PRISON LEGAL NEWS v MAYO, et al
Filing
251
ORDER. Judicial estoppel does not preclude the Florida Department of Corrections from adopting its current litigation position. The Florida Department of Corrections censorship of Prison Legal News under Rule 33-501.401(3) of t he Florida Administrative Code does not violate Prison Legal News First Amendment rights. The Florida Department of Corrections censorship procedures violate Prison Legal News right to due process under the Fourteenth Amendment. The Clerk shall enter judgment. This Court retains jurisdiction over the open file to decide costs and attorneys fees, if any. Signed by JUDGE MARK E WALKER on 8/27/2015. (pll)
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
PRISON LEGAL NEWS,
Plaintiff,
v.
Case No. 4:12cv239-MW/CAS
JULIE L. JONES, in her
official capacity as Secretary of the
Florida Department of Corrections,
Defendant.
___________________________/
ORDER
This case involves an as-applied First Amendment challenge to Florida
Administrative Code Rule 33-501.401(3)(l) and (m), as well as a procedural due
process claim brought under 42 U.S.C. § 1983. Prison Legal News 1 and Julie L.
Jones, on behalf of the Florida Department of Corrections, litigated this case to a
four-day bench trial beginning on January 5th, 2015.2 This order sets forth the
findings of fact, analysis of law, and verdict.
1
In 2009, PLN, the corporation, changed its name to the Human Rights Defense Center.
Tr. of Trial 36:24-:25 (Jan. 5, 2015). This order continues to refer to the entity as PLN.
2
The sole remaining defendant in this action, Julie L. Jones, is the current Secretary of
the FDOC. Two other secretaries have cycled through the FDOC during this litigation, Kenneth
S. Tucker and Michael D. Crews. Some early documents are directed at these individuals. The
Secretary of the FDOC is responsible for the overall management of the Florida prison system
1
I
The parties dispute the constitutionality of the FDOC’s impoundment and
rejection of PLN’s magazine, Prison Legal News, a monthly publication
comprising writings from legal scholars, attorneys, inmates, and news wire
services. FDOC regulates inmate mail with Rule 33-501.401 of the Florida
Administrative Code, titled “Admissible Reading Material.” Rule 33-501.401
authorizes the FDOC to screen all mail entering its facilities and sets forth a
detailed process by which it may impound that mail.
Section (3) of Rule 33-501.401 contains thirteen subsections, labeled (a)
through (m), providing distinct criteria by which incoming publications “shall be
rejected” from the prison population. The First Amendment action specifically
challenges subsections (l) and (m), ECF No. 14 ¶ 22, which state:
[A] [p]ublication[] shall be rejected when . . .
(l) It contains an advertisement promoting any of the following where
the advertisement is the focus of, rather than being incidental to, the
publication or the advertising is prominent or prevalent throughout the
publication.
1. Three-way calling services;
2. Pen pal services;
3. The purchase of products or services with postage stamps; or
4. Conducting a business or profession while incarcerated.
and has ultimate responsibility for the promulgation and enforcement of all FDOC rules, policies
and procedures, and administrative code provisions. See ECF No. 14 ¶ 15; ECF No. 68 ¶ 15.
For simplicity, this order refers to Defendant Jones as the FDOC.
2
[or]
(m) It otherwise presents a threat to the security, order or
rehabilitative objectives of the correctional system or the safety of any
person.
Fla. Admin. Code R. 33-501.401(3)(l), (m) (2009) (amended 2010).3
As relief, PLN requests a declaratory judgment that Rule 33-501.401(3) is
unconstitutional as applied to Prison Legal News. ECF No. 14, at 13. PLN also
seeks an injunction that prohibits the impoundment and rejection of Prison Legal
News, orders the delivery of all previously censored and withheld issues, and
requires individualized notice and an opportunity to be heard whenever a copy of
an issue is rejected.4 Finally, PLN seeks the same due process remedies for the
books and information packets it has mailed to FDOC inmates, which it maintains
the FDOC impounded without notice. Tr. of Trial 4-5 (Jan. 8, 2015).
3
That is the 2009 version. The Rule was amended in 2010. That amendment did not
change subsections (3)(l) and (m). In the version before 2009, the prohibition against
advertisements for three-way calling services, pen pal services, the purchase of products or
services with postage stamps, and conducting a business while incarcerated appeared in section
(4), not subsection (3)(l). See Fla. Admin. Code R. 33-501.401(4) (2006) (amended 2009). For
clarity, this Court refers to these prohibitions as (3)(l). The other subsection at issue in this case
is (3)(m), the Rule’s residual clause. Prior to 2009, the residual clause appeared under
subsection (3)(l). See Fla. Admin. Code R. 33-501.401(3)(l) (2006) (amended 2009). This Court
refers to the residual clause as (3)(m).
4
PLN attempted to add a void-for-vagueness claim. It sought leave to file a second
amended complaint on February 19, 2013. ECF No. 119. That motion was denied for failure to
show good cause. ECF No. 127, at 3. At the time, the trial was set for May 13, 2013. ECF No.
106. The trial would eventually be delayed by more than a year. Had this Court known, perhaps
it would have ruled differently on the motion to amend. Either way, PLN did not again move to
amend the complaint until trial. By then it was far too late, and the motion was denied.
3
II
This part of the order sets forth background facts that help situate the lawsuit
in the broader contest between the parties.
A
This is not the parties’ first rodeo—that would have been in February 2003,
when the FDOC began censoring Prison Legal News due to its advertisement of
services accepting postage stamps as payment, three-way calling services, pen pal
services, and offers to purchase inmate artwork. See Prison Legal News v. Crosby,
No. 3:04-cv-14-JHM-TEM, slip op. at 5-8, ¶¶ 4, 7, 14-16 (M.D. Fla. July 28,
2005), Pl.’s Trial Ex. 23 (the “Moore Order”). PLN sued the FDOC in January
2004 challenging that censorship under the First Amendment. 5 Id. at 2.
While the suit was pending in March 2005, the FDOC amended Rule 33501.401 to clarify that publications would not be rejected for the advertising
content in that case, so long as those ads are “merely incidental to, rather than
5
The First Amendment challenge to the censorship was not the sole claim. PLN also
argued that Rule 33-602.207 of the Florida Administrative Code, which prohibits prisoners from
engaging in outside businesses or professions and which the FDOC interpreted as proscribing
compensation for writing for Prison Legal News, infringes on PLN’s First Amendment rights as
a publisher. Moore Order 17. The Eleventh Circuit would eventually disagree. See Prison
Legal News v. McDonough, 200 F. App’x 873, 875 (11th Cir. 2006). Lastly, PLN had originally
asserted a due process claim under the Fifth and Fourteenth Amendments, but abandoned that
claim at the start of the bench trial. Moore Order 2 n.1.
4
being the focus of, the publication.”6 Moore Order 15. Following this
amendment, the FDOC promised to no longer impound Prison Legal News for its
advertising content. Id. at 13-15. The FDOC ceased impounding and rejecting
Prison Legal News for the duration of the litigation and argued that PLN’s First
Amendment challenge to the Rule was moot.
This convinced the district court. Four months after the amendment was
implemented, it found that the FDOC had “shown that the [newly adopted]
procedures . . . allow for distribution of [Prison Legal News] in its current format”
and that the magazine would not be rejected solely on the basis of the advertising
content at issue. Id. at 15-16. The Eleventh Circuit reiterated these sentiments on
appeal. In rejecting PLN’s argument that an injunction was necessary to prevent
further censorship, the Eleventh Circuit stated:
We agree with the district court’s finding that, although the FDOC
previously wavered on its decision to impound the magazine, it
presented sufficient evidence to show that it has “no intent to ban PLN
based solely on the advertising content at issue in this case” in the
6
Rule 33-501.401 has been amended several times. The FDOC’s interpretation of the
Rule has also fluctuated. In the first lawsuit, “the FDOC changed its position several times as to
whether PLN’s magazine contained prohibited material. In early 2003, the FDOC began
impounding issues of PLN’s magazine because they contained ads for three-way calling services,
which are prohibited for Florida inmates because they pose a threat to prison security. In
November 2003, the FDOC reversed its decision and allowed for delivery of eight issues that it
had previously impounded. However, a month later, in December 2003, the FDOC again
decided to impound the magazine for including three-way calling service ads due to ongoing
security concerns. By March 2004, the FDOC was satisfied that its telephone provider could
properly monitor prisoners’ calls and that the three-way calling service ads were no longer a
security concern. Therefore, the FDOC again approved delivery of the magazine.” McDonough,
200 F. App’x at 875.
5
future. The FDOC demonstrated that its current impoundment rule
does allow for distribution of PLN in its current format and that the
magazine will not be rejected based on its advertising content. The
FDOC officially revised its impoundment rule and has not refused to
deliver issues of the magazine since this amendment. . . . We have no
expectation that FDOC will resume the practice of impounding
publications based on incidental advertisements.
McDonough, 200 F. App’x at 878. Since the Eleventh Circuit disposed of the
claim as moot, it further declared that, “[a]s to the current rule, we offer no opinion
on its constitutionality.” Id.
B
Less than three years after the Eleventh Circuit’s ruling in McDonough, the
FDOC amended the Rule to provide an additional ground for rejection under (3)(l).
Under the revised Rule, publications with “prominent or prevalent” advertisements
for services prohibited by (3)(l) would also be rejected. Fla. Admin. Code R. 33501.401(3)(l) (emphasis added).
The 2009 amendments became effective on June 16, 2009. Def. Crews’
Obj. to Pl.’s First Set of Interrogs. to Def. Crews 2-3 (Jan. 18, 2013), Pl.’s Trial Ex.
30. The FDOC has impounded every issue of Prison Legal News since September
2009. Tr. of Trial 105:24-106:2 (Jan. 6, 2015).
PLN initiated this suit on November 17, 2011. ECF No. 1. On December
16, 2011, PLN filed its First Amended Complaint. ECF No. 14. Only two counts
remain, both against the FDOC. See ECF No. 117 (confirming the dismissal of the
6
other two original defendants under a settlement agreement). Count III is a First
Amendment as-applied challenge to subsections (3)(l) and (m) of the Rule. ECF
No. 14, at 11, ¶¶ 40-43. PLN alleges that the FDOC’s actions “in refusing to
deliver or allow delivery of Plaintiff’s publications to Florida inmates in its
custody, solely because of the presence of certain advertisements within these
publications, violate Plaintiff’s rights to free speech, press and association as
protected by the First and Fourteenth Amendment to the U.S. Constitution and 42
U.S.C. § 1983.” Id. ¶ 43. And, in Count VI, PLN contends that the FDOC’s
“failure and refusal to provide Plaintiff with constitutionally required notice and an
opportunity to be heard and/or protest the decision each time Plaintiff’s
publications are censored . . . violates Plaintiff’s rights to due process of law
protected by the Fifth and Fourteenth Amendments . . . and by 42 U.S.C. § 1983.”
Id. at 14, ¶¶ 52-55.
On January 5, 2015, the parties began a four-day bench trial on these two
counts. ECF No. 235. At its conclusion, the Court extended the parties an
opportunity to brief certain key issues. See ECF Nos. 241-44, 246.
