On May 3, 2024, Arizona’s Department of Corrections (DOC) settled a federal censorship lawsuit brought by PLN’s publisher,the Human Rights Defense Center (HRDC). Under the agreement, DOC paid $2,650,000 to cover HRDC’s attorneys’ fees and expenses in connection with the successful litigation, the largest such award in a prison censorship case in U.S. history.

Until 2014, DOC prisoners routinely received issues of PLN. That year, however, DOC began to censor numerous issues for “sexually explicit material” that violated its mail policy; the articles in question, however, merely reported legal cases filed by prisoners who had been sexually assaulted or harassed by prison staff. Worse, DOC did not provide HRDC with notice of the censorship decisions nor any opportunity to appeal them.

HRDC filed a civil rights lawsuit in federal court for the District of Arizona in 2015, alleging that DOC’s ban on “sexually explicit material” was a violation of the nonprofit’s First Amendment rights, both on its face and as applied to specific issues of the magazine that were banned simply for “describing sexual contact between jail or prison guards and prisoners to which the prisoners did not consent.” HRDC further alleged a violation of its Fourteenth Amendment due-process rights when DOC failed to provide notice of the decision and opportunity to appeal it.

On March 8, 2019, the district court largely granted HRDC’s motion for summary judgment, agreeing that DOC’s mail policy defining sexually explicit materials was a facially unconstitutional violation of the First Amendment by sweeping in any type of written or visual depictions of human sexual behavior, including those completely unrelated to its stated purpose of alleviating sexual harassment or assaults in prison. The district court likewise concluded that the policy was applied to multiple issues of PLN in an unconstitutional manner because the “textual depictions of sex in Prison Legal News are informative and educational in nature”—in fact, the district court noted, “some are direct quotes from court opinions.” Last, the court also ruled that DOC violated HRDC’s due process rights by failing to provide notice of and an opportunity to appeal the censorship. See: Prison Legal News v. Ryan, 2019 U.S. Dist. LEXIS 37684 (D. Ariz.). [See also: PLN, Nov. 2019, p. 50; andMar. 2020, p.61.]

DOC turned to the U.S. Court of Appeals for the Ninth Circuit, which on July 8, 2022, found that the policy was not unconstitutionally overbroad, to the extent that it banned “only content that graphically depicts nudity or sex acts.” However, as applied to textual content, such as PLN articles, the ban must be based on more than “a mere mention” of sex, the Court said—something amounting to “a level of description akin to that of a painting.” The Court also struck down a portion of the policy as facially unconstitutional to the extent it permitted DOC mailroom staff to censor materials that “may” be considered sexually explicit based on an employee’s subjective judgment, rather than based on objective criteria set forth in the policy. The Court then proceeded to apply its narrowed definition of sexually explicit material to the censored issues of PLN, upholding some but not all of DOC’s censorship decisions. See: Prison Legal News v. Ryan, 39 F.4th 1121 (9th Cir. 2022). [See also: PLN, Oct. 2022, p. 58.]

Just over two months later, on September 14, 2022, the Ninth Circuit determined that HRDC had substantially prevailed on appeal; an appellate commissioner then awarded related attorneys’ fees in the amount of $208,865.62 on March 21, 2023. HRDC was represented on appeal by attorneys Lisa Ells, Amy Xu, and Sanford Jay Rosen of the San Francisco law firm Rosen Bien Galvan & Grunfeld LLP. See: Prison Legal News v. Ryan, 2022 U.S. App. LEXIS 25809; and 2023 U.S. App. LEXIS 34947 (9th Cir.).

Meanwhile, on remand, the district court determined on January 26, 2023, that it was not required to order a rewrite of DOC policy defining “sexually explicit material” to bring it in line with the Ninth Circuit’s narrowed construction of that phrase; nor did the district court order DOC to supply additional training for its employees concerning proper application of the policy. Instead, the district court ruled that HRDC’s remedy was to bring another lawsuit alleging as-applied First Amendment violations should the need arise. Because DOC had delivered the PLN issues that the Ninth Circuit determined were censored in violation of the First Amendment, those claims were deemed moot and there was nothing remaining to adjudicate, the district court said. However, it rejected DOC’s contention that HRDC was not a prevailing party entitled to attorneys’ fees or cost and ordered addition briefing on the matter. See: Prison Legal News v. Ryan, 2023 U.S. Dist. LEXIS 13593 (D. Ariz.).

HRDC requested approximately $2,500,000.00 more in attorneys’ fees and costs as compensation for the eight and a half years of litigation its lawyers engaged in to challenge DOC’s unconstitutional censorship of PLN. On March 20, 2024, the district court largely agreed, ordering DOC to pay HRDC $2,370,881.67 in attorneys’ fees and $8,426.25 in costs, plus interest. See: Prison Legal News v. Ryan, 2024 U.S. Dist. LEXIS 49055 (D. Ariz.).

Rather than appeal that order, DOC settled the case with an agreement to pay a total of $2,650,000.00 in fees and costs. HRDC was represented at the district court by attorneys Amy Xu, Caroline E. Jackson, Jenny Yelin and Lisa Ells of Rosen Bien Galvan & Grunfeld LLP in San Francisco, along with David J. Bodney and Kennison C. Lay of Ballard Spahr LLP in Phoenix, as well as in-house counsel Daniel Marshall and Hara Fischbein. See: Prison Legal News v. Ryan, USDC (D. Ariz.), Case No. 2:15-cv-02245.  

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