No. 18-355
In the

PRISON LEGAL NEWS,
Petitioner,
v.
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
Respondent.
On Petition for a Writ of Certiorari to the United
States Court of Appeals for the Eleventh Circuit
BRIEF OF CIVIL RIGHTS ADVOCACY ORGANIZATION
AMICI CURIAE IN SUPPORT OF PETITIONER PRISON
LEGAL NEWS’ PETITION FOR WRIT OF CERTIORARI
Joseph E. Bringman
Counsel of Record
1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099
JBringman@perkinscoie.com
206.359.8000
Attorneys for Civil Rights
Advocacy Organization Amici
Curiae
October 19, 2018

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-iTABLE OF CONTENTS

Page
STATEMENT OF INTEREST................................ 1
SUMMARY OF ARGUMENT................................. 3
ARGUMENT ........................................................... 7
I.

The Court Should Grant PLN’s
Petition to Clarify or, if
Necessary, Reconsider the
Turner Test, to Require
Evidence and Not Speculation
to Support Prison Censorship
Decisions, and to Align Turner’s
Standards with the Minimal
Requirements for Pleading a
Claim.................................................. 7

II.

The Eleventh Circuit’s Decision
Is Inconsistent with This
Court’s Decisions Recognizing
the Constitutional Right of
Incarcerated Persons to
Meaningful Court Access ................ 12

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-iiTABLE OF CONTENTS
(continued)

Page

III.

The Eleventh Circuit’s Decision
Conflicts with This Court’s
Recognition of the Substantial
Penological and Societal
Interest in Rehabilitation of
Incarcerated Persons ....................... 16

IV.

The Eleventh Circuit’s Decision
Is Inconsistent with This
Court’s Precedents Which
Require that FDOC
Demonstrate a “Reasonable”
Relation Between Purported
Security Concerns and the
Regulations that Resulted in a
Blanket Ban of Prison Legal
News................................................. 22

V.

A Decision Not to Review this
Case Could Signal that Extreme
Deference to Corrections
Officials Is Appropriate and
that Bans on a Publication
Solely Because of Its
Advertisements Is Defensible ......... 25

CONCLUSION...................................................... 26

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-iiiTABLE OF CONTENTS
(continued)

Page

APPENDIX
DESCRIPTION OF AMICI CURIAE ........ 1a

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-ivTABLE OF AUTHORITIES

Page
CASES
Abdul Wali v. Coughlin,
754 F.2d 1015 (2d Cir. 1985),
abrogated on other grounds by
O’Lone v. Estate of Shabazz, 482
U.S. 342 (1987).................................................. 18
Beard v. Banks,
548 U.S. 521 (2006)........................................... 22
Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007)........................................... 10
Bounds v. Smith,
430 U.S. 817 (1977)......................................13, 14
Bradley v. Hall,
64 F.3d 1276 (9th Cir. 1995),
overruled on other grounds by
Shaw v. Murphy, 532 U.S. 223
(2001)................................................................. 13

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-vTABLE OF CONTENTS
(continued)

Page

Conley v. Gibson,
355 U.S. 41 (1957), overrruled by
Bell Atlantic Corp. v. Twombly, 550
U.S. 544 (2007).................................................. 10
Graham v. Florida,
560 U.S. 48 (2010)............................................. 16
Human Rights Def. Ctr. v. Bd. of Cty.
Comm’rs,
No. 18 CV 00355, 2018 WL
3972922 (D.N.M. Aug. 20, 2018) .................15, 21
Kleindienst v. Mandel,
408 U.S. 753 (1972)............................................. 2
Lewis v. Casey,
518 U.S. 343 (1996)........................................... 14
Morrison v. Hall,
261 F.3d 896 (9th Cir. 2001) .......................17, 18
Pell v. Procunier,
417 U.S. 817 (1974)......................................16, 21

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(continued)

Page

Prison Legal News v. Cook,
238 F.3d 1145 (9th Cir. 2001) .......................... 12
Prison Legal News v. Lehman,
397 F.3d 692 (9th Cir. 2005) ............................ 24
Prison Legal News v. Lindsey,
No. 3:07-CV-0367-P, 2007 WL
9717318 (N.D. Tex. June 18, 2007).................. 15
Prison Legal News v. McDonough,
200 F. App’x 873 (11th Cir. 2006) .................... 21
Prison Legal News v. Stolle,
Civ. No. 2:13cv424, 2014 WL
6982470 (E.D. Va. Dec. 8, 2014)..................15, 21
Procunier v. Martinez,
416 U.S. 396 (1974), overruled in
part on other grounds by
Thornburgh v. Abbott, 490 U.S. 401
(1989)................................................................. 16
Thornburgh v. Abbott,
490 U.S. 401 (1989)............................................. 2

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-viiTABLE OF CONTENTS
(continued)

Page

Turner v. Safley,
482 U.S. 78 (1987)......................................passim
OTHER AUTHORITIES
Alicia Bianco, Prisoners’ Fundamental
Right to Read: Courts Should
Ensure that Rational Basis Is
Truly Rational, 21 ROGER
WILLIAMS U. L. REV. 1 (2016) ................20, 21, 22
Alphonse A. Gerhardstein, False
Teeth? Thornburgh’s Claim that
Turner’s Standard for Determining
a Prisoner’s First Amendment
Rights Is Not “Toothless,” 17 N. Ky.
L. Rev. 527 (1990) ............................................. 11
David M. Shapiro, Lenient in Theory,
Dumb in Fact: Prison, Speech and
Scrutiny, 84 GEO. WASH. L. REV.
972 (2016).....................................................11, 12

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(continued)

Page

Giovanna Shay, Response, One Market
We Do Not Need, 160 U. PA. L. REV.
PENNUMBRA 319 (2012),
http://www.pennumbra.com/respon
ses/3-2012/Shay. pdf. ........................................ 16
James S. Vacca, Educated Prisoners
Are Less Likely to Return to Prison,
55 J. CORRECTIONAL EDUC. 297
(2004)............................................................19, 20
John M. Sands, Book Review, FED.
LAW., Oct. 2011, at 70 (reviewing
AVI STEINBERG, RUNNING THE
BOOKS: THE ADVENTURES OF AN
ACCIDENTAL PRISON LIBRARIAN
(2010)) ............................................................... 20

