- Long-running inmate-focused publication argues Florida prison ban violates First Amendment
- Unusually large number of outside briefs in support of magazine’s Supreme Court appeal
Florida’s ban on the magazine Prison Legal News is “ineffective, unneeded, and unknown” in any other corrections system, former prison officials tell the U.S. Supreme Court in support of the publication’s effort to lift the prohibition.
Eight briefs is a lot of support at this early stage in Supreme Court litigation, while the initial petition to the court is still pending, Adam Feldman told Bloomberg Law.
The publication, represented at the high court by former U.S. solicitor general Paul D. Clement, hopes the outside filings—also from media organizations, professors, civil rights groups, and advertisers—help topple the ban.
“We were pleased to get the support of such a numerous and diverse group of amici—eight briefs covering over 100 amici,” Clement of Kirkland & Ellis LLP told Bloomberg Law. “The diversity of the group—from prison rights advocates to former correctional officials to conservative and libertarian groups—underscores that this case presents an opportunity for the court to join together to vindicate the First Amendment.”
An expert who tracks high court empirical developments, Feldman noted another example of a case with the same number of amicus briefs filed before the court took any action on the petition: Fisher v. University of Texas, a high-profile affirmative action case from 2016.
Feldman cautioned that even though the relatively large number of briefs filed early on is a good signal of interest in the case, that won’t necessarily lead to the justices granting review.
The magazine’s editor, Paul Wright, started the publication when he was an inmate decades ago to report on court cases and other prison issues. Only about 1 percent, or about 70 of 7,000 subscribers, are locked up in Florida.
Wright, who’s a free man now, says the ban is just a pretext to keep content from prisoners that the state doesn’t want them to see.
The media groups raise a similar point.
“The danger that such censorship will be imposed is quite apparent from the fact that Prison Legal News has been a critic of prison policies and practices across the country since its creation by a former prisoner,” they write in their filing.
PLN has become “increasingly important as Florida’s movement toward digitization of legal materials thwarts the ability of many prisoners to gain access to such materials,” the former prison officials add. It provides “uniquely valuable information about matters taking place in prisoners’ local communities.”
Though the various groups cite different reasons for weighing in, each drawing on its own expertise, many point to the idiosyncratic nature of the Florida ban and the broad deference it gives government censors.
Other states have also impounded the publication at various points, but no other prison system at the state or federal level has enacted the total ban that Florida has in place.
“Even private-prison censorship at Florida has occurred only at the behest of” state corrections officials, Clement’s brief points out.
The state’s response to PLN’s petition is due next month.
Ads, Not Content
Florida officials say they enacted it not due to the content of the magazine but because, the officials claim, its advertisements encourage inmates to break prison regulations.
They say pen pal ads, for example, could help inmates connect with vulnerable writing partners whom the inmates would then defraud.
But even if that’s the officials’ concern, a ban on PLN won’t solve that problem, their former counterparts argue.
“Prisoners who wish to use these services will attempt to do so whether or not they are exposed to advertisements about them.”
Still, the U.S. Court of Appeals for the Eleventh Circuit agreed with the state, upholding the years-long ban last May and prompting the publication to take its case to Washington.
Books, Not Barriers
The Eleventh Circuit’s approach “is a censor’s dream,” says the book club brief, filed by Gregory M. Lipper of Clinton Brook & Peed. “With enough time and ingenuity, prison officials and their lawyers can usually imagine some way in which some aspect of a particular written work might conceivably have some marginal effect on prison order or security.”
To illustrate the point, the clubs cite various works that have been banned behind bars, ranging from James Joyce’s “Ulysses” to “Dungeons and Dragons” manuals.
North Carolina officials went so far as to ban dog encyclopedias. “Not even man’s best friend has been immune,” the book brief observes.
The faith group’s filing, for its part, brings together a diverse coalition of Muslims, Sikhs, Jews, and Christians calling for an end to the news ban.
It “threatens to give unbridled deference to decisions made by prison officials, regardless of the evidence supporting those decisions or their impact on the rights of incarcerated persons,” they argue.
The appeals court’s broad deference to the state is “particularly troubling,” the groups worry, because “religious minorities often bear the brunt of those regulations due to prison officials’ lack of knowledge, understanding, or even bias towards certain faiths and practices.”
So they hope the Supreme Court “takes up this case and prevents the erosion of prisoners’ First Amendment rights, including their right to exercise their religion freely,” said Nimra Azmi, staff attorney for Muslim Advocates, one of the groups that signed the faith filing.
“Prison gates are not barriers to the Constitution,” she said.