Prison Legal News v. Secretary, Florida Department of Corrections

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-14220
________________________
D.C. Docket No. 4:12-cv-00239-MW-CAS
PRISON LEGAL NEWS,
A project of the Human Rights Defense Center,
a Not-for-Profit Washington Charitable Corporation,
Plaintiff-Appellee
Cross Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
Defendant-Appellant
Cross Appellee.
________________________
Appeals from the United States District Court
for the Northern District of Florida
________________________
(May 17, 2018)
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Before ED CARNES, Chief Judge, DUBINA, Circuit Judge, and CONWAY, *
District Judge.
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
*
Honorable Anne C. Conway, United States District Judge for the Middle District of
Florida, sitting by designation.
1
Oscar Wilde, The Picture of Dorian Gray 19 (Joseph Bristow ed., Oxford Univ. Press
2006) (1890).
2
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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).
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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
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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
2
PLN submitted into evidence every issue of Prison Legal News from 2002 through
2014.
3
Prison Pen Pal Money Order Scam, U.S. Postal Inspection Service,
http://www.postalinspectors.uspis.gov/investigations/mailfraud/fraudschemes/othertypes/penpalf
raud.aspx [https://web.archive.org/web/20170204190103/postalinspectors.uspis.gov/
investigations/mailfraud/fraudschemes/othertypes/penpalfraud.aspx]; see also Woods v. Comm’r
of the Ind. Dep’t of Corr., 652 F.3d 745, 747 (7th Cir. 2011) (recounting that 350 inmates had
placed ads soliciting pen pals on websites, that “the majority of these inmates
had . . . misrepresented themselves to the public in their postings on the sites,” and that several
pen pals felt deceived after “sending money to prisoners who had lied about their release dates
and offenses of conviction”); United States v. Brown, 7 F.3d 1155, 1158 (5th Cir. 1993) (stating
that a Mississippi inmate scammed thousands of dollars out of a 65-year-old Florida retiree he
met through a “lonely hearts pen-pal club”). [In keeping with Eleventh Circuit Internal
Operating Procedure 10, “Citation to Internet Materials in an Opinion,” under Federal Rule of
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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 F. App’x 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 F.
App’x 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.
Appellate Procedure 36, a copy of the internet materials cited in this opinion is available at this
Court’s Clerk’s Office.]
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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
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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
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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 the fence and not
allowing them to be out committing the crimes that they commit.” Prison security
challenges evolve. Upchurch cited the availability of contraband cell phones,
which give inmates unregulated internet access and have been used in other states
to orchestrate prison riots and arrange assaults on prison staff. PLN’s expert
acknowledged that Department officials must be proactive in addressing security
problems. As Upchurch testified, “act[ing] after the fact [in the prison business]
risk[s] someone’s life.”
One of the ways the Department tries to stay a step ahead of inmates is to
screen all incoming publications for content that might enable them to break prison
rules. See Fla. Admin. Code r. 33-501.401(3). Under the Department’s
Admissible Reading Material Rule, inmates can “receive and possess
publications . . . unless the publication is found to be detrimental to the security,
order or disciplinary or rehabilitative interests of any institution of the
[D]epartment . . . or when it is determined that the publication might facilitate
criminal activity.” Id. For example, to bolster the Department’s ban on inmates
possessing firearms or other dangerous weapons, id. r. 33-602.203(2), the rule
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prohibits inmates from receiving publications that “describe[ ] procedures for the
construction of or use of weapons,” id. r. 33-501.401(3)(a).
The Admissible Reading Material Rule applies that same logic to ads for
prohibited services. A publication is impounded if it contains ads for three-way
calling services, pen pal solicitation services, cash-for-stamps exchange services,
or for conducting a business, but only “where the advertisement is the focus of,
rather than being incidental to, the publication[,] or the advertising is prominent or
prevalent throughout the publication.” Id. r. 33-501.401(3)(l). The Department
can also impound any publication that “otherwise presents a threat to the security,
order or rehabilitative objectives of the correctional system or the safety of any
person.” Id. r. 33-501.401(3)(m). Once mailroom staff impound an issue of a
magazine for violation of the rules, it is withheld from inmates until the
Department’s Literature Review Committee makes a final decision about whether
the issue does violate the Admissible Reading Material Rule. Id. rr. 33-501.401(5),
(8), (14)(a). 4 Mailroom staff cannot impound all issues of an entire publication in
4
The Admissible Reading Material Rule defines “impoundment” as the action taken by
mailroom staff “to withhold an inmate’s incoming publication . . . pending review of its
admissibility by the Literature Review Committee.” Fla. Admin. Code r. 33-501.401(2)(b).
When the Committee upholds an impoundment, that is a “rejection” and the issue is considered
contraband. Id. r. 33-501.401(2)(j). The difference between an impoundment and rejection is
immaterial here, so we use the term “impound” to refer to the Department’s decision to withhold
a particular issue from an inmate subscriber.
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advance; instead, they must separately review and decide whether each issue of a
publication violates the Admissible Reading Material Rule. Id. r. 33-501.401(5). 5
3. Prison Legal News and the First Impoundments of It
Prison Legal News is a monthly magazine founded in 1990 that reports on
legal developments in the criminal justice system and other topics that affect
inmates. About 70% of the magazine’s 7,000 nationwide subscribers are inmates.
It has subscribers in all 50 state prison systems and the Federal Bureau of Prisons.
Only about 70, or one percent of the 7,000 subscribers, are Florida inmates. Prison
Legal News began carrying advertisements in 1996 to cover its publication costs.
Not surprisingly, the ads are placed by companies whose target audience is
prisoners. Two examples are law firms specializing in prisoner litigation and
schools offering inmate correspondence courses. Nothing wrong with that.
In 2003 the Department began impounding some Prison Legal News issues
based on ad content. The problem ads included ones for pen pal solicitation, cash-
for-stamps exchange services, and three-way calling services. The ads for pen pal
solicitation offered inmates the opportunity to post on the company’s website a
profile with a photo and address, and the public could search for that profile by the
inmate’s age, race, and other features. The cash-for-stamps ads gave inmates the
5
For example, if the Department decides that the January issue of Prison Legal News
violates the Admissible Reading Material Rule, then it impounds that issue. Fla. Admin. Code
r. 33-501.401(8). But when the February issue arrives, mailroom staff must review that latest
issue to determine whether it complies with the rule. Id. r. 33-501.401(5).
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opportunity to exchange stamps for cash at a percentage of the stamps’ face value.
The three-way calling ads offered discount phone services on collect calls from
inmates. The Department determined that those phone services fell under its broad
definition of “three way calling” because the companies forwarded or transferred
the inmates’ collect calls to the call recipient’s home phone, cell phone, or blocked
home phone number. 6 The Department determined that all three types of ads
violated Rule (3)(l), but it was especially concerned with the ads for three-way
calling because it believed that its telephone security vendor could not trace inmate
calls made through the discount phone services.
