Brushing Aside 1st Amendment Claim, Appeals Court Uphold Florida Ban on a Prison Magazine

Invoking Oscar Wilde’s “The Picture of Dorian Gray,” an appellate court brushed aside First Amendment concerns and sided with the Florida Department of Corrections in a long-running dispute about a monthly magazine targeted to inmates.

The ruling last week by the 11th U.S. Circuit Court of Appeals upheld a previous federal court decision in the case, which has dragged on for more than a decade and was filed by Prison Legal News over a publication allowed in institutions in every other state but banned by Florida corrections officials.

The publisher of the magazine maintains that prison officials’ censorship is a violation of the First Amendment. But, agreeing with a 2015 decision by U.S. District Judge Mark Walker, the appeals court found the publication poses a security threat.

“From time to time we have all followed the advice of Oscar Wilde and gotten rid of temptation by yielding to it. Yielding to the temptation to commit an act that the law forbids can lead to bad consequences, including imprisonment. 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,” Ed Carnes, chief judge of the Atlanta-based appeals court, wrote in a decision joined by judges Joel F. Dubina and Anne C. Conway.

The Florida corrections agency’s rules are “aimed at preventing fraud schemes” and other criminal activity, “but inmates continually attempt to circumvent” the measures, Carnes wrote in Thursday’s 48-page opinion.

The agency “continually strives to limit sources of temptation,” including preventing inmates from receiving publications with prominent advertisements for prohibited services, such as three-way calling and pen-pal solicitation, “that threaten other inmates and the public,” the judge wrote.

“The impoundment of Prison Legal News is not a silver bullet guaranteeing that inmates will not break the rules and commit crimes while incarcerated. But the record shows that a ‘reasonable relationship’ does exist between the department’s decision to impound the magazine and its prison security and public safety interests,” he wrote.

The Constitution does “place some limits on the measures that corrections officials may use” to prevent prisoners from committing crimes, Carnes wrote.

But the court must give “wide-ranging” and “substantial” deference to the decisions of prison administrators because of the “complexity of prison management, the fact that responsibility therefor is necessarily vested in prison officials, and the fact that courts are ill-equipped to deal with such problems,” he wrote, citing another prison-related case.

Paul Wright, the publisher of the magazine, told The News Service of Florida he intends to continue his legal odyssey by appealing to the U.S. Supreme Court.

“This is a prison system that routinely murders people, rapes them and brutalizes them and they do so with impunity. They have a total disregard for the Constitution as a whole, so it should be no surprise that they have disregard for the First Amendment,” Wright said. “A huge part of their success in maintaining these dreadful conditions is basically keeping the media and the public unaware of what’s going on in their facilities and keeping prisoners ignorant of the rights and remedies under our legal system.”

While Carnes acknowledged that prisoners have constitutional rights, he pointed to previous U.S. Supreme Court opinions that require “deference to prison officials’ decisions.”

Florida corrections officials must show “more than a formalistic logical connection between impounding” the magazine and “a penological objective,” Carnes noted, again citing a separate inmate-related decision.

“But that does not mean that this court sits as a super-warden to second-guess the decisions of the real wardens,” the judge wrote.

The department changed its rules about censorship at least five times since the onset of the battle with Prison Legal News, which filed a lawsuit against the agency in 2004. The case was dismissed the following year after a judge ruled it moot because the department had promised to deliver the publication to inmates.

But after adopting a rule concerning “Admissible Reading Material” in 2009, the agency again began impounding the newsprint publication. The rule banned publications that contain certain advertisements — for three-way telephone calls, the purchase of products or services in exchange for postage stamps, pen-pal services and conducting businesses while incarcerated — if the ads are “the focus of, rather than being incidental to” the publication. The rule also banned materials if the advertising for the prohibited services “is prominent or prevalent throughout the publication.”

Wright accused prison officials of targeting the 28-year-old publication — which has about 7,000 subscribers nationwide, including more than 200 in Florida — because it includes articles critical of the corrections department.

“The whole advertising thing is a red herring. They’re really objecting to our editorial content and using that as a pretext to censor us,” he said.

Various media organizations, including the Florida Press Association, and 16 law professors filed friend-of-the-court, or “amici,” briefs supporting Prison Legal News’ lawsuit, arguing in part that the corrections department’s position could threaten the distribution of newspapers inside prison walls.

But Carnes scolded the amici for “claiming clairvoyance” and “predicting the Supreme Court will overrule its precedents,” saying “our duty is to follow Supreme Court decisions, not to use them to map trends and plot trajectories.”

Carnes also mocked lawyers for the Lake Worth-based Prison Legal News for suggesting that the state could mimic New York officials by attaching a flyer to the publication reminding inmates not to use the prohibited services.

“Really? If all New York has to do to prevent inmate misconduct and crime is gently remind them not to misbehave, one wonders why that state’s prisons have fences and walls. Why not simply post signs reminding inmates not to escape? If New York wants to engage in a fantasy about convicted criminals behaving like model citizens while serving out their sentences, it is free to do so, but the Constitution does not require Florida to join New York in la-la-land,” Carnes wrote.

Wright said he and supporters expected the appeals court’s decision.

“The only thing I was surprised about was how much Judge Carnes seems to dislike us and dislike New Yorkers,” he said.

The appeals court also upheld a partial victory for Wright by agreeing with the lower-court judge that state corrections officials violated Prison Legal News’ constitutional due-process rights by failing to provide notification when copies of the monthly periodical were impounded.

Lawyers for the corrections agency had advised the publication to sue the mailroom workers who failed to provide the notice, according to court documents.

“No. PLN (Prison Legal News) doesn’t have to hunt and peck throughout Florida’s correctional system for negligent mailroom workers to sue,” Carnes wrote. “The buck stops with the secretary.”

–Dara Kam, News Service of Florida