III
In this part are the facts of the case, as found by this Court after careful
consideration of all the evidence presented at trial. Most facts are undisputed. For
those in dispute, the order lays out the competing views before resolving them.
7
A
Established in 1990 by Paul Wright and Ed Meade, Prison Legal News is a
monthly magazine that reports on news and legal developments related to the
criminal justice system. Tr. of Trial 32:8-:22 (Jan. 5, 2015). 7 PLN, a nonprofit
with its principal place of business in Lake Worth, Florida, publishes Prison Legal
News. Tr. of Trial 36:18-37:2 (Jan. 5, 2015). Its mission is to inform the public
about events in prisons and jails and the need for progressive criminal justice
reform, to inform prisoners and their advocates about these events and how to
advocate for their rights, and to enhance rehabilitation for prisoners, ensure
transparency and increase accountability of prison officials. Tr. of Trial 32:2333:9 (Jan. 5, 2015).
Over the past 25 years, Prison Legal News has published over 700 articles
on the FDOC and Florida prisons and jails, with coverage ranging from
misconduct by FDOC contractors to individual cases involving a host of legal
issues. Tr. of Trial 51:15-:22 (Jan. 5, 2015). Prisoners are the magazine’s primary
audience. Tr. of Trial 123:6-:10 (Jan. 5, 2015).
7
The magazine was initially titled Prisoner’s Legal News. Tr. of Trial 122:22-123:5
(Jan. 5, 2015). In 1992, the editors changed the name to Prison Legal News because they
“thought that [the] news and information was too important to . . . restrict it to prisoners.” Id.
8
Prison Legal News started carrying advertisements in 1996. 8 Tr. of Trial
41:16-:22 (Jan. 5, 2015). But it was not until February 2003 that the FDOC
censored Prison Legal News for its advertising content. Tr. of Trial 41:23-42:8,
184:9-:10 (Jan. 5, 2015). The FDOC specifically took issue with the publication’s
advertisement of services accepting postage stamps as payment, three-way calling
services, pen pal services, and offers to purchase inmate artwork; proscribed
mostly by subsection (3)(l). Moore Order 5-8. The justification was that those
advertisements presented a security risk because they promoted prohibited
services. Id. at 3.
PLN sued and the FDOC subsequently amended the Rule several times
during the 2005 litigation, vacillating between admitting publications containing
(3)(l) advertisements and rejecting them. Moore Order 7. Eventually the FDOC
settled on a rule that would not reject publications such as Prison Legal News for
advertising services prohibited by subsection (3)(l), so long as the advertisements
were “merely incidental to, rather than being the focus of, the publication.” Id. at 8.
This Court finds that there were several reasons for this change. First, the
FDOC believed that it had in place security measures to alleviate some of the
concerns associated with the prohibited services advertized in Prison Legal News.
8
The FDOC says that advertisements are unnecessary. The evidence overwhelmingly
refutes that argument. This Court finds that without advertisements PLN could not print Prison
Legal News. This Court further finds that printing a Florida-only edition of Prison Legal News
would be cost-prohibitive. Tr. of Trial 60:23-71:14 (Jan. 5, 2015).
9
Significantly, the FDOC trusted that its telephone vendor, at the time MCI, could
detect and block three-way calls and call-forwarding. See, e.g., id. at 7; Tr. of Trial
78:11-:22 (Jan. 6, 2015). Second, the FDOC recognized that “incidental”
advertisement did not pose a significant security threat to the prisons. Moore
Order 15. Following this recognition, the FDOC promised that it would no longer
impound and reject Prison Legal News “in its current format.” Id. at 16. The Rule
was not, as PLN claims, amended to “moot” the 2005 case. Tr. of Trial 78:11-:22
(Jan. 6, 2015).
Finally, this Court finds that the 2005 litigation did not concern services
prohibited by subsection (3)(m). See Tr. of Trial 69:9-70:8 (Jan. 6, 2015)
(discussing the major concerns in the prior litigation); Tr. of Trial 214 (Jan. 7,
2015) (testifying that prior litigation was not about subsection (3)(m)). This
litigation does.
B
From 2005 to 2009 the FDOC, proceeding under the revised Rule, did not
reject Prison Legal News. Then, in June 2009, the FDOC once again amended
subsection (3)(l) of the Rule. Along with this revision came the decision to resume
rejection of publications such as Prison Legal News for advertising services
10
prohibited by subsection (3)(l). 9 10 At trial, the parties vigorously disputed what
prompted these changes. Everyone agrees it was not any major incident or tragedy
related to (3)(l) services, since none occurred between 2005 and 2009. 11 Tr. of
Trial 5:9-:12 (Jan. 6, 2015).
FDOC administrators gave three primary reasons for amending subsection
(3)(l) in 2009, each of which this Court deems credible. See Tr. of Trial 58:20-:21
(Jan. 6, 2015). The first was a disagreement among the administrators “over
9
At times during this litigation the FDOC has taken the position that the 2009 revisions
were not substantive—that is, that the sole purpose was to clarify “incidental” to assist mailroom
staff. The witnesses at trial could not agree on whether the change was substantive, and the
parties never directly addressed the issue.
If truly not substantive, adding “prominent or prevalent” should not have resulted in
heightened censorship, generally. Yet that is precisely what happened. Within a few months the
FDOC resumed rejection of Prison Legal News, even though there was no noticeable change in
the magazine between June 2009, when the rule was implemented, and September 2009, the first
issue impounded since 2005. See Def.’s Trial Ex. 1; Pl.’s Trial Ex. 79.
What explains this inconsistency? First, it may not be an inconsistency at all. It could be
the case that Prison Legal News’ advertising content had ballooned well beyond “incidental”
back in October 2008, when it made the permanent jump from 48 pages per issue to 56. See Pl.’s
Trial Ex. 79, at 38. This would mean that FDOC mailroom staff mistakenly admitted Prison
Legal News for nearly a year. Under this view, the 2009 amendment worked. The staff has
gotten it right ever since, impounding and rejecting every issue of the magazine from September
2009 to the present.
This Court finds, however, that the true and more obvious answer is that the 2009
amendment was not a simple “restyling”—to borrow from the judicial Committee on Rules of
Practice and Procedure—of the Rule. The evidence at trial bears this out. For instance, Susan
Hughes, chairwoman of the Literature Review Committee from 2012 to October 2013, testified
that she understood the 2009 revision to be a change in the rule. Tr. of Trial 2:13-:17, 6:9-7:8
(Jan. 7, 2015). And, as this Court will discuss, the FDOC provided additional justifications for
the substantive decision to again reject Prison Legal News, such as renewed security concerns.
10
The FDOC also began censoring Prison Legal News for advertisements prohibited by
subsection (3)(m).
11
While no single, major incident prompted the amendment, this Court finds that there is
evidence that companies and prisoners disregarded prison rules against exchanging stamps for
money and services. See, e.g., Tr. of Trial 36:18-40:13 (Jan. 6, 2015).
11
whether the prior policy met the needs of the department.” Tr. of Trial 59:8-:10
(Jan. 6, 2015). According to James Upchurch, new technology, such as the advent
of Voice over Internet Protocol (“VoIP”) technology, forced the FDOC to
reconsider previous security decisions. Tr. of Trial 19:12-:22 (Jan. 6, 2015).
Securus is the FDOC’s current telephone vendor. Like MCI, it works by detecting
noises and clicks made on a phone line that signal the initiation of three-way calls
and call-forwarding. Tr. of Trial 15-16 (Jan. 6, 2015). Circumventing the system
generally requires obfuscating those specific noises or transferring calls without
any noise at all. VoIP employs the latter. Tr. of Trial 19:12-:22 (Jan. 6, 2015).
The changes in technology proved wrong the FDOC’s belief that it had adequate
security measures to curb three-way calling and call-forwarding.
The second reason given was dissatisfaction with the vagueness of
subsection (3)(l). FDOC administrators sought to clarify the circumstances under
which publications should be censored for their advertising content. See Tr. of
Trial 59:11-:14 (Jan. 6, 2015); see also Pl.’s Trial Ex. 30 (identifying clarity as the
goal of the 2009 revisions). They did so with the antonyms “prominent or
prevalent,” which the FDOC believed would assist mailroom staff in their
decision-making. Lastly, the FDOC had noticed an increase in the volume of
advertisements related to postage stamps. Tr. of Trial 59:16-:18 (Jan. 6, 2015).
12
A major theme in PLN’s First Amendment challenge is that the FDOC had
no legitimate reasons for amending subsection (3)(l). So, PLN endeavored to
undermine these reasons all through trial.
PLN asserts that the first reason—the purported circumvention of Securus—
is false. Securus, like MCI, is contractually obligated to block the call services at
issue. This contract was recently renewed by the FDOC. That means the system
works, says PLN. Otherwise, the FDOC would not have renewed the contract.
FDOC offers evidence to refute PLN’s argument. First, Securus itself
admits it is not 100% effective. Second, FDOC personnel monitoring phone calls
have heard inmates successfully transfer calls. Third, hundreds of thousands of
attempted calls have been detected by Securus. According to the FDOC, this
means that some prisoners successfully transfer calls, or else there would not be so
many attempts.
FDOC officials also said that increasing Securus’ effectiveness would be too
costly. They explained that Securus could be made more effective by increasing
its sensitivity to noise. The heightened sensitivity would capture more attempts,
but also result in more false positives. It would shutdown inmates placing ruleabiding phone calls. This would lower prisoner morale and increase tension to
untenable levels. Tr. of Trial 15-16:25 (Jan. 6, 2015). So it goes.
13
With respect to the first reason, this Court makes the following
determinations. At the time of the 2005 litigation, the FDOC believed that its
telephone vendor could detect all attempts at three-way calling and callforwarding. After all, Securus, its current vendor, is contractually obligated to
block three-way calls and call-forwarding attempts. Yet it is unable to do so.
Some calls, including those transferred using VoIP technology, elude the system.
There is no evidence to suggest that any other provider could do a better job than
Securus. And while it is theoretically possible to increase Securus’ efficacy, any
benefit from doing so would be offset by attendant prison instability.
As to the third reason, PLN points out that the FDOC never ran a study to
determine whether advertisements accepting stamps as payment increased between
2005 and 2009. Tr. of Trial 59:19-60:7 (Jan. 6, 2015). The FDOC instead relied
on plain observations and noticed that the number of such advertisements had
grown “substantially.” Tr. of Trial 59:19-60:18 (Jan. 6, 2015); accord Tr. of Trial
8:22-9:1 (Jan. 6, 2015).
That is beside the point. In fact the magazine did increase in size. Tr. of
Trial 109:18-110:6 (Jan. 5, 2015). In four years the magazine went from 48 pages
to 56 pages per issue, containing both more substantive, non-offending content and
prohibited advertisements. See Pl.’s Trial Ex. 79 (providing total number of pages
for every issue of Prison Legal News dating back to January 2002); Def.’s Trial
14
Ex. 7. Qualitatively, the advertisements have changed as well. The number of
“half page or greater” (3)(l) ads have increased. Def.’s Trial Ex. 7. And since
2010, PLN has run an offending advertisement on the back cover of the magazine.
Id. Today, Prison Legal News is 64-pages long. See Pl.’s Trial Ex. 79. No formal
study is necessary to see that.
