The Court will soon decide whether to hear a case arguing that Florida’s ban on Prison Legal News is unconstitutional. One of the authors of a supporting brief explains why upholding the First Amendment for prisoners is in everyone’s interest.
Access to the monthly magazine Prison Legal News (PLN) is one of the few ways prisoners learn about criminal justice issues, including their rights as prisoners. Most incarcerated individuals across America have access to the publication.
The exception? Every prisoner in Florida.
Since 2009, the Florida Department of Corrections (FDOC) has banned every issue of PLN, claiming that the advertisements in the magazine raise security concerns. FDOC’s blanket ban on PLN makes Florida an outlier. No other state, county or even our federal government has a de facto ban on PLN because of its ads.
Nevertheless, the U.S. Court of Appeals for the 11th Circuit upheld the ban. Soon, the Supreme Court will have a chance to weigh in. Reversing the ban will not only benefit both prisoners and society, it will ensure that the First Amendment is upheld.
PLN has a subscription base of more than 10,000 people and contains over 70 pages of useful information related to prisoners’ rights every month. PLN’s reporting has had a significant impact on changing prison policy for the better and exposing abuses. The magazine has covered issues like solitary confinement, the Prison Rape Elimination Act, visitation and medical care in prisons.
In addition, PLN’s reporting has led to real and direct change. When PLN revealed the exorbitant rates families had to pay to call their loved ones in prison, the Federal Communications Commission responded by instituting changes to the policy in 2013 and 2015.
We know the economic and social costs of mass incarceration are astronomical. Allowing publications like PLN behind bars improves literacy and learning, which leads to better outcomes for prisoners when they re-enter society. Many prisoners struggle with literacy — more so than average citizens.
Ensuring that we are releasing educated returning citizens is in all of our interests.
Access to books and other reading materials within prison also creates hope. Legal publications in particular can help prisoners confront injustice and provide them self-efficacy — the sense that they and their actions have value. Though public defenders may help with direct appeals, most prisoners cannot afford an attorney after that stage and must represent themselves in civil and habeas petitions.
On the legal front, we should be suspicious of any government that censors a publication that criticizes its policies.
In this case, PLN has reported directly on abuses in Florida prisons, so it is far from surprising that Florida’s corrections department would disfavor the publication. However, the First Amendment requires courts to apply a more rigorous review when the government is trying to silence speech of which it disapproves.
While it might be more convenient for FDOC to place a de facto ban on every issue of PLN because it does not like the stories that are being reported, convenience does not make this decision legal.
Of course, there are security concerns in prison that necessitate restrictions on reading materials.
As I have written in the past, “regulations make sense when it comes to books that instruct readers how to make weapons, incite riots or escape prison.” But we must look at these restrictions with the utmost scrutiny. The scope of the First Amendment does not depend on the whim of the government. And when a blanket ban exists, we should be even more wary.
Last week, several center-right organizations — including the R Street Institute, the Cato Institute, Americans for Prosperity, Reason Foundation and the Rutherford Institute — have submitted an amicus brief on the issue, noting the importance of ensuring the First Amendment is adhered to behind bars, and the substantial benefits of allowing prisoners to access publications like PLN.
We hope that the Supreme Court will grant review on this issue. After all, improved access to reading materials in prison benefits us all.
Civil rights attorneys say a Florida ban on a publication critical for inmates fighting abuse and neglect behind bars sets a dangerous precedent for press freedom. But editor Paul Wright’s one-man battle against what he calls prison censorship has largely been ignored by the media.
A resource that civil rights attorneys say is critical for prisoners across the country who are fighting abuse and neglect behind bars has just become off-limits to Florida inmates.
Last month, the Eleventh Circuit Court of Appeals, which covers Alabama, Georgia and Florida, upheld the state’s decision to ban Prison Legal News (PLN), on the grounds that it carries ads for services that are prohibited in Florida correctional facilities.
Those services include three-way calling, pen pal services, and selling postage stamps for cash. Prefacing his 48-page opinion by invoking the 19th century writer Oscar Wilde, Judge Ed Carnes speculated that the ads may provide “temptation” for inmates to commit fraud and other criminal acts.
“From time to time we have all followed the advice of Oscar Wilde and gotten rid of temptation by yielding to it,” wrote Carnes. “…Prison officials have the duty to reduce the temptation for prisoners to commit more crimes and to curtail their access to the means of committing them.”
Editor’s note: Irish poet and playwright Oscar Wilde was imprisoned in 1895 on a charge of “gross indecency” with men.
Carnes went on to write: “Inmates have the time, talent, and tendency to use their phone, pen pal, and correspondence privileges to conduct criminal activity, thwarting efforts to protect inmates and the public.”
At one point, Carnes even argued that cash-for-stamps schemes facilitate “the corruption of prison guards.”
But although his decision was filled with anecdotes of fraud schemes perpetrated by inmates, it did not cite any testimony or evidence that viewing advertisements for non-criminal services incites fraud.
