Ray Hrdlicka, et al v. Perry Reniff

Filing

FILED OPINION (STEPHEN R. REINHARDT, WILLIAM A. FLETCHER and N. RANDY SMITH) REVERSED AND REMANDED. Judge: WAF Authoring, Judge: NRS Dissenting. FILED AND ENTERED JUDGMENT. [7629856] [09-15768, 09-16956]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAY HRDLICKA, an individual;
CRIME, JUSTICE & AMERICA, INC., a
California corporation,
Plaintiffs-Appellants,
v.
PERRY L. RENIFF, in his official
capacity of Sheriff of the County
of Butte, California,
Defendant-Appellee.




No. 09-15768
D.C. No.
2:08-cv-00343GEB-EFB



Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, United States District Judge, Presiding
RAY HRDLICKA, an individual;
CRIME, JUSTICE & AMERICA, INC., a
California corporation,
Plaintiffs-Appellants,
v.
JOHN MCGINNESS, Sacramento
County Sheriff,
Defendant-Appellee.




No. 09-16956
D.C. No.
2:08-cv-00394FCD-EFB
OPINION



Appeal from the United States District Court
for the Eastern District of California
Frank C. Damrell, Senior United States
District Judge, Presiding
Argued and Submitted
May 13, 2010—San Francisco, California
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HRDLICKA v. RENIFF

Filed January 31, 2011
Before: Stephen Reinhardt, William A. Fletcher and
N. Randy Smith, Circuit Judges.
Opinion by Judge William A. Fletcher;
Dissent by Judge N.R. Smith

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COUNSEL
Andrew Alexander Dosa, Alameda, California, Spencer D.
Freeman, Tacoma, Washington, for the appellants.
Bradley Justin Stephens, OFFICE OF THE COUNTY
COUNSEL, Oroville, California, for appellee Perry Reniff.
Amanda Lynn Butts, Jeri Lynn Pappone, LONGYEAR
O’DEA AND LAVRA, Sacramento, California, for appellee
John McGinness.
Paul R. Coble, Martin J. Mayer, JONES & MAYER, Fullerton, California, for Amicus Curiae.

OPINION
W. FLETCHER, Circuit Judge:
Plaintiffs, Ray Hrdlicka and his publication Crime, Justice
& America (“CJA”), brought two suits claiming that their
First Amendment rights are being violated by the mail policies at two county jails in California that refuse to distribute
unsolicited copies of CJA to inmates. The district courts in
each case granted summary judgment to defendants after
applying the four-factor test of Turner v. Safley, 482 U.S. 78
(1987).
In these related appeals, we conclude that questions of
material fact preclude summary judgment to defendants. On
this record, we cannot hold as a matter of law under Turner
that defendants have sufficiently justified their refusal to distribute unsolicited copies of CJA to jail inmates. We therefore
reverse and remand to the respective district courts.
I.

Background

Ray Hrdlicka, a former bail bondsman, began publishing
CJA in 2002. CJA addresses criminal justice topics relevant

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to jail inmates. One recent issue of the publication included,
for example, a section describing the steps between a felony
arrest and conviction, an article on firearms enhancements to
sentences, and a page of humor. Approximately three-fourths
of each publication contains such content. The remainder contains advertisements for bail bond agents and lawyers. CJA
attracts advertisers by promising to get their message in front
of thousands of jail inmates who are in immediate need of
their services. Since 2002, CJA has published 14 editions and
over 1 million copies. CJA is currently distributed in jails in
more than 60 counties in 13 states, including 32 county jails
in California.
The Principal Librarian for the California Department of
Corrections has recommended CJA as an acceptable donation
to the California Department of Corrections Law Libraries.
Fortune Small Business described CJA as a “surprisingly
professional-looking 40-page upstart quarterly with articles
written by lawyers and other criminal-justice-system professionals and spotlighting issues most glossies prefer to avoid.”
The record contains over 100 letters of appreciation from
inmates who have found the publication valuable.
CJA does not rely on subscriptions or requests for distribution. Instead, CJA delivers unsolicited magazines to inmates
through one of two methods. If a jail agrees to accept general
distribution, CJA delivers weekly supplies of magazines that
jail staff then leave in common areas of the jail. If a jail
declines to accept general distribution, CJA mails individually
addressed issues directly to some inmates after obtaining
inmate roster information. Under either method, CJA is typically delivered weekly at a ratio of about one copy for every
ten inmates.
A.