PLN sued the Department in 2004 to stop the impoundments. After the
Department’s telephone vendor gave assurances that it could block three-way call
attempts, the Department agreed in 2005 not to impound Prison Legal News as
long as all the problematic ads were incidental to the overall publication. Because
the Department began allowing inmate subscribers to receive Prison Legal News
we rejected PLN’s argument that an injunction was necessary to stop the
6
PLN asserts that Prison Legal News has never run ads for three-way calling, but its brief
and one of its trial exhibits contradict that assertion. It acknowledges that its magazine contains
ads for discount phone services that allow subscribers to avoid long distance charges by
assigning the inmate a local number to call, and then transferring that call to the final call
recipient (so if a Miami inmate wants to call his mother in Kansas, the Miami inmate can call a
Miami number and the call is then transferred to Kansas). That type of call service falls under
the Department’s definition of three-way calling. See Fla. Admin. Code r. 33-602.205(2)(a)
(“Inmates shall not make three-way telephone calls nor make calls to numbers on the list which
are then transferred to other telephone numbers.”). And PLN’s trial exhibit shows that almost
every issue of Prison Legal News from January 2002 to December 2014 included ads for the
prohibited services. One of the columns in that exhibit is labeled “3-Way Calls.”
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impoundments, and we affirmed the district court’s grant of judgment as a matter
of law to the Department. See Prison Legal News v. McDonough, 200 F. App’x
873, 876–78 (11th Cir. 2006) (unpublished).
4. The Department’s Renewed Impoundments of Prison Legal News
That peace was short-lived. Several changes after 2005 undermined the
truce and led to the current conflict. For one thing, the number and size of rule-
defying ads increased after 2005, resulting in their becoming less incidental and
more prominent. 7 As the ads became more prominent, Department officials
noticed an increase in the number of inmates sending stamps to cash-for-stamps
companies. They also became concerned about a phone technology called Voice
over Internet Protocol, which makes it harder to detect three-way call attempts by
transferring calls over the internet with no noise. That technology had not been an
issue in 2005, but in the following years it became more widespread and more of a
problem.
7
Although the percentage of the magazine containing ads prohibited by Rule (3)(l)
increased only from an average of 9.21% in 2005 to 9.80% in 2009, those naked percentages
don’t tell the whole story because the number of full-page and half-page ads increased. The
magazine also grew from 48 pages in 2005 to 64 pages in 2014, which allowed PLN to include
more problematic ads without changing the proportion of the magazine devoted to such ads.
More importantly, the record does not stop at 2009. PLN’s own exhibit shows that the
percentage of problematic ads increased from 9.80% in 2009 to 15.07% in 2014, the last year of
the impoundments that are covered in the record. That is an increase of more than 50% in the
percentage of problematic ads in the most recent five-year period for which there is data.
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New types of ads offering “prisoner concierge” and “people locator”
services also began to appear in Prison Legal News after 2005. Prisoner concierge
companies offer inmates a variety of administrative and financial services. One
such company, Prisoner Assistant, ran ads offering inmates “access to hundreds of
professional services that have never before been available to prisoners,” including
money orders, online fund transfers, internet purchases and research, website
development, cell phone contracts, and Green Dot cards (prepaid debit cards that
can be reloaded and used to send money). That company even provides inmates
with an “Executive Assistant to manage [the inmate’s] file and provide personal
attention to [the inmate’s] requests,” and claimed in its ad that “[i]f it can be done,
we will try to do it.” According to the Department, prisoner concierge companies
threaten prison security and public safety by, among other things, making it easier
for inmates to create an alternate identity that conceals their inmate status from
people on the outside, enabling them to violate prison rules and commit crimes.
People locator companies are just that. One such company placed ads
claiming that it can find “just about anyone” including “hard to find people [and]
unlisted numbers and address[es].” That company has a database of 1.2 billion
records and provides inmates with a person’s date of birth, email address, any
unlisted telephone numbers, and social security number. With reason, the
Department fears that inmates will use people locator services to perpetrate scams
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or allow inmates to find and harm judges, jurors, witnesses, or anyone else the
inmate may want to harass or harm.
All of those developments between 2005 and 2009 — the increasing number
and size of the rule-defying ads, the growth of internet-based phone technology,
and the appearance of prisoner concierge and people locator ads — led the
Department to begin impounding Prison Legal News again in September 2009.8
The Department decided that the ads for three-way calling services, pen pal
solicitation services, and cash-for-stamps exchange services violated Rule (3)(l). It
also determined that the ads for prisoner concierge and people locator services
violated Rule (3)(m), the provision prohibiting any publication that “presents a
threat to the security, order or rehabilitative objectives of the correctional system or
the safety of any person.” Id. r. 33-501.401(3)(m). The Department impounds
8
The Department amended Rule (3)(l) in June 2009. The earlier version provided that a
publication would not be impounded as long as the ads were “merely incidental to, rather than
being the focus of, the publication.” The amendment provided that a magazine could also be
impounded if the rule-defying ad was “prominent or prevalent throughout the publication.” PLN
contended at trial that the Department amended the rule to keep Prison Legal News out of
Florida prisons, but the district court rejected that contention as conjecture and found that the
Department amended Rule (3)(l) to make it clearer and to address its new security concerns.
PLN makes only a cursory attempt to raise that contention here, offering no supporting authority,
which means that it is abandoned. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681
(11th Cir. 2014) (“We have long held that an appellant abandons a claim when he . . . raises it in
a perfunctory manner without supporting arguments and authority.”). Its assertion that the
“prominent or prevalent” language is too vague is not properly before us because the district
court denied PLN’s motion to amend its complaint to include a void-for-vagueness claim, and
PLN did not appeal that ruling. See Singleton v. Wulff, 428 U.S. 106, 120, 96 S. Ct. 2868, 2877
(1976) (“It is the general rule, of course, that a federal appellate court does not consider an issue
not passed upon below.”).
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other publications that violate those rules, but it is the only corrections department
in the country that impounds Prison Legal News based on its ad content.
5. The Department’s Failure to Provide Notice to PLN
At the time of trial in January 2015, the Department had impounded every
issue of Prison Legal News since September 2009, a total of 64 issues (the
magazine has 12 issues per year). The Admissible Reading Material Rule requires
the Department to send to all publishers a notice form listing the “specific reasons”
for an impoundment. Fla. Admin. Code r. 33-501.401(8)(b). Despite that rule, the
Department did not send PLN a notice form for 26 out of the 62 monthly issues it
impounded between November 2009 and December 2014, which means that PLN
did not receive a notice form for 42% of the issues impounded during that time
span. That number rises to 87% when defective notice forms that did not list the
reasons for the impoundment are considered.
When PLN did receive a notice form for an impounded issue, it appealed the
impoundment decision to the Department’s Literature Review Committee, which
makes the final decision whether an issue violates the Admissible Reading
Material Rule. See id. rr. 33-501.401(14)(a), (15)(a). Those appeals were
unsuccessful, so PLN sued the Department in November 2011 to stop the
impoundments.
B. Procedural History
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PLN brought two claims under 42 U.S.C. § 1983 against the Department
Secretary in her official capacity. First, it claimed that Rules (3)(l) and (3)(m), as
applied to Prison Legal News, violate the First Amendment. Second, it claimed
that the Department’s failure to provide PLN with proper notice for each
impounded monthly issue violated its right to procedural due process under the
Fourteenth Amendment. PLN sought declaratory and injunctive relief against the
Department.
After a bench trial, the district court ruled against PLN on the First
Amendment claim and for it on the Fourteenth Amendment claim. The court
entered an injunction requiring the Department to provide PLN with notice each
time it impounded a monthly issue of the magazine and the reason for the
impoundment. The Department appeals the court’s judgment that it violated
PLN’s due process rights. PLN cross-appeals the court’s judgment that the
impoundments of Prison Legal News do not violate the First Amendment. 9
II. STANDARDS OF REVIEW
9
PLN also publishes a book called the Prisoner’s Guerilla Handbook and sends
information packets about its publications to inmates. The Department impounded those
publications, and PLN claimed in its amended complaint that impounding them also violated its
First and Fourteenth Amendment rights. (PLN claimed that the impoundment of all of its
publications violated its constitutional rights; its amended complaint did not contain separate
claims for each publication). Although PLN’s brief refers to its “publications,” it mentions the
handbook and information packets by name only once in its 82-page initial brief. As a result,
PLN has abandoned any separate challenge to those publications. See Sapuppo, 739 F.3d at 681.
