Prison Legal News v. Jones

• Decision Date: 27 August 2015
• Docket Number: Case No. 4:12cv239–MW/CAS
• Citation: 126 F.Supp.3d 1233
• Parties: Prison Legal News, Plaintiff, v. Julie L. Jones, in her official capacity as Secretary of the Florida Department of Corrections, Defendant.
• Court: U.S. District Court — Northern District of Florida

126 F.Supp.3d 1233

Prison Legal News, Plaintiff,

v.Julie L. Jones, in her official capacity as Secretary of the Florida Department of Corrections, Defendant.

Case No. 4:12cv239–MW/CAS

United States District Court, N.D. Florida, Tallahassee Division .

Signed August 27, 2015

Benjamin James Stevenson, Benjamin Stevenson Esq., Pensacola, FL, Dante Pasquale Trevisani, Randall Challen Berg, Miami, FL, Lance Theodore Weber, Sabarish P. Neelakanta, Lake Worth, FL, for Plaintiff.

Susan Adams Maher, Florida Attorney General, Lisa Kuhlman Tietig, Office of the Attorney General, Tallahassee, FL, Jamie Zysk Isani, Thomas R. Julin, Hunton & Williams LLP, Miami, FL, Lance Eric Neff, Cedell Ian Garland, Sean William Gellis, Tallahassee, FL, for Defendant.

ORDER

Mark E. Walker, United States District Judge

This case involves an as-applied First Amendment challenge to Florida Administrative Code Rule 33–501.401(3)(l) and (m), as well as a procedural due process claim brought under 42 U.S.C. § 1983. Prison Legal News¹ and Julie L. Jones, on behalf of the Florida Department of Corrections, litigated this case to a four-day bench trial beginning on January 5th, 2015.² This order sets forth the findings of fact, analysis of law, and verdict.

I

The parties dispute the constitutionality of the FDOC's impoundment and rejection of PLN's magazine, Prison Legal News, a monthly publication comprising writings from legal scholars, attorneys, inmates, and news wire services. FDOC regulates inmate mail with Rule 33–501.401 of the Florida Administrative Code, titled "Admissible Reading Material." Rule 33–501.401 authorizes the FDOC to screen all mail entering its facilities and sets forth a detailed process by which it may impound that mail.

Section (3) of Rule 33–501.401 contains thirteen subsections, labeled (a) through (m), providing distinct criteria by which incoming publications "shall be rejected" from the prison population. The First Amendment action specifically challenges subsections (l) and (m), ECF No. 14 ¶ 22, which state:

[A] [p]ublication[ ] shall be rejected when ...

(l) It contains an advertisement promoting any of the following where the advertisement is the focus of, rather than being incidental to, the publication or the advertising is prominent or prevalent throughout the publication.

1. Three-way calling services;

2. Pen pal services;

3. The purchase of products or services with postage stamps; or

4. Conducting a business or profession while incarcerated.

[or]

(m) It otherwise presents a threat to the security, order or rehabilitative objectives of the correctional system or the safety of any person.

Fla. Admin. Code R. 33–501.401(3)(l), (m) (2009) (amended 2010).³

As relief, PLN requests a declaratory judgment that Rule 33–501.401(3) is unconstitutional as applied to Prison Legal News . ECF No. 14, at 13. PLN also seeks an injunction that prohibits the impoundment and rejection of Prison Legal News, orders the delivery of all previously censored and withheld issues, and requires individualized notice and an opportunity to be heard whenever a copy of an issue is rejected.⁴ Finally, PLN seeks the same due process remedies for the books and information packets it has mailed to FDOC inmates, which it maintains the FDOC impounded without notice. Tr. of Trial 4–5 (Jan. 8, 2015).

II

This part of the order sets forth background facts that help situate the lawsuit in the broader contest between the parties.

A

This is not the parties' first rodeo—that would have been in February 2003, when the FDOC began censoring Prison Legal News due to its advertisement of services accepting postage stamps as payment, three-way calling services, pen pal services, and offers to purchase inmate artwork. See Prison Legal News v. Crosby, No. 3:04–cv–14–JHM–TEM, slip op. at 5–8, ¶¶ 4, 7, 14–16 (M.D.Fla. July 28, 2005), Pl.'s Trial Ex. 23 (the "Moore Order"). PLN sued the FDOC in January 2004 challenging that censorship under the First Amendment.⁵ Id. at 2.

While the suit was pending in March 2005, the FDOC amended Rule 33–501.401 to clarify that publications would not be rejected for the advertising content in that case, so long as those ads are "merely incidental to, rather than being the focus of, the publication."⁶ Moore Order 15. Following this amendment, the FDOC promised to no longer impound Prison Legal News for its advertising content. Id. at 13–15. The FDOC ceased impounding and rejecting Prison Legal News for the duration of the litigation and argued that PLN's First Amendment challenge to the Rule was moot.