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-1STATEMENT OF INTEREST
Amici Citizens United for Rehabilitation of
Errants (“CURE”); the Civil Rights Clinic, Michigan
State University College of Law; the Corrections
Accountability Project of the Urban Justice Center;
Equal Justice Under Law; the Florida Institutional
Legal Services Project of Florida Legal Services;
Just Detention International; JustLeadershipUSA;
Morningside Heights Legal Services, Inc.; the
National Incarceration Association; the National
Police Accountability Project; The Prison Law Office;
the Prison Policy Initiative; Prisoners’ Legal
Services of New York; The Sentencing Project; the
Southern Center for Human Rights; the Southern
Poverty Law Center; the U.C. Davis School of Law
Immigration Law Clinic; the Uptown People’s Law
Center; the Washington Lawyers’ Committee for
Civil Rights and Urban Affairs; and Working
Narratives respectfully submit this brief in support
of the petition for writ of certiorari filed by Petitioner
Prison Legal News (“PLN”).1 Amici do so with the
consent of all parties.2
In its petition PLN, from a publisher’s
perspective, discusses application of the four-part
1 No party or counsel to a party has authored this brief
in whole or in part. Furthermore, other than Amici and their
counsel, no person or entity has made any monetary
contribution toward the preparation or submission of this brief.
2 PLN filed a blanket consent to the filing of amicus
curiae briefs on September 27, 2018. Respondent Secretary,
Florida Department of Corrections (“FDOC”) filed a blanket
consent on October 5, 2018.

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-2test established in Turner v. Safley, 482 U.S. 78
(1987), to the First Amendment issues raised by
FDOC’s suppression of Prison Legal News. Amici —
nonprofit organizations who, among other things,
advocate in support of civil rights and access to
justice for incarcerated persons, including persons
convicted of crimes and persons held in detention
while awaiting trial or completion of immigrationrelated processes — submit this brief because
incarcerated persons also have First Amendment
rights and interests that the Court should consider.3
Just as publishers have a First Amendment right
to communicate with incarcerated persons by mail,
incarcerated persons have a First Amendment right
to receive that mail. Thornburgh v. Abbott, 490 U.S.
401, 408 (1989); see Kleindienst v. Mandel, 408 U.S.
753, 762 (1972) (holding that the Constitution
“protects the rights to receive information and
ideas”). Amici believe that courts should be
especially protective of First Amendment rights in
the case of a publication like Prison Legal News,
which “teaches inmates their rights and informs
them of unconstitutional prison practices.” Pet. App.
107.
As civil rights advocates, Amici have a significant
interest in ensuring, among other things, that
incarcerated persons are treated fairly and
humanely, that their constitutional rights are
protected and enforced, that their right to access the
3 A description of each of the Amici is set out in the
Appendix to this Brief.

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-3courts is not impeded, that they receive appropriate
programming and education — including access to
appropriate reading materials — and that they are
adequately prepared for reintegration into their
communities. In carrying out their missions, Amici
assist incarcerated persons to enforce their
constitutional rights or otherwise work to protect or
advocate for the constitutional rights of incarcerated
persons and/or their loved ones.
Amici recognize Prison Legal News as one of the
leading publications that provides to incarcerated
persons the most informative updates on prisonrelated litigation and other matters of direct interest
to them. They understand the vital role that Prison
Legal News plays in assisting incarcerated persons
to understand their constitutional and other rights,
to recognize when those rights have been violated,
and to appreciate the administrative and judicial
processes through which they can seek relief for
those violations. Accordingly, consistent with their
central missions and core values, Amici have a
strong interest in seeing that incarcerated persons
throughout the United States who desire to receive
Prison Legal News and similar publications may do
so unimpeded by correctional policies that directly or
indirectly preclude their access to the important and
relevant information published therein.
SUMMARY OF ARGUMENT
This case presents issues of national and
constitutional importance requiring this Court’s
attention.

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-41. The Eleventh Circuit’s decision highlights a
conflict between the judicial approach to censorship
in the prison context, as permitted by decisions of
this Court dating from the 1980s, and more recent
decisions of the Court regarding the pleading of civil
claims. Specifically, the highly deferential approach
to corrections officials’ mail censorship decisions
permitted by the Court’s existing First Amendment
jurisprudence, including Turner, allows corrections
officials to justify their censorship of mail based on
little more than speculation — as happened here —
even though speculation would not be sufficient to
state a claim for relief under Federal Rule of Civil
Procedure 8(a). Prison officials should not be able to
defend their decisions to deprive incarcerated
persons of their First Amendment rights with the
kind of speculation that would not be sufficient to
support a claim in a civil complaint. The Court
should use this case to clarify and, if necessary,
modify the approach to be taken in prison censorship
cases and thereby reconcile that approach with the
approach required by its more recent pleading
jurisprudence.
2. Elements of the Eleventh Circuit’s decision
conflict with, are at odds with, or ignore important
considerations discussed in decisions of this Court.
First, the Eleventh Circuit did not account for the
negative impact that the ban on Prison Legal News
has on the right and ability of incarcerated persons
to access the courts in order to obtain redress for
violations by corrections officials of their
constitutional and other rights pertaining to
conditions of their confinement. Indeed, without

