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Fifth Circuit affirms district court in PLN book censorship suit against TDCJ

Courthouse News, Jan. 1, 2012.
Fifth Circuit affirms district court in PLN book censorship suit against TDCJ - Courthouse News 2012

No Censorship in Texas Prison Ban on Some Books

Courthouse News
June 07, 2012


(CN) - Texas corrections facilities did not violate the First Amendment by banning certain books that graphically describe rape, child abuse and race relations in the prison system, the 5th Circuit ruled.
Prison Legal News, a nonprofit advocate of inmate rights, filed suit over five books banned by the Texas Department of Criminal Justice (TDCJ), under a book-review policy that the parties agree is constitutional.
TDCJ has approved about 80,000 of more than 92,000 books sent to its inmates, according to database records.
The five banned books challenged by Prison Legal News are "Lockdown America: Police and Prisons in the Age of Crisis," "Soledad Brother: The Prison Letters of George Jackson," "Women Behind Bars: The Crisis of Women in the U.S. Prison System," "Prison Masculinities" and "The Perpetual Prison Machine: How America Profits from Crime."
"Women Behind Bars" was initially banned in 2008 because it discusses the history of a female inmate who was sexually abused by her uncle. After the book's author and Prison Legal News protested, however, the head of Texas prison mail approved the book.
A federal judge previously dismissed the claims as to "Lockdown America" and "Soledad Brother" after finding that no prisoner had requested either book in the relevant time frame. As to the three other books, the court found no First Amendment issue and said that a recent change to the book-review procedures addressed possible due-process issues.
The New Orleans-based federal appeals court affirmed Friday, noting that Prison Legal News has standing, even with regard to books that it sent inmates unsolicited.
"Government interference with one's attempt to sell or distribute written material unquestionably satisfies Article III's injury-in-fact requirement," Judge Edith Brown Clement wrote for a three-judge panel.
The interest of Prison Legal News "in distributing books to TDCJ's inmates - which is precisely the type of interest at the core of First Amendment protections - is more than sufficient to support its standing to sue," she added.
"The general right to receive unsolicited communications free from government interference is not only well-established, it is also quite valuable, a fact that is particularly apparent in the prison context: prisoners have an obvious interest, for example, in receiving unsolicited mailings from family members attempting to reconcile, ministries reaching out to convicts, and those attempting to offer legal assistance, because prisoners would often be practically unable to initiate such contact themselves," the 32-page decision states.
But TDCJ had nevertheless been reasonable in its censorship, the court found.
"PLN has not presented sufficient evidence to survive summary judgment on its First Amendment claims," according to the panel, abbreviating Prison Legal News. "PLN has, at most, demonstrated that reasonable minds might differ on whether to permit certain books into a general prison population, which is very different from demonstrating that TDCJ's practices and exclusion decisions bear no reasonable relation to valid penological objectives. The principal Supreme Court precedents applicable to PLN's First Amendment claims, which all dealt with facial challenges to prison regulations, emphasize the need for according deference to the judgment of prison administrators, and we conclude that such deference must be at its zenith in the context of challenges to individualized decisions implementing a facially constitutional policy. Any other conclusion would require the federal courts to sit as permanent appeals councils reviewing every individual censorship decision made by state corrections institutions." (Italics in original.)
Prison Legal News had contended that the TDCJ should let groups appeal for books that may have been banned in the past.
But the panel said that the "TDCJ must be permitted to pass rules of general application, even ones that limit prisoner rights, without subjecting such rules to repetitive challenges every time they are applied."
In addition to its advocacy role, Prison Legal News puts out a monthly magazine. TDCJ lets inmates subscribe to the magazine and access most of the books distributed by Prison Legal News.