correspondence have allowed the press to report

about prison rape, prison violence, and the treatment

of vulnerable inmates.*

' Amici do not “confuse what is ‘good,’ ‘desirable,’ or ‘expedient’

with what is constitutionally commanded by the First Amend-

ment.” See Houchins v. KQED, 438 U.S. 1, 13 (1978). But these

examples show that the decision below is especially important

to correct because its effects stretch far beyond Hammer and

similarly-situated inmates, to affect the public’s understanding

of the penal system.

6

All of this is possible because reporters and au-

thors were able to interview inmates without gov-

ernment censorship. But the decision below permit-

ted blanket restrictions on the speech of death row

inmates. And the court’s reasoning is so broad that it

would seem to give prison officials the discretion to

curtail any inmate’s speech whenever a court can

“imagine” a legitimate reason for the restrictions (See

App. 5a).

A. Inmate interviews expose abuse and spur

prison reform.

Communications between prisoners and _ the

press, including discussions about other inmates,

have long played a valuable role in exposing inhu-

mane conditions and abuse in the country’s prisons

and jails.

For example, The Washington Post published a

Pulitzer Prize-winning investigative series on inmate

rape in 1982. The series told a litany of stories about

men detained at a Maryland jail — many later ac-

quitted — whose reports of rape were ignored by cor-

rections officials. The piece included the story of

‘The First Amendment rights of pretrial detainees and those of

post-conviction prisoners are analytically distinct. See, e.g., Pro-

cunier v. Navarette, 434 U.S. 555, 564 & n.11 (1978). Amici dis-

cuss examples involving both because the public interest in

speaking with both detainees and prisoners, in both the state

and federal systems, is similar. Indeed, there is a stronger in-

terest in interviewing death row inmates, who presumably wil!

never return to society, than those held at facilities former in.

mates of which can be interviewed after they leave

7

Ronald Fridge, an 18-year-old waiter who was briefly

jailed after a verbal dispute with his landlady over

rent. Fridge told reporters that another inmate raped

and assaulted him while he was awaiting trial. He

said he complained to corrections officials after the

first rape but was left in a cell with the aggressor for

two days, during which time he was raped “again

and again.” Another inmate interviewed by a re-

porter said he helped the alleged aggressor rape

Fridge.5 The story provided a unique window into a

dysfunctional jail, and it had two important effects:

three months after the story ran, the paper reported

that conditions had improved at the detention facility

due to new safety measures enacted in response to

the exposé.6 And the next month, a grand jury in-

dicted seven men implicated in sexual assaults un-

covered in the inmate interviews.’

Nor is this example unique. In 1994, the Massa-

chusetts Department of Corrections launched an ef-

fort to curb prison rape after a Boston Globe series

focused on inmates who told reporters they were

sexually assaulted and, in at least one case, in-

6 Loretta Tofani, Terror Behind Bars: Most Victims of the Sex-

ual Attacks are Legally Innocent, THE WASHINGTON Post, Sept

26, 1982, at Al

6 Loretta Tofani, Jmproved Conditions Reduce Assaults in P.G.

Jail, THE WASHINGTON Post, Dec. 31, 1982, at B1

’ Loretta Tofani and Tom Vesey, Seven Are Indicted in Sexual

Assaults at Prince George's Jail, THE WASHINGTON Post, Jan

14, 1983, at Al

8

fected with HIV — behind bars.’ Five months later,

the state prosecuted its first-ever prison rape case.?

In another case, a Florida death-row inmate alerted

a newspaper about beatings that later resulted in an

inmate’s death, imploring that someone “get the Feds

in here ... to stop this before someone gets killed.”!°

B. Inmate interviews provide unique insight

into prison conditions.

Aside from coverage of rape and other violence

against inmates, media interviews have exposed un-

healthy conditions and prisons’ failures to provide

medical assistance to inmates. For example, a 2007

Boston Globe series on prison conditions for the men-

tally ill incarcerated in Massachusetts examined the

soaring number of inmate suicides in the state dur-

8 Charles M. Sennott, Prison system enacts reforms to stop in-

mate rape, THE BOSTON GLOBE, Nov. 9, 1994, at B1; see Charles

M. Sennott, Prison’s hidden horror: Rape Behind Bars, THE

BOSTON GLOBE, May 1, 1994, at B1, Charles M. Sennott, AJDS

adds a fatal factor to prison assault: Rape Behind Bars, THE

BOSTON GLOBE, May 2, 1994, at B1.

9 Charles M. Sennott, Prison system enacts reforms to stop in-

mate rape, THE BOSTON GLOBE, Nov. 9, 1994, at B1.

\© Meg Laughlin, Inmate Letter Warned of Beatings, THE MLAMI

HERALD, July 27, 1999, at Al; see also Beth Kassab, 5 Guards

Go Free in Killing: Charges will be dropped in the fatal beating

death of death-row inmate Frank Valdes, ORLANDO SENTINEL,

May 11, 2002, at Al; Noah Bierman and John Pacenti, State

drops effort to try guards for inmate's death, THE PALM BEACH

Post, May 11, 2002, at 1A; Rich Rucker, Prisons work to cut

inmate abuse, FLORIDA TIMES-UNION, Nov. 17, 2001, at B1.

9

ing a two-year period.!! A special investigative team

interviewed a 28-year-old mentally-ill inmate who

twice had attempted suicide and described the hor-

rors of solitary confinement that had driven him to

the brink and other inmates over the edge.!? In the

wake of the series, state lawmakers called for swift

action to change the state’s treatment of the men-

tally ill behind bars.'%

Similarly, the Chicago Tribune profiled a former

death row inmate who developed paranoid schizo-

phrenia while on death row.'4 A 2008 book for young

adult readers featured interviews with death row

inmates sentenced for crimes they committed when

they, too, were teenagers.'!5 And the Denver West-

word News’s correspondence with inmate Troy

Anderson prompted a news report that the inmate

had been seeking evaluations for medications for two

‘1 Beth Healy, Breakdown: The Prison Suicide Crisis; A system

strains, and inmates die, THE BOSTON GLOBE, Dec. 9, 2007, at

Al.

