By a California prisoner
I.
The following is based on the scenario of mail publications(s) from MIM being disallowed (censored) by pris-no-crats and the possible steps in challenging the action (censorship). However, this is not a definitive or exhaustive paper on this subject. Meaning, your own research and preparations will be necessary to present your specific situation/circumstance on your grievance and/or court papers.
The references/legal notes used in this paper are those of the California Code of Regulations (CCR), Title 15: updated through December 31, 2004, which apply only to/in the State of California. Nonetheless, those in other states can still benefit from this paper, insofar in the structuring of an argument. Also in comparing your local regulations with those here, you may find only slight differences in the wording, but essentially the same in meaning. However, the caselaw cited, in part III, can apply nation-wide.
Note: when reading regulations it is important to understand their "rules of construction." In CCRs, Title 15, it is found/explained at 300.5, other states may have similar or their own rules of construction. If not, a dictionary's definitions should suffice, in identifying the meaning of terms/terminology used, such as "shall" is mandatory, "should" is advisory and "may" is permissive.
II.
Even though some things go without saying, some things can never be said enough: 'all nonconfidential inmate mail is subject to being read" … and "rejected".(1) This includes incoming "publications"(2) [MIM Notes theories and its books for prisoners.]
Pris-no-crats administrative authority to disallow [censor] mail/publications is found in 3136(a) (3) and its criteria/guidelines are listed in 3006(c) (4) under "contraband," which correctly illustrates the mindset of the powers that be. That is, thoughts not as our own are contraband.
When contraband thoughts invade a prison specific/mandatory procedures [should] commence(5) and this process(6) begins with notification "in writing of the reason(s) the mail is being disallowed"(6.2) This occurs: in California, via CDC1819 form, which should also list "the disposition to be made"…"name of official disallowing the mail" and "name of official to whom an appeal may be directed."(6.2)
Note: On CDC 1819 Form it states: "all appeals regarding mail/packages shall be referred to the warden's designated staff" and "all appeals regarding publications shall be referred to the facility captain." [also see reference/legal notes 7].
Also, when/if a publication is disallowed (censored) "the name and date of publication, or the name and address of the sender" shall be included on the notice.(6.2)
Thus far we have outlined the various regulations which pris-no-crats rely upon, as authority, in disallowing (censoring) mail/publication(s), as well as our right(s) to appeal such action (censorship). Now we will attempt to formulate a general argument: since each situation/circumstance may differ, to challenge the action (censorship) of the disallowed (censored) mail/publication from MIM.
III
For the purpose of this paper, the following argument is primarily directed towards pris-no-crats number one reason used in disallowing (censoring) mail/publications, which is that "it [censoring] is related to a legitimate penological interest."
Also, the argument is being made as if, on the scenario, pris-no-crats followed all the mandatory steps listed above, and your grievance has been exhausted too, even though the following is formed as a legal argument for the courts, nonetheless, the ideas expressed can and should be incorporated into your grievance, so it will "match-up" with your legal argument, in the courts, if relief is not granted on your grievance.
Note: The following could be described as a cut and paste job, which legal arguments generally are: meaning parts of various caselaw are cut out and pasted together to form and support your argument, therefore, all parts here may not fit your situation/circumstance, while other parts may, or, may if/when re-arranged, which as stated earlier, will be part of your own research and preparation.
A. Standing/Right: As always, our starting point is the language of the First Amendment: "Congress shall pass no law…abridging freedom of speech, or of the press." U.S.Const Amend I.
"In a variety of contexts this court has referred to a first amendment right to receive information and ideas." It is now well established that the constitutional protects the right to receive information and ideas. This freedom (of speech and press) … necessarily protects the right to receive." Kleindienst v. Mandel 408 U.S. 753. 762-63. 92 S.CT. 2576, 2581, 33 L. Ed 2d 683 (1972) (citations omitted).