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After a bench trial, we review de novo the district court’s legal conclusions
and we review its fact findings for clear error. Proudfoot Consulting Co. v.
Gordon, 576 F.3d 1223, 1230 (11th Cir. 2009). “We review the decision to grant
an injunction and the scope of the injunction for abuse of discretion.” Angel Flight
of Ga., Inc. v. Angel Flight Am., Inc., 522 F.3d 1200, 1208 (11th Cir. 2008).
III. DISCUSSION
A. First Amendment Claim
PLN contends that the Department’s impoundments of Prison Legal News
violate its First Amendment right of access to its inmate subscribers. The parties
agree that the deferential standard established by the Supreme Court in Turner v.
Safley, 482 U.S. 78, 107 S. Ct. 2254 (1987), governs PLN’s First Amendment
challenge to the impoundments. PLN has received a helping hand from sixteen
law professors acting as amici curiae who claim an “interest in seeing that First
Amendment doctrine develops in a way that promotes rather than censors free
speech.” Br. of Amici Curiae at 1. The amici contend that we should give prison
management decisions decreased deference under the Turner standard in light of
the Supreme Court’s recent First Amendment decisions, mostly in other contexts.
On the First Amendment issue we begin by explaining the Turner standard,
which requires deference to prison officials’ decisions. We then address the
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amici’s argument for diminished deference. And then we will discuss the
application of the First Amendment to the impoundments.
1. The Turner Standard
“Prison walls do not form a barrier separating prison inmates from the
protections of the Constitution.” Turner, 482 U.S. at 84, 107 S. Ct. at 2259.
Inmates retain some constitutional rights in prison, id., and publishers like PLN
have a First Amendment right of access to their inmate subscribers, Thornburgh v.
Abbott, 490 U.S. 401, 408, 109 S. Ct. 1874, 1879 (1989).
But that right is limited. See Lawson v. Singletary, 85 F.3d 502, 509 (11th
Cir. 1996) (noting the “more limited nature of . . . First Amendment rights” in the
penal context). “Running a prison is an inordinately difficult undertaking that
requires expertise, planning, and the commitment of resources, all of which are
peculiarly within the province of the legislative and executive branches of
government.” Turner, 482 U.S. at 84–85, 107 S. Ct. at 2259. Those branches are
responsible for prison administration, which means that “separation of powers
concerns counsel a policy of judicial restraint” and deference to prison officials’
management decisions. Id. at 85, 107 S. Ct. at 2259. And “[w]here a state penal
system is involved, federal courts have . . . additional reason to accord deference to
the appropriate prison authorities.” Id. To balance judicial deference with “the
need to protect constitutional rights,” the Turner Court held that a prison regulation
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affecting constitutional rights is valid as long as “it is reasonably related to
legitimate penological interests.” Id. at 85, 89, 107 S. Ct. at 2259, 2261. The
Department and PLN agree that the Turner standard controls here.
The Department must show “more than a formalistic logical connection
between [the impoundments of Prison Legal News] and a penological objective.”
Beard v. Banks, 548 U.S. 521, 535, 126 S. Ct. 2572, 2581 (2006) (plurality
opinion). But that does not mean that this Court sits as a super-warden to second-
guess the decisions of the real wardens. See Turner, 482 U.S. at 89, 107 S. Ct. at
2262 (rejecting the view that courts should be the “primary arbiters of what
constitutes the best solution to every administrative problem”). Instead, under
Turner we owe “wide-ranging” and “substantial” deference to the decisions of
prison administrators because of the “complexity of prison management, the fact
that responsibility therefor is necessarily vested in prison officials, and the fact that
courts are ill-equipped to deal with such problems.” Al-Amin v. Smith, 511 F.3d
1317, 1328 (11th Cir. 2008) (quotation marks omitted); see also Pope v.
Hightower, 101 F.3d 1382, 1384 n.2 (11th Cir. 1996) (“Federal courts must
scrupulously respect the limits on their role by not thrusting themselves into prison
administration; prison administrators must be permitted to exercise wide discretion
within the bounds of constitutional requirements.”). The Supreme Court has
reaffirmed that point time and time again. See, e.g., Overton v. Bazzetta, 539 U.S.
20
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126, 132, 123 S. Ct. 2162, 2167 (2003) (“We must accord substantial deference to
the professional judgment of prison administrators, who bear a significant
responsibility for defining the legitimate goals of a corrections system and for
determining the most appropriate means to accomplish them.”); Shaw v. Murphy,
532 U.S. 223, 229, 121 S. Ct. 1475, 1479 (2001) (“[W]e generally have deferred to
the judgments of prison officials in upholding [prison] regulations against
constitutional challenge.”); Thornburgh, 490 U.S. at 408, 109 S. Ct. at 1879
(“[T]his Court has afforded considerable deference to the determinations of prison
administrators who, in the interest of security, regulate the relations between
prisoners and the outside world.”).
2. The Amici’s Diminished Deference Argument
In spite of all of those Supreme Court decisions requiring us to grant
substantial deference to the decisions of prison officials, the amici argue that we
should not. Claiming clairvoyance, they predict the Supreme Court will overrule
its precedents, and they urge us to go ahead and effectively do that ourselves. See
Br. of Amici Curiae at 2 (“Modern First Amendment jurisprudence trends toward
more protections for speech rights, a direction that should inform this Court’s
analysis.”). The amici discern a trend from several recent Supreme Court
decisions, nearly all of which have nothing to do with Turner or challenges to
prison regulations, to argue that increased protection of free speech requires
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decreased deference under Turner. See, e.g., United States v. Alvarez, 567 U.S.
709, 713–15, 729–30, 132 S. Ct. 2537, 2542–43, 2551 (2012) (holding that the
Stolen Valor Act violated the First Amendment); Brown v. Entm’t Merchs. Ass’n,
564 U.S. 786, 805, 131 S. Ct. 2729, 2741–42 (2011) (striking down on First
Amendment grounds a statute that prohibited the sale of violent video games to
minors); Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 365, 130 S. Ct.
876, 913 (2010) (holding that the government “may not suppress political speech
on the basis of the speaker’s corporate identity”). In any event, our duty is to
follow Supreme Court decisions, not to use them to map trends and plot
trajectories.
The only Court that can properly cut back on Supreme Court decisions is the
Supreme Court itself. See Hohn v. United States, 524 U.S. 236, 252–53, 118 S. Ct.
1969, 1978 (1998) (“Our decisions remain binding precedent until we see fit to
reconsider them, regardless of whether subsequent cases have raised doubts about
their continuing vitality.”); State Oil Co. v. Khan, 522 U.S. 3, 20, 118 S. Ct. 275,
284 (1997) (“[I]t is this Court’s prerogative alone to overrule one of its
precedents.”); Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477,
484, 109 S. Ct. 1917, 1921–22 (1989) (“If a precedent of this Court has direct
application in a case, yet appears to rest on reasons rejected in some other line of
decisions, the Court of Appeals should follow the case which directly controls,
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leaving to this Court the prerogative of overruling its own decisions.”); Evans v.