Hrdlicka v. McGinness

In September 2003, Plaintiffs contacted the Sacramento
County Sheriff’s Office to inquire about distributing CJA to

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inmates in the jail in Sacramento County, California. Captain
Scott Jones initially responded that individually addressed
copies of CJA could be delivered to jail inmates, but that the
jail would not facilitate general distribution. Plaintiffs made
several requests for electronic copies of the inmate roster.
These requests were denied, but Captain Jones informed
Plaintiffs that a daily list of inmates was available in the jail
lobby. Using that list, in December 2004 CJA began mailing
individually addressed unsolicited copies to inmates at a ratio
of one copy for every ten inmates.
In May 2005, Captain Jones informed Plaintiffs that the jail
would no longer permit delivery of unsolicited copies of CJA.
Captain Jones cited the jail’s Operations Order, which prohibits the distribution of unsolicited publications regardless of
content or postage rate. According to Captain Jones, the jail
has never refused to deliver CJA to an inmate who requested
it. The jail has a separate policy limiting the personal property
an inmate can keep in his cell to the amount that can be held
in two copy-paper boxes. An inmate may keep up to one
newspaper, five periodicals, and five soft-covered books in
his cell at any given time.
On February 5, 2008, Plaintiffs filed a § 1983 suit for
injunctive relief against Sacramento County Sheriff John
McGinness, alleging that the jail’s refusal to distribute unsolicited copies of CJA violates the First Amendment. The district court granted summary judgment to Sheriff McGinness
under Turner.
Plaintiffs timely appealed.
B.

Hrdlicka v. Reniff

In August 2004, Plaintiffs contacted the Butte County Sheriff’s Department to inquire about distributing CJA to inmates
in the jail in Butte County, California. Plaintiffs proposed a
general distribution of CJA. Alternatively, they requested a

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list of inmates so that Plaintiffs could mail individually
addressed issues of CJA. Plaintiffs proposed weekly distribution of one issue for every ten inmates. Sheriff’s Department
officials informed Plaintiffs that the jail would not allow
delivery of unsolicited copies of CJA to inmates through
either method. They explained that the jail’s mail policy prohibits distribution of unsolicited commercial mail through
either general or individually addressed delivery.
The Butte County jail’s mail policy is contained in a
Departmental Order. That order was issued on September 23,
2004, one month after CJA contacted the Sheriff’s Department. The order prohibits the distribution of all unsolicited
commercial mail to inmates, regardless of content or postage
rate. The Butte County jail has policies limiting the amount
of written materials inmates can keep in their cells and prohibiting inmates from leaving items in common areas.
On February 5, 2008, Plaintiffs filed a § 1983 suit for
injunctive relief against Butte County Sheriff Perry Reniff,
alleging that the jail’s refusal to distribute unsolicited copies
of CJA violates the First Amendment. The court granted summary judgment to Sheriff Reniff under Turner.
Plaintiffs timely appealed.
II.

Standard of Review

We review de novo a district court’s order granting summary judgment. Bamonte v. City of Mesa, 598 F.3d 1217,
1220 (9th Cir. 2010). Viewing the evidence in the light most
favorable to CJA and Hrdlicka, we must determine whether
there are any genuine issues of material fact and whether the
district courts correctly applied the relevant substantive law.
See id.

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III.
A.

Discussion

First Amendment

[1] Defendants argue categorically that the First Amendment does not protect distribution of a publication to inmates
who have not requested it. The proper analysis, however, is
more nuanced. In examining regulations that restrict communications with inmates, we first determine whether any First
Amendment interest is implicated. If such an interest is implicated, we apply the four-factor Turner test to decide whether
that interest gives rise to a protected First Amendment right.
[2] The Supreme Court applied this two-step analysis in
Thornburg v. Abbott, 490 U.S. 401, 408 (1989). The Court
began by stating that “there is no question that publishers who
wish to communicate with those who, through subscription,
willingly seek their point of view have a legitimate First
Amendment interest in access to prisoners.” Id. at 408. Having found such a “First Amendment interest,” the Court then
turned to the question of whether the publishers had an actual
First Amendment right to send, and the inmates to receive, the
particular communications at issue. Applying Turner, the
Court held that regulations prohibiting certain communications were valid despite the unquestioned First Amendment
interest. Id. at 419. Similarly, in Pell v. Procunier, 417 U.S.
817 (1974), the Court wrote that “restrictions that are asserted
to inhibit First Amendment interests must be analyzed in
terms of the legitimate policies and goals of the corrections
system.” Id. at 822. The Court noted that inmates might have
a “constitutional interest” in the particular form of communication they sought, but ultimately held in that case that the
interest did not give rise to a protected First Amendment right
because of the strong countervailing interests of prison administration. Id. at 823-24, 827-28.
[3] In this case, we first decide whether a publisher has a
First Amendment interest in distributing, and inmates have a