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-5access to Prison Legal News or similar publications,
persons in prison face significant hurdles even to
know what rights they possess and how they may
access the courts to protect, vindicate and enforce
those rights when they have been violated. Second,
the Eleventh Circuit did not consider the positive
impact that reading Prison Legal News has on the
penological
goal
of
rehabilitation
and,
concomitantly, the negative impact on rehabilitation
of cutting off access by incarcerated persons to
Prison Legal News. The Eleventh Circuit’s failure to
take these matters into consideration makes suspect
that court’s evaluation of the reasonableness of the
FDOC regulation at issue.
3. Even if the Court does not clarify or modify
the Turner test, it should conclude under that test
that the ban on Prison Legal News due to some of its
advertising is unconstitutional, and that FDOC is
liable to PLN, because there is no reasonable
relationship between any legitimate governmental
interest and the advertising regulation that resulted
in the blanket exclusion of Prison Legal News from
Florida correctional institutions. FDOC could
present no evidence that advertisements in Prison
Legal News had ever influenced incarcerated
persons to use the services or products that are the
subject of those advertisements. To the contrary,
evidence admitted in the trial court showed that
thousands of attempted uses of prohibited services
and products have occurred despite the absence of
Prison Legal News and its advertisements from
Florida prisons. Under the circumstances, including
the availability of alternatives available to FDOC

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-6that would not impinge on First Amendment and
other rights and the fact that no other correctional
system in the United States prohibits receipt of
Prison Legal News based solely on the content of its
advertisements,
FDOC’s
advertising-related
blanket ban of Prison Legal News can only be viewed
as an exaggerated response.
4. The Court should further hear this case
because of the potential impact on incarcerated
persons in jurisdictions outside Florida if the
Eleventh Circuit decision is allowed to stand.
Jurisdictions across the country may interpret a
denial of PLN’s petition as a tacit approval of both
FDOC’s advertising-based restriction on access to
publications such as Prison Legal News and the
extreme deference granted to FDOC officials by the
Eleventh Circuit. The result, potentially, is more
widespread violations of First Amendment rights
that will impede the ability of incarcerated persons
to access the judicial system to enforce and vindicate
their constitutional and other legal rights.

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-7ARGUMENT
I.

The Court Should Grant PLN’s Petition
to Clarify or, if Necessary, Reconsider
the Turner Test, to Require Evidence
and Not Speculation to Support Prison
Censorship Decisions, and to Align
Turner’s Standards with the Minimal
Requirements for Pleading a Claim

As PLN explains, in considering the Turner test’s
first factor — the rational connection component —
the Eleventh Circuit placed substantial reliance on
speculation by FDOC’s inhouse expert regarding the
“possibility” of negative impacts on prison security if
Prison Legal News and the advertisements it
contains were allowed into Florida prisons. Pet. 13,
14, 23; see Pet. App. 27, 29. In other respects as well,
the Eleventh Circuit’s decision emphasized
conjecture, free of experiential or other evidentiary
support, that certain types of advertisements justify
FDOC’s blanket ban of Prison Legal News. See, e.g.,
Pet. App. 33 (describing FDOC’s expert’s testimony
regarding what prisoners “could” do if allowed to
view advertisements for concierge or people-locator
services); Pet. App. 38 (referencing “opportunity to
use prohibited services”). Indeed, there was nothing
other than speculation that FDOC could offer to
justify its ban of Prison Legal News, given (1) the
absence of evidence that, in the years before Prison
Legal News was banned, similar advertisements had
caused the adverse consequences to security about
which FDOC officials hypothesize, and (2) evidence

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-8that substantial numbers of attempts to use banned
products and services during the years that Prison
Legal News and its advertisements were not allowed
inside Florida prisons. Pet. 21, 30; Pet. App. 8, 26,
30, 32-33.4
But FDOC can hardly be blamed for turning to
speculation, in an effort to establish a connection
between the advertisements in Prison Legal News
and purported security concerns, in order to justify
its decision to ban Prison Legal News, given the
absence of evidence of an actual tie between those
advertisements and instances where the purported
security concerns were implicated. Similarly, the
Eleventh Circuit and the District Court cannot be
blamed for showing deference to the speculation
engaged in by FDOC. As Justice Stevens’ dissent in
Turner pointed out, the Turner factors lend
themselves to this kind of speculative assessment.
482 U.S. at 101 n.1 (Stevens, J., dissenting in part)
(“The Court’s rather open-ended ‘reasonableness’
standard makes it much too easy to uphold
restrictions on prisoners’ First Amendment rights on
the basis of administrative concerns and speculation
about possible security risks rather than on the

Curiously, while the District Court and Eleventh
Circuit accepted FDOC’s speculation, the District Court
rejected as “conjecture” PLN’s theory that the multiple changes
to the FDOC censorship rule from 2005 to 2009 were a façade
to hide “institutional bias against a publication that informs
prisoners of their rights.” Pet. App. 65.
4

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-9basis of evidence that the restrictions are needed to
further an important governmental interest.”).5
More recent decisions of this Court cast doubt on
the continued validity of the Turner test to the
extent it allows corrections officials to rely on
speculation to support decisions to censor or ban a
publication like Prison Legal News. Ironically, the
type of speculation in which FDOC officials engaged
to justify their blanket prohibition of Prison Legal
News would not be sufficient to get past a Rule
12(b)(6) motion if FDOC were a plaintiff asserting a
claim to enjoin PLN from mailing Prison Legal News
to persons in Florida detention facilities
When Turner was decided in 1987, a complaint
would survive a Rule 12(b)(6) motion “unless it
appears beyond doubt that the plaintiff can prove no
set of facts in support of his claim which would
5 See also Turner, 482 U.S. at 100-01 (Stevens, J.,
dissenting in part) (“But if the [majority’s] standard can be
satisfied by nothing more than a ‘logical connection’ between
the regulation and any legitimate penological concern
perceived by a cautious warden, it is virtually meaningless.
Application of the standard would seem to permit disregard for
inmates’ constitutional rights whenever the imagination of the
warden produces a plausible security concern and a deferential
trial court is able to discern a logical connection between that
concern and the challenged regulation. Indeed, there is a
logical connection between prison discipline and the use of
bullwhips on prisoners; and security is logically furthered by a
total ban on inmate communication, not only with other
inmates but also with outsiders who conceivably might be
interested in arranging an attack within the prison or an
escape from it.” (emphasis omitted) (citations omitted)).