Sec’y, Fla. Dep’t of Corr., 699 F.3d 1249, 1263 (11th Cir. 2012) (“The Court has
told us, over and over again, to follow any of its decisions that directly applies in a
case, even if the reasoning of that decision appears to have been rejected in later
decisions.”).
Even if it were otherwise, only one of the post-Turner decisions that amici
cite even mentions Turner, and that decision actually confirms that we owe
deference to the decisions of wardens and other prison officials. See Beard, 548
U.S. at 524–25, 535, 126 S. Ct. at 2575–76, 2581–82 (plurality opinion) (rejecting
a First Amendment challenge to a prison rule and stating that the court of appeals
erred by offering “no apparent deference to the deputy prison superintendent’s
professional judgment”); 10 see also Davila v. Gladden, 777 F.3d 1198, 1212–13
10
Justice Thomas, joined by Justice Scalia, concurred in the judgment and agreed with
the plurality that “[j]udicial scrutiny of prison regulations is an endeavor fraught with peril.”
Beard, 548 U.S. at 536, 126 S. Ct. at 2582 (Thomas, J., concurring). The amici attempt to
distinguish Beard, which involved a challenge to a prison policy designed to motivate better
behavior by barring certain inmates from receiving publications. Id. at 524–25, 126 S. Ct. at
2575–76 (plurality opinion). They argue that the Beard case was exceptional because it involved
maximum security inmates and that the prison’s regulations were motivated by its rehabilitative
goals. Neither of those distinctions matter. What matters is that the Beard Court did not water
down Turner. Id. at 528–33, 126 S. Ct. at 2577–80 (plurality opinion). The amici’s argument
that the prison policy at issue in Beard still allowed inmates to receive legal correspondence, id.
at 526, 126 S. Ct. at 2576 (plurality opinion), and that Prison Legal News is a form of legal
correspondence fails on its essential premise because it is not. We agree with the definition in
the Florida Administrative Code that legal mail is “mail to and from” courts, attorneys, public
defenders, legal aid organizations, agency clerks, and government attorneys. Fla. Admin.
Code r. 33.210.102(1)–(2).
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(11th Cir. 2015) (addressing the Turner standard without any hint that it should be
applied with decreased deference in light of recent Supreme Court decisions).
The Beard decision confirms that whatever the Supreme Court has done in
other First Amendment cases, it has not adopted a damn-the-deference, full-speed-
ahead approach to First Amendment rights within prison walls. As a result, we
categorically reject the amici’s argument that we should leap-frog ahead of the
Supreme Court in this area. We follow Supreme Court decisions, here as
elsewhere, instead of plotting ways around them. 11
With the proper level of deference in mind, we will turn now to applying the
Turner standard to determine whether the impoundments of Prison Legal News
under its Rules (3)(l) and (3)(m) violate the First Amendment.
3. Application of the Turner Standard
The Turner standard requires the Department to show that its impoundments
of Prison Legal News are content neutral, Thornburgh, 490 U.S. at 415, 109 S. Ct.
at 1882, and “reasonably related to legitimate penological interests,” Turner, 482
U.S. at 89, 107 S. Ct. at 2261. The impoundments are content neutral because they
are based “solely on . . . [the magazine’s] potential implications for prison
security.” Thornburgh, 490 U.S. at 415–16, 109 S. Ct. at 1883. And PLN does not
11
While we categorically reject the contention and supporting arguments of the amici, we
do not mean to be unfair. The professors’ brief does have good grammar, sound syntax, and
correct citation form.
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dispute that the Department’s asserted interests for the impoundments — prison
security and public safety — are legitimate. See Perry v. Sec’y, Fla. Dep’t of
Corr., 664 F.3d 1359, 1366 (11th Cir. 2011) (“[P]rotecting the public and ensuring
internal prison security are legitimate penological objectives.”). Those interests
are not only legitimate, but paramount. See Thornburgh, 490 U.S. at 415, 109
S. Ct. at 1882 (“[P]rotecting prison security . . . is central to all other corrections
goals.”) (quotation marks omitted).
That leaves the issue of whether the Department’s impoundments of Prison
Legal News are “reasonably related” to prison security and public safety. Turner,
482 U.S. at 89, 107 S. Ct. at 2261. The Turner Court established four factors to
determine the reasonableness of prison regulations: (1) whether there is a “valid,
rational connection between the prison regulation and the legitimate governmental
interest put forward to justify it”; (2) whether the publisher has alternative means
to exercise its right of access to its inmate subscribers; (3) what “impact
accommodation of the asserted constitutional right will have on guards and other
inmates, and on the allocation of prison resources generally”; and (4) whether PLN
“can point to . . . alternative[s] that fully accommodate[ ] [its] rights at de minimis
cost to valid penological interests.” Id. at 89–91, 107 S. Ct. at 2262 (quotation
marks omitted).
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PLN contends that the Department’s impoundments of Prison Legal News
under Rules 3(l) and 3(m) fail all four factors and therefore amount to
unconstitutional censorship. We disagree.
a. The First Turner Factor: The Existence of a Rational Connection
The first Turner factor requires the Department to show that there is a
“rational connection” between its decision to impound Prison Legal News and its
interests in prison security and public safety. Id. at 89, 107 S. Ct. at 2262. The
Department’s position is that limiting inmates’ exposure to the ads in Prison Legal
News will reduce the risk that inmates will engage in behavior that endangers other
inmates, guards, and the public. PLN’s position is that there is no rational
connection because there is no evidence that ads in its magazine have ever caused
a security breach. PLN’s argument demands too much.
The Turner standard does not require the Department to present evidence of
an actual security breach to satisfy the first factor. Instead, the Supreme Court
recognized that prison officials must be able to “anticipate security problems
and . . . adopt innovative solutions” to those problems to manage a prison
effectively. Id. (emphasis added). We have rejected the “misconception” that
prison officials are “required to adduce specific evidence of a causal link between
[a prison policy] and actual incidents of violence (or some other actual threat to
security).” Lawson, 85 F.3d at 513 n.15. “Requiring proof of such a correlation
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constitutes insufficient deference to the judgment of the prison authorities with
respect to security needs.” Id. Other circuits agree. See, e.g., Simpson v. County
of Cape Girardeau, 879 F.3d 273, 280 (8th Cir. 2018) (“Cape Girardeau may seek
to prevent harm that has yet to occur and, as a result, is not required to provide
evidence of previous incidents of contraband reaching inmates through the mail in
order to adopt a postcard-only incoming mail regulation.”); Murchison v. Rogers,
779 F.3d 882, 890 (8th Cir. 2015) (stating that Turner “does not require actual
proof that a legitimate interest will be furthered by the challenged policy” and that
“evidence short of an actual incident satisfies” the first factor) (quotation marks
omitted); Singer v. Raemisch, 593 F.3d 529, 536 (7th Cir. 2010) (“The question is
not whether [a game banned by the prison] has led to gang behavior in the past; the
prison officials concede that it has not. The question is whether the prison officials
are rational in their belief that, if left unchecked, [the game] could lead to gang
behavior among inmates and undermine prison security in the future.”); Cal. First
Amend. Coal. v. Woodford, 299 F.3d 868, 882 (9th Cir. 2002) (stating that prison
officials “must at a minimum supply some evidence that . . . potential problems are
real, not imagined,” but affirming that “prison officials may pass regulations in
anticipation of security problems”).