PLN additionally argues that the FDOC is wrong to look to the total number
of advertisements. Tr. of Trial 49:9-:12 (Jan. 7, 2015). Instead, as PLN would
have it, the proper measure is the percentage of the magazine that is prohibited
advertisement. Tr. of Trial 49:14-50:2 (Jan. 7, 2015). The merits of this argument
are explored later. For now, suffice to say that the percentage of advertisements
for three-way calling services, stamps as payment, pen pal services, and
conducting a business services—that is, those prohibited by subsection (3)(l) of the
Rule—increased only slightly from 9.21% in 2005 to 9.8% in 2009. See Pl.’s Trial
Ex. 79, at 85. In 2014, (3)(l)-prohibited advertisements averaged 15.07% of the
publication. Id.12
Notably, neither this “study” nor anything else introduced by the parties
examines the percentage for advertisement prohibited by (3)(m). See Tr. of Trial
242, 250:9-:15 (Jan. 5, 2015) (explaining methods, which excluded (3)(m) ads);
12
Evidence before this Court shows that advertising content in Prison Legal News has
been on the rise since 2005. Paul Wright testified that PLN does not intend to further increase
the number and size of offending advertisements. Tr. of Trial 59:8-:10 (Jan. 5, 2015). This
Court has no reason to disbelieve Mr. Wright.
15
see also Def.’s Trial Ex. 7 (providing number of advertisements forbidden by other
rules, including (3)(m), and showing that, by 2009, Prison Legal News’ advertising
content had widened to include more types of prohibited advertisements; but still
not revealing the percentage of (3)(m) advertisements).
Another contention made by PLN, which it hopes this Court will adopt as
fact, is that FDOC officials amended the Rule in 2009 specifically to exclude
Prison Legal News. PLN cites email exchanges among FDOC administrators
where they discuss the 2009 amendment and how the new rule might “run afoul”
of the promises made in the 2005 litigation. See, e.g., Tr. of Trial 61-66 (Jan. 6,
2015); Pl.’s Trial Ex. 57a-57i. To PLN, these emails are a smoking gun of the
ulterior motive animating the 2009 revisions. See Tr. of Trial 135-136 (Jan. 5,
2015) (accusing the FDOC of censoring Prison Legal News for its editorial
content).
At minimum, the emails reveal that FDOC officials were aware that the
2009 changes would lead to rejection of Prison Legal News. This supports the
finding that the FDOC intended the 2009 amendments to be substantive. And
perhaps when placed, as PLN does, in the broader context of FDOC prevarication
and inconsistent application of the Rule, they hint at chicanery (more on this later).
But it is still a stretch to say that the emails demonstrate that FDOC officials
amended the Rule in 2009 specifically to exclude Prison Legal News.
16
These emails are the closest thing PLN presented to direct evidence that the
FDOC targets Prison Legal News. Other circumstantial evidence relies heavily on
inference to support this theory. PLN reasons, for example, that security concerns
could not possibly underlie the amendment because no major incident or tragedy
related to the services advertised occurred between 2005 and 2009. The Rule must
then be a façade, masking institutional bias against a publication that informs
prisoners of their rights.
Such a finding would be nothing less than conjecture. There are many
reasons, not the least of which is that there is some evidence of stamp-related
problems. Animus is not the only inference that can be drawn from the fact that
the FDOC amended subsection (3)(l) before a calamity transpired. Plus, the FDOC
unequivocally denies any malice, its officials going as far as saying that they view
Prison Legal News favorably. See, e.g., Tr. of Trial 212:9-:13 (Jan. 7, 2015).
More importantly, PLN failed to offer any evidence showing that the FDOC does
not censor other publications containing similar advertising content, or that the
only other publications that the FDOC censors contain editorial content similar to
Prison Legal News. To the contrary, the FDOC produced evidence, though
limited, that it has repeatedly rejected other publications on (3)(l) grounds, some of
which on their face do not resemble Prison Legal News. See, e.g., Def.’s Trial Ex.
12, at 37-39 (censoring American Arab Message for advertising services for
17
stamps), 63-65 (censoring Cellmates for pen pal advertisement), 69-71 (censoring
Butterwater catalog for advertising services for stamps), 72-74 (censoring Picture
Entertainment for advertising services for stamps); Def.’s Trial Ex. 15.
Here, the more limited conclusion is the soundest. And that conclusion is
that FDOC officials did not amend subsection (3)(l) in 2009 because they disliked
Prison Legal News’ “editorial” content. 13 And there is no evidence, this Court
finds, that the FDOC censors Prison Legal News but not other publications with
similar advertising content. Lastly, with respect to subsection (3)(l), this Court
finds, consistent with the expert testimony presented at trial, that advertisements
for such services implicate legitimate security concerns. Tr. of Trial 69-147 (Jan.
7, 2015).
Turning to subsection (3)(m), this Court makes the following findings.
Subsection (3)(m) contains a residual clause requiring the FDOC to reject
publications that otherwise present a threat to security, order, rehabilitative
objectives, and safety. From 2009 onward, the FDOC became increasingly
concerned with services falling outside the ambit of (3)(l) and within the purview
of (3)(m). See, e.g., Tr. of Trial 15:14-:20 (Jan. 7, 2015). Chiefly troubling among
13
It is not entirely clear how much “motive” matters, if at all, in the First Amendment
analysis. The order later explores the divergent case law on this issue. Ultimately, this Court
does not decide whether motive matters because, even if it does, PLN failed to present sufficient
evidence that FDOC officials acted with ill will in 2009 when they amended the Rule and
resumed impounding Prison Legal News.
18
these services—at least to the FDOC—are prisoner concierge services, which
enable inmates to establish outside bank accounts, run background checks, and
locate people, among other things. See Tr. of Trial 69:9-70:8 (Jan. 6, 2015); see
also Tr. of Trial 73:13-:21 (Jan. 7, 2015) (listing services falling under umbrella
term “prisoner concierge services”). This Court finds, consistent with the expert
testimony produced by the FDOC, that advertisements for these services constitute
legitimate security risks. See Tr. of Trial 69-147 (Jan. 7, 2015).
Prison Legal News contained these sorts of advertisements in 2009. See
Def.’s Trial Ex. 7. It did not back in 2005. See id. Indeed, the largest increase in
advertisements in Prison Legal News has been for prisoner concierge services. Tr.
of Trial 73:13-:21 (Jan. 7, 2015). Unremarkably, then, the FDOC began invoking
subsection (3)(m) to censor the publication.
Not all of PLN’s evidentiary arguments are duds. The following is largely
undisputed. Florida is the only state that censors Prison Legal News because of its
advertising content. Tr. of Trial 71:15-:20, 198-200 (Jan. 5, 2015). The private
prison corporations censor Prison Legal News only in Florida as well. Tr. of Trial
75:14-:20 (Jan. 5, 2015). Some states that previously censored the publication
because of its advertising content have found less restrictive ways of furthering
their legitimate penological goals without banning it. See, e.g., Tr. of Trial 81:19-
19
82:14 (Jan. 5, 2015) (explaining that New York staples a notice to the magazine
before delivering it to inmates warning them that certain services are prohibited).
Other prison rules seem in tension with the penological grounds upon which
the FDOC censors Prison Legal News. Inmates may call up to 10 numbers
preapproved by the FDOC. Tr. of Trial 13:1-:7 (Jan. 6, 2015). The FDOC claims
that three-way calling and call-forwarding present a security risk because these
services mask the identity and location of the true recipient of a call. Tr. of Trial
197-200 (Jan. 5, 2015). Yet the FDOC allows inmates to list cell phone numbers,
for which it has no way of knowing the location and identity of the person on the
other end. Id.; see also Tr. of Trial 22:5-:10 (Jan. 6, 2015). The assignment of a
cell phone number likewise does not depend on geography. Tr. of Trial 49-50
(Jan. 6, 2015) (explaining how someone in Miami can obtain a cell phone number
with a Tallahassee area code). Similarly, even though the FDOC has stamp-related
security concerns, it allows inmates to possess up to 40 stamps at any given time.
Tr. of Trial 188:3-:4 (Jan. 5, 2015). And, as PLN stresses, there are many ways for
inmates to obtain the information advertized in Prison Legal News despite its
censorship.
These inconsistencies aside, this Court determines that the FDOC’s stated
penological objectives for censoring Prison Legal New have been steadfast:
security, rehabilitation, and protecting the public, FDOC staff and inmates.
20
C
The FDOC’s literature review process can be broken down into two groups.
The first group consists of incoming publications that have not previously been
rejected by the Literature Review Committee (“LRC”), the body that reviews
impoundment decisions made by FDOC institutions. As to that group, the process
works as follows.
An issue of Prison Legal News enters an FDOC facility or institution.
Mailroom personnel initially flag potential advertising violations. If they think the
advertising content violates the Rule, the publication is sent to the warden or the
warden’s designee (“[f]or the purposes of approving the impoundment of
publications,” the designee is limited to the assistant warden), who makes the
impoundment decision for the FDOC institution. Fla. Admin. Code R. 33501.401(8)(a). If that official believes the publication violates the Rule, he or she
completes “Form DC5-101, Notice of Rejection or Impoundment of Publications.”
Id. The form is supposed to indicate the “specific reasons” for impoundment. Id.
Several copies of this form are made. Not everyone is entitled to a copy.
Under the Rule, the inmate is always entitled to notice whenever a copy of any
publication addressed to him or her is impounded. But the Rule only requires that
the institution that “originated the impoundment . . . also provide a copy of the
completed form to the publisher, mail order distributor, bookstore or sender, and to
21
the literature review committee.” Fla. Admin. Code R. 33-501.401(8)(b). “[A]
copy of the publication’s front cover or title page and a copy of all pages cited on
[the form],” are attached to the copy sent to the LRC. 14 Id. (emphasis added).
FDOC personnel do not mark down every offending advertisement. So the
LRC never receives a photocopy of the entire impounded publication. 15 The LRC
reviews the institution’s decision—in (3)(l) cases, reviewing to see whether
offending advertisement is “prominent or prevalent throughout the publication”—
without ever knowing the number and size of all offending advertisements in any
given issue of Prison Legal News, nor the issue’s total page count. It may affirm
or overturn the institution’s decision on different or additional grounds. Tr. of
Trial 113:20-:25, 120:20-:23 (Jan. 6, 2015). The LRC does not use Form DC5-101
to make its decision. Tr. of Trial 120 (Jan. 6, 2015). Instead, the LRC uses a
different form that it keeps internally. Id. These internal forms have not been
provided to this Court by either party.
Once an initial impoundment decision is made, the Rule requires all other
institutions to impound the same publication pending review by the LRC. Fla.
Admin. Code R. 33-501.401(8)(c). The initial impounding institution is supposed
14
Briefly, the parties dispute the burden of making a copy for the publisher every time an
FDOC facility impounds a copy of an issue. The dispute centered on whether doing so would
impose a de minimus burden on the FDOC. This Court has considered the evidence and now
finds that making a copy for the publisher every time would be minimally burdensome.
15
The FDOC does not copy the entire publication for fear that doing so infringes
copyright protections.
22
to notify other institutions of the impoundment through a centralized database that
explains why a specific publication was impounded. This reduces duplicative
efforts. Institutions that subsequently receive the same publication should
automatically reject it on the same grounds as the initial institution.