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-10entitle him to relief.” Conley v. Gibson, 355 U.S. 41,
45-46 (1957). But the Court “retire[d]” this pleading
standard more than ten years ago, Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 563 (2007), and in
its place held that to survive a motion to dismiss, a
complaint must present a claim that is plausible and
not merely “conceivable” or “consistent with”
wrongful conduct. Id. at 557, 570. A complaint’s
allegations accordingly must raise a right to relief
“above the speculative level” and show more than a
“possibility” that the plaintiff may later discover
facts that will support liability. Id. at 555, 557, 561.
If speculation and conjecture are not enough for a
claim to survive a Rule 12(b)(6) motion, they should
not be enough to uphold a decision by corrections
officials to deprive incarcerated persons of their
constitutional right under the First Amendment to
receive information and ideas from third parties,
especially when the information and ideas are vital
for incarcerated persons to understand the rights
that they possess in the prison context and to seek
relief from the courts to enforce and protect those
rights. Thus, although this case does not come before
the Court in the pleading context, the standard
established in Twombly is probative as to the
reasonableness of FDOC’s speculation-laden
decision to preclude incarcerated persons from
receiving Prison Legal News.
Twombly and the decisions that have followed it
counsel the Court to modify the Turner test — at the
least, to require that corrections officials establish
with real evidence more than a possibility that

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-11incarcerated persons might engage in prohibited
activity if they obtain access to reading material that
those officials find objectionable. See Alphonse A.
Gerhardstein, False Teeth? Thornburgh’s Claim that
Turner’s Standard for Determining a Prisoner’s
First Amendment Rights Is Not “Toothless,” 17 N.
Ky. L. Rev. 527, 529 (1990) (arguing “that deference
to prison administrators should not cause courts to
accept watered-down evidence in support of
challenged regulations”); id. at 545-46 (“[I]t is
evident that the Turner factors and the
reasonableness test are merely false teeth unless a
solid evidentiary record is presented. Trial courts
must insist on such a record to ensure that First
Amendment challenges to prison regulations receive
the greatest scrutiny possible.”).
The great deference that Turner grants to
corrections officials, including the ability to rely on
speculation to justify censorship decisions, long has
been a source of criticism of the Turner test and has
led to calls for its modification or even its
abandonment. See generally David M. Shapiro,
Lenient in Theory, Dumb in Fact: Prison, Speech and
Scrutiny, 84 GEO. WASH. L. REV. 972, 977 (2016)
(“What this Article shows, through numerous
examples of unjustified prison speech restrictions
imposed throughout the country, is that prison and
jail officials often act as if unconstrained by judicial
review and impose arbitrary (indeed, nonsensical)
restrictions on speech.”); id. at 972 (“Exercising their
discretion under Turner, correctional officials have
saddled prisoners’ expressive rights with a host of
arbitrary restrictions — including prohibiting

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-12President Obama’s book as a national security
threat; using hobby knives to excise Bible passages
from
letters;
forbidding
all
non-religious
publications; banning Ulysses, John Updike,
Maimonides, case law, and cat pictures.”); id. at 976
n.20 (cataloging articles in which other legal
commentators have critically assessed the Turner
standard).
The Eleventh Circuit’s (and the District Court’s)
broad deference to the speculative assertions of
FDOC’s inhouse expert is inconsistent with the
requirement of Twombly that, even at the pleading
stage, a claim must have some basis in nonspeculative fact, and demonstrates how easily the
reasonableness requirement of Turner can be turned
on its head. This alone is reason for the Court to
grant PLN’s petition. Doing so will give the Court
the opportunity to clarify that the Turner
reasonableness test cannot be satisfied by conjecture
that is not based on experience or, if necessary, to
modify the Turner test to ensure that it is consistent
with the requirements of Twombly and its progeny.
II.

The Eleventh Circuit’s Decision Is
Inconsistent with This Court’s Decisions
Recognizing the Constitutional Right of
Incarcerated Persons to Meaningful
Court Access

Prison Legal News contains “core protected
speech, not commercial speech or speech whose
content is objectionable on security or other
grounds.” Prison Legal News v. Cook, 238 F.3d 1145,

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-131149 (9th Cir. 2001). Indeed, even as it objects to
some of its advertising content, FDOC purports not
to object to the substantive content of Prison Legal
News. And because Prison Legal News facilitates
incarcerated persons’ access to the courts, any
decision to censor or ban the receipt of Prison Legal
News should receive more than the highly
deferential and perfunctory review that the
Eleventh Circuit employed when it found prison
officials’ speculation sufficient to uphold censorship
decisions.
As this Court stated in Bounds v. Smith, it is
“established beyond doubt that prisoners have a
constitutional right of access to the courts.” 430 U.S.
817, 821 (1977); accord Bradley v. Hall, 64 F.3d
1276, 1280 (9th Cir. 1995) (“The reality and
substance of any of a prisoner’s protected rights are
only as strong as his ability to seek relief from the
courts or otherwise to petition the government for
redress of the deprivation of his rights.”), overruled
on other grounds by Shaw v. Murphy, 532 U.S. 223,
230 n.2 (2001). That access must be “adequate,
effective, and meaningful.” Bounds, 430 U.S. at 822.
Access is meaningful only if a potential plaintiff
knows the basis for potential claims:
Most importantly, of course, a
lawyer must know what the law
is in order to determine whether
a colorable claim exists, and if
so, what facts are necessary to
state a cause of action.
If a lawyer must perform such

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-14preliminary research, it is no
less vital for a pro se prisoner.
Id. at 825-26.
Particularly important to incarcerated persons is
“[a] source of current information . . . so that
prisoners could learn whether they have claims at
all . . . .” Id. at 826 n.14.6 As the District Court in
this case found, Prison Legal News fills this critical
role:
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. Cue PLN.
Through its publications PLN
6 Although the Court later “disclaim[ed]” some of this
language from Bounds, it did so only with respect to
information that supported claims unrelated to an
incarcerated person’s conviction or constitutional issues
pertaining to conditions of confinement. See Lewis v. Casey, 518
U.S. 343, 354-55 (1996). As discussed below, articles in Prison
Legal News focus on issues that are directly relevant to an
incarcerated person’s circumstances, including articles
concerning convictions and conditions of confinement, and not
on matters that might lead to the filing of “shareholder
derivative actions” or “slip-and-fall claims.” See Lewis, 518 U.S.
at 355. It is, in the words of Lewis, a tool that incarcerated
persons “need in order to attack their sentences, directly or
collaterally, and in order to challenge the conditions of their
confinement.” Id.