In Perry, a case involving a First Amendment challenge to a Department
regulation prohibiting pen pal solicitation, we did not require that prison officials
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produce evidence of a past incident to satisfy the first Turner factor. See Perry,
664 F.3d at 1362, 1366. We held that the Department had established a rational
connection between that regulation and its security and safety interests through the
testimony of James Upchurch, id. at 1366, the same prison official the Department
relied on in the present case. He testified in Perry that “when inmates only receive
pen pals through personal associates and not pen pal companies . . . the possibility
of the inmate defrauding the pen pal is greatly reduced.” Id. (emphasis added).
We did not demand any evidence that inmates’ solicitation of pen pals had
previously caused a security breach. Id.
There is plenty of evidence that preventing inmates from viewing prominent
or prevalent ads for prohibited services will reduce the possibility that they will use
those services. 12 The ads not only make the prohibited services available to
12
PLN asserts that the Department is judicially estopped from arguing that the
problematic ads present a security threat because the Department allegedly took the position in
the earlier litigation that the same types of ads do not present such a threat. See Robinson v.
Tyson Foods, Inc., 595 F.3d 1269, 1273 (11th Cir. 2010) (“[J]udicial estoppel is designed to
prevent a party from asserting a claim in a legal proceeding that is [clearly] inconsistent with a
claim taken by the party in a previous preceding.”) (quotation marks omitted). Not so. PLN’s
current position is not clearly inconsistent with its earlier position because the Department never
represented that the ads present no security threat. Instead, its position was that the problematic
ads were not a security threat as long as they remained incidental in terms of their size and
number. See McDonough, 200 F. App’x at 878 (stating that we did not expect the Department to
“resume the practice of impounding publications based on incidental advertisements”) (emphasis
added). But after 2005 the ads became more prominent (the size and number of the ads
increased), ads for prisoner concierge and people locator services appeared, and phone
technology changed. In view of those changes, the Department’s decision to renew
impoundment was not an attempt to “play[ ] fast and loose with [this Court] to suit the
exigencies of self interest.” In re Coastal Plains, Inc., 179 F.3d 197, 205 (5th Cir. 1999)
(quotation marks omitted). As a result, the district court did not abuse its discretion in rejecting
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inmates but also appear along with articles about inmate phone scams, the role of
Green Dot cards in prison gang extortion schemes, and the nationwide problem
with smuggling contraband like drugs and cell phones into prisons. An inmate
reading Prison Legal News not only reads articles about inmates putting the
prohibited services to dangerous use, but also sees ads that enable him to obtain
those same prohibited services. As PLN’s expert acknowledged, “[j]ust because
there [are] rule[s] [prohibiting use of those services] is no guarantee that everybody
will abide by the rule[s].” See Hudson v. Palmer, 468 U.S. 517, 526, 104 S. Ct.
3194, 3200 (1984) (“Inmates have necessarily shown a lapse in ability to control
and conform their behavior to the legitimate standards of society by the normal
impulses of self-restraint; they have shown an inability to regulate their conduct in
a way that reflects either a respect for law or an appreciation of the rights of
others.”). Given that common-sense proposition, it’s no surprise that Upchurch,
the Department’s expert, agreed with the district court’s statement that the ads
“create the possibility, [the] real possibility” of inmates doing an end run around
prison rules. He explained how that possibility exists for each type of ad at issue in
PLN’s judicial estoppel argument. And because judicial estoppel does not apply here, we need
not decide the extent to which it can be applied against a state if at all. See Heckler v. Cmty.
Health Servs. of Crawford Cty., Inc., 467 U.S. 51, 60–61, 104 S. Ct. 2218, 2224 (1984) (noting
the uncertainty on that point).
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this case: (1) three-way calling ads, (2) pen pal solicitation ads, (3) cash-for-
stamps exchange ads, and (4) prisoner concierge and people locator ads. 13
i. Three-Way Calling Ads
The Department is concerned with ads for three-way calling because that
service undermines its ability to determine a call recipient’s identity and location.
For instance, the December 2009 issue of Prison Legal News featured an ad from a
company that allowed inmates to make a call to a local number, which could then
be forwarded to up to three different numbers. Those types of three-way calling
services, combined with the growth of internet-based phone technology, make it
easier for inmates to call people outside their approved list. Although two phone
companies that advertise in Prison Legal News provide the Department’s telephone
vendor with the final call recipient’s number and address, other companies that
advertise in the magazine have not done so. Given that Department inmates make
700,000 three-way call attempts each year — and some of those attempts succeed
— the Department’s effort to reduce that number by curtailing inmates’ exposure
to ads for that service is rational. See Prison Legal News v. Livingston, 683 F.3d
13
Rule (3)(l) allows the Department to impound publications that contain prominent or
prevalent ads for “[c]onducting a business or profession while incarcerated.” Fla. Admin. Code
r. 33-501.401(3)(l). PLN asserts that the district court failed to analyze the rational connection
between an ad for that kind of service and the Department’s penological interests, but neither
party discusses those particular ads in its briefs. In any event, Upchurch testified that all the ads
create the possibility that inmates will circumvent prison rules, which is enough to establish a
rational connection. See Perry, 664 F.3d at 1366.
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201, 218 (5th Cir. 2012) (holding that it was reasonable for prison officials to
conclude that removing a book “describing racial tensions in the prison context —
as opposed to racial tensions more generally —” would make prison violence less
likely).
PLN argues that the Department’s fears about three-way calling ads are
overblown. It points out that the Department allows inmates to call cell phones,
even though cell phones present just as much of a security threat as three-way
calling because the Department cannot identify a cell phone call recipient’s
location. (Identifying a call recipient’s location helps the Department detect and
stop criminal activity conducted over the phones). According to PLN, that alleged
loophole undermines the rational connection. See Woodford, 299 F.3d at 881
(noting that a prison policy involved in that case contained “loopholes that
undermine[d] its rationality”). But the Department explained why it allows
inmates to call cell phones despite the security problems they present. Given the
decline in landline use, prohibiting inmates from calling cell phones would curtail
their ability to keep in touch with family and friends, which can be critical for
rehabilitation. The Department also has several rules addressing the unique
security problems that cell phones create: the cell phone must be contracted
through a company licensed with the Federal Communications Commission; calls
to pre-paid or pay-as-you-go phones are prohibited; and the cell phone owner must
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provide a physical billing address. See Fla. Admin. Code r. 33-602.205(2)(a).
Because the Department has good reason for not banning all calls to cell phones,
while also limiting three-way calls, PLN’s argument that the restriction on ads for
three-way calls has no rational connection to security and safety interests is
unpersuasive.
ii. Pen Pal Solicitation Ads
Upchurch’s testimony shows why the Department’s concerns with pen pal
solicitation ads are rationally connected to its security and safety interests. He
described how those services give inmates opportunities to prey on the public by
allowing them to write people they have no connection with, which heightens the
risk of fraud. In his experience, giving inmates the opportunity to solicit pen pals
resulted in the exploitation of kind-hearted but gullible people. Inmates have been
known to borrow or buy from each other pen pal letters that have proven effective
in scamming victims. Upchurch explained that such scams are hard to investigate
because victims are often embarrassed and prosecutors prefer to focus on criminals
on the streets, not those already in prison. And despite the Department’s rule
prohibiting pen pal solicitation, inmates succeed in posting online profiles with the
same companies that advertise in Prison Legal News. Given that evidence, the
Department’s belief that reducing inmates’ exposure to the ads will help ensure
compliance with the prohibition on pen pal solicitation is rational.