Group two concerns publications that have previously been rejected by the
LRC. Once the LRC affirms an initial impoundment, it rejects the specific issue of
a publication and informs all institutions of its decision. Future recipient
institutions are then required to reject other copies of that issue. The LRC does not
notify publishers when it upholds an impoundment decision unless the publisher
appealed the initial impoundment decision. Tr. of Trial 86:3-:8 (Jan. 6, 2015).
D
The FDOC has impounded every issue of Prison Legal News since
September 2009. Pursuant to its policy, it admits not providing PLN a notice of
impoundment for every copy of each issue it has impounded.16
The FDOC says that it has provided PLN at least one impoundment notice
per issue since 2009. As evidence, the FDOC called two witnesses who worked in
the mailroom at Florida State Prison. Tr. of Trial 154, 180 (Jan. 7, 2015). One of
them, Ms. Patricia Goodman, has been working there since at least 2009. Tr. of
Trial 154:22-155:7 (Jan. 7, 2015). The two witnesses are responsible for mailing
16
Whether due process requires individualized notice per copy will be discussed later.
23
out the impoundment notices originating at Florida State Prison. Both testified
about the impoundment protocol at their institution and how closely these
procedures are followed by mailroom staff. See, e.g., Tr. of Trial 158:5-:7 (Jan. 7,
2015). Neither could independently recall actually sending PLN an impoundment
notice every single time. As further support, the FDOC provided documentation of
notices of impoundment from 2009 to the present. See Def.’s Trial Ex. 5.
None of this, says PLN, demonstrates that the FDOC provided PLN with an
impoundment notice for every issue since 2009. PLN is absolutely correct. First,
the testimonial evidence submitted by the FDOC is limited to one of its
institutions, Florida State Prison. No one argues that Florida State Prison was
always the original impounding institution. There is no evidence that the other
institutions regularly followed protocol like Ms. Goodman. Second, even for the
Florida State Prison, the witnesses admitted that they could not recall whether they
notified PLN every time. Third, the notices of impoundment submitted are
reproductions of notices received by PLN from prisoners, not the FDOC. See ECF
No. 241, at 9-10 (explaining that the notices reproduced in Defendant’s Trial
Exhibit 5 contained PLN Bates numbers; PLN originally disclosed these notices to
the FDOC during discovery).
This Court finds in favor of PLN on these facts. PLN proved that it did not
receive an impoundment notice for every issue impounded since November 2009.
24
ECF No. 241, at 9. Two of its witnesses explained PLN’s mail protocol, credibly
establishing PLN’s meticulous recordkeeping. Tr. of Trial 252, 268 (Jan. 5, 2015).
From November 2009 to June 2013, Mr. Zachary Phillips was responsible for
filing mail concerning censorship or possible censorship of Prison Legal News.
Tr. of Trial 253:8-254:6 (Jan. 5, 2015). He reviewed notices of rejection or
impoundment from November 2009 to May 2013. Tr. of Trial 257-263 (Jan. 5,
2015). PLN did not receive a notice of impoundment from the FDOC for many of
those months. See, e.g., Tr. of Trial 257:13-:14 (Jan. 5, 2015) (stating that in 2010
PLN did not receive notices in May, June, July, August, September, and October).
In summary, for 26 issues between November 2009 and December 2014,
PLN did not receive any notice from the FDOC that Prison Legal News had been
impounded.17 That is roughly 42% of all issues during that period where the
FDOC withheld Prison Legal News without notifying PLN. ECF No. 241, at 9.
Of the notices PLN did receive, many did not list the page numbers containing
advertisements allegedly in violation of the Rule. Id. Some did not even state the
subsection allegedly breached. Id. And at least three times PLN received a notice
of rejection without having first received a notice of impoundment, meaning that
the LRC had made its decision before PLN had an opportunity to appeal. Id.
17
This is the summary provided by PLN in its post-trial brief. See ECF No. 241, at 9.
This Court has independently reviewed the evidence submitted at trial and agrees with the
summary.
25
Lastly, this Court finds that the FDOC failed to provide notice every time it
impounded the Prisoners’ Guerilla Handbook and the information packets sent to
its inmates by PLN. See Tr. of Trial 261-262 (Jan. 5, 2015); Tr. of Trial 4-5 (Jan.
8, 2015); Pl.’s Trial Ex. 46; Pl.’s Trial Ex. 86.
IV
There are three principal issues to be resolved. The first is preliminary and
does not address the merits of PLN’s lawsuit. That issue is whether the FDOC
should be judicially estopped from censoring Prison Legal News under Rule 33501.401(3)(l). Resolving that issue does not completely dispose of the case
because PLN also brought an as-applied First Amendment challenge to subsection
(3)(m) of the Rule. The two remaining issues are: first, whether the FDOC’s
censorship of Prison Legal News under Rule 33-501.401(3)(l) and (m)
unconstitutionally abridges PLN’s First Amendment rights; 18 and second, whether
the FDOC violated PLN’s procedural due process rights.
A
The preliminary question is whether judicial estoppel bars the FDOC from
censoring Prison Legal News on the basis that its advertising content violates Rule
33-501.401(3)(l).
18
Applied to the State of Florida by the Fourteenth Amendment.
26
The doctrine of judicial estoppel generally “prevents a party from asserting a
claim in a legal proceeding that is inconsistent with a claim taken by that party in a
previous proceeding.” New Hampshire v. Maine, 532 U.S. 742, 749 (2001)
(quoting 18 Moore’s Federal Practice § 134.30, p. 134-62 (3d ed. 2000)). It is
designed “to protect the integrity of the judicial process.” Id. To that end, the
doctrine, in its “simplest manifestation[],” estops a party from asserting “a present
position because [that] party had earlier persuaded a tribunal to find the opposite.”
18B Charles Alan Wright et al., Federal Practice & Procedure § 4477 (2d ed.
2015).
The Supreme Court in New Hampshire explained that while “[t]he
circumstances under which judicial estoppel may appropriately be invoked are
probably not reducible to any general formulation of principle,” “several factors
typically inform the decision whether to apply the doctrine in a particular case.”
532 U.S. at 750 (alteration in original) (quoting Allen v. Zurich Ins. Co., 667 F.2d
1162, 1166 (4th Cir. 1982)).
First, a party’s later position must be “clearly inconsistent” with its
earlier position. Second, courts regularly inquire whether the party
has succeeded in persuading a court to accept that party’s earlier
position, so that judicial acceptance of an inconsistent position in a
later proceeding would create “the perception that either the first or
the second court was misled.” Absent success in a prior proceeding, a
party’s later inconsistent position introduces no “risk of inconsistent
court determinations,” and thus poses little threat to judicial integrity.
A third consideration is whether the party seeking to assert an
27
inconsistent position would derive an unfair advantage or impose an
unfair detriment on the opposing party if not estopped.
Id. at 750-51 (citations omitted).
In this Circuit, courts consider two additional factors. “First, it must be
shown that the allegedly inconsistent positions were made under oath in a prior
proceeding. Second, such inconsistencies must be shown to have been calculated
to make a mockery of the judicial system.” Burnes v. Pemco Aeroplex, Inc., 291
F.3d 1282, 1285 (11th Cir. 2002) (quoting Salomon Smith Barney, Inc. v. Harvey,
260 F.3d 1302, 1308 (11th Cir. 2001), cert. granted, judgment vacated on other
grounds, 537 U.S. 1085 (2002)). “[T]hese . . . enumerated factors are not
inflexible or exhaustive.” Id. at 1286. And, courts have discretion in invoking the
doctrine. New Hampshire, 532 U.S. at 750. But they “must always give due
consideration to all of the circumstances of a particular case when considering [its]
applicability.” Burnes, 291 F.3d at 1286 (emphasis added).
The FDOC currently maintains that the advertisements for (3)(l) services in
Prison Legal News present a security threat, justifying the publication’s censorship
under that subsection. PLN insists that this position is clearly inconsistent with the
2005 representation that “such ‘incidental’ ads do not pose a significant security
threat to the prisons.” Moore Order 15. It would be different if the underlying
facts changed, but according to PLN, the only thing that has changed is the
FDOC’s “interpretation of the evidence or its decisions on how to enforce the rules
28
at issue.” ECF No. 241, at 20. It points out that the percentage of (3)(l)
advertising content in Prison Legal News did not increase significantly from 2005
to 2009, and that no major incident or tragedy linked to (3)(l) services occurred
during that time period. The FDOC’s “flip-flopping” “over the same rule and
same security concerns,” PLN claims, is precisely the sort of inveiglement of the
judiciary that judicial estoppel is supposed to ward against.
But because circumstances have changed, the two FDOC positions are not
clearly inconsistent. First, technology changed. In 2005, the FDOC decided not to
censor publications containing advertisements for three-way calling and callforwarding services because it believed that its telephone vendor could detect and
block all such attempts. See Moore Order 14. Yet inmates have continued to
bypass the FDOC’s security measures using technology such as VoIP that
previously was not so widely available. The FDOC was clearly mistaken about the
efficacy of its security measures. Judicial estoppel simply does not apply “when
the prior position was taken because of a good faith mistake rather than as part of a
scheme to mislead the court.” Ryan Operations G.P. v. Santiam-Midwest Lumber
Co., 81 F.3d 355, 362 (3d Cir. 1996).
Second, the extent to which Prison Legal News advertizes services
prohibited by (3)(l) has also changed. PLN stresses that the proportion of the
magazine that is (3)(l) advertisement barely increased from 9.21% in 2005 to 9.8%
29
in 2009. To PLN, these percentages demonstrate that in 2009 such advertisements
were no less “incidental” than they had been in 2005. PLN thus equates
“incidental” to proportional.
A strictly proportion-based metric, however, overlooks significant
differences. For starters, Prison Legal News ran larger ads in 2009. A chart
submitted by the FDOC tallies the number of “half page or greater” (3)(l) ads.
Def.’s Trial Ex. 7. From April 2005, the last issue censored in the previous
litigation, to September 2009, the number of such ads increased by 100%, from 2
to 4. Id. at 1. That number rose even more, now hovering around 6 per issue. Id.
at 3. So while the overall proportion of (3)(l) advertisement had not increased
significantly in 2009, the number of larger, more conspicuous ads did.
The magazine also shifted away from advertising three-way calling services
to advertisements enabling inmates to purchase products or services with postage
stamps. By PLN’s own account, the number of these so-called “stamp”
advertisements went from 2 in April 2005 to 7 in September 2009. Compare Pl.’s
Trial Ex. 79, at 17-18, with id. at 43-44. That number has steadily ticked upward:
8 by November 2009; 9 in February 2010; 10 in March 2010; a slight decrease
before rebounding to 11 in July 2010; 13 by August 2010; peaking at 17 in March
2013; and steadying at the lower end of the teens ever since. Id. at 44-84.
Advertisements for three-way calls have not seen this growth, but they have not
30
decreased either. Id. Although PLN argues that the overall percentage of (3)(l)
advertisements has not changed much,19 the magazine clearly emphasizes a
different type of (3)(l) ad today than it did in 2005.