12 Jonathan Saltzman and Thomas Farragher, Breakdown: The

Prison Suicide Crisis; Guards, inmates a volatile dynamic, THE

BOSTON GLOBE, Dec. 11, 2007, at Al.

13 Michael Rezendes and Thomas Farragher, Patrick aide

spurns prison policy change; Rejects call to ban solitary con-

finement for the mentally ill, THE BOSTON GLOBE, Dec. 12, 2007,

at B1.

'4 Barbara Brotman, Hard Time: Killer Says Prison Caused the

Mental Illness That’s Now Keeping Him There, CHICAGO

TRIBUNE, Dec. 1, 1991, at 1.

'5 Susan Kuklin, NO CHOIRBOY: MURDER, VIOLENCE, AND

TEENAGERS ON DEATH ROw (2008).

10

years and was told he would not be released from

solitary confinement without them. Days after the

alternative weekly newspaper inquired about the de-

lay, Anderson saw a psychiatrist.!®

Journalists’ communications with immigrants de-

tained in federal facilities also have helped shed light

on the post-Sept. 11, 2001 operation of immigration

detention centers. This included, for example, stories

about an Ivory Coast pilot held as a material witness

in a hijacking probe for four months before being in-

terviewed,!7 and a U.S. resident fighting deportation

who reported being unable to get proper care for tu-

mors and other medical problems in an Arizona

prison. !8

C. Inmate interviews help citizens monitor

how their tax dollars are spent.

Inmate health and safety aside, prisons and jails

represent a massive public investment. Interviews

16 Alan Prendergast, Head Games, DENVER WESTWORD NEWS,

September 21, 2006, available at www.westword.com/2006-09-

21/news/head-games.

'7 See Amy Goldstein, ‘ Want to Go Home’; Detainee Tony Oulai

Awaits End of 4-Month Legal Limbo, THE WASHINGTON POST,

Jan. 26, 2002, at Al; Amy Goldstein, A Sept. 11 Detainee’s Long

Path to Release; After Final Glitch, Ivory Coast Native is Home,

THE WASHINGTON Post, Nov. 12, 2002, at A3.

18 See Amy Goldstein and Dana Priest, In Custody, In Pain; Be-

set by Medical Problems as She Fights Deportation, a U.S. Resi-

dent Struggles to Get the Treatment She Needs, THE

WASHINGTON POsT, May 12, 2008, at Al.

2

11

with inmates rrovide one way for the public to moni-

tor how its money is being spent.

Today, only Medicaid costs are growing faster

than criminal corrections spending, which outpaces

state budget growth in education, transportation,

and public assistance.!9 Correctional facilities cost

‘states $47 billion in 2008, according to a Pew Center

of the States Report that revealed that one in thirty-

one adults, or 7.3 million Americans, are either in

prison, on parole, or on probation. The Pew report

found that fifteen states now spend more than $1 bil-

lion of their annual budgets on their correctional sys-

tems. Michigan, for example, dedicates 22% of its

general fund spending to its correctional systems.

Press interviews with inmates have iong helped

the public keep an eye on these essential, but very

expensive, public institutions. In North Carolina, for

example, journalists who interviewed an inmate dis-

covered that a prison doctor who was earning

$110,000 for full-time employment actually spent

less than two hours a day in the facility. After the

report, a class action suit against the doctor emerged,

the doctor resigned, and officials stepped up plans to

expand medical facilities for prisoners.2°

19 One in 31: The Long Reach of American Corrections, THE PEW

CENTER ON THE STATES, March 2, 2009, available at

http://www.pewcenteronthestates.org/report_detail.aspx?id=493

82.

20 Gloria Romero, Access Needed to Report on Prison Conditions,

THE DAILY News OF LOS ANGELES, April 29, 2004, at N17.

12

II. The court below erred in approving a policy

that allows no method of uncensored

communication with the press.

Despite the value of prisoner interviews, the SCU

Media Policy limits “all avenues of communication”

between prisoners and the press, providing what

Judge Wood called “an all-too-effective way to: pre-

vent the public from ever learning about” prisoner

abuse or unhealthy conditions. (App. 28a). The Pol-

icy, by forbidding one inmate from discussing an-

other inmate under any circumstances and regard-

less of the medium, eviscerates prisoners’ First

Amendment rights and undermines the public’s ac-

cess to a unique and important source of information

about prisons.

The First Amendment demands more. This Court

repeatedly has suggested that abridgements of in-

mates’ First Amendment rights are tolerated if, and

only if, alternative means of communication with the

press and other members of the public are available.

The lack of any free channel of communication be-

tween journalists and inmates is contrary to estab-

lished jurisprudence regarding prisoners’ rights and

this Court’s recognition that the conditions in U.S.

prisons are a matter that is both newsworthy and of

great public importance. See Pell v. Procunier, 417

U.S. 817, 830 n.7 (1974).

A. Previous limits on inmate speech allowed

some means of uncensored

communication.

Prisoners retain constitutional rights even while

incarcerated, including free speech rights and the

13

First Amendment right to petition the government

for a redress of grievances. Turner, 482 U.S. at 84

(citing Johnson v. Avery, 393 U.S. 483 (1969)). These

rights may be regulated as a consequence of incar-

ceration, but only if “there are alternative means. of

exercising the right that remain open to prison in-

mates.” Turner, 482 U.S. at 90.

