Clinton Brook & Peed Files Supreme Court Brief in Prison First Amendment Case

We recently filed a Supreme Court brief, on behalf of prison book clubs, in Prison Legal News v. Jones. The amicus brief supports a cert petition filed by Prison Legal News, which has brought a First Amendment challenge to the ban on its publication by the Florida Department of Corrections. 

Prison Legal News was founded in 1990 and reports on the criminal-justice system and issues affecting prisoners. Among other things, it investigates abuse and mistreatment in prisons and has published multiple stories about prison abuse in Florida. 

The publication’s subscribers include prisoners held by the federal government and all 50 states, and it is permitted in all other federal, state, and county prison and jail systems. But from 2003 until 2005, and since 2009, the Florida Department of Corrections has refused to distribute Prison Legal News to prisoners in its custody. The Department claims that it does so because the publication publishes ads for certain services (including stamps and pen pals) that are restricted for Florida’s prisoners—claiming that (1) the ads are unduly “prominent or prevalent throughout the publication,” (2) as a result the ads would encourage prisoners to evade certain restrictions, and (3) if prisoners do evade those restrictions, then prison security would suffer. Despite these claims, the Department (1) could not identify any security incident resulting from such ads during any of the years in which Prison Legal News was allowed; (2) could not point to any improvement in prison security during the years in which Prison Legal News has been banned, and (3) could not not identify any security incident resulting from such ads in any of the other local, state, or federal prisons in which Prison Legal News is allowed. 

Although it received no concrete evidence of actual harm, the U.S. Court of Appeals for the Eleventh Circuit upheld the ban, crediting speculation that “the ads ‘create the possibility, the real possibility’ of inmates doing an end run around prison rules.” Prison Legal News has sought review by the U.S. Supreme Court.

Supporting the Supreme Court petition, we filed an amicus brief on behalf of a group of prison book clubs. These organizations, staffed largely by volunteers, send books and other written materials to prisoners to read while they are locked up. Our brief warns that while the Eleventh Circuit's decision upholds censorship of just one news source, prisons could use the Court's reasoning to justify “banning virtually any publication, including nearly any book.” Indeed, “prisons across the country have censored an astonishing number and variety of books—fiction and nonfiction, classic and contemporary, educational books and books for entertainment, books that profile the prison system or criticize the justice system, and many, many more.” Examples include Michelle Alexander's The New Jim Crow; a biography of Justice Thurgood Marshall; manuals for Dungeons & Dragons; novels by Alice Walker, Joyce Carol Oates, and George Orwell; the Physicians’ Desk Reference; and the Encyclopedia of Dog Breeds—among many, many others.

Even worse, several prisons have recently tried to ban prisoners from receiving any packages—including packages containing books—forcing prisoners instead to choose from a number of expensive ebooks that must be read on an expensive ebook reader. Although most of these broader bans have been rescinded amid public outcry, they are defended by invoking the same types of speculative security concerns to which the Eleventh Circuit deferred in this case. 

When prisoners cannot access books and other written work, they lose the educational, vocational, and personal benefits that reading provides. And because prisoners have few other sources of reading materials or education, prisons’ censorship causes immeasurable harm—to both prisoners and those around them. 

Our brief was prepared by partner Greg Lipper, whose practice includes appellate and Supreme Court litigation, First Amendment cases, and criminal defense.

Gregory Lipper