The most obvious shortcoming with equating “incidental” to proportional is
that it misses the absolute increase of advertisements for services prohibited by
(3)(l). See id.; Def.’s Trial Ex. 7. Perhaps a 10-page publication with one page of
advertisement is functionally equivalent to a 100-page publication with ten pages
of advertisement. This Court, however, refuses to supplant FDOC officials’
judgment on whether one of these equally proportionate, but qualitatively different
publications presents any more of a security risk than the other. See Jones v. N.
Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119, 125 (1977) (admonishing
the lower court for “not giving appropriate deference to the decisions of prison
administrators and appropriate recognition to the peculiar and restrictive
circumstances of penal confinement”).
All of these changes to the content and format of Prison Legal News matter
for judicial estoppel. PLN paints the FDOC’s representations in 2005 as a blanket
promise that Prison Legal News would never again be censored for advertising
services prohibited by (3)(l). But that is not what the Moore Order articulates. The
19
This is not actually true. The overall percentage in 2005 was 9.21%. Pl.’s Trial Ex.
79, at 85. By 2011 that number had gone up to 10.19%. Id. It hit 12.66% in 2012, and now
hovers above 15%. Id.
31
FDOC represented that “such ‘incidental’ ads” did not pose a security threat.
Moore Order 15 (emphasis added). This is a direct reference to the advertising
content at issue in that case. See Black’s Law Dictionary 1661 (10th ed. 2014)
(defining “such” as “That or those; having just been mentioned”). By limiting its
representation, the FDOC’s promise cannot fairly be read as extending to all future
iterations of such advertisements, particularly those different in kind.
Furthermore, the Moore Order itself reflects the limited finding that the
FDOC had promised not to impound Prison Legal News “in its current format.”
Moore Order 21 (emphasis added). The Eleventh Circuit reiterated this
understanding on appeal. McDonough, 200 F. App’x at 878 (“The FDOC
demonstrated that its current impoundment rule does allow for distribution of PLN
in its current format.”) (emphasis added). The format changed in four years. It
has changed even more since then. Consequently, the FDOC’s current position is
not clearly inconsistent with the position it took before Judge Moore, and this
Court’s acceptance of that position would not “create the perception that . . . the
first . . . court was misled.” New Hampshire, 532 U.S. at 750-51.
32
Accordingly, the FDOC is not judicially estopped from adopting the current
position that Prison Legal News must be censored because its (3)(l) advertising
content presents a security risk.20
B
This Court must also decide whether the FDOC’s censorship of Prison
Legal News pursuant to Rule 33-501.401(3)(l) and (m) violates PLN’s rights under
the First Amendment.
PLN has a legitimate First Amendment interest in accessing prisoners “who,
through subscription, willingly seek [the] point of view” expressed in Prison Legal
News. Thornburgh v. Abbott, 490 U.S. 401, 408 (1989). Prison regulations
limiting that access must be analyzed under the reasonableness standard developed
by the Supreme Court in Turner v. Safley, 482 U.S. 78 (1987). Thornburgh, 490
U.S. at 413-14 (holding that regulations affecting the sending of a “publication” to
a prisoner must be analyzed under Turner; refusing to distinguish between
incoming correspondence from prisoners and incoming correspondence from
nonprisoners); accord Washington v. Harper, 494 U.S. 210, 224 (1990) (“[T]he
20
The FDOC additionally contends that judicial estoppel does not apply against states
when doing so would “compromise a governmental interest in enforcing the law” and “where
broad interests of public policy [are] at issue.” ECF No. 242, at 4-5 (quoting New Hampshire,
532 U.S. at 755-56). It argues this case implicates both concerns. First, estoppel would
compromise the FDOC’s interest in enforcing prison safety rules. Second, broad interests of
public safety and prison security are at issue. PLN responds that neither interest is at play in this
litigation. This Court need not decide this issue because it finds that the totality of the
circumstances counsel against judicial estoppel.
33
standard of review we adopted in Turner applies to all circumstances in which the
needs of prison administration implicate constitutional rights.”); Perry v. Sec’y,
Florida Dep’t of Corr., 664 F.3d 1359, 1365 (11th Cir. 2011). Under Turner, such
regulations are “valid if [they are] reasonably related to legitimate penological
interests.” Thornburgh, 490 U.S. at 413 (alteration in original) (quoting Turner,
482 U.S. at 89).
Several factors are relevant to the reasonableness inquiry. The first factor is
multifold, requiring courts to “determine whether the governmental objective
underlying the regulations at issue is legitimate and neutral, and that the
regulations are rationally related to that objective.” Id. at 414. This “ ‘factor’ is
more properly labeled an ‘element’ because it is not simply a consideration to be
weighed but rather an essential requirement.” Salahuddin v. Goord, 467 F.3d 263,
274 (2d Cir. 2006); accord Shaw v. Murphy, 532 U.S. 223, 229-30 (2001) (“[After
stating the first Turner factor:] If the connection between the regulation and the
asserted goal is ‘arbitrary or irrational,’ then the regulation fails, irrespective of
whether the other factors tilt in its favor.”).
A second factor “is whether there are alternative means of exercising the
right that remain open to [the plaintiff].” Turner, 482 U.S. at 90. “A third
consideration is the impact accommodation of the asserted constitutional right will
have on guards and other inmates, and on the allocation of prison resources
34
generally.” Id. Finally, Turner instructs lower courts to inquire whether there are
“easy alternatives” indicating that the regulation is not reasonable, but rather an
“exaggerated response” to prison concerns. Id.
After the impinged constitutional right has been identified, as is the case
here, the state must “put forward” the legitimate governmental interests underlying
its regulation. Id. at 89. Once this is done, the plaintiff bears the ultimate burden
of showing that the regulation in question, as applied, is not reasonably related to
legitimate penological objectives. Overton v. Bazzetta, 539 U.S. 126, 132 (2003)
(“The burden, moreover, is not on the State to prove the validity of prison
regulations but on the [plaintiff] to disprove it.”).
The FDOC identified public safety and prison security as the underlying
legitimate governmental interests.21 No one questions whether those are legitimate
governmental interests. Any suggestion to the contrary would be fruitless. See
Thornburgh, 490 U.S. at 415 (holding that regulation promulgated with the
purpose of “protecting prison security” is legitimate, since that “purpose . . . is
central to all other corrections goals”); Perry, 664 F.3d at 1366 (acknowledging
that “protecting the public and ensuring internal prison security” are legitimate
penological interests).
21
It identified other reasons too, but only the security objectives are necessary for this
analysis.
35
PLN instead contends that the FDOC’s application of Rule 33-501.401(3)(l)
and (m) is not content-neutral, and that censoring Prison Legal News for its
advertising content is not rationally related to public safety and prison security.
And so, with respect to the first factor, the question becomes (1) whether the Rule
“operate[s] in a neutral fashion, without regard to the content of the expression” at
issue; and (2) whether censoring Prison Legal News due to its advertising content
rationally relates to public safety and prison security. Turner, 482 U.S. at 90.
As to neutrality, the Supreme Court has explained that Turner requires
nothing more than that “the regulation or practice in question must further an
important or substantial governmental interest unrelated to the suppression of
expression.” Thornburgh, 490 U.S. at 415 (quoting Procunier v. Martinez, 416
U.S. 396, 413 (1974)). “Where . . . prison administrators draw distinctions
between publications solely on the basis of their potential implications for prison
security, the regulations are ‘neutral’ . . . .” Id. at 415-16.
The limited evidence at trial reveals that the FDOC censors an assorted mix
of publications under subsections (3)(l) and (m). Nothing in the record implies that
such censorship turns on the content of the publication. PLN did not show, for
instance, that the FDOC disparately censors publications critical of its institutions.
Lacking this evidence, PLN argues that FDOC administrators did not amend
the Rule in 2009 on legitimate penological grounds. PLN alleges, citing a series of
36
emails, that the true motivation behind the amendment was a dislike of Prison
Legal News. See Pl.’s Trial Ex. 57a-57i.
“It is unclear what role, if any, motive plays in the Turner inquiry.” Hatim
v. Obama, 760 F.3d 54, 61 (D.C. Cir. 2014). Compare Hammer v. Ashcroft, 570
F.3d 798, 803 (7th Cir. 2009) (“It is not clear why one bad motive would spoil a
rule that is adequately supported by good reasons. The Supreme Court did not
search for ‘pretext’ in Turner; it asked instead whether a rule is rationally related to
a legitimate goal.”) (citation omitted), with Salahuddin, 467 F.3d at 276-77, and
Quinn v. Nix, 983 F.2d 115, 118 (8th Cir. 1993) (“Prison officials are not entitled
to the deference described in Turner and Procunier if their actions are not actually
motivated by legitimate penological interests at the time they act.”). In this case,
the contours of that role need not be delineated because “[e]ven if some quantum
of evidence of an unlawful motive can invalidate a policy that would otherwise
survive the Turner test,” the evidence introduced by PLN is “too insubstantial to
do so.” Hatim, 760 F.3d at 61; see also Prison Legal News v. Stolle, No.
2:13CV424, 2014 WL 6982470, at *6 n.2 (E.D. Va. Dec. 8, 2014) (rejecting
applicability of motive and holding, in the alternative, that PLN failed to present
sufficient evidence of “unlawful motive” that could “invalidate a policy that would
otherwise survive the Turner test”). As previously explained, the emails simply do
not evidence unlawful animus on the part of FDOC administrators. Neither does
37
the other circumstantial evidence. PLN thus failed to show that the FDOC applies
Rule 33-501.401(3)(l) and (m) in a biased fashion.
Setting neutrality aside, this Court now turns to the gravamen of PLN’s First
Amendment challenge. PLN advances three principal reasons for why there is no
rational connection between the censorship at issue and the stated penological
objectives.
The first argument boils down to a dispute about the evidentiary burden
necessary to establish a “rational” connection. Everyone, even PLN’s expert,
agrees that the underlying services addressed in Rule 33-501.401(3)(l) and (m)
unquestionably compromise public safety and prison security. See, e.g., Tr. of
Trial 68-69 (Jan. 8, 2015) (summarizing how even PLN’s expert agrees that the
underlying services compromise security); Tr. of Trial 203:9-:15 (Jan. 5, 2015)
(admitting that “[those services raise] very legitimate concerns”). This is why the
FDOC forbids prisoners from using them.
But PLN says that evidence that prohibiting the use of these services furthers
security is not enough. This case, PLN insists, is not about those services. This
case is about censoring a publication because it advertizes those services. That is
correct. Even so, the FDOC also articulated a logical connection between
censorship and the penological objectives at stake, and presented sufficient
evidence in support.
38
The logic is straightforward. Without question, the proper, initial response
to the dangerous services is forbidding prisoners from using them. Though not
surprisingly, they do so anyway. Tr. of Trial 241-243 (Jan. 7, 2015). See
generally Washington, 494 U.S. at 225 (“[A] prison environment, . . . ‘by
definition,’ is made up of persons with ‘a demonstrated proclivity for antisocial
criminal, and often violent, conduct.’ ” (quoting Hudson v. Palmer, 468 U.S. 517,
526 (1984))). So the FDOC has adopted prophylactic safeguards in addition to
bare proscription.
