On January 21, 2011, an Arkansas federal court held that state prisoners in Arkansas had no First Amendment right to a specific telephone rate.

Arkansas state prisoners Winston Holloway and Joseph Breault filed a civil rights action pursuant to 42 U.S.C. § 1983 in federal court alleging excessive kickbacks resulting in high rates for prisoners using telephones in the Arkansas Department of Corrections (ADC) infringed upon their First Amendment rights. The magistrate judge assigned to the case issued a report recommending that a First Amendment violation be found and that the telephone service provider, Global Tel*Link (GLT), be enjoined from paying any "commission" to the ADC. The district judge rejected that part of the report and dismissed the suit with prejudice.

The ADC established telephone services for prisoners in 2006 by contracting with GTL. Under the contract, GTL paid for all costs of equipment, installation and service and giving the ADC a 45% "commission" on the fees it charges for prisoner-initiated calls. Those rates include a $3.00 ($3.95 interstate) surcharge per call and an additional $0.12 ($0.45 interstate) per minute. The calls can be collect or prepaid; however, persons prepaying for calls are charged an additional $9.50 per $50.00 of prepayment. This means that a ten-minute, interstate collect call costs $8.45 while a similar prepaid call costs $10.06.

About $2 million worth of "commissions" are paid to the ADC each year. That money is used to pay for the operation of the prisons.

The court rejected defendants' assertion of the primary jurisdiction and filed rate doctrines. The magistrate judge found that any restriction on communication implicates First Amendment rights. The district judge rejected that reasoning. Reviewing the holdings of other circuits, the court noted that the Sixth and Ninth Circuits determined that prisons had an affirmative First Amendment obligation to provide prisoners telephone services while the First and Seventh Circuits held that they did not have such an obligation. However, none of the other circuits had engaged in an in-depth analysis of the First Amendment's application to prison telephones. In attempting to conduct such an analysis, the court admitted that the test for First Amendment violations set out by the Supreme Court in Turner v. Safley didn't work well in the context of prison telephone rates.

The court noted that, "[t]o the extent that contracts between prison systems and telephone companies impose higher costs on prisoners and their families and friends than other persons," the "issue would be governed by the equal protection clause, not the First Amendment." The court specifically adopted the reasoning of the New York Court of Appeals in Walton v. New York State Department of Correctional Services, 921 N.E.2d 45 (N.Y. 2009), holding that, while prisoners enjoy a First Amendment right to communicate with persons outside of the prisons, that right can be met by mail and visitation so that the additional expense of commissions on telephone rates cannot imperil the prisoners' right to communicate with others. The court noted that the prisoners continued to make phone calls, just less frequently than they would have with lower rates. Therefore, it held that the excessive rates caused by the kickback "is not a constitutionally significant curtailment of the free speech and association guarantee, particularly given the limited nature of that right in the prison setting." Summary judgment was entered in the defendants' favor and the complaint was dismissed with prejudice. See: Holloway v. Magness, U.S.D.C.-E.D.Ark., No. 5:07-CV-00088 JLH/BD.

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