While Florida is currently the only state to ban the monthly publication, the decision highlights similar disputes over prison censorship now in play across the country. In practice, the burden of accommodating prisoners’ rights to access legal and other reading material across the United States—as well as the First Amendment rights of a publisher to access its audience—has largely fallen on the shoulders of one man.
Paul Wright (left) and the PLN legal team going to court in Florida, 2015. Courtesy HRDC
At the center of these battles is Paul Wright, founder and director of the Human Rights Defense Center (HDRC), who has devoted the past 28 years to getting legal news and resources to inmates. To do that, he’s had to file lawsuits against prisons and jails in 40 states over their censorship practices.
“I’d say that we consistently win our litigation,” Wright told The Crime Report. “We have successfully sued over 50 jails over publication bans and sadly, our work is not yet done.”
“That said, in the states of the former confederacy, which I think is no surprise, the judges are a lot more hostile to civil rights plaintiffs than they are elsewhere.”
Each month, the Center sends out some 22,500 issues of PLN and Criminal Legal News, (a new criminal law and procedure magazine) to prison libraries and individual subscribers across the country, over 70 percent of whom are incarcerated. The total readership is much larger, since it’s usually passed from hand to hand; according to the Center’s estimate, each individual issue gets passed around to at least ten different readers.
“[When] we publish a cover story in Prison Legal News, within 30 days it’s been read by a quarter of a million people,” Wright told The Crime Report.
Paul Wright started the magazine from inside a maximum security prison in Washington state with another inmate, Ed Mead. Together, they had $300, which was enough to pay for six issues. If enough subscriptions and donations came in, they thought, they could afford to keep publishing.
Since then, it’s grown into a 72-page authoritative and unmatchable resource for inmates seeking legal advice for their complaints, ranging from medical neglect, beatings and excessive use of force, to abuse of solitary confinement and sexual assault behind bars.
Public defenders and other attorneys who work with inmates talk about PLN with admiration.
“I’ve been working with prisoners trying to get access to the courts since 1980,” said Alan Mills, executive director of the Chicago-based Uptown People’s Law Center, an organization that provides legal services to prisoners, as well as indigent residents.
In the course of litigating an 18-year class action lawsuit on behalf of prisoners in solitary confinement, Mills said he got a good picture of what the magazine means to inmates after talking to pro se litigants and so-called “jailhouse lawyers” (Inmates who are self-taught in the law and advise others on their cases).
“There were two sources that they always cited as to what they looked to for help in the absence of access to a law library– and one of those was Prison Legal News,” Mills said.
The second must-have publication, also issued by the Human Rights Defense Center, was the Disciplinary Self-Help Litigation Manual, he said.
Mills added that “Illinois has stopped updating all of its casebooks for monetary reasons, so really Prison Legal News is the only up-to-date source of information prisoners have as to what the case law is doing, what new statutes are put in.”
Whenever Uptown People’s Law Center (UPLC) is mentioned in a PLN article, “we get a flood of letters wanting us to take the exact same case,” said Mills.
And when inmates don’t receive an issue of PLN, they also hear about it.
Recently, UPLC began receiving so many complaints about missing issues that the organization filed a lawsuit against the Illinois Department of Corrections.
It’s “very similar to what they’re doing in Florida, but here it’s not a total ban,” Mills told The Crime Report.
Instead, he said, “individual prisons are censoring individual issues in what appears to be a random sort of way— that is, some issues will get into one maximum security prison but not into another maximum security prison; some will get into a maximum security prison, but for some reason won’t get into a minimum security prison.”
A Dangerous Precedent?
Observers and legal experts are concerned that Florida’s ban will set a dangerous precedent, possibly setting off similar actions elsewhere.
“It gives unbelievable latitude to the prison to make decisions about the legal rights of prisoners, disclaiming that the courts have responsibility for such decisions, and proceeds to place the burden of accommodating the rights of prisoners and publishers on the publication itself,” said Moira Meltzer-Cohen, a New York-based civil rights attorney.
While “strictly speaking, this is litigation about a publisher’s right of access to a particular audience,” she continued, “this case can’t be decided or read in the absence of concerns regarding the access of incarcerated persons to legal information that directly impacts them.
“So this decision functions to leave power over what is essentially access to the courts in the hands of administrators who neither know nor care about the nuances of prisoners’ legal rights.”
Meanwhile, for such an ostensible blow to press freedom, the decision went largely unreported in the media.
Tom Julin, a First Amendment attorney based in Miami, tried to submit an amicus brief in 2016 on behalf of the Florida Press Association and several other media organizations. But the state vehemently opposed the brief and, in a rare move, barred the press from weighing in on a case about the First Amendment rights of a news publication.
Julin called Carnes’ opinion “very troubling.”
The Florida Department of Corrections’ policy, which Carnes upheld, is to ban materials when ads for prohibited services are “prominent or prevalent” throughout the publication.
“Well, how do you evaluate that?” said Julin. “That is not the kind of clear and specific standard that would limit the discretion of a prison official to impound the particular publication… where the headline on the front page is, ‘Here’s your legal rights and how you can challenge how you’re being treated in prison.’
“That’s what prison officials are concerned about; it’s not the ad on page 22 for telephone services.”