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First Amendment interest in receiving, unsolicited publications. We have repeatedly recognized that publishers and
inmates have a First Amendment interest in communicating
with each other. See, e.g., Prison Legal News v. Lehman, 397
F.3d 692, 699 (9th Cir. 2005) (“PLN II”); see also Thornburgh v. Abbott, 490 U.S. 401, 408 (1989). A First Amendment interest in distributing and receiving information does
not depend on a recipient’s prior request for that information.
See Klein v. City of San Clemente, 584 F.3d 1196, 1204-05
(9th Cir. 2009) (“The mere fact that an unwilling recipient
must take the unsolicited leaflet from her windshield and
place it in the garbage cannot justify an across-the-board
restriction.”); see also Martin v. City of Struthers, 319 U.S.
141, 143, 148-49 (1943) (striking down as unconstitutional a
municipal ordinance that made it unlawful to go door to door
distributing handbills, circulars, or advertisements). We see
no reason why this well-established principle does not apply
to a publisher’s interest in distributing, and an inmate’s corresponding interest in receiving, unsolicited literature.
[4] Because a publisher cannot deliver unsolicited communications to an inmate by distributing handbills on the street,
or by leaving unsolicited leaflets on cars, the publisher needs
some form of cooperation from jail or prison authorities in
order to distribute its literature. (Indeed, some cooperation is
needed for solicited communications as well.) However, jail
or prison authorities cannot be required to distribute unsolicited communications irrespective of the burdens such distribution might place upon them. Whether the First Amendment
interest in unsolicited communication with inmates gives rise
to a First Amendment right thus implicates very different concerns from such communication in public fora. The Supreme
Court’s opinion in Turner addresses precisely those concerns.
The Court in Turner upheld a prison policy that restricted
the exchange of non-legal mail between inmates in different
institutions who were not family members. The Court stated
that “[p]rison walls do not form a barrier separating prison

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inmates from the protections of the Constitution.” Turner, 482
U.S. at 84. The Court recognized, however, that “[r]unning a
prison is an inordinately difficult undertaking that requires
expertise, planning, and the commitment of resources, all of
which are peculiarly within the province of the legislative and
executive branches of government.” Id. at 84-85. The Court
held that “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably
related to legitimate penological interests.” Id. at 89.
The Court in Turner provided a four-factor test for evaluating the reasonableness of a prison or jail regulation impinging
on a constitutional right. The Court ultimately accepted the
government’s justification that correspondence between unrelated inmates at different institutions facilitated gang activity
and could be used to coordinate escape plans or violent acts.
482 U.S. at 91. It concluded that the policy “is content neutral, it logically advances the goals of institutional security
and safety . . . , and it is not an exaggerated response to those
objectives.” Id. at 93.
[5] The four-factor Turner test considers:
(1) whether the regulation is rationally related to a
legitimate and neutral governmental objective, (2)
whether there are alternative avenues that remain
open . . . to exercise the right, (3) the impact that
accommodating the asserted right will have on other
guards and prisoners, and on the allocation of prison
resources; and (4) whether the existence of easy and
obvious alternatives indicates that the regulation is
an exaggerated response by prison officials.
PLN II, 397 F.3d at 699 (citing Turner, 482 U.S. at 89). We
evaluate the policies of a jail or prison with “due regard for
the ‘inordinately difficult undertaking’ that is modern prison
administration,” recognizing that “certain proposed interactions, though seemingly innocuous to laymen, have poten-

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tially significant implications for the order and security of the
prison.” Thornburgh, 490 U.S. at 407 (quoting Turner, 482
U.S. at 85).
We have applied the Turner test in four cases involving the
distribution of literature to inmates. In each case, we have
held unconstitutional prison policies that placed restrictions
on the distribution of gift and solicited publications. In Crofton v. Roe, 170 F.3d 957, 960-61 (9th Cir. 1999), we struck
down a regulation that prohibited a prisoner from receiving a
book that had been ordered for him by his stepfather. We held
that “although the state has had ample opportunity to develop
a record, it has offered no justification for a blanket ban on
the receipt of all gift publications.” Id. at 960-61. In Prison
Legal News v. Cook (“PLN I”), 238 F.3d 1145, 1151 (9th Cir.
2001), we struck down a ban on bulk-rate mail as applied to
subscription non-profit publications. We noted that “the
receipt of such unobjectionable mail [does not] implicate
penological interests.” Id. at 1149. In Morrison v. Hall, 261
F.3d 896, 898 (9th Cir. 2001), we extended the holding in
PLN I and struck down a similar regulation as applied to “prepaid, for-profit, subscription publications.” We recognized
that “the number of subscription for-profit publications that
enter the [prison] may be greater than the number of subscription non-profit publications,” id. at 902 (emphasis in original),
but we noted that the government provided no evidence “regarding the impact that processing pre-paid, for-profit subscription publications would have on prison resources.” Id. at
903 (emphasis omitted). Finally, in Prison Legal News v. Lehman (“PLN II”), 397 F.3d 692 (9th Cir. 2005), we struck
down a prison ban on “non-subscription bulk mail” (publications that inmates request but do not pay for). We affirmed the
district court’s finding that “the ban on non-subscription bulk
mail was not rationally related to a neutral government objective.” Id. at 699.
Our dissenting colleague concludes that because a prison is
a non-public forum, a publisher has no First Amendment