"A prisoner does not shed…basic first amendment rights at the prison gate…rather, he retains all the right of an ordinary citizen except those expressly or by necessary implication, taken from him by law." Procunier v. Martinez, 416 U.S. 396, 422-23, 94 S. CT 1800, 1815-16, 40 L. Ed. 2d 224 (1974) (Marshall, J. Concurring) (Quoting Coffin v. Reichard, 143 F.2d 433. 445 (6th Cir 1944).
"Indeed, it has never been suggested that prisoners lose the broad sweep of first amendment rights by virtue of their confinement." See Jones v. North Carolina prisoner's labor union, Inc., 433 U.S. 119, 97S. CT 2532 53 L.Ed 2d 629 (1977); Pell v. Procunier, 417 US 817, 94 S. CT. 2800, 41L.Ed. 2d 495 (1974).
"The supreme court makes clear that in the prison context, an inmate retains those first amendment rights not 'inconsistent with his status as a prisoner or with legitimate penological objectives of the corrections system.'" Prison Legal News v. Cook 238 F. 3d 1145. 1149 (9th Cir 2001) (citations omitted). "Furthermore, publishers who wish to communicate with inmates by sending requested subscriptions have a "legitimate first amendment interest in access to prisoners." Thornburgh v. Abbot. 490 U.S. 401, 408, 109S. CT. 1874, 104 L. Ed. 2d 459 (1989)." Id.
B. Due process/reasonableness inquiry: "Due process guarantees apply only when a constitutionally protected liberty or property interest is at stake.' Board of regents v. Roth, 408 U.S. 564, 569, 92 S. CT. 2701, 33L. Ed 2d 548 (1972).
"When a prison regulation impinges on inmates constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interest." Turner v. Safley, 482 U.S. 78, 89, 107 S. CT 2254, 96 L.Ed.2d 64 (1987).
There are four factors to the Turner reasonable inquiry… (1) Whether the regulation is rationally related to a legitimate and neutral government objective; (2) Where there are alternative avenues that remain open to the inmates to exercise the right; (3) The impact that accommodating the asserted right will have on other guards and prisoners, and on the allocation of prison resources; and (4) Whether the existence of easy and obvious alternative indicates that the regulation is an exaggerated response by prison officials. Id. At 89-90. 107 S.CT. 2254.
Note: Again, for the purpose of this paper, we will only address inquiry (1) of Turner's reasonableness test, which is 'sine qua non' [without which not]…meaning in determining the constitutionality of a prison regulation if pris-no-crats can not articulate a rational connection between the policy and a legitimate penological interest, the other Turner factors need not be considered. However, it is good practice, nonetheless, to address all factors in your court papers.
The initial burden is on the state to put forth a 'common sense' connection between its policy and a legitimate penal interest. If the state does so, the plaintiff must present evidence that refutes the connection…Frost v. Symingto, 197 F. 3d 348, 357 (9th Cir 1999)…The state must then present enough counter-evidence to show that the connection is not so "remote as to render the policy arbitrary or irrational." Id.
"All legitimate intrusive prison practices have basically three purposes; the preservation of internal order and discipline, maintenance of institutional security against escape or unauthorized entry, and the rehabilitation of the prisoners." U.S. v. Hearst, 563 F. 2d 1331, 1345 (9th Cir 1977) (citing Procunier v. Martinez 416 U.S. 396, 412, 94 S. CT. 1800, 40 L. Ed 2d 224 (1974) Rev'd on other grounds. Thornburgh v. Abbot, 490 U.S. 401, L.Ed. 2d459 (1989)).
With respect to rehabilitation of prisoners, the supreme court has recognized that "the weight of professional opinion seem to be that inmate freedom to correspond with outsiders advances rather than retards the goal of rehabilitation…" Procunier, Supra, 416 U.S. at 412-13, 94 S. CT. 1800.
Note: The California Department of Corrections (CDC) has been renamed, the California Department of Corrections and Rehabilitation.
Moreover, in Procunier, Supra, the court held that an inmate's personal correspondence could not be censored "simply to eliminate unflattering or unwelcome opinions or factually inaccurate statements." Id. At 413, 94 S. CT. at 1811 [also see reference/legal notes 8.]
