Tracking Prison Censorship in the United States

Facility Media Review Committee
Auburn Correctional Facility
135 State Street; PO Box 618
Auburn, NY 13021

13 August 2014

RE: Censorship of Under Lock & Key No. 39 (July/August 2014)

Dear Media Review Committee,

On 8 August 2014, the above named publication was denied delivery to three prisoners held at Auburn Correctional Facility. Please see the attached Inmate Disposition Notices regarding this censorship. I am writing this letter to appeal the censorship of this publication.

The reason cited for the censorship is page 13, and the notation is ?Stand. 2E Insight disobedience towards correctional staff.?[sic] I have enclosed the page in question so that you may review it for yourself. I do not find the material on page 13 to incite any kind of violence toward correctional staff, and in fact one article on the page in question explicitly tells prisoners to refrain from any belligerent or violent behavior.

It is true that Under Lock & Key No. 39 is a revolutionary newsletter. However, that fact alone does not present a "clear and immediate risk of lawlessness, violence, anarchy, or rebellion against governmental authority," one that would justify a violation of the affected prisoners' and MIM Distributors's First Amendment right to free speech. As an example, on page 2 of the newsletter in question, there is a box titled "What is MIM(Prisons)?" which clearly states "MIM(Prisons) and its publications explicitly oppose the use of armed struggle at this time in the imperialist countries (including the United States)." The content of the rest of the newsletter is much of the same.

In conclusion, I am requesting

(1) an independent review of the material in question,
(2) the immediate delivery of Under Lock & Key No. 39 to the affected prisoners.
(3) Lastly, if a negative determination is made on my appeal, I wish to be notified in detail of the reason for the denial.

I appreciate your effort in investigating this matter and your timely response.

Sincerely,


CC: Affected parties

Superintendent
Box 618, 135 State Street
Auburn, New York 13021

Director's Review Committee
PO Box 99
Huntsville, TX 77342-0099

August 13, 2014

RE: Censorship of Under Lock & Key to Mr. XX

Dear DRC,
On August 10 MIM Distributors received a letter from Mr. XX notifying us of the denial of four publications mailed to him: Under Lock & Key 23 (Nov 2011), 26 (May 2012), 27 (July 2012), and 28 (Sept 2012). Mr. XX forwarded us the publication review denial notifications.
Per your policy BP03.91 IVD: "The offender and the sender or addressee shall be provided a written statement of the disapproval and a statement of the reason for disapproval within three business days after receiving the correspondence. The notice shall be given on Correspondence Denial Forms. The offender shall be given a sufficiently detailed description of the rejected correspondence to permit effective use of the appeal procedures." In violation of this policy, we did not receive any notification of this mail rejection.

The U.S. Supreme Court has clearly stated that both the sender and the prisoner have a right, under the First Amendment and the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution, to receive notice and an opportunity to be heard when prison administrators or staff prevent the sender?s expressive materials from reaching their intended recipients (Procunier v. Martinez, 416 U.S.396. 94 S.Ct 1800, as reaffirmed on the point by Turner V. Safley, 482 U.S. 78 (1987) and Thornburgh v. Abbott, 490 U.S. 401 (1989) and Montcalm Publ'g Corp. v. Beck, 80 F.3d 105, 106 (4th Cir.), cert. denied, 519 U.S. 928 (1996)). In plain and striking contradiction with these principles, MIM Distributors was not notified of the censorship decision or actually of any decisions that the Mailroom staff has made with regard to the publications listed above.

In refusing to provide notice and an opportunity to be heard to the publisher (MIM Distributors), under local policies and/or practices, prison administrators and staff violated clearly established constitutional law and acted under color of state law for purposes of 42 U.S.C. ? 1983.

The denials are listed as non-appealable, but this is also counter to explicit Texas DOC policy (BP-03.91 (rev.3)): "V. B. Any offender, other correspondent, or sender of a publication may appeal the rejection of any correspondence or publication. They may submit written evidence or arguments in support of their appeal. An offender or a correspondent may appeal the placement of the correspondent on the offender?s negative mailing list. An offender or a correspondent may appeal to the DRC for reconsideration of the negative mailing list placement after six months." Based on this we formally request an appeal of this censorship.