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interest in distributing, and an inmate has no First Amendment interest in receiving, unsolicited publications. He therefore concludes that the Court’s four-part Turner test is
inapplicable. We respectfully disagree.
[6] The Supreme Court and our court have consistently
applied the Turner test to determine whether various forms of
written communication with inmates are protected by the First
Amendment. See, e.g., Thornburgh (applying Turner to prison
regulation prohibiting specific publications); Crofton v. Roe
(applying Turner to prison regulation banning gift publications); PLN I (applying Turner to prison regulation banning
bulk-rate mail); Morrison v. Hall (applying Turner to prison
regulation banning bulk-rate, and third and fourth class, mail);
PLN II (applying Turner to non-subscription bulk-rate mail).
In the context of deciding whether the Turner test applies, we
see no way to distinguish what was at issue in those cases
from what is at issue here. All cases, including the case now
before us, have individual challenges to prison or jail regulations forbidding various forms of written communications.
The fact that in this case the publication was unsolicited may,
of course, be taken into account in applying the Turner test.
But the fact that the publication was unsolicited does not
make the Turner test inapplicable.
We therefore review the jails’ policies under the four-factor
Turner test. Because we review summary judgments granted
to defendants, we view the evidence in the light most favorable to CJA.
1.

“Rationally Related to a Legitimate Penological Objective”

The first Turner factor is a sine qua non: “[I]f the prison
fails to show that the regulation is rationally related to a legitimate penological objective, we do not consider the other factors.” Ashker v. Cal. Dep’t of Corr., 350 F.3d 917, 922 (9th
Cir. 2003). But if the regulation is rationally related to a legit-

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imate penological objective, that is not the end of the inquiry.
The other three Turner factors must also be evaluated before
a court can decide whether the prison regulation or policy is
permissible.
a.

Jail Security

[7] Officers at the Sacramento and Butte County jails
assert that refusing to allow the distribution of unsolicited
copies of CJA promotes security in the jails by reducing the
likelihood of contraband entering the jail, and by reducing the
amount of clutter in each inmate’s cell thereby reducing the
risk of fires and enabling efficient cell searches. The officers
also assert that the policies promote security because, once in
the jail, unsolicited publications are more likely than other
publications to be used for “nefarious purposes” such as
blocking lights or clogging toilets. We do not question the
importance of reducing the likelihood of contraband entering
the jails, reducing the risk of fire, and enabling efficient cell
searches. Nor do we question the importance of discouraging
or preventing inmates from using paper for improper purposes. However, defendants’ general statements are undercut
by the specific evidence they offer in an attempt to show the
degree to which these purposes are actually served by a
refusal to allow the requested distribution of CJA.
For example, Captain Jones of the Sacramento County jail
stated in his deposition that until 2006 the jail accepted delivery of multiple unsolicited copies of the Sacramento Bee (the
primary general circulation daily newspaper for the Sacramento area) on a “drop-off basis.” The jail stopped delivery
of the Bee in 2006, but for reasons unrelated to those it now
gives for refusing to accept delivery of CJA. Captain Jones
stated in his deposition, “I think at the time the Bee was
stopped because of a perceived crusade against the sheriff’s
department during that time period.” Captain Jones elaborated, “It was very expensive, as well, so I think it was a combination of factors, but I believe that their coverage of the