Elsewhere, PLN has been banned on a number of other pretexts.
In a case still pending before a federal court, PLN sued the Arizona Department of Corrections for banning issues of PLN over “sexually explicit” content. According to the complaint, the objectionable items carried headlines such as “Ninth Circuit Holds Staff Sexual Abuse Presumed Coercive; State Bears Burden of Rebutting Presumption,” and “Tenth Circuit Holds ‘Consensual’ Sex Defeats Prisoner’s Eighth Amendment Claim.”
In another instance, PLN sued the Sheriff of Berkeley County, S.C. over its policy of banning non-religious reading materials. Officials tried to argue in court that PLN contained staples which could be used as weapons, or to clog toilets; although other materials containing staples were available to inmates, and none of the mailroom records showed “staples” as a reason for rejection.
PLN won the case in 2012, resulting a total restructuring of the jail’s policies. Ultimately, in a case that settled within a year, Berkley officials spent around $600,000 fighting to uphold their censorship practices, according to Shapiro.
While PLN has been successful in forcing change through the courts, the standard for defending censorship practices (established under Turner v. Safely) is low. Courts grant a high degree of deference to prison officials, who only need to show that censorship is “reasonably related” to public safety or prison security. In the 14 years since PLN first filed suit against the Florida DOC, officials have never shown that advertisements incite criminal activity or security breaches. For the 11th circuit, speculation was enough.
Wright, who is highly critical of the private prison industry, nonetheless says that private facilities are generally good about not censoring PLN and other Center publications.
“They realize it doesn’t really affect prison security,” he said, “and they’re not willing to spend their money litigating, frankly, bullshit—whereas the government is willing to fight for the last penny of taxpayer money for whatever whim catches their fancy.”
“I can understand why [PLN] might rankle prison officials, because you’re really arming prisoners with legal means of getting relief from what they regard as unfair practices and unconstitutional acts,” Julin told The Crime Report.
By magazine industry standards, the space devoted to advertising in PLN is small, consisting of 25 percent or less of the publication—certainly less “prominent” than a magazine such as Vanity Fair, or Cosmopolitan.
Prison Legal News “really borders on being a scholarly journal,” said Julin, noting the “grey” format, dense coverage of the courts, and “long-form articles that are talking about prisoners’ rights and how they can advocate for themselves.”
PLN’s dependence on advertising as its base of financial support didn’t come about for lack of other fundraising efforts, says Wright, but because “no one but us and our advertisers see any value in reaching out to or engaging this population of 2.5 million people that are caged.”
Foundations that support other nonprofit media simply aren’t interested, he said.
“Over the past 28 years, we’ve spent a huge amount of time and energy and organizational resources trying to raise money for our operations,” he told TCR. “We’ve hit everyone up.”
“One of the ironies is that it was a $50,000 grant from the Public Welfare Foundation (a Washington DC-based nonprofit that funds criminal justice programs) in 2007 that allowed us to hire our first advertising director. They cut us off two years later, but by that time we’d made the position self-sufficient.”
That advertising director expanded PLN’s ad revenue from $23,000 to $200,000, according to Wright.
“No one else is going to give us $200,000 a year, but we’ve got 80 advertisers that are willing to do that, because it matters to them as well.”
Wright added that individual donations to HRDC, a large portion of them from prisoners themselves, have enabled the organization to hire PLN’s first investigative reporter.
Where’s the Media?
Not only are funders nowhere to be seen, says Wright, but media organizations that keep a trained eye on freedom of the press have remained largely silent when it comes to censorship in prison.
“They’re totally AWOL,” he said bitterly. “None of those so-called media organizations really care about first amendment stuff involving the police state.”
Julin, who represented organizations that tried to file a friend-of-the-court document supporting PLN, said that the state’s decision to bar them wasn’t covered in the news, even locally.
“Nobody paid any attention to it at all,” he said.
“I think what’s going on is that the issues with respect to prison regulations don’t matter to a lot of people, just frankly speaking. They have other concerns… it doesn’t directly affect the institutional press.”
Al Tompkins, senior broadcast faculty at the Poynter Institute, concedes that issues of press freedom and free speech behind bars get little media attention.
“It’s hard to get the public, let alone journalists, to get interested in anything having to do with prisons and inmates and jails,” he told TCR.
”It’s difficult to get newsrooms to cover seriously what’s going on in our jails and prisons because it’s just one more population that needs our attention– let alone all of the people who are walking around outside.”
Asked why prison censorship isn’t an issue that interests organizations such as Poynter, Tompkins cited the restrictions on civil rights behind bars.
“There are parts of the First Amendment that simply do not apply in prison,” Tompkins said. “In a prison environment, it’s different than in the free society.
“You’re in a controlled environment, and you don’t have the same rights of consumption and expression that you do in the outside world.”
Comments like that seem to exasperate Wright.
“That doesn’t explain us then, does it?” he says.
In practice, Wright has been forging these rights and protections in the courts over the past three decades.
PLN will be filing a petition for Supreme Court review of the Florida decision.
Victoria Mckenzie is Deputy Editor of The Crime Report. She welcomes comments from readers.