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-15teaches 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.
Pet. App. 106-07 (footnote omitted). Other courts
likewise recognize Prison Legal News’ vital role in
delivering news about current matters of interest to
incarcerated persons. E.g., Human Rights Def. Ctr.
v. Bd. of Cty. Comm’rs, No. 18 CV 00355 JAP/SCY,
2018 WL 3972922, at *2 (D.N.M. Aug. 20, 2018)
(Prison Legal News “contains news and analysis
about prisons, jails and other detention facilities,
prisoners’ rights, court opinions, management of
prison facilities, prison conditions, and other
matters pertaining to the rights and/or interests of
incarcerated individuals”); Prison Legal News v.
Stolle, Civ. No. 2:13cv424, 2014 WL 6982470, at *1
(E.D. Va. Dec. 8, 2014) (Prison Legal News “includes
articles and news about various legal issues, access
to courts, prison conditions, mail censorship,
prisoner litigation, visitation rights, religious
freedom, and prison rape, among other things”);
Prison Legal News v. Lindsey, No. 3:07-CV-0367-P,
2007 WL 9717318, at *1 (N.D. Tex. June 18, 2007)

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-16(“The magazine contains information of interest to
prison inmates concerning access to courts, prison
conditions, mail censorship, jail litigation, prisoners’
rights, and related subjects.”); see also Giovanna
Shay, Response, One Market We Do Not Need, 160
U. PA. L. REV. PENNUMBRA 319, 326 (2012),
http://www.pennumbra.com/responses/3-2012/Shay.
pdf. (describing Prison Legal News as the “leading
publication for prisoner rights”).
The Eleventh Circuit’s omission to take into
account this Court’s rulings regarding incarcerated
persons’ right of access to the courts, and the impact
of the blanket ban of Prison Legal News on that
right, provides substantial reason to grant review.
III.

The
Eleventh
Circuit’s
Decision
Conflicts with This Court’s Recognition
of the Substantial Penological and
Societal Interest in Rehabilitation of
Incarcerated Persons

The Court long has recognized that rehabilitation
of incarcerated persons is a “substantial
governmental interest[ ].” Procunier v. Martinez, 416
U.S. 396, 413 (1974), overruled in part on other
grounds by Thornburgh v. Abbott, 490 U.S. 401, 41314 (1989); accord Graham v. Florida, 560 U.S. 48, 71
(2010) (recognizing rehabilitation as one of the
“goals of penal sanctions that have been recognized
as legitimate”); Pell v. Procunier, 417 U.S. 817, 823
(1974) (identifying “rehabilitation of those
committed to its custody” as a “paramount objective
of the corrections system”).

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-17The relationship of reading to rehabilitation is
also well established. Thus, in Morrison v. Hall, 261
F.3d 896, 904 (9th Cir. 2001), the Ninth Circuit
rejected the argument of corrections officials that
allowing incarcerated persons to watch television or
listen to the radio was an adequate substitute for
reading newspapers and magazines. Recognizing
that neither television nor radio will improve
literacy within prisons, the court cited studies
showing the beneficial effect of reading on
rehabilitation:
According to The Los Angeles
Times, the 1992 National Adult
Literacy Survey “found that twothirds of adult prisoners were
not able to write a letter
explaining a billing error or
extract information from the
average
sports-page
story.”
Richard Lee Colvin, Reading by
9 Young Offenders Learn ABCs
the Hard Way: Caged, L.A.
Times, Nov. 8, 1998, at A1. The
Los Angeles Times also noted the
link between higher rates of
literacy and lower rates of
recidivism. See id. (discussing
the fact that “literacy programs
reduce recidivism”); see also
Willoughby Mariano, Reading
Books Behind Bars Reading
Programs for State Prison
Inmates and Juvenile Hall

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-18Wards are Critical to Helping
Offenders Develop Literacy and
Avoid Return to Crime, Experts
Say, L.A. Times, Jan. 30, 2000,
at B2 (discussing illiteracy rates
among inmates and citing
“correlation between reading,
writing
and
inmate
rehabilitation”).
Id. at 904 n.7; see also Abdul Wali v. Coughlin, 754
F.2d 1015, 1034 (2d Cir. 1985) (“The rehabilitative
goals for which we strive are furthered by efforts to
inform and educate inmates, and foster their
involvement in the world outside the prison gates.
Although committing an illegal act may require the
physical segregation of an individual from the
society at large, it does not dictate that the prisoner’s
mind be similarly locked away to atrophy during the
period of his incarceration.”), abrogated on other
grounds by O’Lone v. Estate of Shabazz, 482 U.S. 342
(1987).
Commentators likewise have noted the
connection between reading and rehabilitation. For
example, in extolling the benefits of education on
incarcerated persons, Professor James Vacca stated:
Inmates who are released from
prison are frequently unable to
find jobs because they either
lack experience and/or literacy
skills. With the high cost of
incarceration and the large
increase
in
the
prison

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-19population, it seems that
mastery of literacy skills may be
a proactive way to address the
problem
of
reincarceration.
Literacy skills are important to
prisoners
in
many
ways.
Inmates need these skills to fill
out forms, to make requests and
to write letters to others in the
outside world. In addition, some
prison jobs require literacy skills
and inmates can use reading as
a way to pass their time while
they are behind bars (Paul,
1991). Thus, education programs
initially should stress practical
applications of literacy so that
prisoners can use newly gained
skills and insights.
James S. Vacca, Educated Prisoners Are Less Likely
to Return to Prison, 55 J. CORRECTIONAL EDUC. 297,
301-02 (2004).7 Professor Vacca noted the
importance of providing incarcerated persons with
reading materials that are of interest to them,
including materials written by persons in a similar
situation:
III. Prison literacy programs
must
emphasize
7 At the time of the article, the author was the Chair of
Special Education and Literacy at C.W. Post College in New
York. See James S. Vacca, supra, 55 J. CORRECTIONAL EDUC. at
305.