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department during that time period was the catalyst to start
looking at those other factors.”
After delivery of the Bee was canceled, the jail accepted
USA Today on an unsolicited drop-off basis. USA Today was
cancelled after about a year because, according to Captain
Jones, the jail no longer wished to pay for it. Captain Jones
did not list security risks as among the “combination of factors” that motivated the jail’s decision to stop distributing
either unsolicited newspaper to inmates. He was specifically
asked whether there was any diminution of incidents of “covering lights [and] clogging toilets” when USA Today was cancelled. He responded, “I wouldn’t know. . . . I don’t think we
ever kept track of such numbers.”
Captain Jones stated in his declaration that “inmates are not
permitted to leave any materials in the common areas of the
Jail,” and that “[t]here are not materials which are made available to inmates by placing copies in any of the day rooms.”
However, he stated the opposite in his deposition: “[I]f someone has a subscription and gets done with it often times
they’ll put it out for the other inmates to read. . . . [I]f an
inmate gets done with a novel, they might put it out for someone else to get[.]” When asked “Would an inmate be allowed
to leave out a copy of Time Magazine when they’re done with
it?”, Captain Jones answered “Yes.”
Captain Jones sought to distinguish the security threat
posed by the availability of newspapers in the common areas
compared to the availability of CJA. He said in his deposition,
“If there were one Crime, Justice & America in a housing
unit, I don’t think it would cause any greater security concern
than a newspaper would.” He was then asked, “What if there
was three copies [of CJA]?” He responded, “Well, three
would cause three times, you know, if you have a minor concern, then you have three times a minor concern, so it’s still
not — I don’t think it would cause an error [sic] of panic, but
nor would it be without consequence.” Captain Jones did not

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account for the fact that a general circulation newspaper ordinarily has more pages than CJA, nor for the fact that a new
copy of a newspaper is typically delivered every day, whereas
new copies of CJA would be delivered only weekly.
Lieutenant Bryan Flicker of the Butte County jail stated in
his declaration that inmates at that jail already have access to
paper that they use for improper purposes. He stated that
Butte County jail inmates regularly misuse torn out pages
from the telephone books the jail provides in every dayroom
area, as well as from books donated to the jail by the local
community. Lieutenant Flicker did not specify whether distribution of CJA was likely to increase the rate of such use of
paper by inmates.
[8] Further, both jails already have separate policies regulating inmates’ possession of property, including paper, in
their cells. See Morrison, 261 F.3d at 902 (“In light of the regulation limiting the total amount of property in a cell, . . . permitting inmates to receive for-profit, subscription publications
could not possibly increase the total volume of cell materials.”); see also PLN II, 397 F.3d at 700; PLN I, 238 F.3d at
1150-51. It is thus unclear the degree to which allowing distribution of CJA in the jails would produce additional clutter in
inmates cells or otherwise adversely affect jail security.
b.

Staff Resources

[9] Officers at both jails expressed concern that allowing
delivery of unsolicited copies of CJA would require additional
staff time. Officer James Fox of the Sacramento County jail
stated in a declaration that there are 700 pieces of incoming
mail and 600 pieces of outgoing mail per day at the jail. “The
mail is processed during the night shift by a total of sixty (60)
persons, thirty (30) individuals per shift over two (2) shifts.
. . . A total of twenty-four (24) personnel hours are used per
day on mail related duties at the Jail.” But Officer Fox gave
no estimate of how many additional personnel hours would be

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required if CJA were delivered to the jail once a week at a
ratio of one issue for every ten inmates. Officers at Butte
County Jail provided no information quantifying the additional resources that would be required to distribute CJA.
Indeed, they did not even provide information about the
resources the jail currently devotes to mail delivery.
[10] Neither jail has suggested that unsolicited publications
are more difficult to inspect and deliver than solicited publications. Cf. PLN I, 238 F.3d at 1150 (“The Department has presented no evidence supporting a rational distinction between
the risk of contraband in subscription non-profit organization
standard mail and first class or periodicals mail.”).
c.

Slippery Slope

Captain Jones expressed a concern in his declaration that
“to accept publications or magazines from one publisher
would set an unworkable precedent for the Jail and could obligate the Jail to accept any other publications that appeared on
the doorstep.” But Captain Jones acknowledged in his deposition that the slippery slope problem was not a concern when
the jail accepted unsolicited copies of the Sacramento Bee and
USA Today. He specifically stated that the jail did not cease
distributing the USA Today “because of any concern about a
precedential value that it would set.”
Captain Jones could recall “maybe three” requests to distribute unsolicited publications to inmates in Sacramento
County jail since 2000. Of those three requests, Captain Jones
could not remember if any were for regular publications as
opposed to merely one-time-only leaflets. Butte County jail
officers did not present any evidence about other requests to
distribute unsolicited mail.
d.