The Court explained in Procunier v. Martinez that

the interest of “prisoners and their correspondents in

uncensored communication ... grounded as it is in

the First Amendment, is ... protected from arbitrary

governmental invasion.” 416 U.S. 396, 417-18 (1974),

overruled in part by Thornburgh v. Abbott, 490 US.

401 (1989) (citations omitted). In addition to the

speech interests at stake, contact with the press is

one essential method of petitioning the government.

Indeed, media coverage not only describes the crimi-

nal legal process, but also “guards against the mis-

carriage of justice by subjecting the police, prosecu-

tors, and judicial processes to extensive public scru-

tiny and criticism.” Sheppard v. Maxwell, 384 US.

333, 350 (1966); see also Nolan v. Fitzpatrick, 451

F.2d 545, 547 (1st Cir. 1971) (recognizing a constitu-

tional “right to send letters to the press concerning

prison matters” and adding that “[t]he argument

that the prisoner has the right to communicate his

grievances to the press and, through the press, to the

public is thus buttressed by the invisibility of prisons

to the press and the public: the prisoners’ nght to

speak is enhanced by the right of the public to hear’).

When this Court has ap} ved restrictions on

prisoner speech, it has done so in part because the

restrictions were narrow enough to allow alternative,

unfettered means of expression. Thus, in Saxbe, the

14

Court allowed a policy barring face-to-face communi-

cation in part because the policy allowed unlimited,

uncensored outgoing correspondence with journal-

ists, and prison authorities were required to “give all

possible assistance” to press representatives “in pro-

viding background and a specific report” concerning

any inmate complaints. Saxbe v. Washingten Post

Co., 417 U.S. 847-48 (1974). In Fell, the Court noted

that prison officials should be accorded deference

with regard to regulating “the entry of people into

the prisons for face-to-face communication with in-

mates.” Pell, 417 U.S. at 826. But this was only the

case “[s]o long as reasonable and effective means of

communication remain open and no discrimination

in terms of content is involved” in the policy. Jd.

Thus, the Pell Court approved restrictions on in-

person interviews in part because “it is clear that the

medium of written correspondence affords inmates

an open and substantially unimpeded channel for

communication with persons outside the prison, in-

cluding representatives of the news media.” Id. at

824. Both cases thus held that “[djenying media ac-

cess to conduct face-to-face interviews with inmates

is constitutional as long as alternative means for

communicating with the media are available.” John-

son v. Stephan, 6 F.3d 691, 692 (10th Cir. 1993) (em-

phasis added).

B. The Media Policy, as enforced, allows

death row prisoners no unfettered com-

munication with the press.

The en banc majority recognized this Court’s ad-

monition that regulations on prisoner speech should

include some manner of unfettered communication

with the press. “A system of rules that permitted

15

prison administrators to conceal beatings or starva-

tion of prisoners, violations of statutes and regula-

tions, and other misconduct would be intolerable,” it

conceded. (App. 13a). “The Court said as much in Pell

and [Saxbe]. It was important to both decisions that

all prisoners could correspond freely with reporters,

even though face-to-face interviews were impossible.”

(Id.).

The court below nevertheless approved the SCU

Media Policy’s interview restriction, in part because

it assumed that written correspondence provided an

inmate with a reasonable alternative means of com-

munication. “As far as we can tell,” the en banc ma-

jority found, the prohibition on speaking about other

inmates “applies to interviews (in person or by tele-

phone) but not to correspondence.” (App. 13a). The

majority assumed that “an inmate’s letters to report-

ers are not subject to inspection or censorship” and

concluded that if “another inmate is beaten and un-

able to talk, Hammer remains free to:send a letter

informing a reporter about that event. Peli and

(Saxbe}] held that free correspondence supplies the

needed channel of communication.” (App. 2a, 14a-

15a).

But the record reflects a different reality, Judge

Rovner noted, in which “an inmate could be disci-

plined for informing the media — whether on the

phone or by letter — that another inmate is being

abused by a guard.” (App. 20a). Contrary to the ma-

jority’s assumptions, the government conceded that

“death-row inmates are not allowed — through any

method of cormmmunication — to discuss other inmates

with members of the media.” (App. 19a-20a). It also

conceded that “all mail sent by inmates at the Spe-

16

cial Confinement Unit must be given to prison offi-

cials unsealed for inspection before it is mailed.”

(App. 20a). And “[w]hen asked what would be the

consequence to an inmate who sends a letter discuss-

ing another inmate, counsel for the government had

no answer.” (/d.). Indeed, the record reveals that

Warden Harley Lappin told Hammer that: “You are

hereby ordered not to provide any information con-

cerning other inmates during news media interviews,

social calls, or correspondence with the media.” (App.

25a). At one point, prison officials even “disciplined

Hammer for providing information about a fellow

death row inmate to a reporter.” (App. 33a).

Hammer was not permitted discovery in order to

fully develop the record — rather than respond to his

discovery requests, the government sought, and re-

ceived, summary judgment in its favor. (App. 36a); cf.

Prison Legal News v. Cook, 238 F.3d 1145, 1150 (9th

Cir. 2001) (“When the inmate presents sufficient ...

evidence that refutes a common-sense connection be-

tween a legitimate objective and a prison regulation,

... the state must present enough counter-evidence to

show that the connection is not so remote as to ren-

der the policy arbitrary or irrational”) (internal cita-

tions omitted). On the anemic and fuzzy record that

did exist, Judge Wood noted, the court was left to

guess “whether there is any satisfactory alternative

for inmates at the Special Confinement Unit to give

the media any information that involves other in-

mates.” (App. 20a). The majority simply assumed

that, “[a]s far as we can tell,” inmates were able to

send uncensored mail to journalists. (App. 13a).

