[T]here is no question that publishers who wish to communicate with those who, through subscription, willingly seek their point of view have a legitimate First Amendment interest in access to prisoners. The question here, as it has been in our previous First Amendment cases in this area, is what standard of review this Court should apply to prison regulations limiting that access. — Justice Harry Blackmun, Thornburgh v. Abbott
Late Monday evening Paul Clement filed a brief on behalf of Prison Legal News, a project of the Human Rights Defense Center. The case is Prison Legal News v. Secretary, Department of Florida Corrections. Mr. Clement is counsel of record on behalf of the Prison Legal News. The controversy in the case centers around this: “The Florida Department of Corrections (FDOC), alone among the fifty States, the federal Bureau of Prisons (BOP), and every county jail in the country, is violating Prison Legal News’ (PLN) First Amendment rights by impounding every issue of its magazine based on the publication’s advertisements. This broad restriction on PLN’s free speech rights is neither logical nor necessary.” Thus did Mr. Clement begin his brief. He then stressed that “there is no evidence that those advertisements have suddenly become a security threat. There is simply no logical fit between the FDOC’s renewed censorial zeal and the current evidence that would justify its alone-in-the-nation censorship of a publication uniquely focused on the plights and rights of prisoners.”
→ PLN also made a Due Process argument: “Exacerbating its infringement on PLN’s free speech rights, the FDOC has also violated PLN’s due process rights, as the District Court correctly held. When a publisher’s First Amendment rights are restricted by prison officials, due process requires notice and a meaningful opportunity to challenge the prison’s censorship decision. But the FDOC has regularly failed to notify PLN of its decisions.”
→ Equitable Estoppel: PLN maintains that FDOC did this exact same thing about 13 years ago in 2003 whereafter PLN sued. FDOC then abandoned its censorial practices and adopted a new version of the rule and then argued (successfully) to both the district court and the Eleventh Circuit that the case was moot.
→ The District Court held that the FDOC’s expansive censorship of PLN was logically connected to its security concerns. On the due process claim, however, it ruled that the FDOC regularly failed to notify PLN of impoundment and often failed to adequately explain the basis for impoundment. Because the FDOC would likely continue to deprive PLN of its due process rights, the District Court entered an injunction requiring the FDOC to modify its practices.
→ On Appeal, PLN argues that it should prevail based on the holdings in Turner v. Safely (1987) and Thornburgh v. Abbott (1989), which set forth a four-part test for evaluating a prison system’s infringement of a publisher’s First Amendment rights.
Four First Amendment Arguments
- Turner & Thornburgh satisfied: “The First Amendment question in this case is not whether the FDOC’s regulations are legitimate in the abstract; instead, the Court must decide whether the FDOC’s specific application of those rules violates PLN’s specific constitutional rights.” PLN argues that “the First Amendment applies within prison walls” and that the four-prong test of Turner and Thornburgh have been satisfied.
- No logical fit/rational basis for censorship: “The FDOC’s application of the Reading Material Rule to censor PLN is not logically related to its concerns with the relevant advertisements. The FDOC itself has previously told this Court that the exact same type of advertising content in Prison Legal News does not pose a material security threat, and there is no evidence to suggest that any new threat has arisen—nor that any threat existed in the 13 years before the FDOC began censoring PLN. The FDOC is thus barred from arguing otherwise now.” PLN thus argues that there “is no rational basis for the FDOC’s renewed censorship of PLN.”
- No meaningful alternatives: “PLN has no alternative means of exercising its free speech rights, and accommodating those rights would have no significant impact on Florida prisons.”
- Unnecessary censorship:” The FDOC’s application of its rule is an exaggerated response to its security concerns. . . . [W]hen every other well-run prison and jail in the country sees fit to allow PLN to circulate with the precise same advertisements, the evidence of an exaggerated response is overwhelming. After all, this is not a situation where Florida faces some unique dynamic that might justify its alone-in-the-nation policy.”
“In the end,” Mr. Clement maintained, “the FDOC’s censorship of PLN rests on no more than its unsupported say-so. It previously disclaimed any security concerns with PLN’s advertising content. It has offered no reason to justify its dramatic reversal. Any security concerns it does have are unrelated to the specific advertisements PLN runs in its publications. No other state prison system, nor county jail, nor the federal government considers it necessary to censor PLN.”
→ Other lawyers on the brief included Michael McGinley (Bancroft), Randall Berg and Dante Trevisani (Florida Justice Institute), Lance Weber and Sabarish Neelakanta (Human Rights Defense Center), and Benjamin Stevenson and Nancy Gbana Abudu (ACLU Florida).
Center for Competitive Politics 10th Anniversary
December 2, 2015, Mayflower Hotel, Washington, DC: The occasion was a gala to celebrate the tenth anniversary of the Center for Competitive Politics. The featured speakers were Senator Mitch McConnell (R-KY) and columnist George Will. Some of those attending the event were: Dan Backer, Jan Baran, Michael Boos, Bobby Burchfield, Robert Corn-Revere, Allyson Ho, Robert Lenhard, Shaun McCutcheon, and Roger Pilon.
Bradley A. Smith, the Center’s Chairman and Founder, kicked off the event with some opening remarks. “It’s easy for those of us who believe in the First Amendment,” he said, “to feel that we’re constantly on the defensive.” He then added: “If you feel that we are on the defensive these days, think of how those poor saps in the speech squelching community must feel. In the last ten years, they’ve seen Citizens United; they’ve watched as SpeechNow.org has allowed citizens to pool their resources to speak, crushing their ability to control the debate. They’ve seen a series of strong FEC Commissioners, several of whom are here tonight, who take the law and the First Amendment seriously and who do not look for opportunities to expand their power; they’ve seen the Supreme Court gut their efforts to force candidates into rigged systems of government financed campaigns; they’ve watched President Obama effectively scuttle tax financing of presidential campaigns; they’ve seen the repeal of tax-financed campaigns in at least 4 states, the abolition of tax-funded conventions, a giant increase in the federal party contribution limits, and, finally, their efforts to expand compulsory disclosure to include private speech about issues defeated repeatedly in Congress and in many states. They’ve seen nearly 40% of those states that have limits on contributions raise those limits since 2010, in response to the pressure placed on candidates by Super PACs.”
Whether they are on the defensive or not, the fact is that the Center is most active in the campaign finance area — currently, it has 11 cases in litigation, seven of which involve challenges to disclosure laws (see here — list on link = incomplete).
Mr. Smith also presented Senator McConnell with the Center’s first James Madison Freedom of Speech award. Here are a few snippets of the Senator’s remarks:
— “If you can draw the rules of the game, you’re likely to win.” [The reference was to congressional incumbents.]
— “There is nothing more gratifying than Citizens United.”
— “I’m pretty happy where we are now. . . . Liberals are going berserk.”
— “Liberals have taken over eight of the eleven circuits. There is nothing they would like better than to shut us down.”
— “We’re going to try in the omnibus appropriations bill to eliminate Colorado II.” [The reference is to FEC v. Colorado Republican Federal Campaign Committee (2001)]
→ See David Keating & Bradley Smith, “The Freedom Caucus Objects to Political Free Speech,” Wall Street Journal, December 6, 2015 Read More