Thus far we have outlines the governing regulation, established our standing and challenged the legitimacy/reasonableness of action [censorship]. Now we will add our own rationale; based on law; in support of our argument.
Note: "Natural expression" is the combination of: 1) Natural Right - a right that is conceived as part of natural law and that is therefore thought to exist independently of rights created by government or society, such as the right to life, liberty, and property, and 2) Freedom of expression - the freedom of speech, press, assembly or religion as guaranteed by the First Amendment; the prohibition of governmental interference with those freedoms. Example: "Resistance is a natural expression to oppression."
C. Natural Expression: The jurisprudence of First Amendment interpretation has been premised on the value of expressional liberties. In Whitney v. California, 274 U.S. 357, 47 S. CT. 641, 71 L. Ed 1095 (1927), Justice Brandeis noted the inexorable link existing between the First Amendment and our nation's abiding concern for intellectual liberty…those who won our independence believed that the final end of the state was to make men free to develop their faculties; …they valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty… [F]reedom to think as you will and speak as you think are means indispensable to the discovery and spread of…truth. Id. At 375, 47 S. Ct. at 648 (Brandeis, J., Concurring).
"It is the purpose of the First Amendment to preserve an unhibited marketplace of ideas in which truth will ultimately prevail…it is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences which are crucial here." Kleindienst v. Mandel, Supra, 408 U.S. at 763, 92 S. CT. at 2582, 33 L. Ed. 2d 683 (quoting Red Lion Broadcasting Co. V. FCC, 395 U.S. 367, 390, 98 S. CT. 1794, 1806, 23 L.Ed.2d 371 (1969)).
In the close and restrictive atmosphere of a prison, First Amendment guarantees taken for granted in society at large assume far greater significance, the simple opportunity to read a book or write a letter whether it expresses political views or absent affections, supplies a vital link between the inmate and the outside world, and nourishes the prisoner's mind despite the blankness and bleakness of his environment. Wolfish v. Levi, 573 F.2d 118, 129 (2d Cir. 1978). Rev'd Sub-Nom., Bell v. Wolfish, 441 U.S. 520, 99 S.CT. 1861, 60 L. Ed.2d 447 (1979).
The government can abridge an individual's First Amendment freedom of association only if it can show that the association is engaged in unlawful pursuits. An association or organization can not be made illegal absence of a clear showing that the group is actively engaged in lawless conduct. See Baraldin v. Meese. 691 F. Supp. 432, 439 (D.D.C. 1988) Noto v. United Stated, 367 U.S. 290, 297-98, 81 S.CT. 1517, 1521, 6 L.Ed.2d 836 (1961). ("[T]he mere abstract teaching of communist theory including the teaching of …the moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action.")
Our Supreme Court has repeatedly held that mere membership in organizations such as the Communist Party o the Students for a Democratic Society does not justify infringing upon an individual's rights. United States v. Robel, 389 U.S. 258, 262, 88 S.CT. 419, 423, 19 L.Ed. 2d 508 (1967) (without regard to the quality and degree of membership, that it runs a-foul of the First Amendment).
Note: The abolishment of power of people over people and the struggle for mutual cooperation, peace and justice instead of oppression, are natural expressions.
IV
Reference/Legal Notes
1. &3138 General Mail Regulations (a) All non-confidential inmate mail is subject to being read in its entirety or in part by designated employees of the facility before it is mailed for or delivered to an inmate. The institutional head or designee may reject mail sent by or to an inmate as provided in section &3136.
2. &3138(f) Publications(3) A publication received through the U.S. mail from the publisher or bookstore shall be excluded for the reasons stated in section 3006©.
3. &3136 disapproval of inmate mail(a) Staff shall not permit an inmate to esnd or receive mail which, in their judgment, has any of the characteristics listed in 3006(c).