And this is no small assumption. “Without the

linchpin provided by its assumption that correspon-

17

dence is free,” Judge Wood argued, “the majority’s

rationale collapses.” (App. 20a). At the very least,

Hammer deserves the opportunity to prove his claim

that the Policy, as enforced, left him with no means

of unfettered communication with the media.

Ili. Public oversight of prisons will suffer if

this decision, allowing the content-based

suppression of speech, stands.

The primary test of whether a regulation on in-

mate speech is permissible is whether there is a

“valid, rational connection between the prison regu-

lation and the legitimate governmental interest put

forward to justify it.” Turner, 482 U.S. at 89 (internal

quotation omitted).

To meet this test, “the governmental objective

must be a legitimate and neutral one. We have found

it important to inquire whether prison regulations

restricting inmates’ First Amendment rights oper-

ated in a neutral fashion, without regard to the con-

tent of the expression.” Jd. at 89-90 (citing Pell, 417

U.S. at 828; Bell v. Wolfish, 441 U.S. 520, 551

(1979)). Moreover, “a regulation cannot be sustained

where the logical connection between the regulation

and the asserted goal is so remote as to render the

policy arbitrary or irrational.” Turner, 482 U.S. at

89-90. These considerations are “[flirst and foremost”

among the Turner factors — if “the connection be-

tween the regulation and the asserted goal is ‘arbi-

trary or irrational,’ then the regulation fails, irre-

spective of whether the other factors tilt in its favor.”

Shaw v. Murphy, 532 U.S. 223, 229-30 (2001).

18

Other circuits have interpreted Turner as requir-

ing that “prison officials actually had, not just could

have had, a legitimate reason for burdening pro-

tected activity.” Salahuddin v. Goord, 467 F.3d 263,

277 (2nd Cir. 2006) (emphasis added); see also Quinn

v. Nix, 983 F.2d 115, 118 (8th Cir. 1993) (“Prison offi-

cials are not entitled to the deference described in

Turner ... if their actions are not actually motivated

by legitimate penological interests at the time they

act.”) (emphasis added). Because “deference does not

mean abdication,” Turner requires authorities to

“first identify the specific penological interests in-

volved and then demonstrate both that those specific

interests are the actual bases for their policies and

that the policies are reasonably related to the fur-

therance of the identified interests. An evidentiary

showing is required as to each point.” Walker v.

Sumner, 917 F.2d 382, 385-87 (9th Cir. 1990); see al-

so Swift v. Lewis, 901 F.2d 730, 731 (9th Cir. 1990),

superseded by statute on other grounds (reversing

summary judgment grant where officials failed to

show “that the interests they have asserted are the

actual bases for their grooming policy’); Kimberlin v.

Quinlan, 199 F.3d 496, 502 (D.C. Cir. 1999) (“even if

appellants provide an objectively valid reason for

their actions in this case, the District Court must

still inquire into whether there is a disputed issue of

fact as to whether appellants were actually moti-

vated by an illegitimate purpose’).

Thus, Turner upheld a restriction on correspon-

dence because there was testimony that the restric-

tion “was promulgated primarily for security rea-

sons” and “[p]rison officials testified that mail be-

tween institutions can be used to communicate es-

cape plans and to arrange assaults and other violent

19

acts.” Turner, 482 U.S. at 91. Conversely, the Third

Circuit ordered a district court to enjoin a prison pol-

icy because prison authorities investigated an inmate

“under public pressure to do so, and because of the

content of [his] writing.” Abu-Jamal v. Price, 154

F.3d 128, 134 (3rd Cir. 1998); see also Kimberlin, 199

F.3d at 503 (citing lower court finding that “no rea-

sonable prison official could believe that interfering

with an inmate’s access to the press because of the

content of the inmate’s speech could be lawful”).

The court below rejected this reading of Turner,

finding it irrelevant whether the government’s as-

serted interest was pretextual and rejecting the idea

that “one bad motive would spoil a rule that is ade-

quately supported by good reasons.” (App. 10a). “The

Supreme Court did not search for ‘pretext’ in Turner;

it asked instead whether a rule is rationally related

to a legitimate goal. That’s an objective inquiry,” the

court ruled. (App. 10a). This reading eviscerates

Turner. It also creates a split with the Second, Third,

Eighth Ninth, and District of Columbia circuits with

regard to an important federal question. See Sup. Ct.

R. 10(a).

A. The record shows the rules were an at-

tempt to keep the viewpoints of death

row inmates from the public.

There is no evidence in the record, beyond post-

hoc assertions, suggesting that the SCU Media Policy

was motivated by any penological interest. To the

contrary — the record shows that the policy was mo-

tivated by political concerns over suppressinz par-

ticular viewpoints rather than a concern for safety.

20

Federal regulations have long allowed inmates to

participate in face-to-face press interviews, “not sub-

ject to auditory supervision,” unless the warden de-

termines that a specific interview would “endanger

the health or safety of the interviewer, or would

probably cause serious unrest or disturb the good or-

der of the institution,” or other specific criteria are

met. 28 C.F.R. § 540.63. The SCU Media Policy cre-

ates an exception for death row inmates, flatly pro-

hibiting in-person interviews and barring any dis-

cussion of other inmates.?!

