Tracking Prison Censorship in the United States

To the Publisher:

This letter is to advise you that the following issue(s) of publication(s) sent to an inmate of the North Carolina Department of Correction, Division of Prisons, has been disapproved for delivery to the inmate.

Under Lock & Key, November/December 2011, No. 23 (Page 2)

This action was taken for the following reason: D. Violence, disorder, insurrection or terrorist/gang activities against individuals, groups, organizations, the government or any of its' institutions.

These issues contain material which violates North Carolina Division of Prisons policy D.0100, Publications Received/Possessed by Inmates. This material could be detrimental to the security and good order of the prison facility and the rehabilitation of inmates and is disapproved for the reason(s) indicated. . .

Signed: Fay Lassiter. Chair, Publication Review Committee

Assistant Director of Support Services
North Carolina Department of Corrections
Division of Prisons
4260 MSC
Raleigh, NC, 27699-4260
January 24, 2012

RE: censorship of Under Lock & Key issue no. 23 ? prisoner XXX - Scotland Correctional Institution.

1. Background.

We recently received from prisoner XXX, currently held at Scotland Correctional Institution, a ?notice to inmate of a statewide disapproved publication? (attachment #2), with which K. Stanback informs the prisoner that issue no. 22 of our publication titled Under Lock & Key appears on the Master List of Disapproved Publications of the NC Division of Prisons. Therefore, states the notice, the publication is rejected and ?there are no additional appeal rights to this decision?.

We also received a letter from another prisoner held at Scotland Correctional Institution as well (CCC), stating that in the last four months he hasn?t received any issues of Under Lock & Key because the publication has allegedly been put on the Master List of Disapproved Publications.

It is important to note that MIM Distributors has never received from your Division of Prisons any notices or other letters regarding the inclusion of any of its publications in the Master List of Disapproved Publications.

At this juncture, therefore, it is hard for us to understand whether any of our publications is in fact on the list of disapproved publications, which issues are on the list, for what reasons, and since when.

2. The determination is illegitimate and unconstitutional.

The above determination of Ms. Stanback is illegitimate and unconstitutional for many reasons and under several aspects. It violates both principles laid down by the U.S. Supreme Court and rules established in your own policies, namely in policy D.0100 adopted by your Division on 09/24/2010, regulating publications received by prisoners.

As already noted, MIM Distributors has never received any notice about the inclusion of issue no. 22 (or any other issue) in the Master List of Disapproved Publications. As you are responsible to know, section 0107 of your policy D.0100 requires that ?When pursuant to law the Division of Prisons rejects a publication mailed to an inmate, the publisher shall be notified in writing of the reason for rejection and the procedure to follow to appeal the rejection, including the responsibility of the publisher to submit a written appeal.?

If issue no. 22 of Under Lock & Key is actually on the Master List of Disapproved Publications by virtue of a previous decision, that decision (and the new one we?re discussing here) would be illegitimate and unconstitutional because it has never been notified to the publisher. The determination we?re discussing here would be illegitimate as well, as it would entirely rely on a previous illegitimate determination.

In sum, the above rule (section 0107 of policy D 0100) would have been violated twice by Ms. Stanback, who has presumably sent the mentioned notices only to the prisoners.

If issue no. 22 of Under Lock & Key wasn?t on the Master List of Disapproved Publications at the moment Ms. Stanback rejected it for prisoner XXX, then the determination would also be in contradiction with Section .0105 of the same policy, which specifies that ?The Master List does not ban the publication title but only those volumes, issues or editions that have been reviewed and rejected.?

In either case, therefore, the most recent negative determination of Ms. Stanback appears to be illegitimate for it clearly conflicts with the above rules included in your own policies.

3. The NC Division of Prisons Policy D.0100 is unconstitutional as it violates due process rights of prisoners and publishers.

Furthermore, section D.0105 of your policy no. D.0100 is certainly unconstitutional, inasmuch as it does not afford the publisher and the prisoner the right to appeal a negative determination whenever the rejected publication already appears on the Master List of Disapproved Publications.