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-20instruction that includes
engaging
topics
that
motivate and sustain the
inmates’ interest.


The programs should use
literature that deals with
subject matter that is
relevant to the academic
needs of the inmates.



The programs should be
taught, when possible,
with literature that is
written by inmates to
serve as effective models
for reading and writing
skills development.

Id. at 303, fig. 1; see also Alicia Bianco, Prisoners’
Fundamental Right to Read: Courts Should Ensure
that Rational Basis Is Truly Rational, 21 ROGER
WILLIAMS U. L. REV. 1, 34 (2016) (“Reading habits
correlate with being an active participant in one’s
community and foster the free flow of ideas. These
benefits are key to democratic functioning and can
aid in the penological objective of rehabilitation by
keeping a prisoner’s mind engaged.” (footnote
omitted)); John M. Sands, Book Review, FED. LAW.,
Oct. 2011, at 70 (reviewing AVI STEINBERG, RUNNING
THE BOOKS: THE ADVENTURES OF AN ACCIDENTAL
PRISON LIBRARIAN (2010)) (“Th[e] tradition of inmate
rehabilitation and transformation through libraries
and of turning a new page in one’s life by reading
worn copies of books is a venerable one. Malcolm X

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-21is the most famous prisoner who did so; Wilbert
Rideau is a more recent example of an inmate who
was changed by books.”).
Prison Legal News meets many of the
requirements identified by Professor Vacca for
effective rehabilitation. It is written in large part by
persons who themselves are incarcerated. See Prison
Legal News v. McDonough, 200 F. App’x 873, 875
(11th Cir. 2006) (“PLN is a not-for-profit charitable
corporation that publishes a monthly magazine
containing articles about prison legal issues written
mostly by prison inmates.”). More important, it
discusses topics that are of special interest to
persons in prison. E.g., Human Rights Def. Ctr. v.
Bd. of Cty. Comm’rs, 2018 WL 3972922, at *2; Prison
Legal News v. Stolle, 2014 WL 6982470, at *1; see
Alicia Bianco, supra, 21 ROGER WILLIAMS U. L. REV.
at 13 (“The goal of PLN is to increase political
awareness and inform prisoners of their rights.”).
When corrections officials bar incarcerated persons
from access to Prison Legal News, they effectively
work against “one of the paramount objective[s] of
the corrections system,” Pell v. Procunier, 417 U.S.
at 823. As Ms. Bianco states:
Informing prisoners of their
rights and transforming them
into more engaged citizens is a
step toward their rehabilitation.
. . . Banning informative
publications such as PLN can
actually threaten the same goal
that institutions are seeking to

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-22accomplish.
21 ROGER WILLIAMS U. L. REV. at 13-14.
The Eleventh Circuit did not consider the
negative impact on rehabilitation caused by FDOC’s
blanket ban of Prison Legal News, nor did it balance
that impact against the “possible” security concerns
that it stressed. This raises additional concerns
about the Turner test and its application, further
warranting review by the Court.
IV.

The Eleventh Circuit’s Decision Is
Inconsistent
with
This
Court’s
Precedents Which Require that FDOC
Demonstrate a “Reasonable” Relation
Between Purported Security Concerns
and the Regulations that Resulted in a
Blanket Ban of Prison Legal News

In Beard v. Banks, the plurality opinion
emphasized that a penal institution’s regulations
that impinge on constitutional rights must bear
more than a “logical” relation to the justifications
asserted for the regulation. 548 U.S. 521, 533 (2006).
Rather, the regulation must bear a “reasonable”
relation to the purported justifications. Id. This
requirement is stated in Turner itself. 482 U.S. at
89-91.
Despite the Eleventh Circuit’s lip service to
following the reasonable-relationship standard, Pet.
App. 43, the evidence it considered shows that
FDOC’s blanket ban on Prison Legal News does not
bear a reasonable relation, and is an exaggerated

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-23response to, its expressed concerns about prison
security. That ban began in September 2009. Pet.
App. 16. Thus, for the past nine years not a single
advertisement for three-way calling, pen-pal
solicitation, cash-for-stamps exchange, or concierge
or people-locator services has entered a Florida
correctional facility through Prison Legal News. Yet
despite the ban on Prison Legal News and its
advertisements, incarcerated persons in Florida
attempt 700,000 three-way calls each year, “succeed
in posting online profiles with the same [pen-pal]
companies that advertise in Prison Legal News,”
received over $50,000 in deposits to their accounts
from just one cash-for-stamps exchange company
over a several-year period, and, in one instance, sent
threatening letters to a judge. Pet. App. 6, 8, 30, 32,
33, 34.8 These facts demonstrate the absence of any
reasonable relation between advertisements in
Prison Legal News and the likelihood that
incarcerated persons will engage in the prohibited
practices that FDOC cites to support its ban. It is
pure speculation that reintroducing Prison Legal
News would exacerbate this problem beyond, at
most, a de minimis amount. That no other state or
local corrections department in this country has
seen fit to institute a ban on Prison Legal News due
8 The Eleventh Circuit does not say that the threatened
judge was located through a concierge or people-locator service,
suggesting they were not at issue in that case. Pet. App. 34.
The only other indication presented regarding potential ill
effects of access to a concierge or people-locator service, besides
speculation, concerned a person in Colorado who committed a
murder following his release. Id.