The Policy was created just after Timothy

McVeigh appeared on the television news program

60 Minutes. North Dakota Senator Byron L. Dorgan

blasted prison officials for allowing McVeigh to speak

with a television news crew. “The American people

have a right to expect that the incarceration of a con-

victed killer will not only remove him physically from

society,” he said, “but will also prevent him from fur-

ther intrusion in our lives through television inter-

views and from using those forums to advance his

agenda of violence.” (App. 8a). Dorgan’s letter de-

manded that the Bureau of Prisons revise its regula-

tions and curtail prisoner access to the media so as

not to further “dishonor” crime victims. (7th Cir. JA

at 175). Of course, the letter reveals Dorgan’s per-

sonal distaste for the content of what an inmate said,

2! As Hammer notes, singling out male death row inmates also

creates equal protection concerns. See Cert. Pet. 13 (“no other

reported decision has ever upheld the constitutionality of a per-

manent restriction on the First Amendment rights of a subclass

of prisoners, particularly a subclass identified solely based on

gender and sentence”) (emphasis omitted).

21

rather than any concern that the prisoners and em-

ployees of the SCU were being put at risk by

McVeigh’s comments.

Dorgan’s viewpoint-based motivation was echoed

by Attorney General John Ashcroft during a press

conference announcing the new SCU media policy in

April 2001. Standing with Bureau of Prisons Director

Kathleen Hawk Sawyer, Ashcroft invoked his dis-

taste for McVeigh’s appearance on 60 Minutes to jus-

tify the new ban. “As an American who cares about

our culture, I want to restrict a mass murderer’s ac-

cess to the public podium,” he said. (App. 90a). “On

an issue of particular importance to me as attorney

general of the United States, I do not want anyone to

be able to purchase access to the podium of America

with the blood of 168 innocent victims.” (/d.).

For these reasons, Ashcroft said, he was ordering

that “[mjedia access to special confinement unit in-

mates will be limited to each inmate’s ordinary al-

lotment of telephone time.” (Jd.) Warden Harley

Lappin formalized the ban with Institution Supple-

ment THA-1480.05A just three days after the Attor-

ney General’s statement. (App. 9a). Ashcroft’s state-

ment made clear that his preferences about view-

points suitable for American culture motivated the

interview ban. This frank admission belies any no-

tion that security threats, either real or potential,

were at the heart of the ban.

Amict recognize the discretion this Court has

granted to prison administrators to curtail in-person

interviews with inmates when legitimate interests

are at stake and alternatives for communication are

present. See Pell, 417 U.S. at 822; Saxbe, 417 US. at

22

847. Amici respectfully suggest that Pell and Saxbe

underestimated the importance of in-person prisoner

interviews.2? But there is no need to revisit Pell and

Saxbe in order to clarify that, where such restrictions

are put in place, they must legitimately be motivated

by the security concerns present in those cases. The

Constitution does not permit the government to cloak

content-based restrictions on prisoner speech in post-

hoc claims of security concerns. Nor does it permit

regulations, like these, aimed at suppressing objec-

tionable points of view. See, e.g., Martinez, 416 U.S.

at 415 (invalidating regulations that “authorized, in-

ter alia, censorship of statements that ‘unduly com-

plain’ or ‘magnify grievances,’ expression of ‘inflam-

matory political, racial, religious or other views,’ and

matter deemed ‘defamatory’ or ‘otherwise inappro-

priate”).

BR. The government failed to justify its “jail

celebrity” rationale in this context.

The court below found that the SCU Media Policy

is justified by security concerns unique to death row

inmates. (App..57a). But these post-hoc assertions

are not sufficient even under the deferential scrutiny

articulated in Turner.

22 There is no wholly adequate alternative to the in-person in-

terview. See, e.g., Saxbe, 417 U.S. at 854 (Powell, J., dissenting)

(citing expert testimony and adding that “[o]nly in face-to-face

discussion can a reporter put a question to an inmate and re-

spond to his answer with an immediate follow-up question”).

This is particularly true for broadcasters, who rely on images

and recordings to tell their stories. See Houchins v. KQED, 438

U.S. 1, 17 (1978) (Stewart, J., concurring in the judgment).

23

The court defended singling out death row prison-

ers based on a concern they will become “jail celebri-

ties” if they are allowed face-to-face interviews with

the press. It is common for prison officials to make

similar claims in support of restrictions upon media

access to inmates. See, e.g., Pell, 417 at 831-832. The

Saxbe Court thus found that “inmates who are con-

spicuously publicized because of their repeated con-

tacts with the press tend to become the source of

substantial disciplinary problems that can engulf a

large portion of the population at a prison.” 417 U.S.

at 848-849. The concern under this theory is that

media interviews with this type of inmate “increase

their status and influence and thus enhance their

ability to persuade other prisoners to engage in dis-

ruptive behavior.” Id. at 866 (Powell, J., dissenting).

The concerns presented in Pell and Saxbe may be

reasonable in their specific factual settings, but the

government produced no evidence that they apply

with any special force to death row prisoners. As

Judge Rovner noted, “[i]t is unclear why speaking in-

person with a journalist would give an unknown

death-row inmate more influence over other prison-

ers than would, for example, allowing Martha Stew-

art or George Ryan to give face-to-face interviews

during their incarceration, which they would have

been or are free to do under the Bureau’s policies.”

(App. 22a).

If anything, the day-to-day conditions of life on

death row make it far less likely that an inmate

could wreak havoc with his or her perceived status as

a celebrity. The isolated lives of Hammer and his fel-

low SCU inmates hardly present an opportunity for

Hammer to use any prestige or notoriety he may re-

24

ceive from an in-person media interview to encourage

disruptive behavior in others. Life in the SCU is

tightly regulated. There are three classifications for

inmates, only one of which allows any contact be-

tween inmates. (7th Cir. JA at 200). Even that al-

lowed contact is highly regulated — only four in-

mates may be placed in the same recreation enclo-

sure. (Jd. at 206). If a prisoner needs to leave the

SCU for any reason, he must be “restrained in front

with full restraints, handcuffs, black box, martin

chain and ieg irons.” (Jd. at 200). During such an out-

ing, the prisoner must be escorted by no fewer than

three guards. (Jd.) And, regardless of their classifica-

tion, inmates are not allowed contact social visits.