The denial notifications state that these four publications were denied because a page within each one "contains hunger strike." This statement is nonsense, as it's not possible for a publication to contain a hunger strike. However, we will assume this is meant to indicate that these publications have information about a hunger strike. The reason for the denial is cited as: "(c) It contains material that a reasonable person would construe as written solely for the purpose of communicating information designed to achieve the breakdown of prisons through offender disruption such as strikes, riots or security threat group activity".

In your review of this censorship, please note that your own policy (BP-03.91 (rev.3)) states: "Publications shall not be rejected solely because the publication advocates the legitimate use of offender grievance procedures, urges offenders to contact public representatives about prison conditions, or contains criticism of prison authorities." In order to reject these publications for content, per your policy, you must demonstrate that the publication "contains material that a reasonable person would construe as written solely for the purpose of communicating information designed to achieve the breakdown of prisons through offender disruption such as strikes, riots, or STG activity". Although these publications do include articles calling on prisoners for a day of solidarity activity, this is specifically focused on building peace between prisoners. The call is issued by the United Front for Peace in Prisons, and asks prisoners to work together for 24 hours to cease all violence and prisoner-on-prisoner hostility while fasting or engaging in other peaceful demonstrations of solidarity. This is not something that could be construed to cause the breakdown of the prison, in fact it should have the effect of decreasing prisoner-on-prisoner violence in the long run, presumably a goal of the prison itself.

With this letter MIM Distributors requests
- Notification of all future denials of our mail to any prisoners in Texas
- Appeal of these specific instances of censorship
- An investigation into the erroneous denial of the prisoner's right to appeal this mail denial and report back on your determination and correction of this error on the part of the mail staff
- and that future incoming mail from MIM Distributors to prisoners held at Polunsky Unit be handled in accordance with TDCJ policies and procedures, and federal and state law.


Sincerely,

XXX, Legal Assistant
MIM Distributors
PO Box 40799
San Francisco, CA 94140

CC: Affected parties

I looked into the mail rules cited as the reason for rejectino, and there is nothing in the mail rules that says prisoners are not allowed to receive used magazines. Furthermore, these magazines were not used. They were not published within the last year, but they were in new condition. I don't see a policy in the mail rules anywhere that says prisoners can't have used magazines anyway.

I looked into the mail rules cited as the reason for rejectino, and there is nothing in the mail rules that says prisoners are not allowed to receive used magazines. Furthermore, these magazines were not used. They were not published within the last year, but they were in new condition. I don't see a policy in the mail rules anywhere that says prisoners can't have used magazines anyway.

Assistant Section Chief
Support Services
4260 Mail Service Center
Raleigh, NC 27699-4260

17 May 2014

RE: censorship of Under Lock & Key No. 37

To Whom It May Concern,

I am requesting an independent review of the decision to censor Under Lock & Key 37. Notice of censorship was received by MIM Distributors on 15 May 2014 and I am writing you on 17 May 2014. I requested reviews of the decisions to censor the previous two issues of ULK in March and January, respectively, but my requests were not responded to.

In addition, MIM Distributors has gone so far as to remove all content from page 2 of the newsletter, since the NCDPS refused to indicate what content on that page was being used to justify censoring every issue of Under Lock & Key.

In the most recent incident Fay Lassiter has cited an article on fundraising and using money wisely and claims that it advocates ?Violence, disorder, insurrection or terrorist/gang activities against individuals, groups, organizations, the government or any of its' institutions.? I assert that this is a baseless accusation, and am requesting once again an explanation as to what content exactly your department finds to substantiate these claims in Under Lock & Key. MIM Distributors has acted in good faith to adjust the content of its mail to accommodate the restrictions of your department, but cannot continue to do so when all of its mail is censored without explanation.

Cynthia Bostic
Assistant Director of Support Services
North Carolina Department of Corrections
Division of Prisons
4274 MSC
Raleigh, NC, 27699-4274

Re: Approval of issue No. 36 of Under Lock & Key. Disapproval of No. 37 of Under Lock & Key.

June 24, 2014

Dear Assistant Director Bostic,

We received on June 13, 2014 your response to our appeal of the Publication Review Committee decision to disapprove Under Lock & Key Nos. 36 and 37. Despite the letter being dated June 4, 2014, it is in fact postmarked June 11, 2014.