Rule 33-501.401 is such a safeguard. Advertisements compromise security
because they convert a publication into a “one-stop shop”—to borrow from the
FDOC’s expert—for dangerous services. Tr. of Trial 71-72:15 (Jan. 8, 2015). By
limiting inmates’ exposure, the Rule seeks to reduce the likelihood that inmates
will use those services.
PLN responds that such “general or conclusory” articulation of rationality is
insufficient to withstand constitutional muster. Tr. of Trial 64:17 (Jan. 8, 2015).
This Court agrees, “Turner requires prison authorities to show more than a
formalistic logical connection between a regulation and a penological objective.”
Beard v. Banks, 548 U.S. 521, 535 (2006). The FDOC met that burden by
providing the testimony of several administrators who, “relying on their
professional judgment, reached an experience-based conclusion that [censorship] .
39
. . further[s] [the] legitimate prison objectives.” Id. at 533 (emphasis added); see
also Prison Legal News v. Livingston, 683 F.3d 201, 216 (5th Cir. 2012) (“[P]rison
policies may be legitimately based on prison administrators’ reasonable
assessment . . . .”) (emphasis added). And, as additional support, the FDOC
provided “expert testimony to establish that [censorship] will help curb” prisoners’
use of the services. Perry, 664 F.3d at 1366 (holding that expert testimony is
sufficient to establish rational connection; deferring to the opinion of FDOC
administrator James Upchurch, who is also a witness in this case).
None of this suffices for PLN. It wants specific past incidents. And not
merely some past example of an inmate using a prohibited service to do something
bad; PLN demands a concrete, unfortunate incident caused by an inmate using a
banned service, which the inmate learned about in Prison Legal News. See, e.g.,
Tr. of Trial 66:2-:8 (Jan. 8, 2015).
No controlling precedent in this Circuit requires the FDOC to provide
evidence of an actual, past incident. See, e.g., Perry, 664 F.3d at 1363 (affirming
summary judgment in favor of the FDOC on First Amendment challenge to prison
regulation despite fact that the FDOC failed to cite specific instances of the alleged
problem in Florida). Several other circuits likewise do not require it. See, e.g.,
Murchison v. Rogers, 779 F.3d 882, 890 (8th Cir. 2015) (“[P]rison officials need
not wait until particular prohibited material causes harm before censoring it . . . .”);
40
Livingston, 683 F.3d at 216 (“[P]rison policies may be legitimately based on prison
administrators’ reasonable assessment of potential dangers.”). But even if such
evidence were required, FDOC administrators provided examples, both in Florida
and throughout the country, of problems associated with specific services that
advertize, or have advertized, in Prison Legal News. See, e.g., Tr. of Trial 5-6, 3941 (Jan. 6, 2015) (explaining that FDOC officials learned of a company that had
been sending prisoners money for stamps, and how such companies could
distribute money for prisoners to people in the outside world in exchange for
stamps; this company had previously advertized on Prison Legal News).
PLN’s second reason is that the FDOC applies the Rule arbitrarily. PLN
introduced evidence of identical issues of Prison Legal News censored at separate
FDOC facilities on different grounds, as reflected on the impoundment notice
accompanying the censorship. There is also some testimony about issues that were
initially admitted at some facilities while denied at others. Lastly, PLN stresses
that advertisements for other prohibited services and products are not censored by
the FDOC. PLN maintains that these inconsistencies amount to an irrational
application of the Rule.
Case law supports the proposition that the consistency with which a
regulation is applied matters for determining whether it is rationally connected to a
legitimate penological objective. “The existence of similar material within the
41
prison walls may serve to show inconsistencies in the manner in which material is
censored such as to undermine the rationale for censorship or show it was actually
censored for its content.” Murchison, 779 F.3d at 890 (emphasis added). In
addition to inconsistent censorship of “similar” material, general “inconsistencies
could [also] become so significant that they amount to a practical randomness that
destroys the relationship between a regulation and its legitimate penological
objectives.” Id. (quoting Livingston, 683 F.3d at 221); see also Thornburgh, 490
U.S. at 417 n.15.
Although PLN has presented evidence of inconsistent censorship decisions
made by FDOC mailroom staff, this Court does not believe PLN demonstrated
inconsistencies that rise to a level of randomness or that undermine the rationale
for censoring Prison Legal News. The fact that mailroom personnel do not
uniformly censor Prison Legal News on the same grounds is not dispositive.
“With the volume of material that must be screened, we cannot expect prison
officials to perfectly screen all material that violates prison regulations.”
Murchison, 779 F.3d at 890. Inconsistent application by mailroom staff goes more
to the vagueness of the Rule.
In any event, mailroom staff decisions are not final and do not permanently
compel censorship of the magazine throughout Florida. Initial impoundment
decisions are subject to review by the LRC. The LRC rejects the publication on
42
the grounds it thinks adequate. That decision is then uniformly applied throughout
Florida because once the LRC makes a decision, there is no further individualized
review by mailroom staff.
This pares down the risk of randomness and distinguishes this case from
Thornburgh,22 where each prison warden independently decided censorship, such
that “certain federal prisons had excluded the very same book that others had
allowed.” Livingston, 683 F.3d at 221. Here, the very same issue of Prison Legal
News is eventually censored throughout the FDOC. Like in Livingston, the LRC’s
“system-wide” “exclusion decisions” make the inconsistencies “only arguable,”
because the only apparent inconsistencies left to sort out are the decisions to admit,
for example, an advertisement about guns versus one about three-way calling. Id.
This Court refuses to engage in such “one-to-one comparisons” of specific ads. Id.
Not because these inconsistencies are irrelevant. But rather, due to the substantial
deference owed prison administrators regarding which type of advertisement is
more problematic.
Absent a showing that the FDOC is admitting other magazines containing
advertisements closely resembling those found in Prison Legal News, which there
is none, this Court holds that the “limited amount of inconsistency at the margins
22
Yet, even the inconsistencies in that case did not defeat an otherwise rational
connection. Thornburgh, 490 U.S. at 417 n.15 (addressing the “seeming inconsistencies” in that
case and holding that the regulation at issue struck “an acceptable balance” between uniformity
and individualized review).
43
of [the FDOC’s] exclusion decisions is not enough to defeat the reasonableness of
[the FDOC’s] practices.” Id.
The last argument PLN advances is that other FDOC regulations undermine
the Rule to such a great extent that they render the Rule’s connection to security
irrational. To illustrate, among the many such rules explored at trial is a regulation
permitting inmates to list cell phone numbers on their preapproved contact list and
another allowing inmates up to 40 stamps at any given time. See Tr. of Trial 22:5:10 (Jan. 6, 2015); Tr. of Trial 188:3-:4 (Jan. 5, 2015). PLN asserts that these rules
undermine the logic behind censoring some of the services singled out in (3)(l).
Cell phones have three-way calling and call-forwarding capabilities identical to, or
better than, the services advertized on Prison Legal News. The FDOC has no way
of knowing a cell phone user’s location, just like it does not know the location of
the person on the other end of a forwarded call. Tr. of Trial 197 (Jan. 5, 2015); Tr.
of Trial 22:5-:10 (Jan. 6, 2015). Also, the FDOC allows inmates to have stamps
and allows families to send inmates stamps despite their contention that they are a
serious hazard in prisons. See Tr. of Trial 188:3-:4 (Jan. 5, 2015).
An FDOC administrator explained each conflicting rule. Cell phones are
ubiquitous in modern society. Prohibiting inmates from calling cell phones would
effectively preclude them from speaking with many of their loved ones who no
longer carry land lines. The FDOC could theoretically impose such a draconian
44
rule, but it would surely lead to increased tension within prisons. See Tr. of Trial
102-103 (Jan. 7, 2015) (summarizing practical impossibility).
Likewise, the FDOC once proposed a rule that would have embargoed
stamps sent by family members to an inmate by mail. Tr. of Trial 23 (Jan. 6,
2015). Under the proposed rule, families would have been limited to depositing
money into inmates’ prison accounts which the inmate could then use to purchase
stamps. Families and friends of prisoners vehemently opposed the proposal,
expressing concern that the rule would increase the likelihood that their imprisoned
loved ones would either be victimized or simply not purchase any stamps at all.
Tr. of Trial 23-24 (Jan. 6, 2015). Moreover, FDOC officials testified that
implementing the accounting measures proposed by PLN to counteract the
problems with stamps would be too costly and require amending state statutes. Tr.
of Trial 25 (Jan. 6, 2015). Nearly every other seemingly paradoxical regulation in
place also had some corresponding explanation.
Running a prison system is not easy. Prison administrators, charged with the
unenviable task of “deal[ing] with the difficult and delicate problems of prison
management,” must make considered decisions that balance order, security and
resources. Thornburgh, 490 U.S. at 407-08. The first Turner factor requires this
Court to determine whether the censorship at issue is rationally related to
legitimate penological objectives. Finding that it is both rational and supported by
45
evidence, this Court declines PLN’s invitation to disrupt the balance struck by the
FDOC.
The remaining factors tilt in the FDOC’s favor as well. When considering
whether alternative means of exercising the abridged right remain open to the
plaintiff, the Supreme Court instructs courts to view “ ‘the right’ in question . . .
sensibly and expansively.” Id. at 417. This means that the alternatives need not be
perfect substitutes. Livingston, 683 F.3d at 218.
The Rule leaves open sufficient alternatives for PLN to express their point of
view to inmates. First, as in Perry, the Rule does not completely prevent PLN
from corresponding with inmates. 664 F.3d at 1366. There are countless other
written materials that PLN may send prisoners. As the Fifth Circuit in Livingston
explained, if alternative means existed in O’Lone v. Estate of Shabazz, 482 U.S.
342 (1987), “where prisoners were cut off from [a] unique and irreplaceable
[activity]”—“a unique religious ceremony”—surely there are alternatives to a
magazine. 683 F.3d at 219.
Second, even Prison Legal News is not invariably censored. The Rule
applies only when a particular issue’s advertising content crosses a certain
threshold. 23 And while this Court accepts that advertisements are necessary, the
unfeasibility of printing Prison Legal News without advertising content is not
23
This threshold, however, is almost impossible to identify. As this Court will explain
shortly, vagueness is principally responsible for the Rule’s disparate application.
46
dispositive. PLN has not proven that it is unable to adopt advertising rubrics that
would help bring its magazine in line with prison regulations.
The third factor is the impact the accommodation of the asserted
constitutional right will have on guards, inmates and prison resources. In this case,
“the class of publications” excluded by the Rule “is limited to those found
potentially detrimental to order and security.” Thornburgh, 490 U.S. at 418. The
evidence demonstrates that accommodating the specific way in which PLN seeks
to exercise its right—through a publication containing dangerous amounts of
advertising content—would “significantly less[en] liberty and safety for everyone
else, guards and other prisoners alike.” Id. The Supreme Court has held that this
fact alone pushes the third factor in FDOC’s favor. Id. (deferring to the “informed
discretion of corrections officials” who had said that accommodating the right
would lessen liberty and safety for “everyone else, guards and other prisoners”).
The final Turner factor is whether there are “easy alternatives” indicating
that the regulation is not reasonable, but rather an “exaggerated response” to prison
concerns. 482 U.S. at 90. This is not an inquiry into whether prison officials
adopted the “least restrictive alternative.” Id. at 90-91. “But if an inmate claimant
can point to an alternative that fully accommodates the prisoner’s rights at de
minimis cost to valid penological interests, a court may consider that as evidence
that the regulation does not satisfy the reasonable relationship standard.” Id. at 91.