(Id. at 208).

At the very least, Hammer deserves the opportu-

nity to take discovery on the sincerity and reason-

ableness of the asserted penological interest. But the

government refused to answer his pro se discovery

requests, and the court below nevertheless affirmed

the defendants’ motion for summary judgment and

dismissed Hammer’s claims. (App. 36a).

CONCLUSION

The government has imposed a brvuad ban on

prisoner interviews, motivated by a professed desire

to gag unwelcome content and disfavored viewpoints.

Such a broad and ill-conceived ban infringes on

Hammer’s rights, but ‘the effects go far beyond the

harm to any individual prisoner.

The SCU Media Policy broadly suppresses valu-

able speech, and the record suggests it does so by de-

sign. As the panel decision below noted, “it can be an

25

easy thing for an inmate to allege that prison offi-

cials are lying about the rationale behind a prison

restriction.” (App. 45a). But where, as here, an in-

mate “back[s] up his allegations with admissible evi-

dence from which a reasonable jury could infer that

an illegitimate reason lies behind the interview ban,”

he deserves the opportunity to prove his case. (/d.).

Amici respectfully request that the Court accept

review of the decision below.

Respectfully submitted,

Lucy A. Dalglish

Counsel of Record

Gregg P. Leslie

John Rory Eastburg

The Reporters Committee

for Freedom of the Press

1101 Wilson Blvd., Ste. 1100

Arlington, VA 22209-2211

(703) 807-2100

November 25, 2009

(Additional attorneys listed in Appendix B.)

A-1

APPENDIX A

Descriptions of amici:

The Reporters Committee for Freedom of the

Press is a voluntary, unincorporated association of

reporters and editors that works to defend the First

Amendment rights and freedom of inforrnation inter-

ests of the news media. The Reporters Committee

has provided representation, guidance and research

in First Amendment and Freedom of Information Act

litigation since 1970.

Advance Publications, Inc., directly and through

its subsidiaries, publishes over 20 magazines with

nationwide circulation, daily newspapers in over 20

cities, and weekly business journals in over 40 cities

throughout the United States. It also owns, directly

or through its subsidiaries, many internet sites and

has interests in cable systems serving over 2.3 mil-

lion subscribers.

With some 600 members, ASNE is an organiza-

tion that includes directing editors of daily newspa-

pers throughout the Americas. ASNE changed its

name in April 2009 to the American Society of News

Editors and approved broadening its membership to

editors of online news providers and academic lead-

ers. Founded in 1922, as the American Society of

Newspaper Editors, ASNE is active in a number of

areas of interest to top editors with priorities on im-

proving freedom of information, diversity, readership

and credibility of newspapers.

The Association of American Publishers, Inc.

(‘AAP”) is the national trade association of the U.S.

book publishing industry. AAP’s members include

most of the major commercial book publishers in the

A-2

United States, as well as smaller and non-profit pub-

lishers, university presses, and scholarly societies.

AAP members publish hardcover and paperback

books in every field, educational materials for the

elementary, secondary, postsecondary, and profes-

sional markets, scholarly journals, computer soft-

ware, and electronic products and services. The As-

sociation represents an industry whose very exis-

tence depends upon the free exercise of rights guar-

anteed by the First Amendment.

The Citizen Media Law Project ("“CMLP") pro-

vides legal assistance, education, and resources for

individuals and organizations involved in online and

citizen media. CMLP is jointly affiliated with Har-

vard University’s Berkman Center for Internet & So-

ciety, a research center founded to explore cyber-

space, share in its study, and help pioneer its devel-

opment, and the Center for Citizen Media, an initia-

tive to enhance and expand grassroots media. CMLP

is an unincorporated association hosted at Harvard

Law School, a non-profit educational institution.

CMLP has previously appeared as an amicus on legal

issues of importance to the media, including in Bank

Julius Baer & Co. v. Wikileaks.org, No. O08CV824

(N.D. Cal. Feb. 26, 2008), Hatfill v. Mukasey, No.08-

5049 (D.C. Cir. March 28, 2008), Maxon v. Ottawa

Publishing Co., No. 2008-MR-125 (Ill. App. Ct. Mar.

24, 2009), The Mortgage Specialists, Inc. v. Implode-

Explode Heavy Industries, Inc., No. 2009-0262 (N.H.

June 30, 2009), and United States v. Stevens, No. 08-

769 (S. Ct. July 24, 2009).

Community Newspaper Holdings, Inc. (“CNHI”),

through its subsidiaries, owns newspapers, television

stations, Web sites and niche publications that serve

more than 150 communities throughout the United

A-3

States. Its titles include The Tribune Star, which is

nearby the United States Penitentiary in Terre

Haute, Indiana.

Cox Media Group, Inc. (“CMG”) is a Delaware

privately-held corporation. CMG’s direct and indirect

subsidiaries and affiliates include companies that

own and operate a variety of news media, including

television stations, radio stations, newspapers and

websites in multiple markets throughout the United

States.

The E.W. Scripps Company is a diverse, 130-year-

old media enterprise with interests in television sta-

tions, newspapers, local news and information Web

sites, and licensing and syndication. The company’s

portfolio of locally focused media properties includes:

10 TV stations (six ABC affiliates, three NBC affili-

ates and one independent); daily and community

newspapers in 13 markets and the Washington,

D.C.-based Scripps Media Center, home of the

Scripps Howard News Service; and United Media,

the licensor and syndicator of Peanuts, Dilbert and

approximately 150 other features and comics.