This convinced the district court. Four months after the amendment was implemented, it found that the FDOC had "shown that the [newly adopted] procedures ... allow for distribution of [Prison Legal News ] in its current format" and that the magazine would not be rejected solely on the basis of the advertising content at issue. Id. at 15–16. The Eleventh Circuit reiterated these sentiments on appeal. In rejecting PLN's argument that an injunction was necessary to prevent further censorship, the Eleventh Circuit stated:

We agree with the district court's finding that, although the FDOC previously wavered on its decision to impound the magazine, it presented sufficient evidence to show that it has "no intent to ban PLN based solely on the advertising content at issue in this case" in the future. The FDOC demonstrated that its current impoundment rule does allow for distribution of PLN in its current format and that the magazine will not be rejected based on its advertising content. The FDOC officially revised its impoundment rule and has not refused to deliver issues of the magazine since this amendment.... We have no expectation that FDOC will resume the practice of impounding publications based on incidental advertisements.

McDonough, 200 Fed.Appx. at 878. Since the Eleventh Circuit disposed of the claim as moot, it further declared that, "[a]s to the current rule, we offer no opinion on its constitutionality." Id.

B

Less than three years after the Eleventh Circuit's ruling in McDonough, the FDOC amended the Rule to provide an additional ground for rejection under (3)(l). Under the revised Rule, publications with "prominent or prevalent " advertisements for services prohibited by (3)(l) would also be rejected. Fla. Admin. Code R. 33501.401(3)(l) (emphasis added).

The 2009 amendments became effective on June 16, 2009. Def. Crews' Obj. to Pl.'s First Set of Interrogs. to Def. Crews 2–3 (Jan. 18, 2013), Pl.'s Trial Ex. 30. The FDOC has impounded every issue of Prison Legal News since September 2009. Tr. of Trial 105:24–106:2 (Jan. 6, 2015).

PLN initiated this suit on November 17, 2011. ECF No. 1. On December 16, 2011, PLN filed its First Amended Complaint. ECF No. 14. Only two counts remain, both against the FDOC. See ECF No. 117 (confirming the dismissal of the other two original defendants under a settlement agreement). Count III is a First Amendment as-applied challenge to subsections (3)(l) and (m) of the Rule. ECF No. 14, at 11, ¶¶ 40–43. PLN alleges that the FDOC's actions "in refusing to deliver or allow delivery of Plaintiff's publications to Florida inmates in its custody, solely because of the presence of certain advertisements within these publications, violate Plaintiff's rights to free speech, press and association as protected by the First and Fourteenth Amendment to the U.S. Constitution and 42 U.S.C. § 1983." Id. ¶ 43. And, in Count VI, PLN contends that the FDOC's "failure and refusal to provide Plaintiff with constitutionally required notice and an opportunity to be heard and/or protest the decision each time Plaintiff's publications are censored ... violates Plaintiff's rights to due process of law protected by the Fifth and Fourteenth Amendments ... and by 42 U.S.C. § 1983." Id. at 14, ¶¶ 52–55.

On January 5, 2015, the parties began a four-day bench trial on these two counts. ECF No. 235. At its conclusion, the Court extended the parties an opportunity to brief certain key issues. See ECF Nos. 241–44, 246.

III

In this part are the facts of the case, as found by this Court after careful consideration of all the evidence presented at trial. Most facts are undisputed. For those in dispute, the order lays out the competing views before resolving them.

A

Established in 1990 by Paul Wright and Ed Meade, Prison Legal News is a monthly magazine that reports on news and legal developments related to the criminal justice system. Tr. of Trial 32:8–:22 (Jan. 5, 2015).⁷ PLN, a nonprofit with its principal place of business in Lake Worth, Florida, publishes Prison Legal News . Tr. of Trial 36:18–37:2 (Jan. 5, 2015). Its mission is to inform the public about events in prisons and jails and the need for progressive criminal justice reform, to inform prisoners and their advocates about these events and how to advocate for their rights, and to enhance rehabilitation for prisoners, ensure transparency and increase accountability of prison officials. Tr. of Trial 32:23–33:9 (Jan. 5, 2015).

Over the past 25 years, Prison Legal News has published over 700 articles on the FDOC and Florida prisons and jails, with coverage ranging from misconduct by FDOC contractors to individual cases involving a host of legal issues. Tr. of Trial 51:15–:22 (Jan. 5, 2015). Prisoners are the magazine's primary audience. Tr. of Trial 123:6–:10 (Jan. 5, 2015).

Prison Legal News started carrying advertisements in 1996.⁸ Tr. of Trial 41:16–:22 (Jan. 5, 2015). But it was not until February 2003 that the FDOC censored Prison Legal News for its advertising content. Tr. of Trial 41:23–42:8, 184:9–:10 (Jan. 5, 2015). The FDOC specifically took issue with the publication's advertisement of services accepting postage stamps as payment, three-way calling services, pen pal services, and offers to purchase inmate artwork; proscribed mostly by subsection (3)(l). Moore Order 5–8. The justification was that those advertisements presented a security risk because they promoted prohibited services. Id. at 3.

PLN...