Regarding Under Lock & Key No. 36:

As to the approval of issue No. 36, we do not understand the reason why we should resubmit the publication ?to be received by inmates?, as you state in your letter. As you are certainly aware, section D.0105(d) of your Policy and Procedures, Chapter D, prescribes that all disapproved publications are held by the Review Committee pending the completion of the publisher?s appeal procedure. The policy specifies that, upon completion of the procedure, disapproved publications are returned to the facility and that approved publications are also ?returned to the facility from which they were received?, obviously enough to be then distributed to the prisoners to which they were originally sent. It would make no sense to return to the facilities only the disapproved publications, while obligating the publisher, upon the positive completion of the appeal procedure, to re-send the approved ones, which incidentally and illegitimately burdens the publisher with additional costs for which they should not be responsible. We are therefore requesting that the all the copies of the approved publication be returned to the facilities from which they came from and be distributed to the prisoners to which they were originally sent.

Regarding Under Lock & Key No. 37:

As to the disapproval of No. 37, you quote some language on page three, second column, paragraph 1 as the reason for disapproval. First, the phrases you quote are actually on page 1, second column, paragraph 1 of the publication. Furthermore, we disagree with your statement that the language could ever constitute a reason for disapproval. The language that you quote simply reports some opinions that encourage prisoners to make use of their constitutional rights, such as beginning legal action in case of abuses, torts and so forth. We do not comprehend how stopping ordering packages (a perfectly legitimate right that all prisoner have) might encourage or support insurrection, as you surprisingly state. None of the quoted language can be brought back to any of the legitimate reasons for disapproval, as they are listed at section D.0109 of the Policy.

Furthermore, the motivation alleged to support the censorship determination seems to be too vague and not sufficiently articulate to satisfy the threshold of adequate motivation established by the U.S. Supreme Court. Federal Courts have stated in several occasions that "Prison authorities cannot rely on general or conclusory assertions to support their policies." Walker v. Sumner (9th Cir. 1990) 917 F.2d 382, 385 and that "Unsupported security claims couldn't justify infringement on First Amendment rights." Crofton v. Roe (9th Cir. 1999) 170 F.3d 957.

Based on the above considerations, we request that you follow your Department's own Policy and Procedure in the further handling of Under Lock & Key No. 36. We expect that the previously censored issues will be returned to the Warden/Superintendents with your decision to approve the publication, and then the held issues will be distributed to their intended recipients, the prisoners, at your Department's expense.

Secondly, we request that your censorship determination regarding issue No. 37 of Under Lock & Key be reversed and that the publication be allowed to prisoners held at any facility of your Department.

Lastly, we request to be sent an up-to-date copy of the Master List of Disapproved Publications.

Please, be advised that in case you persist on your position to disapprove No. 37 of Under Lock & Key, we will consider beginning legal action to protect and enforce our rights as publishers in this matter.

We appreciate your assistance in this matter and look forward to your response.

Sincerely,


MIM Distributors


CC: Affected parties

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August 7, 2014
Communications Office
North Carolina Department of Public Safety
4201 Mail Service Center
Raleigh, NC 27699-4201

RECORDS REQUEST
Dear Records Request Officer:
Pursuant to the state open records act, I request access to and copies of the most recent edition of the Master List of Disapproved Publications, maintained by the Publication Review Committee of the North Carolina Department of Public Safety.
On July 30, 2014, Assistant Director of Support Services Cynthia Bostic informed my office that ?we do not distribute without cause, the Master List of Disapproved Publications.? However, the distribution company I provide legal assistance for has had several articles of mail censored to prisoners held in NCDPS facilities, including newsletters, magazines, and personalized letters. I find it easily justifiable why any entity should be granted access to this information, whether to track their own censorship or to be aware of the publications that are commonly censored within NCDPS so to avoid violating NCDPS policy or offending NCDPS staff.
These documents can be sent to me at the street address above. If there are copying fees you can also email the documents to [email protected], or notify me of the cost via email.
If my request is denied in whole or part, I ask that you justify all deletions by reference to specific exemptions of the act.
Thank you for your assistance.
Sincerely,