47
As this Court explained during its discussion of rationality, there are no
“easy alternatives” available to the FDOC. The prohibition against using the
services themselves is not enough. Similarly, the alternatives suggested by PLN to
eliminate the security concerns either have equally unattractive side effects or are
costly to implement.
Additionally, with respect to subsection (3)(l), “[a]lthough the FDOC did not
need to narrowly tailor its Rule to only prohibit” publications containing
“prominent or prevalent” offending advertisements, it adopted a less exaggerated
response than censorship for any amount of offending advertising content. Perry,
664 F.3d at 1367. And as to subsection (3)(m), this Court is “comforted by the
individualized nature of the determinations required by the regulation,” under
which a publication is censored only if the LRC determines that it “presents a
threat to the security, order or rehabilitative objectives of the correctional system or
the safety of any person.” Thornburgh, 490 U.S. at 416.
Admittedly, the fact that Florida is the only state that currently censors
Prison Legal News for its advertising content is troubling—at least for purposes of
determining whether the Rule is indeed an exaggerated response. Some states have
censored the publication for its advertising content. New York once censored it for
carrying advertisements about services accepting stamps as payment. Tr. of Trial
81-82 (Jan. 5, 2015). New York eventually settled on a less restrictive way of
48
furthering its security interest without censoring the entire magazine: attaching a
notice warning prisoners that the services advertized are prohibited. Id. Even if
this is the sounder policy, the FDOC is not required to implement the least
restrictive regulation. Moreover, the FDOC may be constrained in ways that New
York’s department of corrections is not. Significant variances would make
comparison futile. Comparing different states’ department of corrections is
difficult, and in this case the parties did not submit sufficient evidence to do so.
This Court is also not blind to the many other worrisome facts uncovered at
trial. The most disconcerting is the Rule’s vagueness. None of the witnesses at
trial were able to articulate any reasonably specific guidelines to determining when
advertisements were “prominent or prevalent.” Some considered whether font was
large and bolded to determine prominence. Others looked to the size of the
advertisements. For prevalence, no one could identify a cutoff. With no
framework handy, this Court would probably be unable to apply the Rule to those
publications at the margins. Yet FDOC officials felt very strongly about their
ability to determine prominence and prevalence correctly. It seems that they,
unlike this Court, “know it when [they] see it.” Jacobellis v. State of Ohio, 378
U.S. 184, 197 (1964) (Stewart, J., concurring).
To make matters worse, the LRC, the final decision-maker, never reviews an
entire publication or book when it makes its decision. As this Court mentioned
49
earlier, this means that final determinations about prevalence are made without
knowing whether, for instance, the four or five pages copied and attached to the
impoundment notice are four or five out of one hundred, one thousand.
That being said, there is no void-for-vagueness claim pending. This lawsuit
instead focuses on whether the FDOC has applied subsections (3)(l) and (m) to
Prison Legal News in a manner reasonably related to legitimate penological
interests. Courts have wrestled with the role played by general vagueness in the
Turner analysis. See Martinez v. Fischer, No. CIV S-10-0366 GGH P, 2011 WL
4543191, at *8 n.4 (E.D. Cal. Sept. 28, 2011) (“[T]he undersigned has trouble
fitting the Turner test, an analysis focused on the legitimacy of prison regulations,
with an analysis focused on whether regulations are understandable.”); Miller v.
Wilkinson, No. 2:98-CV-275, 2010 WL 3909119, at *5 (S.D. Ohio Sept. 30, 2010)
(noting that “[p]rison regulations are not often challenged on vagueness grounds”
and that some courts have held that “the First Amendment overbreadth doctrine, do
not ‘apply with independent force in the prison-litigation context’ ” (quoting
Waterman v. Farmer, 183 F.3d 208, 213 (3d Cir. 1999))); Bahrampour v. Lampert,
356 F.3d 969, 975-76 (9th Cir. 2004) (applying Turner test despite inmate’s
assertion that vagueness and overbreadth claims must be considered separate and
apart from application of Turner test.); cf. Sweet v. McNeil, No. 4:08CV17-
50
RH/WCS, 2009 WL 903291, at *7 (N.D. Fla. Mar. 31, 2009) (Hinkle, J.)
(importing deferential principles to void-for-vagueness suit, in light of Turner).24
In this case, all Turner factors support the FDOC. This includes the last one,
where, instead of banning any amount of offensive advertisement, the FDOC
elected the less restrictive option of allowing publications with some advertising
content. The difficulty of applying the more reasonable option should not, and
does not, overcome the other Turner factors. The uniformity with which the
publication has been rejected by the LRC, both at the time and after re-reviewing
the censored issues in preparation for trial, further alleviates the concern that the
Rule cannot be applied intelligibly. Finally, the Rule here seems equally as
difficult to apply as the one in Thornburgh, but that did not preclude a finding in
the government’s favor. See 490 U.S. at 428 (Stevens, J., concurring in part and
dissenting in part) (addressing the regulation’s vagueness).
This Court therefore holds that PLN has failed to show that the FDOC’s
censorship of Prison Legal News is not “reasonably related to legitimate
penological interests.” Turner, 482 U.S. at 89.
24
PLN does not argue that the Turner analysis entirely subsumes the void-for-vagueness
inquiry. Moreover, PLN moved to amend their complaint to add a void-for-vagueness claim.
This implies that PLN also thinks that the two claims are separate and distinct. In addition, there
has not been any argument on the issue of whether void-for-vagueness and overbreadth claims
apply with independent force in the prison context. This Court accordingly treats them as
separate claims.
51
C
The final issue is whether the FDOC violated PLN’s due process rights in its
impoundment of Prison Legal News, the Prisoners’ Guerilla Handbook and the
information packets sent to FDOC inmates.
The “decision to censor or withhold delivery of a particular [publication],”
such as Prison Legal News, “must be accompanied by minimum procedural
safeguards.”25 Procunier, 416 U.S. at 417. Under Procunier, those safeguards are:
(1) notifying the intended recipient-inmate; (2) giving the author of the publication
a reasonable opportunity to protest the decision; and (3) referring complaints about
the decision to a prison official other than the person who originally disapproved
the correspondence.26 Id. at 418-19.
25
Procunier addressed the due process afforded prisoners and their correspondents when
exchanging letters. Circuit courts have extended the due process safeguards to magazine
publishers. See Jacklovich v. Simmons, 392 F.3d 420, 433 (10th Cir. 2004); Montcalm Pub.
Corp. v. Beck, 80 F.3d 105, 109 (4th Cir. 1996). They have held that a publisher’s right to due
process does not depend on notifying the inmate. Jacklovich, 392 F.3d at 433-34.
26
The FDOC seems to have abandoned its argument that Mathews v. Eldridge applies.
424 U.S. 319 (1976). Even if Eldridge did apply, see Perry, 664 F.3d at 1368, it would similarly
require of the FDOC the same procedural safeguards this Court sets forth in this order. “The
fundamental requirement of due process is the opportunity to be heard at a meaningful time and
in a meaningful manner.” Eldridge, 424 U.S. at 333. A “meaningful manner” presupposes that
the deprived party be provided with the information necessary to mount a meaningful challenge
to the deprivation. In this case, that means informing PLN of the distinct, independent bases
upon which its magazine has been impounded. Sharing this information is critical to reducing
the risk of erroneous deprivation. Testimony about the ease of making additional copies
suggests that the costs of implementation are minimal. The upshot of doing so benefits the
government’s interest in due process of law and ensures that PLN has a meaningful opportunity
to contest the deprivation.
52
PLN claims that the current review process violates Procunier because only
the institution that initially impounds an issue of Prison Legal News is required to
provide the publisher notice. Publishers, PLN argues, are entitled to notice every
time a copy of an issue is impounded. This is so even if later impoundment
decisions duplicate earlier determinations. The FDOC responds that since all
issues of Prison Legal News are alike, PLN is only entitled to one notice per issue.
Neither party properly demarks the requirements of due process. Procunier
demands that the publisher “be given a reasonable opportunity to protest” the
censorship. Id. at 18 (emphasis added). For an opportunity to be reasonable, the
publisher must know of the grounds upon which the publication has been censored.
See Henry J. Friendly, “Some Kind of Hearing”, 123 U. Pa. L. Rev. 1267, 1280
(1975) (explaining that it is “fundamental” to due process that “notice be given . . .
that . . . clearly inform[s] the individual of the proposed action and the grounds for
it”). This knowledge component of due process does not turn on whether the
publication is the first copy or a subsequent copy. What matters is the basis for
censorship. If a subsequent impoundment decision is based on a different reason
not previously shared with PLN, due process requires that PLN be told of this new
reason.
The FDOC’s current policy of providing notice once per issue should
theoretically satisfy this formulation. Under the Rule, once one institution
53
impounds an issue of Prison Legal News, a later institution must automatically
impound that same issue pending a final rejection determination by the LRC. Fla.
Admin. Code R. 33-501.401(8)(c). The subsequent institution learns of the first
institution’s reasons for impoundment through a centralized database. It must then
inform its inmate of “the specific reasons why the publication was impounded.”
Id. (emphasis added). That is, the later institution must inform the prisoner of the
initial institution’s reasons for impoundment.
The succeeding, perfunctory impoundment amounts to “routine enforcement
of a rule with general applicability” because it does not raise new grounds for
censorship. Livingston, 683 F.3d at 223. The initial reasons for impoundment
having been communicated to PLN, this ordinarily would not require additional
notice.
Despite this mechanism, PLN has at times received multiple notices
impounding a specific issue of Prison Legal News on different grounds. PLN
expresses uncertainty as to how this happens, since the Rule requires future
institutions to replicate the first institution’s reasoning. ECF No. 241, at 12 n.10.
One explanation is that sometimes multiple institutions receive the same
issue of Prison Legal News simultaneously. When that happens, each institution
thinks of itself as an initial impounding institution. In that scenario PLN should
receive a notice per initial impounding institution. But the moment these
54
simultaneous, initial impoundment decisions are disseminated throughout the
FDOC, later institutions should cease providing independent grounds for
exclusion.
Another explanation is that the Rule is not always followed. And as a result
a subsequent impoundment is not perfunctory, but rather the product of an
independent determination. See, e.g., ECF No. 241, at 11-12 (summarizing
evidence). Worse, FDOC has at times completely failed to inform PLN of an
impoundment decision, only notifying PLN of a rejection. This means that by the
time PLN received notice, the LRC had already reviewed the initial impounding
institution’s decision.
The FDOC claims that even if its employees failed to send PLN
impoundment notices, it cannot be held liable because the failure is merely
negligent. It cites Daniels v. Williams, 474 U.S. 327 (1986), and Davidson v.
Cannon, 474 U.S. 344 (1986), in support of the argument that “the Due Process
Clause is simply not implicated by a negligent act of an official causing unintended
loss of or injury to life, liberty, or property.” Daniels, 474 U.S. at 328. PLN, in
response, contends that Daniels only holds that the substantive deprivation must be
caused by conduct beyond mere negligence. According to PLN, the failure to
provide notice—that is, the process itself—gives rise to liability, even if the
employee only negligently failed to do so.
