Big Lawyering in Prison News Pro Bono Case

Oct. 24, 2018

When former Bush solicitor general Paul Clement of Kirkland & Ellis teams up for a cert petition with Dechert partner Michael McGinley, a recent alum of the Trump White House counsel’s office, you might think they’d be advancing a conservative client’s conservative cause.

Not exactly, in the case of Prison Legal News v. Secretary, Florida Department of Communications, filed with the Supreme Court in September. Clement, who is counsel of record, is advocating for the monthly prison newspaper that has up to 9,000 subscribers, most of whom read it behind bars.

The newspaper is challenging, on First Amendment grounds, Florida’s policy of banning the newspaper in Florida prisons because of the advertising it carries. “The FDOC’s censorship is a national outlier,” Clement wrote. “Neither the federal Bureau of Prisons nor any other state or county prison system bans Prison Legal News based on its advertisements.”

Florida claims the newspaper’s ads enable inmates to skirt prison rules regarding outside communications and solicitations, a position the U.S. Court of Appeals for the Eleventh Circuit supported in a ruling in May.

So it shapes up as a classic First Amendment case not unlike some of the cases in which the Roberts Court has favored the free speech claim, no matter how objectionable the speech might be. (See Snyder v. Phelps, U.S. v. Stevens.) But still, why did Prison Legal News, a project of the nonprofit Human Rights Defense Center, pick Paul Clement to represent it?

>> Clement has a history with Prison Legal News.

The publication’s editor Paul Wright recruited Clement for a cert petition in a Freedom of Information Act case from Colorado involving the newspaper in 2011. At the time, Wright said he had seen an article in The National Law Journal detailing Clement’s pro bono work challenging prosecutorial immunity in the wrongful conviction case Pottawattamie County v. McGhee. Clement took on the FOIA case pro bono. The high court denied cert, but Clement has maintained contact with the organization for years as the Florida First Amendment case made its way through the courts.

“From the first time we discussed this case, it seemed like a great First Amendment case that might appeal to judges and justices across the spectrum,” Clement said this week.

Wright, the newspaper’s editor, agreed. “We’re non-partisan. I don’t pay attention to labels. I look for where lawyers stand on human rights and free speech. A lot of lawyers with big firms are really committed to the rule of law.”

Wright has also been impressed with the flood of pro bono amicus assistance at the cert stage, including a Covington & Burling brief on behalf of former corrections officials, and one on behalf of 18 free-press organizations. (Disclosure: One of the organizations in that brief is The Reporters Committee for Freedom of the Press, where Tony Mauro serves on the steering committee.)

Florida has not yet responded to the petition.