Interference with Existing Advertising

[11] Sheriff Reniff of the Butte County Jail asserts as an
additional interest his desire to maintain control over advertis-

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ing of bail in the jail. Butte County jail has a contract with
Partners for a Safer America, Inc. (“PSA”), under which PSA
operates bulletin boards in the jail on which bail bond agents
are allowed to post advertisements. PSA pays the jail a percentage of its profits from its sale of advertising space on the
bulletin boards. Sheriff Reniff stated that distributing unsolicited copies of CJA to inmates would be inconsistent with the
jail’s contract with PSA. However, it is not clear on the record
before us that, in fact, distributing CJA would be inconsistent
with the contract.
[12] More important, it is obvious (though not stated by
Sheriff Reniff) that if unsolicited copies of CJA are permitted
in the jail, the value to bail bond agents of advertising on the
jail bulletin boards will be diminished. That diminution in
value may well be reflected in a lower price paid to PSA by
the advertisers, and in a corresponding lower amount paid to
the jail by PSA. We do not believe that a jail has a legitimate
penological interest, for purposes of Turner, in protecting a
profit made by impinging on inmates’ First Amendment
rights. Sheriff Reniff cites no case supporting such a proposition, and we are aware of none.
The Sacramento County jail, like the Butte County jail, has
bulletin boards posted with information about bail bond
agents. Unlike the Butte County jail, however, the Sacramento County jail is paid no money in return for allowing
these postings.
2.

Alternative Avenues to Exercise the Right

[13] The second Turner factor is whether “other avenues
remain available for the exercise of the asserted right.” Turner, 482 U.S. at 90 (internal quotation marks and citation
omitted). Defendants argue that CJA has alternative avenues
to communicate with inmates because the jails will distribute
CJA to inmates who request it. But there is a material question of fact whether, as a practical matter, Plaintiffs can effec-

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tively reach county jail inmates if they can deliver CJA only
upon request.
In Morrison, 261 F.3d at 904, we held that the second Turner factor weighed against the legitimacy of a mail policy
when restricted publications would be delivered only if they
were sent at a higher rate. “ ‘[P]aying a higher rate is not an
alternative because the prisoner cannot force a publisher who
needs to use, and is entitled to use, the standard rate to take
additional costly steps to mail his individual newsletter.’ ” Id.
(quoting PLN I, 238 F.3d at 1149). Here, unlike our earlier
cases, the jails’ policies do not require inmates to pay for
CJA, or for CJA to mail its issues at a higher postage rate. Cf.
Morrison, 261 F.3d at 904.
However, in practice, it is difficult to create a broad awareness of CJA among inmates in jails where, unlike in prisons,
populations turn over quickly. It is true that CJA can advertise
its publication to inmates through the yellow pages or television, both of which are available in the jails, and through
word of mouth. But many inmates will have left the jail
before they can learn about the existence of CJA, request that
it be sent to them, and then receive it. Inmates typically want
information about bail bonds and attorneys as soon as they
arrive at the jail. For those who receive CJA only after a significant wait, the advertising in CJA is of little or no use.
3.

Impact of Accommodating the Asserted Right

[14] The third Turner factor is “the impact accommodation
of the asserted constitutional right will have on guards and
other inmates, and on the allocation of prison resources generally.” Turner, 482 U.S. at 90. “When accommodation of an
asserted right will have a significant ‘ripple effect’ on fellow
inmates or on prison staff, courts should be particularly deferential to the informed discretion of corrections officials.” Id.
[15] As discussed above, there are material questions of
fact as to whether, and to what degree, the jails would be

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forced to expend significant additional resources if CJA is
delivered by either of the two methods sought by Plaintiffs.
Plaintiffs state that they are willing to work with jail officials
to make distribution as easy and efficient as possible. Plaintiffs seek to deliver only one copy of CJA for every ten
inmates each week, and have offered the jails the option of
either general delivery or individually addressed mailings. Cf.
PLN I, 238 F.3d at 1151. Officers at the jails have not
explained how mail inspectors will distinguish between a
copy of CJA that is solicited and one that is not. If the jails
have to compile subscription lists and compare incoming mail
to those lists, a ban on unsolicited mail could actually consume more prison resources than accepting such mail. Cf. id.
(prison officials arguing that it is impractical to distinguish
between solicited and unsolicited mail).
4.