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-24to the content of its advertising, and that other
corrections departments have found reasonable
alternatives that do not adversely impact First
Amendment rights and do not cut off incarcerated
persons from a unique source of information that is
of particular relevance to them, shows that FDOC’s
blanket ban of Prison Legal News is not reasonable,
but rather an exaggerated response to a situation
that Prison Legal News did not create and does not
contribute to. Pet. App. 39.
When you add this evidence, including the
absence of any evidence of actual — as opposed to
hypothetical — wrongdoing tied to the advertising in
Prison Legal News at issue here, and the Eleventh
Circuit’s need to rely on speculation to justify
FDOC’s ban of Prison Legal News, it is evident that
FDOC has failed the reasonable-relationship test.
Even if the Court determines that there is no need
to clarify or modify the four-part Turner test, this
factor should be dispositive. See Turner, 482 U.S. at
89-90 (“a regulation cannot be sustained where the
logical connection between the regulation and the
asserted goal is so remote as to render the policy
arbitrary or irrational”); Prison Legal News v.
Lehman, 397 F.3d 692, 699 (9th Cir. 2005) (because
the first Turner factor is sine qua non, “if a
regulation is not rationally related to a legitimate
and neutral governmental objective, a court need not
reach the remaining three factors”). Consequently,
FDOC’s inability to satisfy this factor should have
required both the District Court and the Eleventh
Circuit to conclude that FDOC is liable for violating
PLN’s First Amendment rights (not to mention, the

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-25First Amendment rights of those Florida subscribers
who for nine years have been denied access to Prison
Legal News).
V.

A Decision Not to Review this Case
Could Signal that Extreme Deference to
Corrections Officials Is Appropriate and
that Bans on a Publication Solely
Because of Its Advertisements Is
Defensible

The First Amendment concerns raised by this
case are not limited to Florida. There is risk that
once restrictions on access by incarcerated persons
to certain types of mail are upheld in one
jurisdiction, other jurisdictions interested in
restricting access to the same types of mail — in this
instance, publications like Prison Legal News — will
jump on the bandwagon, follow the newly
established precedent, and implement similar
restrictions. See Pet. 32-33. To leave the Eleventh
Circuit’s decision unreviewed and undisturbed may
also inadvertently signal to prison officials and
courts throughout the United States that the
Eleventh Circuit’s broadly deferential approach to
FDOC’s advertising-related ban of Prison Legal
News, and its willingness to accept FDOC’s
speculative reasons in defense of the advertising
restriction, are both reasonable and a correct
application of Turner. As such, unless reviewed and
reversed, the Eleventh Circuit’s decision could be
the launching pad of an ill-advised direction for First
Amendment law in the prison context.

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-26CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted,
Joseph E. Bringman
Counsel of Record
PERKINS COIE LLP
1201 Third Avenue, Suite 4900
Seattle, Washington 98101
JBringman@perkinscoie.com
206.359.8000
Attorneys for Civil Rights
Advocacy Organization Amici
Curiae
October 19, 2018

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APPENDIX

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-1aDESCRIPTION OF AMICI CURIAE
The following private, nonprofit civil rights
advocacy organizations join in the filing of this
amicus curiae brief:
Citizens United for Rehabilitation of
Errants (“CURE”) has made access to the courts a
top priority throughout its almost 50-year history.
From working during its early years with jailhouse
lawyers in Texas to obtain basic reforms to the
criminal justice system, to working now with
persons throughout the country who are serving life
sentences or convicted of sex offenses, CURE has
turned to the courts for initial reform, as the first
step toward broader reform by the legislature and
the executive. Today, CURE’s operations are
international in scope, and it has received
consultative status by the United Nations.
The Civil Rights Clinic, Michigan State
University College of Law (the “Clinic”), was
created at the request of the United States District
Court for the Western District of Michigan, which
had not been able to find lawyers willing to handle
the large volume of pro se cases that survived
dispositive motions and were ready to be tried. The
Clinic accepts appointment to some of these cases
and provides representation through settlement or
trial. The Director of the Clinic, Daniel E. Manville,
is an ex-offender who has dedicated his life to
litigating and lobbying on behalf of those who are
incarcerated.

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-2aThe Corrections Accountability Project of
the Urban Justice Center is dedicated to
eliminating the influence of commercial interests on
our criminal legal system and ending the
exploitation of those that system touches. It does so
by exposing the harms caused by the
commercialization of justice and empowering and
equipping change agents with the tools to challenge
the system’s exploitation of vulnerable communities.
Equal Justice Under Law (“EJUL”) works to
eliminate wealth-based discrimination in the
criminal justice system through litigation and
advocacy. EJUL recognizes that most incarcerated
persons cannot afford ongoing legal representation,
and that cutting them off from access to the best
source of free and up-to-date information on how
they may know and vindicate their rights will
disadvantage them vis-à-vis wealthier prisoners,
epitomizing how access to the justice system is
restricted for those lacking financial resources.
The Florida Institutional Legal Services
Project of Florida Legal Services (“FLS”) uses
impact litigation, community lawyering, and policy
advocacy to defend and advance the civil rights of
adults and children who are incarcerated in prisons,
jails, juvenile justice facilities, civil commitment,
and immigration detention throughout Florida. FLS
also provides self-help materials to incarcerated
persons so they may better understand and advocate
for their rights.
Just Detention International (“JDI”) is the
world’s only organization dedicated exclusively to

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-3aending sexual abuse behind bars. JDI works to hold
government officials accountable for prisoner rape,
to promote public attitudes that value the dignity
and safety of people in detention, and to ensure that
survivors of this violence receive the crisis services
and other help they need and deserve to heal. JDI’s
activities in support of these objectives include
educating incarcerated persons about their rights
and formulating policies to increase safety for LGBT
and other especially vulnerable persons.
JustLeadershipUSA (“JLUSA”) seeks to cut in
half the number of people under correctional control
in the United States by 2030 by empowering and
elevating the voices of leaders who have been
directly impacted by the criminal justice system —
people who best understand how the system works
and what must be done to transform it — so that
they can drive criminal justice reform at all levels of
government. JLUSA recognizes that few things are
as vital to empowering reform and the preservation
of humanity as providing accurate and accessible
information, something that Prison Legal News does
for thousands of incarcerated people.
Morningside Heights Legal Services, Inc.
(“MHLS”) is the legal body under which clinics at the
Columbia University School of Law operate.
Lawyers and law-student interns at MHLS perform
legal services in the public interest, provide legal
assistance, and assist legal services programs in
representation of their clients. MHLS has regularly
provided
legal
representation
to
persons
incarcerated at state and federal prisons and jails for