55
There seems to be a circuit split on the issue of whether Daniels is limited to
the substantive deprivation or whether it extends to the process itself. In Dale E.
Frankfurth, D.D.S., v. City of Detroit, the plaintiff brought an action under § 1983
for damages resulting from the demolition of a building he owned. Nos. 86-1476,
86-1825, 1987 WL 44769, at *1(6th Cir. Sept. 17, 1987). The Sixth Circuit, citing
Daniels, held that the plaintiff’s “failure to receive notice was due to the negligent
act of a clerk. Because the act was negligent, no fourteenth amendment
deprivation is involved and there is no constitutional need to provide a remedy.”
Id. at *3; accord Brunken v. Lance, 807 F.2d 1325, 1331 (7th Cir. 1986)
(“[Daniels] teaches that an official does not ‘deprive’ a person of life, liberty, or
property, within the meaning of the Fourteenth Amendment, when an official’s
negligent act causes the unintended loss of or injury to life, liberty, or property. . . .
Given this evidence, [the defendant’s] failure to notify [the plaintiff] was at most
negligent.”).
In contrast, the Third Circuit in Sourbeer v. Robinson limited Daniels to the
substantive deprivation. 791 F.2d 1094, 1104-05 (3d Cir. 1986). In so doing, it
summarized the distinction well:
Cases such as Davidson, dealing with a state of mind requirement for
§ 1983/due process actions, relate only to the highly unusual
circumstance where the deprivation of life, liberty, or property the
case is predicated upon was not intentional, as opposed to where the
failure to provide adequate process was not intentional. For example,
in Davidson prison guards negligently failed to take action to protect
56
one prisoner who was threatened by another, allegedly “depriving”
him of a liberty interest in being free of assaults. . . . In [Daniels] it
was alleged that a correctional deputy had negligently left a pillow on
a stairway, causing the plaintiff to slip and thereby “depriving” him of
a liberty interest. These cases, it is readily apparent, are of a highly
unusual nature—the defendants had probably not even been aware
until after the fact of the “deprivations” that would trigger due process
concerns. “To hold that injury caused by such conduct is a
deprivation within the meaning of the Fourteenth Amendment would
trivialize the centuries-old principle of due process of law.”
Here, in contrast, the keeping of Sourbeer in administrative custody—
depriving him of liberty—was itself an intentional act. That being the
case, it was not necessary for the district court to make any other state
of mind finding. We know of no authority for the proposition that an
intentional deprivation of life, liberty or property does not give rise to
a due process violation because the failure to provide due process was
without fault.
Id. (citations omitted). As far as this Court or the parties can tell, the Eleventh
Circuit has not spoken on the issue.
This Court believes that the Third Circuit has the better-reasoned opinion.
This is particularly true here, where the relief sought is declaratory and injunctive.
Even supposing that the “fault” associated with past failures matters for recovering
damages against the government, an injunction pivots on the “independent legal
right . . . being infringed.” Alabama v. U.S. Army Corps of Engineers, 424 F.3d
1117, 1127 (11th Cir. 2005). The right in this case implicates “the most
rudimentary demands of due process of law”—notice. Armstrong v. Manzo, 380
U.S. 545, 550 (1965). Just because past failures were the product of negligent
57
conduct does not absolve the FDOC of its constitutional obligation to provide
notice going forward.
In any event, PLN has shown that the FDOC’s failure to provide notice
exceeded negligence. The systemic failure of FDOC personnel to provide notice
42% of the time reveals that the failures were not coincidental. The high failure
rate indicates a substantial risk, one disregarded by FDOC administrators. At the
very least this amounts to recklessness or gross negligence, which everyone agrees
suffices for a due process violation. See Fagan v. City of Vineland, 22 F.3d 1296,
1305 (3d Cir. 1994) (collecting cases); Burch v. Apalachee Cmty. Mental Health
Servs., Inc., 840 F.2d 797, 802 (11th Cir. 1988), affirmed sub. nom. Zinermon v.
Burch, 494 U.S. 113 (1990) (holding allegations of actions taken willfully,
wantonly, and with reckless disregard sufficient to state a due process claim). See
generally Farmer v. Brennan, 511 U.S. 825, 839 (1994) (deliberate indifference is
conscious disregard of a substantial risk).
This same reasoning applies to impoundment of the Prisoners’ Guerilla
Handbook and the information packets. The record unquestionably establishes that
FDOC personnel failed to notify PLN on a couple of occasions that it had
impounded the Prisoners’ Guerilla Handbook and the information packets. The
injunction is appropriate because those failures are part of the greater, widespread
practice of not providing notice.
58
Before concluding, this Court addresses two remaining arguments. First, the
FDOC contends that PLN waived due process. Mr. Wright admitted that at some
point PLN stopped appealing impoundment decisions. Tr. of Trial 159:20-160:2
(Jan. 5, 2015). Apparently PLN thought appealing was futile. From this the
FDOC concludes that it no longer had to apprise PLN of impoundment decisions
since, in all likelihood, PLN would not have appealed.
The problem with that logic is that the reasons for impounding Prison Legal
News vary. Indeed, the Rule proscribes “total[] rejection” of a periodical and
mandates that “each issue of the subscription . . . be reviewed separately.” Fla.
Admin. Code R. 33-501.401(5). That PLN did not appeal past impoundments does
not necessarily mean that it will not appeal future impoundments based on
different reasons. The old adage that past behavior does not predict future
performance rings truer here, where the underlying circumstances change over
time.
More importantly, the FDOC failed to notify PLN of many impoundment
decisions. Of course PLN did not appeal. It did not know that an issue had been
censored, by which institution, and on what grounds. The fact that PLN may have
later received a copy of an impoundment notice from an inmate is of no
consequence. Notice must be timely and must set forth the basis for censorship,
which many impoundment notices introduced at trial clearly did not. Armstrong,
59
380 U.S. at 552 (“[The opportunity to be heard] must be granted at a meaningful
time and in a meaningful manner.”). Given these deficiencies, PLN did not waive
its right to due process by failing to appeal.
Finally, PLN asserts that the LRC’s practice of affirming an impoundment
decision on different or additional grounds than that found by the initial
impounding institution violates Procunier. Recall that Procunier instructs that
certain “minimum procedural safeguards” must accompany the decision to censor
a periodical. 416 U.S. at 417. PLN says that the LRC’s practice violates the third
safeguard requiring that complaints about a censorship decision be referred to
someone other than the prison official who “originally disapproved the
[publication].” Id. at 418-19. PLN says that by censoring a publication on a
different or additional basis, the LRC effectively becomes the “original” decisionmaker. And because no other prison official reviews the LRC’s decisions, PLN is
left to ask the LRC to review its own decision, in violation of Procunier.
Under PLN’s view, the reason for censorship determines who “originally
disapprove[s]” the publication. There would be a different “original” decisionmaker for each new reason. But Procunier is not so specific. It only requires that
a different prison official review the original censorship. It says nothing about
whether that review must be limited to the reasons originally given.
60
This is consistent with Baker on Behalf of Baker v. Sullivan, 880 F.2d 319,
320 (11th Cir. 1989), which PLN relies on to argue that expanding the scope of
review without notice violates due process. In this case the issue never expands.
The initial impounding institution is tasked with determining whether a particular
publication violates the Rule. The same issue that the LRC must decide.
V
The Supreme Court has made it clear that “[p]rison walls do not form a
barrier separating prison inmates from the protections of the Constitution.”
Turner, 482 U.S. at 84. Yet these protections mean little if inmates do not
understand them. 27 Cue PLN. Through its publications PLN teaches inmates their
rights and informs them of unconstitutional prison practices. With this knowledge
inmates become another check to government encroachment on constitutional
rights. This in turn helps prison administrators correct insidious practices, ensuring
long-term stability. Everyone ultimately benefits when knowledge grows from
more to more.
But the Constitution does not guarantee PLN unfettered communication with
inmates. That right must be balanced against the legitimate penological concerns
inherent in running a prison system. In this case, the FDOC requires PLN to
conform its written communications to Rule 33-501.401(3), which censors
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This is even more pernicious considering how prisoners are not afforded counsel and
how prisons limit inmates’ access to the prison library, books, and legal materials.
61
publications containing certain types of advertisements. After carefully
considering the evidence presented at trial and the arguments made by the parties,
this Court concludes that the FDOC’s censorship of Prison Legal News under
subsections (3)(l) and (m) of the Rule does not violate PLN’s First Amendment
rights because the censorship reasonably relates to public safety and prison
security.
That the censorship in this case complies with the First Amendment,
however, does not give the FDOC license to censor without regard to its due
process obligations under the Fourteenth Amendment. But that is precisely what
the FDOC has done, repeatedly. It has impounded multiple issues of Prison Legal
News and other PLN mail without notifying PLN. Adhering to its regulations, it
then fails to notify PLN when the mail is finally rejected. The FDOC will continue
to do this going forward absent interjection by this Court.
For these reasons,
IT IS ORDERED:
1.
Judicial estoppel does not preclude the Florida Department of
Corrections from adopting its current litigation position.
2.
The Florida Department of Corrections’ censorship of Prison Legal
News under Rule 33-501.401(3) of the Florida Administrative Code
does not violate Prison Legal News’ First Amendment rights.
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3.
The Florida Department of Corrections’ censorship procedures violate
Prison Legal News’ right to due process under the Fourteenth
Amendment.
4.
The Clerk shall enter judgment stating:
Prison Legal News’ First Amendment claim against the
Florida Department of Corrections is dismissed with
prejudice.
Prison Legal News successfully proved that the Florida
Department of Corrections has violated its right to due
process under the Fourteenth Amendment. Prison Legal
News has also shown that the Florida Department of
Corrections’ current censorship practices will continue to
deprive Prison Legal News of due process of law.
Accordingly, the Florida Department of Corrections is
permanently enjoined from censoring Prison Legal
News’ written communications without due process of
law. To comply with due process of law, this permanent
injunction modifies the Florida Department of
Corrections’ current notification procedures as follows:
(1) The Florida Department of Corrections must notify
Prison Legal News when it first impounds a particular
written communication by Prison Legal News. (2) The
notification must specify the prison rule, including the
subsection, purportedly violated and must indicate the
portion of the communication that allegedly violates the
cited regulation.
(3) The Florida Department of
Corrections does not have to notify Prison Legal News
when copies of that same written communication are
subsequently impounded, unless the subsequent
impoundment decision is based on a different or
additional reason not already shared with Prison Legal
News. (4) The Florida Department of Corrections’
Literature Review Committee must notify Prison Legal
News of any final determination regarding written
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communication by Prison Legal News.
(5) The
Literature Review Committee’s notification must provide
the basis for its decision, including the specific prison
rule violated and the portion of the communication that
violates the cited regulation. (6) The Florida Department
of Corrections does not have to notify Prison Legal News
when copies of that same written communication are
subsequently rejected, unless the subsequent rejection
decision is based on a different or additional reason not
already shared with Prison Legal News.
5.
Although all claims have been adjudicated, the Clerk must not close
the file. This Court retains jurisdiction over the open file to decide
costs and attorney’s fees, if any.
SO ORDERED on August 27, 2015.
s/Mark E. Walker
United States District Judge
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