The First Amendment Coalition is a nonprofit

public interest organization dedicated to defending

free speech, free press, and open-government rights

in order to make government, at all levels, more ac-

countable to the people. The Coalition’s mission as-

sumes that government transparency and an in-

formed electorate are essential to a self-governing

democracy. To that end, we resist excessive govern-

ment secrecy (while recognizing the need to protect

legitimate state secrets) and censorship of all kinds.

The Foundation for National Progress is a non-

profit, public benefit corporation and the publisher of

A-4

Mother Jones magazine in print and online. Mother

Jones has been involved in investigative journalism

for more than thirty years, during which time it has

won numerous awards, including five National

Magazine Awards, most recently for General Excel-

lence in 2001 and 2008. With a paid circulation of

230,000, Mother Jones magazine is the most widely

read avowedly progressive publication in the United

States. Regardless of the political inclinations of the

administration in power, however, Mother Jones has

relentlessly pursued investigations of the nation’s

most powerful and socially significant institutions,

including the nation’s prison system. Access to in-

mates is an indispensible prerequisite for meaningful

investigation of and reporting on the prison system

in particular and on the justice system as a whole. It

is already extremely difficult to obtain such access,

and granting penal authorities unfettered discretion

to determine whether, when, and what inmates can

communicate to the press will make it virtually im-

possible.

Gannett Co., Inc. (“Gannett”) is an internationai

news and information company that publishes 84

daily newspapers in the United States, including

USA TODAY and The Indianapolis Star, and nearly

850 non-daily publications, including USA Weekend,

a weekly newspaper magazine. Gannett also owns 23

television stations, and over 100 U.S. websites that

are integrated with its publishing and broadcast op-

erations.

The Hoosier State Press Association (“HSPA”) is a

corporate association whose members include 176

Indiana newspapers. The primary focus of the HSPA

is to safeguard and advance the newspaper industry

A-5

in the State of Indiana. The corporation is nonpoliti-

cal and nonsectarian.

The Hoosier State Press Association Foundation

is a non-profit entity whose members include 176

Indiana newspapers and other parties interested in

the Foundation’s mission. The purpose of the Foun-

dation is to enhance the ability of Indiana newspa-

pers to fully educate and inform the public, and to

defend the principles of the First Amendment to the

United States Constitution.

The Human Rights Defense Center (HRDC) is a

non-profit, charitable corporation that publishes a

nationally distributed monthly journal called Prison

Legal News. Since 1990, Prison Legal News has re-

ported on news, recent court decisions, and other de-

velopments relating to the civil and human rights of

prisoners in the United States and abroad. PLN has

the most comprehensive coverage of detention facility

litigation of any publication. In addition to reporting

on the human and civil rights of prisoners, PLN also

reports on the rights of crime victims, prison and jail

employees, and prison and jail visitors. PLN has ap-

proximately 7,000 subscribers in all fifty states and

abroad and eight times as many readers. Approxi-

mately sixty-five percent of PLN subscribers are

state and federal prisoners. The remainder are at-

torneys, judges, advocates, journalists, academics

and concerned citizens. PLN’s website,

www.prisonlegalnews.org receives approximately

100,000 visitors per month. In addition to publishing

Prison Legal News, PLN has regularly filed litigation

under the First Amendment in federal courts na-

tionwide, challenging prison officials who censor

PLN.

A-6

MediaNews Group is one of the largest newspaper

companies in the United States. It operates or has an

ownership interest in 54 daily newspapers in 11

states, with combined daily and Sunday circulation

of approximately 2.4 million and 2.7 million, respec-

tively. Each of its newspapers maintains a Web site

focused on local news content, hosted by MediaNews

Group Interactive. MediaNews Group also owns a

television station in Anchorage, Alaska, and operates

radio stations in Texas. The MediaNews Group

newspapers and broadcast stations report on a vast

variety of subjects, but crime, the punishment of

criminals, the prison system, and the judicial system

as a whole are the subject of constant investigation

and reporting. This reporting includes, among other

things, extensive coverage of the ongoing controversy

regarding the methodology used for executions by le-

thal injection. Experience has taught the press that

authorities in charge of penal institutions cannot

necessarily be trusted to provide complete or accu-

rate information about the conditions within them,

and even the most forthright cannot provide the per-

spective of their inmates. If restrictions on inmates’

ability to communicate can be imposed at the whim

of the authorities, it is predictable — indeed inevita-

ble — that information critical to the public’s assess-

ment of the efficacy and propricty of the conduct of

those charged with operating the nation’s prisons

will be suppressed, shielding from scrutiny and ac-

countability those who need it most.

National Press Photographers’ Association

(NPPA) is a non-profit organization dedicated to the

advancement of photojournalism in its creation, edit-

ing and distribution. NPPA’s almost 9,000 members

include television and still photographers, editors,

A-7

students and representatives of businesses that

serve the photojournalism industry. Since its found-

ing in 1946, the NPPA has vigorously promoted free-

dom of the press in all its forms, especially as that

freedom relates to photojournalism. Given NPPA’s

over sixty year history in photojournalism, it is well-

poised to address the importance of public access to

prison issues and to explain how today, such access

greatly depends on the presence of audio-visual cov-

erage, which by its very nature necessitates in-

person interviews.

The New York Times Company is the publisher of

The New York Times, the International Herald Trib-

une, The Boston Globe, and 15 other daily newspa-

pers. It also owns and operates WQXR-FM and more

than 50 websites, including nytimes.com, Boston.com

and About.com.

Newspaper Association of America (NAA) is a

nonprofit organization representing the interests of

more than 2,000 newspapers in the United States

and Canada. NAA members account for nearly 90

percent of the daily newspaper circulation in the

United States and a wide range of non-daily newspa-

pers. One of NAA’s key strategic priorities is to ad-

vance newspapers’ First Amendment interests, in-

cluding the ability to gather and report the news.