Exaggerated Response by Prison Officials

[16] The fourth Turner factor requires us to consider
“whether the existence of easy and obvious alternatives indicates that the regulation is an exaggerated response by prison
officials.” PLN II, 397 F.3d at 699. “This is not a ‘least
restrictive alternative’ test: prison officials do not have to set
up and then shoot down every conceivable alternative method
of accommodating the claimant’s constitutional complaint.”
Turner, 482 U.S. at 90-91. “[A]n alternative that fully accommodates the [asserted] rights at de minimis cost to valid penological interests” suggests that the “regulation does not satisfy
the reasonable relationship standard.” Id. at 91. Here, the suggested alternative is the limited distribution sought by Plaintiffs, compared to the outright ban imposed by the Sacramento
County and Butte County jails.
[17] The undisputed fact that CJA is currently distributed
in more than 60 counties throughout 13 states, including in 32
California county jails, suggests that the response of the two
jails in this case may be exaggerated. There is a marked contrast between defendants’ strong general statements about the

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ways the ban on unsolicited copies of CJA serves their penological purposes, on the one hand, and the weak, and to some
degree contradictory, specific evidence they offer to support
those statements, on the other. Further, defendants have not
demonstrated that they cannot work with CJA to establish distribution schedules that minimize the drain on jail resources.
Finally, the possibility that Butte County Jail’s policy is motivated by a concern with losing revenue from bail bond advertisements also suggests that the jail’s policy may be an
exaggerated response.
5.

Summary

[18] Taking the evidence in the light most favorable to
Plaintiffs and evaluating that evidence under the four Turner
factors, we hold that neither defendant is entitled to summary
judgment.
B.

California Law

Defendants assert as a separate justification for their refusal
to deliver unsolicited copies of CJA to inmates that distribution of CJA violates California’s bail licensee regulations.
The district courts did not reach this issue, and we decline to
decide it in the first instance.
Conclusion
[19] For the foregoing reasons, we reverse the district
courts’ orders granting summary judgment to Defendants. On
the record before us, we cannot determine as a matter of law
that Defendants have justified banning the unsolicited distribution of CJA to county jail inmates under the four-factor
Turner test. We remand to the district courts for further proceedings consistent with this opinion.
REVERSED and REMANDED.

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N.R. SMITH, Circuit Judge, dissenting:
Ray Hrdlicka publishes Crime, Justice & America (“CJA”),
a glossy quarterly publication that is distributed for free to
prison inmates across the United States. Hrdlicka has chosen
a free distribution model of business in which CJA is either
given to correctional facilities to be put in common areas on
a weekly basis or sent to a list culled from the inmate rolls
(which are public record). Apparently, it has been a successful
business model. Since its introduction in 2002, over one million copies of CJA have been distributed to inmates across the
United States. CJA’s revenue comes from its advertisers, who
are primarily bail bonds agents and lawyers. In soliciting
advertisers, CJA claims the advertisements will be seen by
“hundreds to thousands” of pre-trial inmates.
Hrdlicka now asks this court to assist him in further
increasing the circulation of CJA over the objections of two
sheriffs who believe that accommodating Hrdlicka’s distribution model would burden the administration of their correctional facilities. While we have previously found that the First
Amendment guarantees Hrdlicka access to prisoners that have
requested CJA, there have been no prisoner requests here.
Further, there is no precedent suggesting that the First
Amendment guarantees Hrdlicka the special right to sue any
sheriff who refuses to be a de facto distribution arm of the
CJA.
The majority holds that there is a “First Amendment interest in distributing and receiving unsolicited publications.” It
cites Klein v. City of San Clemente, 584 F.3d 1196 (9th Cir.
2009), for the proposition that the First Amendment protections do not depend on the request of the recipient. Klein,
however, explicitly deals with First Amendment restrictions
in “public fora.” 584 F.3d at 1200-01. Prisons are not public
fora. See United States v. Douglass, 579 F.2d 545, 549 (9th
Cir. 1978). Instead prisons are one of a few “public institutions which do not perform speech-related functions at all . . .

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[where] the government is free to exclude even peaceful
speech and assembly which interferes in any way with the
functioning of those organizations.” Id.; see also Adderley v.
State of Florida, 385 U.S. 39, 41 (1966) (“Jails, built for
security purposes, are not [public fora].”)
The majority’s statement, that “Turner [v. Safely, 482 U.S.
78 (1987)] addresses” any “concerns” regarding the difference between public fora and prisons, is unavailing. As the
Supreme Court stated in Turner, “[o]ur task, then . . . is to formulate a standard of review for prisoners’ constitutional
claimsI[.]” 482 U.S. at 85 (emphasis added). No prisoners’
constitutional claims are implicated in this case. Both before
and after Turner, the Supreme Court and this court have uniformly and frequently cautioned against a judicial rule allowing publishers of unsolicited publications a right to demand
distribution within prisons. See Morrison v. Hall, 261 F.3d
896, 905 (9th Cir. 2001) (“[P]risons can and have adopted
policies permitting prisoners to receive [requested] publications, while at the same time, prohibiting prisoners from
receiving unsolicited junk mail.”) (emphasis added); Prison
Legal News v. Lehman, 397 F.3d 692, 701 (9th Cir. 2005)
(Distinguishing Jones v. North Carolina Prisoners’ Labor
Union, Inc., 433 U.S. 119 (1977), by stating: “In this case,
every piece of mail sent by PLN is sent as a result of a request
by the recipient . . . it is the fact that a request was made by
the recipient . . . that is important.”)
No party disputes that we have no request on a part of any
prisoner to receive the CJA. Prisoners’ First Amendment
rights are not implicated in any way. Instead, Hrdlicka is asking the court to create a special rule, under the First Amendment, protecting his chosen method of distributing CJA to
inmates.
Any First Amendment analysis involving prisons must be
couched in the understanding that:

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[C]ourts are ill equipped to deal with the increasingly urgent problems of prison administration and
reform. . . . Running a prison is an inordinately difficult undertaking that requires expertise, planning,
and the commitment of resources, all of which are
peculiarly within the province of the legislative and
executive branches of government. Prison administration is, moreover, a task that has been committed
to the responsibility of those branches, and separation of powers concerns counsel a policy of judicial
restraint. Where a state penal system is involved,
federal courts have . . . additional reason to accord
deference to the appropriate prison authorities.
Turner, 482 U.S. at 84-85 (discussing Procunier v. Martinez,
416 U.S. 396 (1974) (internal quotation marks and citations
omitted). With this understanding, the Supreme Court has
held that the press has “no constitutional right of access to
prisons or their inmates beyond that afforded the general public.” Pell v. Procunier, 417 U.S. 817, 834 (1974). While Pell
dealt with the press attempting to access prisons in order to
gather information, it remains one of the only cases that has
dealt with the press’s right of access to prisons when no concurrent right of prisoners has been implicated.1
Just as the press had no special right of access to prisons
in Pell, here Hrdlicka has no special right to demand a sheriff
accept one of his chosen methods of distribution, especially
given that a prison is not a public forum. If Hrdlicka would
like prisoners to read CJA, he has the option of spending the
time and money that all other members of the press spend in
order to acquire new readership. Namely, Hrdlicka can advertise both in and outside of the jail in an effort to convince
inmates (or noninmates) to request his publication.2 He can
1
Pell also dealt with an inmate’s right of access to the press. However,
the analysis was done separately from the press’s right of access to the
prison. See Pell, 417 U.S. at 823-828.
2
No inmate has been refused a requested copy of CJA.

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also rely on the word of mouth that many publications take
the time to develop among their readers. While this method
of acquiring readers may be costly, in the context of prisons,
losing “cost advantages does not fundamentally implicate free
speech values.” Jones, 433 U.S. at 130-31; see also Cornelius
v. NAACP Legal Defense and Education Fund, Inc., 473 U.S.
788, 809 (1985) (“The First Amendment does not demand
unrestricted access to a non-public forum merely because use
of that forum may be the most efficient means of delivering
the speaker’s message.”). Hrdlicka has chosen not to advertise
to acquire new readership. Instead, he seeks the cost advantage of automatic distribution at any jail he chooses to target.
He does not have such a right.
The majority’s analysis under Turner further demonstrates
the problem with finding a special First Amendment right for
Hrdlicka’s distribution method. By allowing CJA the right to
demand unrequested distribution, the majority forces sheriffs
either to allow all unrequested mail to reach inmates or to
make a case by case determination of the quality of the publication. In discussing the Turner factors, the majority notes
“[f]or those who only receive CJA after a significant wait, the
bail bond advertising in CJA is of little or no use.” But the
Supreme Court has dictated that the value of information to
inmates is not a valid consideration. “[T]he Turner test, by its
terms, simply does not accommodate valuations of content.”
Shaw v. Murphy, 532 U.S. 223, 230 (2001). The majority
would now require valuation of content for any publisher or
bulk mail advertiser that asked for access to prisons (if no valuation is to be made then the majority would suggest that all
unrequested mail should be allowed unless Turner is satisfied). Such assessment is impossible under Supreme Court
precedent.
Instead, the simpler and saner rule is that Hrdlicka has no
special First Amendment right to demand that a prison agree
to one of his distribution methods. A prison is not a public
forum, and a ban on unrequested publications is a content

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neutral method for sheriffs to ensure efficient administration
of their facilities. A publisher wishing to develop readership
among prisoners is free to advertise or develop word of mouth
programs to encourage the request of a publication. The publisher is not entitled to use the First Amendment for cost savings in acquiring new readers. Therefore, Hrdlicka does not
have a special First Amendment right to demand distribution
in prisons, and Sheriffs Reniff and McGuinnes are entitled to
summary judgment.