The former George W. Bush solicitor general, now at Kirkland & Ellis LLP, is lead counsel on a new high court filing challenging the ban. The filing casts doubt on the Sunshine State’s alleged rationale for impounding the long-running publication—one prisoners rely on to keep up with news relevant to their incarcerated lives.
The state claims it’s not PLN’s articles but its advertisements that are dangerous, citing its ads for mundane services like pen pal solicitation and ones offering cash-for-stamps and three-way calling. Florida officials claim the pen pal ad, for example, could help inmates connect with vulnerable writing partners whom the inmates would then defraud.
But the “blanket ban” on PLN that the U.S. Court of Appeals for the Eleventh Circuit upheld nonetheless violates the First Amendment, Clement’s Sept. 14 filing argued.
PLN’s founder and editor, Paul Wright, says officials’ stated security rationale is nothing more than a smoke-screen. They’re really just trying to keep the magazine’s content from prisoners, he told Bloomberg Law. Wright started the publication as a prisoner decades ago—he’s out now—to report on court cases, including Supreme Court cases, and prison issues. He expects an array of outside groups to file amicus briefs at the high court supporting his position.
“This whole thing is pretty obviously pretextual,” Wright said. “We’re the ones reporting on this stuff in a way that prisoners can access and learn about,” he said of PLN, which is published by the non-profit Human Rights Defense Center, where he’s executive director.
What’s “really unfair,” Wright says, is that it’s a publication where “the government officials we criticize are the only ones that are in a position to actually censor us and prevent us from reaching our audience.”
“They don’t claim that anything we say isn’t true,” Wright adds. “We just tell it like it is. Unfortunately the story we’re telling is a pretty grim, barbaric, and brutal one.”
The Florida Department of Corrections declined to comment for this story, citing the ongoing litigation.
The state’s response to PLN’s petition is due to the justices next month.
Because it features content “informing inmates of unconstitutional prison practices and educating them about their civil rights under the law,” the publication is both “uniquely useful to prisoners and, based on its content, a uniquely attractive target for censorship by prison officials,” the petition says.
Florida officials allowed the magazine for almost two decades before banning it about 10 years ago.
That censorship is a “national outlier” because “neither the federal Bureau of Prisons nor any other state or county prison system bans Prison Legal News based on its advertisements,” PLN says. Therefore the Eleventh Circuit’s decision against the publication “is an outlier ruling upholding an outlier policy.”
But that outlier status didn’t bother the Eleventh Circuit, which unanimously upheld the ban in May. Chief Judge Ed Carnes’s opinion for the three-judge panel suggested states like New York were living in “la-la land” for allowing the publication in their prisons but attaching a flyer to each issue reminding inmates not to use prohibited services.
“Why not simply post signs reminding inmates not to escape?” Carnes wondered sarcastically.
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,” Carnes wrote, citing Oscar Wilde’s observation in The Picture of Dorian Gray that the only way to get rid of temptation is to yield to it.
Carnes notably elided mention of the censorship Wilde’s 19th century novel itself has faced throughout history—as recently as 2005 it, along with other novels featuring gay characters or authors, survived a failed legislative attempt at censorship in Alabama. Wilde’s writings were also used against him at his own trial and eventual imprisonment for “indecency.”
Wright added that Wilde had complained about not being able to read and write while in prison. Using his work to justify “draconian censorship,” as Wright deemed the PLN ban, “is really wrong here.”
Regardless, the Atlanta-based appeals court—which covers Georgia and Alabama as well as Florida—found the First Amendment balance test tipped in favor of Florida officials. The court heavily credited the state’s concerns that PLN advertisements would help or inspire inmates to break rules.
The court doesn’t sit as “a super-warden to second-guess the decisions of the real wardens,” the George H.W. Bush-appointee Carnes wrote.
Threat to Speech, Not Safety
PLN’s high court filing accused the Eleventh Circuit of “blindly” deferring to the state’s “unsubstantiated security concerns and granting virtually no weight to the First Amendment rights of petitioner, inmates or advertisers.”
It called the state’s concerns “mere conjecture” that can’t justify such a drastic remedy, noting that the Supreme Court “has long reminded lower courts that prison walls do not form a barrier against free speech or free press rights.”
And though the ban relates to Florida prisons, PLN argues it has broader free speech implications.
“The Eleventh Circuit’s decision provides both an invitation and a roadmap to silence PLN and any other publication that seeks to inform prisoners of their rights or to expose unlawful conduct by prison officials,” the magazine posits in the petition.
“There is little doubt that the ruling below will prompt other prison systems to follow Florida’s lead,” it said of Carnes’s opinion, imploring the justices to “step in now to vindicate the First Amendment.”
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