Eleventh Circuit Tailors Turner for Censorship Claims at Civil Commitment Center

by David M. Reutter

On September 23, 2013, the Eleventh Circuit Court of Appeals vacated a summary judgment order that upheld a civil commitment center’s policy which limited circulation of a detainee’s controversial newsletter among residents at the facility. The appellate ruling also altered the Turner standard to strike a balance to reflect differences between civil detention and criminal incarceration.

James R. Pesci is a civil detainee at the Florida Civil Commitment Center (FCCC), which has over 600 residents and is operated under contract by the GEO Group. For some years, Pesci had published a newsletter called “Duck Soup” that was highly critical of the FCCC, its policies and its employees.

To limit circulation of the publication, FCCC director Timothy Budz promulgated a policy in April 2009 that barred all residents from printing or copying Duck Soup. The rationale was that the newsletter disrupted order and discipline at the facility, and had a powerful adverse effect on the FCCC’s ability to rehabilitate civil detainees.

In one issue, Pesci described the Florida Department of Children and Families and its contractor, GEO Group, as a “white collared, criminal enterprise.” He encouraged residents to hold “collective protests” and “demonstrations,” saying they were “cowards” for not doing so. He also made personal attacks on named staff members.

Shortly after Pesci filed his civil rights action, Budz adopted a second, stricter policy in 2010 that characterized Duck Soup as “contraband.” In February 2012, the district court granted summary judgment to Budz, holding the 2009 policy was constitutional without addressing the more restrictive 2010 policy.

On appeal, the Eleventh Circuit found the 2010 policy supplanted in every respect the 2009 policy. Due to a number of factors, the Court of Appeals concluded both policies should be considered simultaneously and vacated the district court’s summary judgment order.

A central issue was the appropriate legal standard to be used in adjudicating Pesci’s First Amendment claims. The appellate court held that “[a]pplication of the Turner [v. Safely, 482 U.S. 78 (1987)] standard in the civil detention context must be tailored to reflect that the range of legitimate governmental interests is narrower here than it is in the prison context.”

“In short, while there may be shared governmental interests surrounding civil and criminal detention, they are not coextensive,” the Eleventh Circuit wrote. “Thus, in the context of this case, the government may not justify a limitation on expressive freedoms based on retribution or general deterrence,” or on “punitive conditions of confinement.”

The Court of Appeals held that a rational relation standard, consistent with the limitations set forth in its ruling, was the appropriate standard against which to measure Pesci’s First Amendment claims as a civil detainee. The case was remanded for further proceedings and remains pending before the district court. See: Pesci v. Budz, 730 F.3d 1291 (11th Cir. 2013).

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