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-4amore than 25 years. MHLS lawyers accept
appointment by federal courts in civil cases
challenging conditions of confinement.
The National Incarceration Association
(“NIA”) focuses on the impact of incarceration on the
families of persons in prison and works to support
them in their difficult journey. Through the lens and
perspective of these families, NIA fervently supports
freedom of speech and press and is devoted to
allowing incarcerated persons access to the valuable
news and analysis of legal developments that
directly affect them and their families, about which
Prison Legal News reports.
The National Police Accountability Project
(“NPAP”), founded by members of the National
Lawyers Guild, coordinates with and assists civilrights lawyers to represent victims of misconduct by
law-enforcement and detention-facility officials.
NPAP also supports legislative efforts to increase
accountability of law-enforcement and detentionfacility officials and appears regularly as an amicus
curiae to present issues important to its member
lawyers and their clients, who include persons
whose constitutional rights have been infringed by
detention-facility officials.
The Prison Law Office (“PLO”) engages in class
action impact litigation to improve conditions in
prisons, jails, and juvenile halls for adults and
children, represents individual prisoners, educates
the public about prison conditions, and provides
technical assistance to advocates across the country.
PLO has litigated numerous large-scale prisoner

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-5aand parolee class actions in the last 40 years,
including Brown v. Plata, 563 U.S. 493 (2011)
(holding that court-mandated population limits for
California prisons were necessary to ensure
incarcerated persons’ constitutional right to
adequate medical and mental health care), and
Pennsylvania Dep’t of Corrections v. Yeskey, 524 U.S.
206 (1998) (unanimously holding that the
Americans with Disabilities Act applies to state
prisoners).
The Prison Policy Initiative (“PPI”) challenges
over-criminalization and mass incarceration
through research, advocacy, and organizing. PPI
shows how the United States’ excessive and unequal
use of punishment and institutional control harms
individuals and undermines our communities and
national well-being. PPI’s research includes the
impact
of
communications
restrictions
on
individuals and communities, recognizing that
contact with the outside world, including access to
publications, is an important component of reducing
mass incarceration.
Prisoners’ Legal Services of New York
(“PLS”) has provided civil legal services for over 40
years to indigent persons incarcerated in New York
on claims concerning conditions of confinement,
including First Amendment claims. PLS also
publishes over 75 educational form memos and a bimonthly newsletter (“Pro Se”) which it sends to all
New York State prisons for placement in their law
libraries and to over 7,500 individual prisoners who
asked to be placed on its mailing list. Like Prison

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-6aLegal News, Pro Se educates incarcerated persons
about changes in the law, statutory and regulatory
requirements, and legal-practice issues relating to
incarceration so that they may understand and
navigate the legal system.
The Sentencing Project conducts research and
advocacy on criminal justice and juvenile justice
reform. The organization is recognized for its policy
research documenting trends and racial disparities
within the justice system and for developing
recommendations for policy and practice to
ameliorate those problems. The Sentencing Project
has produced policy analyses documenting the
increasing use of sentences of life without parole for
both juveniles and adults and has assessed the
impact of such policies on public safety, fiscal
priorities, and prospects for rehabilitation.
Organization staff frequently testify in Congress
and before various policymaking bodies and
practitioner audiences.
The Southern Center for Human Rights
(“SCHR”) is committed to upholding the
constitutional rights of incarcerated people and
works for equality, justice, and dignity in the
criminal justice system. Its mission is to end capital
punishment, mass incarceration, and other criminal
justice practices used to control the lives of poor
people, people of color, and other marginalized
groups in the southern United States. SCHR does
this through death penalty representation, impact
litigation, policy advocacy, and public education.

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-7aThe Southern Poverty Law Center (“SPLC”) is
one of the nation’s leading civil rights organizations
and is dedicated to fighting hate and bigotry and to
seeking justice for vulnerable members of our
society. In addition, SPLC has a 40-year history of
protecting the rights of prisoners, with SPLC
attorneys serving as lead or co-counsel in dozens of
major prison cases, including significant First
Amendment cases.
The U.C. Davis School of Law Immigration
Law Clinic (“The Clinic”) is an academic institution
dedicated to defending the rights of detained
noncitizens in the United States. The Clinic provides
direct representation to detained immigrants who
are placed in removal proceedings. In addition, the
Clinic screens unrepresented individuals to
facilitate placement with pro bono attorneys and
presents legal orientation programs for detained
individuals in removal proceedings who are unable
to obtain direct representation.
The Uptown People’s Law Center (“UPLC”)
provides legal representation, advocacy, and
education for poor and working people in Chicago,
and legal assistance to people housed in Illinois
prisons in cases related to their confinement. UPLC
has provided direct representation to over 100
persons confined in Illinois prisons pertaining to
their civil rights, including in seven class-action or
putative class-action cases that are currently
pending. UPLC has litigated several cases involving
the First Amendment, censorship of publications,

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-8aand similar issues, including one pending case
regarding censorship of Prison Legal News.
The Washington Lawyers’ Committee for
Civil Rights and Urban Affairs (“WLC”) was
founded 50 years ago to provide pro bono legal
services to address issues of discrimination and
entrenched poverty, and has successfully handled
thousands of civil rights cases on behalf of
individuals and groups, including incarcerated
persons. WLC engages in extensive individual
advocacy and class-action litigation on behalf of
individuals held in custody in local jails and state
and federal prisons. WLC has litigated at least one
case involving First Amendment censorship of
publications by the federal Bureau of Prisons and
similar issues in federal and state prisons.
Working Narratives is an arts and social justice
organization that works with prisoners, formerly
incarcerated persons, their families, and policy
makers to advance positive criminal justice reform.
Each year arts and education programming reaches
thousands of prisoners working with them through
the humanities. Working Narrative’s work focuses
on building connections with those inside prisons
and working to create community driven solutions.

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