Prison Legal News, Ctr., Charitable Corp. v. Sec'y

• Decision Date: 17 May 2018
• Docket Number: No. 15-14220,15-14220
• Citation: 890 F.3d 954
• Parties: PRISON LEGAL NEWS, A project of the Human Rights Defense Center, a Not-for-Profit Washington Charitable Corporation, Plaintiff-Appellee Cross Appellant, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Defendant-Appellant Cross Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

890 F.3d 954

PRISON LEGAL NEWS, A project of the Human Rights Defense Center, a Not-for-Profit Washington Charitable Corporation, Plaintiff-Appellee Cross Appellant,

v.SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Defendant-Appellant Cross Appellee.

No. 15-14220

United States Court of Appeals, Eleventh Circuit.

May 17, 2018

ED CARNES, Chief Judge:

From time to time we have all followed the advice of Oscar Wilde and gotten rid of temptation by yielding to it.¹ Yielding to the temptation to commit an act that the law forbids can lead to bad consequences, including imprisonment. Prison officials have the duty to reduce the temptation for prisoners to commit more crimes and to curtail their access to the means of committing them. The Constitution does place some limits on the measures that corrections officials may use to carry out that duty, which is what this case is about.

The Florida Department of Corrections has rules aimed at preventing fraud schemes and other criminal activity originating from behind bars, but inmates continually attempt to circumvent measures in place to enforce those rules. The Department, for its part, continually strives to limit sources of temptation and the means that inmates can use to commit crimes. One way it does that is by preventing inmates from receiving publications with prominent or prevalent advertisements for prohibited services, such as three-way calling and pen pal solicitation, that threaten other inmates and the public. In the Department's experience, those ads not only tempt inmates to violate the rules and commit crimes, but also enable them to do so.

One publication the Department impounds based on its ad content is plaintiff Prison Legal News (PLN)'s monthly magazine, Prison Legal News. PLN contends that the Department's impoundments of its magazine violate the First and Fourteenth Amendments. After a bench trial, the district court ruled that the impoundments do not violate the First Amendment but the failure to give proper notice of them does violate the Fourteenth Amendment. We agree.

I. FACTS AND PROCEDURAL HISTORY

A. Facts

1. The Florida Department of Corrections

Florida law requires the Department of Corrections to "protect the public through the incarceration and supervision of offenders," to protect offenders "from victimization within the institution," and to rehabilitate offenders. Fla. Stat. § 20.315(1), (1)(d). The Department strives to balance those mandates of public safety, prison security, and rehabilitation. That is no small task. It employs 16,700 officers to oversee 100,000 inmates in 123 facilities throughout Florida. Those officers enforce a multitude of rules to ensure prison security and public safety. See, e.g., Fla. Admin. Code rr. 33-602.101, .201, .203 (rules governing inmate care, property, and control of contraband).

To promote its rehabilitation mandate, the Department grants inmates phone, pen pal, and correspondence privileges so that they can stay in touch with family and friends. Id. r. 33-210.101(9) (allowing inmates to correspond with pen pals); id. r. 33-602.201 app. 1 (authorizing inmates to keep up to 40 stamps for correspondence); id. r. 33-602.205(1) (granting telephone privileges). Those and similar privileges pose problems in Florida prisons and elsewhere. Inmates have the time, talent, and tendency to use their phone, pen pal, and correspondence privileges to conduct criminal activity, thwarting efforts to protect inmates and the public. The record is heavy with evidence of that unfortunate reality.

James Upchurch, the Department's Assistant Secretary for Institutions and Re-entry, testified that "[g]iven uncontrolled and unverifiable telephone access, inmates have been found to use such opportunities to harass the general public, [D]epartment employees, their victims[,] and to search for new victims." He cited the example of incarcerated Mexican mafia members in California who used a network of prison phones to sell drugs and conduct other illegal activity. Prison Legal News itself has reported on instances of inmates abusing their phone privileges. See News in Brief: Florida, Prison Legal News, Nov. 2011, at 50 (reporting how an inmate discovered that the county jail's phone system provided double refunds each time a call did not go through, prompting the inmate to make calls and then hang up until he had made the $1,250 he needed for bail); Mark Wilson, Reach Out and Defraud Someone: Oregon Jail Prisoners Commit Phone Scams, Prison Legal News, Nov. 2010, at 24–25 (reporting on inmates' use of prison phones to conduct identity theft scams, one of which resulted in the indictment of an inmate on 35 counts of identity theft); News in Brief: Florida, Prison Legal News, Sept. 2010, at 50 (reporting how a county inmate used the prison phones to call in bomb threats).²