The U.S. Supreme Court has made it clear 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)).

The right that both the publisher and the prisoner have to appeal negative determinations may not be abridged only because the publication is allegedly on a list of disapproved publications. These protections evidently are the typical due process safeguards, which substantiate any other constitutional right and afford individuals a chance to appeal governmental decisions that affect their fundamental rights, among which the most cherished certainly are First Amendment rights.

In light of the these considerations, thus, there is very little doubt that decisions that affect publishers? First Amendment rights in the prison context must be accompanied by the typical due process safeguards, i.e. by procedural mechanisms that offer the publisher the opportunity to contest and fight the decision to exclude its materials.

The fact that the rejected publication may appear on a list of previously disapproved publications does not constitute a valid reason to deprive the prisoner and the publisher of the right to appeal the censorship determination. Both the prisoner and the publisher may not have had an opportunity to appeal the previous decision that initially included the publication in the list, just like it happened in the present case. Depriving them of the right to appeal the new censorship determination means nothing less than completely abridging those fundamental due process safeguards whose pivotal role in the prison mail censorship system the Supreme Court has so clearly stated.

It is very clear indeed that every single negative decision made by prison administrators must be accompanied by the above safeguards, regardless of the existence of a previous negative determination regarding the same publication. Even the same prisoner or publisher may have developed new arguments to submit while appealing the decision and therefore they may not be deprived of their right to fight the censorship decision.

4. Establishing a list of disapproved publications is unconstitutional, too.

Your policy D.0100 is also unconstitutional for the very fact that it establishes a list of disapproved publications. The Supreme Court has already struck down similar bans across the country and has flatly stated since 1989 that "Wardens may not reject a publication 'solely because its content is religious, philosophical, political, social[,] sexual, or . . . unpopular or repugnant,' or establish an excluded list of publications, but must review each issue of a subscription separately." Thornburgh v. Abbott, 490 U.S. 401 (1989).

Nor does the temporary nature of the inclusion of a publication in the list exclude its unconstitutionality. What the Supreme Court is trying to avoid is any automatic mechanism by which prison administrators may avoid the obligation to review each publication or issue separately. Here, the inclusion of a publication in the Master List of Disapproved Publications determines precisely the mechanism that the Supreme Court has addressed as illegitimate, as prison administrators may reject the publication (although for a period of 12 months) without reviewing it.

Based on the above considerations, we request that:
1) the censorship determination to include Under Lock & Key no. 23 on the MLDP be reversed;
2) the publication be allowed to the above prisoners;
3) the practice of including publications in the Master List of Disapproved Publication be discontinued;
4) the previously included issues be separately reviewed regardless of the inclusion;
5) your policy D.0100 be amended to accurately reflect United States law.


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

Sincerely,

MIM Distributors

CC: Affected parties

Warden Greg Lewis
Pelican Bay State Prison
PO Box 7000
Crescent City, CA 95531


January 13th, 2012

RE: Censorship incidents occurred at Pelican Bay State Prison ? exclusion of letters and publications sent to prisoners MR. YYY and Mr. XXX by MIM Distributors.

I am writing this letter about what seems to be a series of censorship incidents that recently occurred at Pelican Bay State Prison.

MIM Distributors sent the above mentioned prisoner several different publications and letters.

Precisely MIM Distributors sent Mr. YYY four letters on 10/12/2011, 10/6/2011, 9/8/2011 and 7/21/2011 and two magazines titled MIM Theory on 5/15/2011. MIM Distributors sent Mr. XXX issue no. 23 of a publication titled Under Lock & Key on 11/18/2011.

We recently learned from the prisoners that they never received any of those letters and/or publications. Nor did they receive any determination of your Department explaining whether and why the letters and publications were censored. MIM Distributors didn?t receive any notice of censorship determination either.

Your DOM states at sections 54010.16 and 54010.21.3 that respectively prisoners and publishers have to be notified of negative determinations and entitles both the sender and the recipient to appeal rejections of publications and letters.

As of now, it is impossible for us to understand why the letters and publications haven?t been delivered to the inmate and whether or not the Administration has decided to censor them.