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iii. Cash-for-Stamps Ads
Turning to cash-for-stamps ads, Upchurch testified that the large number and
size of those ads in Prison Legal News makes inmates “aware of the opportunity
[to break prison rules] where they otherwise might not be.” That is enough to
establish a rational connection between the ads and the Department’s penological
interests. See McCorkle v. Johnson, 881 F.2d 993, 995–96 (11th Cir. 1989)
(upholding a prison’s ban on a satanic bible based on prison officials’ testimony
that allowing access to it would “only encourage” violent behavior because of the
book’s teachings about revenge and disobedience). Upchurch also testified that the
large number of cash-for-stamps ads in each issue of Prison Legal News shows that
the companies are making money off their ads, which evidences that the ads are
causing inmates to use those services. 14 The record supports his suspicion, because
it shows that over a period of several years a cash-for-stamps exchange company
deposited more than $50,000 into the accounts of Florida inmates.
iv. Prisoner Concierge and People Locator Ads
14
PLN argues that if the Department is worried about the security problems stamps
present, then it should just prohibit inmates from keeping stamps altogether instead of allowing
them to keep up to 40 stamps at a time. But the Department explained that it allows inmates to
keep some stamps so that they can mail letters to family and friends, and switching to a stamp-
less system would be costly and impractical. The Department does inspect all outgoing mail, but
stamps are easily hidden and the Department processes 50,000 pieces of mail each day.
Allowing inmates to have stamps for the legitimate purpose of sending mail to family and
friends, while banning ads that tempt them to use stamps for illegitimate purposes, is rational.
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Finally, Upchurch testified about why ads for prisoner concierge and people
locator services threaten prison security and public safety. The problem with
prisoner concierge companies is that their services allow inmates to conceal their
true identities from the public. Upchurch recounted how some prisoner concierge
companies offer photo editing services, which an inmate could use to transform an
official prison photo depicting him in a prison uniform into a fake vacation photo
depicting him in a bathing suit at the beach. The inmate could then use that fake
photo to misrepresent himself to the public, which facilitates fraud. In that and
other ways, those ads undermine the Department’s ability to control inmates’
contact with the public.
The case against ads for people locator services is even more obvious. As
Upchurch put it, inmates could use people locator services to “locate judges,
lawyers, prosecutors, former witnesses, families of victims,” or anyone else “they
would have an axe to grind with.” He cited the example of a Department inmate
who threatened a judge, as well as the example of a prison gang member who after
he was released murdered the chief of the Colorado Department of Corrections.
As the district court aptly noted, “it doesn’t require a JD, or a federal judgeship” to
see why people locator services pose a threat.
v. The “Focus of” or “Prominent or Prevalent” Requirement
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It is true that Rule (3)(l) prohibits only those publications where the rule-
defying ads are either the “focus of” the publication or are “prominent or
prevalent” throughout it. Fla. Admin. Code r. 33-501.401(3)(l). PLN asserts that
if the ads are as dangerous as the Department makes them out to be, then the
Department should impound a publication with even one suspect ad, which it could
do. See Thornburgh, 490 U.S. at 404–05 & n.5, 418–19, 109 S. Ct. at 1877 & n.5,
1884–85 (upholding the facial validity of a prison regulation that allowed a warden
to reject a publication based on a single prohibited feature). Upchurch testified
that the Department adopted the “prominent or prevalent” standard to
“moderate[ ]” the “focus of” requirement in Rule 3(l) and provide “some leeway”
to Prison Legal News and other publications with questionable ads.15 It did so
even though that more moderate approach amounted to “giv[ing] in on some
security concerns.” PLN has not convinced us that moderation in pursuit of safety
is a constitutional vice. We do not condemn the Department for permitting more
expression than it was required to.16
vi. Summary of the First Turner Factor
15
Except, for example, publications containing even a single depiction of, or description
about, how to manufacture drugs or construct a weapon. See Fla. Admin. Code r. 33-
501.401(3)(a), (c).
16
PLN, inconsistently, also argues that the Department cannot prohibit a large amount of
protected speech based on a few suspect ads. But the Thornburgh Court upheld the facial
validity of regulations doing just that. See 490 U.S. at 404–05 & n.5, 418–19, 109 S. Ct. at 1877
& n.5, 1884–85.
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The record shows that the Department’s decision to limit inmates’ exposure
to the ads is not “so remote” from the Department’s security and safety interests
“as to render the . . . [impoundments] arbitrary or irrational.” Pope, 101 F.3d at
1385. It’s not remote at all. There is a rational connection between its
impoundments of Prison Legal News based on the magazine’s ad content and
prison security and public safety interests.
b. The Second Turner Factor: Alternative Means
The second Turner factor is “whether there are alternative means” available
to PLN to exercise its right of access to its inmate subscribers. See Turner, 482
U.S. at 90, 107 S. Ct. at 2262. PLN contends that this factor weighs in its favor
because the district court found that PLN could not afford to publish its magazine
without advertising revenue, and publishing a separate Florida-only version
without the rule-defying ads would be cost prohibitive. With those options off the
table, PLN argues, the impoundments amount to a blanket ban on its magazine
because it has no other way to send Prison Legal News to inmate subscribers in
Florida.
It is a close call, but we reject PLN’s argument that no alternative means
exist here. The Supreme Court has made clear that prisons do not have to provide
exact, one-for-one substitutes to provide alternative means. See id. at 92, 107 S.
Ct. at 2263 (holding that a prison regulation satisfied this factor because it did not
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“deprive prisoners of all means of expression,” and instead barred “communication
only with a limited class of other people with whom prison officials have particular
cause to be concerned”). Even if PLN cannot deliver Prison Legal News to its
inmate subscribers in Florida, this factor is satisfied as long as there is some other
way to exercise its right of access to inmates. See Thornburgh, 490 U.S. at 417–
18, 109 S. Ct. at 1884 (stating that the second factor was satisfied even though
inmates could not attend a particular Muslim religious ceremony because they
could “participate in other Muslim religious ceremonies”) (citing O’Lone v. Estate
of Shabazz, 482 U.S. 342, 107 S. Ct. 2400 (1987)).
Although PLN cannot publish its magazine without ads and cannot afford to
publish a Florida-only version, it can send its other publications to Florida inmates.
For example, PLN publishes a handbook called the Prisoners’ Guerrilla Handbook,
which describes various educational programs for prisoners. The Department does
not impound that handbook. PLN also distributes to inmates a variety of books
about daily life in prison, incarceration in the United States, and related topics. See
Livingston, 683 F.3d at 209–10. There is no indication that those books are
impounded.
PLN’s argument focuses solely on its ability to send Prison Legal News to
Florida inmates, but “adequate alternatives” can exist even “where prisoners [are]
cut off from unique and irreplaceable activities.” Id. at 219; see also id. at 209,
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218–19 (concluding that the second factor favored the corrections department,
which had banned five of PLN’s books in Texas prisons, because the “alternatives
left open to PLN to communicate its intended message to [the inmates were]
extensive,” as it could distribute “countless other books” to inmates). Sending
alternate publications might not be “ideal” for PLN, but Turner does not demand
the ideal. See Yang v. Mo. Dep’t of Corr., 833 F.3d 890, 894–95 (8th Cir. 2016)
(upholding a prison regulation that prohibited a Chinese inmate from
corresponding in Chinese with his Chinese-speaking relatives in China, who did
not speak English, because the inmate could still correspond in English, receive
visitors, and make domestic and international calls). The second factor favors the
Department or, perhaps more accurately, does not disfavor the Department.
c. The Third Turner Factor: Impact of Accommodating the Asserted Right
The “third consideration is the impact [that] accommodation of the asserted
constitutional right will have on guards and other inmates, and on the allocation of
prison resources generally.” Turner, 482 U.S. at 90, 107 S. Ct. at 2262.