Like phone privileges, pen pal privileges may open doors to criminal activity. Inmates abuse pen pal privileges by soliciting kind-hearted but gullible people and then defrauding them. Pen pal scams are so common that the United States Postal Service warns customers that pen pal ads have "proliferated in recent years" and that "many ads placed by prisoners are part of a sophisticated mail fraud scheme that misuses postal money orders to bilk consumers out of their hard earned savings."³

Inmates also abuse correspondence privileges. For instance, one Florida inmate sent threatening letters to a federal magistrate judge, one of which informed the judge that someone would "stick a curling iron up [the judge's] twat and plug that sucker in," while another stated that the inmate was coming to kill her. See United States v. Adamson, No. 4:00cr52, 2007 WL 2121923, at *1 (N.D. Fla. July 23, 2007) (unpublished). Another way inmates abuse correspondence privileges is by using their stamps as a currency in the underground prison economy to buy drugs, sexual favors, and anything else they can bargain for. See United States v. Becker, 196 Fed.Appx. 762, 763 & n.1 (11th Cir. 2006) (unpublished) (noting how one inmate ran a prison gambling operation where inmates paid him with stamps and another inmate used stamps to pay for heroin); United States v. Martin, 178 Fed.Appx. 910, 911 (11th Cir. 2006) (unpublished) (stating how an inmate used letters with hidden compartments to smuggle heroin into the prison, which he then gave to another inmate in exchange for stamps). The problems associated with stamps increase when inmates can send their stamps to "cash-for-stamps" companies that will exchange the stamps for cash at a percentage of the stamps' face value. Inmates can use the cash to purchase goods and services outside prison walls, which facilitates contraband smuggling and the corruption of prison guards.

Recognizing that when inmates abuse their privileges it threatens other inmates and the public, the Department has sought to prevent that abuse. First, it has prohibited three-way calling, which includes any type of call transferring. Fla. Admin. Code r. 33-602.205(2)(a). Three-way calling allows inmates to circumvent the regulations the Department has in place to stop them from using prison phones to harass the public, arrange contraband smuggling, and conduct other criminal activity. The Department's regulations restrict inmates to calling no more than ten people on a pre-approved list and require each outgoing call to begin with an automated message informing the recipient that the call is coming from a Department prison. Id. r. 33-602.205(2)(a), (g). The Department also monitors and records some inmate calls. Id. r. 33-602.205(1).

Second, the Department does not allow inmates to "solicit or otherwise commercially advertise for money, goods, or services," which includes "advertising for pen-pals" and "plac[ing] ads soliciting pen-pals" on social media and inmate pen pal websites. Id. r. 33-210.101(9). Third, inmates cannot use "postage stamps as currency to pay for products or services." Id. r. 33-210.101(22). Fourth, inmates cannot conduct a business while confined, which includes "any activity in which the inmate engages with the objective of generating revenue or profit while incarcerated." Id. r. 33-602.207(1)–(2). That rule exists because inmate businesses increase the risk of fraud and burden Department staff with monitoring more mail and phone activity. Id. r. 33-602.207(2).

Just as some inmates abuse their privileges, some also evade or break the rules restricting their privileges. For example, the Department's telephone security vendor can detect three-way call attempts by the clicking noise that occurs when a call is transferred, but inmates will blow into the receiver when transferring a call to mask that clicking noise. There are nearly 700,000 three-way call attempts each year in Department prisons, leading officials to believe that inmates would not make so many attempts if some were not succeeding. Disciplinary reports confirm that some attempts do succeed. Despite the rule prohibiting pen pal solicitation, some inmates manage to post profiles on pen pal solicitation websites. Inmates also succeed in exchanging stamps for cash—one cash-for-stamps company deposited over $50,000 into inmates' accounts over several years.

And as for the prohibition against conducting a business, one inmate, a jailhouse lawyer known as "H&R Block," lived up to his nickname by running a tax filing business where he would file tax returns on behalf of other inmates. See News in Brief: Florida, Prison Legal News, Apr. 2010, at 50. Of course, those tax returns were false, and the inmate faced up to 90 years in prison for his scheme. Id.

2. The Department's Admissible Reading Material Rule

Because some inmates abuse their privileges and break the rules put in place to stop that abuse, the Department takes additional steps to help increase prison security and public safety. As Department official Upchurch testified, protecting the public "goes further than just ... keeping the inmates inside...