4. &3006 Contraband(c) except as authorized by the institution head, inmates shall not possess or have under their control any matter which contains or concerns any of the following:
Note: It is not necessary to list every subsection of 3006© here since most deals with obscene material (aka Porn) which MIM does not produce, provide or promote. Therefore, listen below are those subsections most likely used by pris-no-crats, in censoring MIM.
&3006(c) (1) Any matter of a character tending to incite murder; arson; riot; or any form of violence or physical harm to any person, or any ethnic, gender, racial, religious, or other group.
&3006(c) (5) Plans to disrupt the order, or breach the security, of any facility.
&3006(c) (6) Plan for activities which violate the law, these regulations, or local procedures.
&3006(c) (11) Catalogs, advertisements, brochures, and material whose primary purpose is to sell a product(s) or service(s) and when taken as a whole, lacks serious literary, artistic, political, educational or scientific value.
5. &3147 Disapproval of inmate mail (b) Such mail shall be referred to a staff member not below the level of facility captail…[relevant portions] disapproved incoming mail shall be disposed of in the manner set forth in subsection 3147 (a)(5).
6. &3147 Definition and disposition of mail(a) All incoming and outgoing mail shall be handled in accordance with the following: [relevant portions]…
6.1 &3147(a)(5) Withheld/disallowed mail. First class mail addressed to an inmate, any publication, package, or an enclosure in otherwise acceptable first class mail, which is specifically prohibited by the provisions of this article or by facility mail procedures, may be disposed of as provided in subsection b without holding the item of mail pending appeal but with notice as required in subsections (a) and (b). When mail is withheld, based upon a judgment or interpretive decision of staff it shall be retained by the facility for not less than 15 days pending actions listed in (a) below.
6.2 &3147(a)(5)(A) The inmate will be promptly informed in writing of the reason the mail is being disallowed, the disposition to be made of the mail, the name of the official to whom an appeal may be directed, the notice to the inmate shall include the name and date of the publication, or the name and address of the sender, and shall inform the inmate of the disposition that shall be made, if an appeal is not submitted to the named official within 15 days of the date of the notice.
6.3. &3147(a)(5)(B) Incoming mail disallowed under the provisions of this article, under facility procedures, or pursuant to an appeal, shall be destroyed or mailed at the inmates expense to an approved outside correspondence. The undelivered mail shall be destroyed 15 days after the notification of undelivered mail is forwarded to the inmate unless the inmate designates who is to receive the mail and authorities withdrawal from their trust account to pay for the expense of mailing, or as authorized by the institution head. Provides sufficient postage stamps already in the inmate's possession.
7. &3137 Appeals Relating to Mail(a) Inmates and the correspondents of inmates may appeal departmental rules, regulations, policies, approved facility procedures and the application of same. Relating to mail and correspondence.
&3137(b) [Relevant portions] Inmates shall use the established inmate appeal procedure as provided in section 3084.1 ET.SEQ., if the inmate's appeal is denied at the second level of appeal review, the item of mail shall be disposed of as provided in subsection 3147(a)(5)(B).
&3137(c) [Relevant portions] Persons other than inmates should address any appeal relating to department policy and regulations to the director of corrections. Appeals relating to facility procedure and practices should be addressed in writing to the warden.
Note: Again some things go without saying; some things can never be said enough: outside pressure is a vital factor in effectively challenging censorship behind these walls. Therefore, when appropriate, grievances/appeals from the outside are encouraged.
8. &3135 Disturbing or offensive correspondence (b) Disagreement with the sender's or receiver's apparent moral values, attitudes, veracity, or choice of words will not be used by correctional staff as a reason for disallowing or delaying mail. Correctional staff shall not challenge or confront the sender or receiver with such value judgments nor shall such value judgments be considered in any action affecting the correspondents [Relevant portions].
Final note and reference: "That to secure these rights [life, liberty and the pursuit of happiness], governments are instituted among men, deriving their just powers from the consent of the governed, that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it [petition government] and to institute new government…" Excerpt from "The Declaration of Independence"(1776).