On January 4, 2011, a Texas federal district court dismissed PLN’s challenge to censorship of books by the Texas Department of Criminal Justice (TDCJ).

PLN had filed a civil rights suit under 42 U.S.C. § 1983 against TDCJ Executive Director Brad Livingston, TDCJ Mail Systems Coordinating Panel chairperson Jennifer Smith and two prison mailroom employees, alleging that the censorship of five books mailed to prisoners by PLN violated PLN’s First Amendment and due process rights. [See: PLN, Jan. 2010, p.38].

The TDCJ censored Women Behind Bars: The Crisis of Women in the U.S. Prison System by former PLN board member Silja J.A. Talvi, Perpetual Prisoner Machine: How America Profits from Crime by Joel Dyer, and Prison Masculinities by Don Sabo, Dr. Terry Kupers and Willie London, due to descriptions of rape.

Texas prison officials also allegedly censored Soledad Brother by George Jackson, Lockdown America: Police and Prisons in the Age of Crisis by Christian Parenti, and Prison Masculinities for “racial” content. PLN was not notified of such censorship but learned the books had been rejected when they were returned, upon being informed by the author or through discovery after filing suit.

Both parties moved for summary judgment.

The defendants alleged that in the prison context, First Amendment protections apply only to prisoners and publishers, not publication distributors. The district court disagreed, holding that book distributors such as PLN could challenge government action that interferes with their First Amendment rights.

The defendants also argued that PLN could not raise a First Amendment claim unless it showed that a prisoner had ordered the book in question. The court found that First Amendment rights were dependent upon a willing recipient, but that a person need not have ordered or paid for the publication because those rights also apply to free publications.

However, PLN failed to show that any prisoner had ordered or otherwise sought to receive Lockdown America or Soledad Brother. Therefore, despite contrary decisions from district courts in the Ninth Circuit, the court held that PLN had no standing to pursue First Amendment claims with respect to those two books.

The defendants further claimed that PLN could not challenge the TDCJ’s correspondence rules, which had been approved by the Fifth Circuit in a previous case but had since been modified. The defendants contended that PLN could not make an “as applied” challenge to the rules because its First Amendment rights were derivative of prisoners’ First Amendment rights. The court agreed that no facial challenge could stand, but held that PLN could “challenge Defendants’ application of the TDCJ regulations to the books [PLN] has distributed to willing recipients in this litigation.”

Smith admitted during the course of the lawsuit that Women Behind Bars and Soledad Brother should not have been censored, and they were removed from the TDCJ’s denied publication list. The defendants asserted that this mooted PLN’s claims related to Women Behind Bars. However, the court held that “TDCJ’s mid-litigation approval of Women Behind Bars does not moot the claim,” as such censorship was capable of repetition.

Giving a cursory nod to the factors listed in Turner v. Safley, 482 U.S. 78 (1987) to determine the reasonableness of the TDCJ regulations, the district court held that the only truly important factor was whether there was a valid, rational connection between the prison regulation and the government interest put forward to justify it.

The court refused to compare publications censored by the TDCJ with those allowed by Texas prison officials, such as Mein Kampf, Lolita, The Shawshank Redemption or Pimpology: The 48 Laws of the Game. Instead, the court focused on the defendants’ claims that any description of sexual assault, even if not explicit, could trigger copycat sexual assaults by prisoners or traumatize prisoners who had experienced prior sexual assaults by invoking painful memories, and that the use of the derogatory word “nigger” in books could interfere with prisoners’ rehabilitation.

This, the district court said, made the TDCJ’s censorship reasonable.

“In making this decision, the Court does not suggest that it agrees with Defendants’ disapproval decisions, particularly in light of the minimal nature of the ‘offensive’ material and certain approved publications that appear to present the same problems” but were not censored, the court wrote. “This, however, is not the point. The point is whether the decision is rational.” Finding that the censorship was rationally related to a legitimate penological interest, the district court granted summary judgment to the defendants.

The court also held that PLN’s motion for summary judgment against Livingston, based on lack of due process, had been mooted when the TDCJ changing its regulations to require notification of the sender of a publication when the publication is denied. Therefore, the due process claim was dismissed.

PLN appealed the court’s order on February 1, 2011, and a number of organizations have joined an amicus brief in support of PLN – including the ACLU of Texas, Southern Poverty Law Center, American Booksellers Foundation for Free Expression, National Coalition Against Censorship and Texas Council of Teachers of English Language Arts, as well as individuals Don Sabo, Dr. Terry Kupers and Christian Parenti (all authors of books censored by the TDCJ) and H. Bruce Franklin, an expert on the history of the U.S. prison system and the role of literature in the prison context. See: Prison Legal News v. Livingston, U.S.D.C. (S.D. Tex.), Case No. 2:09-cv-00296.

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