The Newspaper Guild — CWA is a labor organiza-

tion representing more than 30,000 employees of

newspapers, newsmagazines, news services and re-

lated media enterprises. Guild representation com-

prises, in the main, the advertising, business, circu-

lation, editorial, maintenance and related depart-

ments of these media outlets. The Newspaper Guild

is a sector of the Communications Workers of Amer-

A-8

ica. As America’s largest communications and media

union, representing over 700,000 men and women in

both private and public sectors, CWA issues no stock

and has no parent corporations.

The Radio Television Digital News Association is

the world’s largest and only professional organization

devoted exclusively to electronic journalism. RTDNA

is made up of news directors, news associates, educa-

tors and students in radio, television, cable and elec-

tronic media in more than 30 countries. RTDNA is

committed to encouraging excellence in the electronic

journalism industry and upholding First Amendment

freedoms.

The Society of Professional Journalists is dedi-

cated to improving and protecting journalism. It is

the nation’s largest and most broad-based journalism

organization, dedicated to encouraging the free prac-

tice of journalism and stimulating high standards of

ethical behavior. Founded in 1909 as Sigma Delta

Chi, SPJ promotes the free flow of information vital

to a well-informed citizenry; works to inspire and

educate the next generation of journalists; and pro-

tects First Amendment guarantees of freedom of

speech and press.

Stephens Media LLC is a nationwide newspaper

publisher whose operations include the Las Vegas

Review-Journal, the largest newspaper in Nevada.

Stephens Media also publishes daily newspapers

from North Carolina to Hawaii.

Tribune Company operates businesses in publish-

ing, broadcasting and interactive, including eight

daily newspapers, such as the Los Angeles Times,

Chicago Tribune and Baltimore Sun, 23 television

stations, WGN America and WGN Radio. Popular

A-9

websites add breadth and depth to the news coverage

provided by these organizations.

The Washington Post is a leading newspaper with

nationwide daily circulation of over 647,000 and a

Sunday circulation of over 878,000..

A-10

APPENDIX B

Additional counsel for amici:

Richard A. Bernstein

Neil M. Rosenhouse

Sabin, Bermant & Gould LLP

4 Times Square, 23rd floor

New York, New York 10036-6526

Counsel for Advance Publications, Inc

Kevin M. Goldberg

Fletcher Heald & Hildreth

1300 North 17th Street, 11th Floor

Arlington, VA 22209

Counsel for The American Society

of News Editors

Jonathan Bloom

Weil, Gotshal & Manges LLP

767 Fifth Avenue

New York, NY 10153

Counsel for The Association of

American Publishers, Inc.

David Ardia

Samuel Bayard

Citizen Media Law Project

Berkman Center for Internet & Society

23 Everett Street, Second Floor

Cambridge, MA 02138

Matthew Gray

General Counsel

Community Newspaper Holdings, Inc.

3500 Colonnade Parkway, Suite 600

Birmingham, AL 35243

A-11

Andrew A. Merdek, Esq.

Vice President Legal Affairs, General

Counsel and Corporate Secretary

Cox Enterprises, Inc.

6205 Peachtree Dunwoody Road

Atlanta, GA 30328

David M. Giles

Deputy General Counsel

The E.W. Scripps Company

312 Walnut Street, Suite 2800

Cincinnati, OH 45202

Peter Scheer, Executive Director

First Amendment Coalition

534 4th St., Suite B

San Rafael, CA 94901

James Chadwick

Sheppard Mullin Richter & Hampton LLP

990 Marsh Road

Menlo Park, CA 94025-1949

Counsel for The Foundation for

National Progress

Barbara W. Wall

Vice President/

Senior Associate General Counsel

Gannett Co., Inc.

7950 Jones Branch Drive

McLean, VA 22107

Steve Key

Hoosier State Press Association

41 E. Washington St., Suite 301

Indianapolis, IN 46204

Counsel for the Hoosier State Press

Association and the Hoosier State

A-12

Press Association Foundation

Marshall W. Anstandig

Senior Vice President/General Counsel

MediaNews Group, Inc.

750 Ridder Park Drive

San Jose, CA 95190

Andy Huntington

General Counsel & Director, Labor Relations

San Jose Mercury News

750 Ridder Park Dr.

San Jose, CA 95190

Counsel for MediaNews Group, Inc.

Mickey H. Osterreicher, Esq.

69 Delaware Avenue

Suite 500

Buffalo, NY 14202

Counsel for National Press

Photographers Association

George Freeman

David McCraw

The New York Times Company

Legal Department

620 8th Ave.

New York, NY 10018

René P. Milam

Newspaper Association of America

4401 Wilson Blvd., Suite 900

Arlington, VA 22203

Barbara L. Camens

Barr & Camens

1025 Connecticut Avenue, NW, Suite 712

Washington, DC 20036

Counsel for The Newspaper Guild - CWA

A-13

Kathleen A. Kirby

Wiley Rein LLP

1776 K Street NW

Washington, DC 20006

Counsel for The Radio Television

Digital News Association

Bruce W. Sanford

Bruce D. Brown

Laurie A. Babinski

Baker & Hostetler LLP

1050 Connecticut Ave. NW, Suite 1100

Washington, DC 20036

Counsel for The Society of

Professional Journalists

Mark Hinueber

Vice President/General Counsel

Stephens Media LLC

Post Office Box 70

Las Vegas, NV 89125

Karen H. Flax

Charles J. Sennet

Tribune Company

435 North Michigan Avenue

Chicago, [llinois 60611

Eric N. Lieberman, Esq.

James A. McLaughlin, Esq.

The Washington Post

1150 15th Street, N.W.

Washington, D.C. 20071