As we’ve explained, the Department impounded every monthly issue of
Prison Legal News during the five-year period for which there is evidence in the
record because the magazine’s ads give inmates the opportunity to use prohibited
services, which creates security problems. It follows that if the Department admits
an issue of the magazine, it would have to allocate more time, money, and
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personnel in an attempt to detect and prevent security problems engendered by the
ads in the magazines. See Simpson, 879 F.3d at 281 (“Requiring Cape Girardeau
to abandon the postcard-only policy would force the jail to dedicate more time and
resources to searching the mail, which would detract from the officers’ other duties
related to security and inmate welfare.”); Woods, 652 F.3d at 750 (stating that a
ban on pen pal websites passed the third Turner factor because pen pal scams
“unduly distract[ed] prison officials from the day-to-day affairs they must manage
in order to maintain a safe atmosphere for everyone in the prison environment”).
PLN’s subscribers could share copies of the magazine and its ads with non-
subscribing inmates or spread information by word-of-mouth about the companies
offering the prohibited services. See Thornburgh, 490 U.S. at 412, 109 S. Ct. at
1881 (stating that periodicals “reasonably may be expected to circulate among
prisoners, with the concomitant potential for coordinated disruptive conduct”). As
Upchurch testified, that “ripple effect” increases the burden on Department staff.
See Turner, 482 U.S. at 90, 107 S. Ct. at 2262 (“When accommodation of an
asserted right will have a significant ripple effect on fellow inmates or on prison
staff, courts should be particularly deferential to the informed discretion of
corrections officials.”) (quotation marks omitted). The third factor favors the
Department.
d. The Fourth Turner Factor: Exaggerated Response
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The final Turner factor requires us to consider whether the impoundments of
Prison Legal News are “an exaggerated response to prison concerns.” Id.
(quotation marks omitted). The “existence of obvious, easy alternatives may be
evidence that the regulation . . . is an exaggerated response” to a problem, while
the “absence of ready alternatives is evidence of the reasonableness of a prison
regulation.” Id. (quotation marks omitted). PLN argues that the Department’s
decision to impound the magazine is an exaggerated response to its security
concerns because no other corrections department in the nation impounds this
particular magazine based on its ad content. And it points to several supposedly
simple alternatives to impoundment that would alleviate the Department’s security
concerns: prohibiting inmates from calling out to cell phones, switching to a
stamp-less system, or attaching a flyer to each issue of Prison Legal News to
remind inmates not to use the prohibited services.
The Department’s decision to impound Prison Legal News is not an
exaggerated response to its security concerns. Although the “policies followed at
other well-run institutions [are] relevant to a determination of the need for a
particular type of restriction,” such policies are not “necessarily controlling.”
Procunier v. Martinez, 416 U.S. 396, 414 n.14, 94 S. Ct. 1800, 1812 n.14 (1974),
overruled on other grounds by Thornburgh, 490 U.S. at 413–14, 109 S. Ct. at
1881–82. “[T]he Supreme Court has made it patently clear that the Constitution
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does not mandate a lowest common denominator security standard whereby a
practice permitted at one penal institution must be permitted at all institutions.” 17
Pope, 101 F.3d at 1385; see also Crime Justice & Am., Inc. v. Honea, 876 F.3d
966, 971, 978 & n.6 (9th Cir. 2017) (rejecting the plaintiff’s argument that a ban on
its magazine coming into a county’s jail was an exaggerated response to safety
concerns, even though the magazine was “widely distributed at other jails,”
because the county did not have as much control over the inmates in its jail
compared to other counties). There is no one-size-fits-all approach to prison
management. As Upchurch testified, every institution faces different security
problems and deals with those problems in different ways. For example, some
prisons put microwaves in communal inmate living areas, while others would
never allow that arrangement out of fear that an inmate would heat up hot water
17
There is no support for PLN’s argument that the Department has the burden of showing
something unique about its institutions to justify its impoundment decisions. Cf. Overton, 539
U.S. at 132, 123 S. Ct. at 2168 (“The burden . . . is not on the State to prove the validity of prison
regulations but on [the challenger] to disprove it.”). PLN cites Holt v. Hobbs, 574 U.S. ___, 135
S. Ct. 853, 859 (2015), where the Supreme Court held that Arkansas’ ban on prisoners having
1/2 inch beards substantially burdened a Muslim inmate’s religious exercise. The Supreme
Court observed that most states and the federal government permitted inmates to grow beards of
that length, and stated that “when so many prisons offer an accommodation, a prison must, at a
minimum, offer persuasive reasons why it believes that it must take a different course . . . .” Id.
at 866. The Court analyzed that claim under the Religious Land Use and Institutionalized
Persons Act, which requires the government to show that its regulation is the least restrictive
means of furthering a compelling interest. Id. at 863. Turner, by contrast, does not require the
Department to use the “least restrictive means” to promote prison security. Turner, 482 U.S. at
90–91, 107 S. Ct. at 2262. And even under RLUIPA, a state need not permit an accommodation
just because others do. See Knight v. Thompson, 796 F.3d 1289, 1291, 1293 (11th Cir. 2015)
(rejecting the argument that the policies of 39 other prison systems rendered invalid the
challenged prison policy).
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and use it as a weapon. Upchurch explained that what matters to the Department is
not the policies of corrections departments in other states, but maintaining prison
security and public safety. 18 In his view, the impoundments of Prison Legal News
help accomplish those goals.
PLN’s proposed alternatives range from bad to worse. Prohibiting inmates
from calling cell phones would make it difficult for them to keep in touch with
family and friends (because of the decline in landline use), which in turn would
undermine efforts to rehabilitate inmates. Switching to a stamp-less system would
cost $70,000 (to change the Department’s banking system), require changing two
state statutes, and force the Department to solve the logistical challenge of how
inmates could send letters from prison canteens. See Thornburgh, 490 U.S. at 419,
109 S. Ct. at 1885 (stating that courts must consider the administrative
inconvenience of proposed alternatives).
Last and most definitely least, PLN proposes that the Department follow
New York’s lead and simply attach to each issue of Prison Legal News a flyer
reminding inmates not to use the prohibited services. Really? If all New York has
18
One reason that the policies of departments in other states do not matter so much is that
circumstances vary from state to state. For example, PLN’s evidence shows that the Arizona
Department of Corrections does not impound Prison Legal News. PLN’s expert admitted,
however, that Arizona’s “physical structures and facilities are more secure than” Florida’s, which
tends “to use dormitories for certain categories of prisoners that many other states would not put
in a dormitory.” Because of differences in physical structures and facilities, the Department’s
security concerns differ from those of Arizona’s corrections department.
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to do to prevent inmate misconduct and crime is gently remind them not to
misbehave, one wonders why that state’s prisons have fences and walls. Why not
simply post signs reminding inmates not to escape? If New York wants to engage
in a fantasy about convicted criminals behaving like model citizens while serving
out their sentences, it is free to do so, but the Constitution does not require Florida
to join New York in la-la-land. Though it was hardly necessary to state the
obvious, Upchurch testified that a reminder flyer on the magazine would not
alleviate security concerns. See id. at 419, 109 S. Ct. at 1884–85 (“In our view,
when prison officials are able to demonstrate that they have rejected a less
restrictive alternative because of reasonably founded fears that it will lead to
greater harm, they succeed in demonstrating that the alternative they in fact
selected was not an ‘exaggerated response’ under Turner.”). Like the first three
factors, this final factor favors the Department.
e. The Turner Factors: Conclusion
Upchurch summed up the relationship between the impoundment of Prison
Legal News and the Department’s prison security and public safety interests by
stating that those rules “certainly help[ ]” advance those interests. And that’s the
point. The impoundment of Prison Legal News is not a silver bullet guaranteeing
that inmates will not break the rules and commit crimes while incarcerated. But
the record shows that a “reasonable relationship” does exist between the
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Department’s decision to impound the magazine and its prison security and public
safety interests. Turner, 482 U.S. at 91, 107 S. Ct. at 2262. That is all Turner
requires. Id. at 90–91, 107 S. Ct. at 2262. Because all four Turner factors favor
the Department, we hold that the impoundments of Prison Legal News under Rules
(3)(l) and (3)(m) do not violate the First Amendment.
B. Due Process Claim
That the Department’s impoundments of Prison Legal News do not violate
the First Amendment doesn’t let the Department entirely off the constitutional
hook. The district court ruled that the Department violated PLN’s right to due
process by failing to provide it with notice for each impounded issue, and the court
entered an injunction requiring the Department to do that. That was not an abuse
of discretion.
PLN must receive notice and an opportunity to be heard each time the
Department impounds an issue of the magazine. See Perry, 664 F.3d at 1367;
Montcalm Publ’g Corp. v. Beck, 80 F.3d 105, 106 (4th Cir. 1996) (“We hold that
publishers are entitled to notice and an opportunity to be heard when their
publications are disapproved for receipt by inmate subscribers.”); Jacklovich v.
Simmons, 392 F.3d 420, 433 (10th Cir. 2004) (following Montcalm); see
also Londoner v. City and Cty. of Denver, 210 U.S. 373, 385, 28 S. Ct. 708, 714
(1908) (“[D]ue process of law requires that . . . the [party] shall have an
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opportunity to be heard, of which he must have notice . . . .”). 19 As the district
court ruled, the Admissible Reading Material Rule on its face satisfies those
requirements. When the Department impounds an issue of a publication, the rule
requires that it send the publisher a notice form listing the “specific reasons” for
the impoundment of that issue. Fla. Admin. Code r. 33-501.401(8)(b).20 The
Literature Review Committee reviews every impoundment decision, id. r. 33-
19
We held in the Perry decision that there is a lower due process standard for mass
mailings (that is, bulk correspondence). 664 F.3d at 1368. We reject the Department’s argument
that magazines sent to subscribers are mass mailings. See Montcalm, 80 F.3d at 109 & n.2
(contrasting magazines sent to individual subscribers with mass mailings, which are sent to “each
and every inmate at a given institution”). It is also not enough that publishers may receive notice
of an impoundment from inmates. See Jacklovich, 392 F.3d at 433–34 (“[The] publisher’s rights
must not be dependent on notifying the inmate[,] who in all likelihood will never see the
publication . . . .”).
20
PLN and the amici argue that the Department must provide PLN with notice for each
individual copy of Prison Legal News that the Department impounds, even if the Department has
already sent notice that it has impounded a copy of that same issue sent to another inmate. In
other words, if the Department impounds the January 2018 issue of Prison Legal News and
withholds 70 copies of that issue from its inmate subscribers, then PLN wants notice forms for
all 70 copies, not just one notice for the January issue. Due process does not demand that much.
Under the administrative rule, once one facility impounds a monthly issue, every other facility
must impound that same issue on the same grounds until the Literature Review Committee can
decide whether that issue can be admitted into the prisons. Id. rr. 33-501.401(8)(c), (14)(a),
(14)(c). Copy-by-copy notice is not necessary for PLN to learn the reason(s) for the
impoundment as long as all copies are impounded for the same reason(s). See Livingston, 683
F.3d at 223 (holding that due process does not require copy-by-copy notice because later
“denials of identical publications amount to the routine enforcement of a rule with general
applicability”).
We also reject PLN’s and the amici’s argument that it is entitled to more due process
protections because of the content of its magazine. See Shaw, 532 U.S. at 230, 121 S. Ct. at
1480 (rejecting the argument that courts should “enhance constitutional protection [under
Turner] based on their assessments of the content of the particular communications”).
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501.401(14)(c), and the publisher can independently appeal an impoundment
decision to that committee, id. r. 33-501.401(15)(a).21
Those procedures, if applied, would have ensured that for each impounded
issue PLN received a notice form listing the reasons for the impoundment. As the
Department acknowledges, however, that did not happen for 26 out of the 62
monthly issues (42%) impounded between November 2009 and December 2014.
That failure rate increases to 87% when we take into account defective notice
forms that did not list the reasons for the impoundment. Despite that remarkable
failure rate, the Department argues that the Secretary cannot be enjoined because
there is no evidence that the failure to send the forms was a result of a Department
policy or custom to deprive PLN of notice.22 The Department asserts that PLN
should find the mailroom workers who are responsible for the failure to provide
notice and sue them. No.
21
PLN argues that when the committee reviews an impoundment decision it cannot
reasonably gauge whether ads are “prominent or prevalent” in the magazine because it receives
only a publication’s front cover and a copy of the pages with problematic content. Fla. Admin.
Code r. 33-501.401(8)(b). That argument fails because publishers must send a copy of the entire
impounded issue when the publisher files its own appeal with the committee. Id. r. 33-
501.401(15)(a)(2).
22
The Department argues that PLN did not receive the required notice because of
negligent mailroom staff, and that the negligent deprivation of notice cannot give rise to a
procedural due process violation. Cf. Jones v. Salt Lake County, 503 F.3d 1147, 1162–63 (10th
Cir. 2007) (concluding that PLN’s due process claim failed where a prison’s mailroom staff
negligently failed to deliver the magazine to inmate subscribers). But the Department
deliberately impounded Prison Legal News, which means that it had to provide notice to PLN for
each impounded issue.
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PLN doesn’t have to hunt and peck throughout Florida’s correctional system
for negligent mailroom workers to sue. The buck stops with the Secretary. See
Fla. Stat. § 20.315(3) (“The head of the Department of Corrections is the Secretary
of Corrections. . . . The secretary shall ensure that the programs and services of the
department are administered in accordance with state and federal laws, rules, and
regulations . . . .”). This is not a case of one or two notice letters lost in the mail or
mailroom. PLN did not receive notice forms for 42% of the impounded issues, and
many forms it received for other issues were defective. PLN’s effort to enjoin the
ongoing violation of its right to due process is appropriate, and it seeks only
prospective relief against the Department. See Friends of Everglades v. S. Fla.
Water Mgmt. Dist., 570 F.3d 1210, 1215 (11th Cir. 2009) (stating that the Ex Parte
Young doctrine permits “lawsuits against state officials as long as the plaintiffs
seek only prospective injunctive relief to stop ongoing violations of federal law”).
And as the district court pointed out, its injunction “essentially requires compliance
with the [Department’s] own rule.” The Secretary should not protest too loudly an
order to enforce a rule she is statutorily required to enforce. See Fla. Stat.
§ 20.315(3).
IV. CONCLUSION
The Department’s concerns with the ads in Prison Legal News are
reasonably related to its legitimate interests in prison security and public safety, so
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we defer to its decision and hold that the impoundments of Prison Legal News
under Rules (3)(l) and 3(m) do not violate the First Amendment. But with the
power to impound Prison Legal News comes the duty to inform PLN of the
reasons for the impoundments. The Department did not do that, which is why the
district court did not abuse its discretion in entering an injunction to require the
Department to adhere to its own notice rules.
AFFIRMED.
48