As you are certainly aware, 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, neither the prisoners, nor MIM Distributors were notified of the censorship decision or actually of any decisions that the Mailroom staff has made with regard to the publications and letters sent to Mr. YYY and Mr. XXX.

In refusing to provide notice and an opportunity to be heard to both the prisoners and 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.

In addition, the practice of holding publications and/or letters for an indefinite time without providing notice of any determination is certainly unconstitutional, as it does not satisfy the obligation that the prison administration has to provide both the sender and the recipient with a decision in a reasonable time and ultimately frustrates the right that both the sender and the prisoner have to appeal a negative determination.

With the present letter, MIM Distributors requests
to know whether or not a determination has been made over the mentioned letters and publications;
in case of a negative determination, to be notified of the reasons of the censorship decision and to be offered a chance to appeal the exclusion of its materials.

We also request that adequate notice be provided to the prisoners.

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

Sincerely,

MIM Distributors


CC: Affected parties

Warden Greg Lewis
Pelican Bay State Prison
PO Box 7000
Crescent City, CA 95531


January 13th, 2012

RE: Censorship incidents occurred at Pelican Bay State Prison ? exclusion of letters and publications sent to prisoners MR. YYY and Mr. XXX by MIM Distributors.

I am writing this letter about what seems to be a series of censorship incidents that recently occurred at Pelican Bay State Prison.

MIM Distributors sent the above mentioned prisoner several different publications and letters.

Precisely MIM Distributors sent Mr. YYY four letters on 10/12/2011, 10/6/2011, 9/8/2011 and 7/21/2011 and two magazines titled MIM Theory on 5/15/2011. MIM Distributors sent Mr. XXX issue no. 23 of a publication titled Under Lock & Key on 11/18/2011.

We recently learned from the prisoners that they never received any of those letters and/or publications. Nor did they receive any determination of your Department explaining whether and why the letters and publications were censored. MIM Distributors didn?t receive any notice of censorship determination either.

Your DOM states at sections 54010.16 and 54010.21.3 that respectively prisoners and publishers have to be notified of negative determinations and entitles both the sender and the recipient to appeal rejections of publications and letters.

As of now, it is impossible for us to understand why the letters and publications haven?t been delivered to the inmate and whether or not the Administration has decided to censor them.

As you are certainly aware, 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, neither the prisoners, nor MIM Distributors were notified of the censorship decision or actually of any decisions that the Mailroom staff has made with regard to the publications and letters sent to Mr. YYY and Mr. XXX.

In refusing to provide notice and an opportunity to be heard to both the prisoners and 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.

In addition, the practice of holding publications and/or letters for an indefinite time without providing notice of any determination is certainly unconstitutional, as it does not satisfy the obligation that the prison administration has to provide both the sender and the recipient with a decision in a reasonable time and ultimately frustrates the right that both the sender and the prisoner have to appeal a negative determination.

With the present letter, MIM Distributors requests
to know whether or not a determination has been made over the mentioned letters and publications;
in case of a negative determination, to be notified of the reasons of the censorship decision and to be offered a chance to appeal the exclusion of its materials.

We also request that adequate notice be provided to the prisoners.

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

Sincerely,

MIM Distributors


CC: Affected parties

Regional Director
Michael K. Nalley
North Central Regional Office
Federal Bureau of Prisons
400 State Avenue, Suite 800
Kansas City, KS 66101

January 3, 2011

RE: Censorship incident occurred at FCI Pekin; exclusion of publications sent to inmate XXX from MIM Distributors.

Dear Director Nalley,

I am writing this letter about a censorship incident that recently occurred at FCI Pekin in Pekin, IL. MIM Distributors sent the above mentioned inmate issue no. 21 of a publication titled Under Lock & Key. The publications was sent on 07/29/2011.

We recently received the publication back with a stamp on it that merely states: ?return to sender? and ?refused?. None of the possible reasons for refusal given with the stamp have been marked. It is impossible for us to understand why the publication has not been delivered to the inmate and why the Administration has decided to censor it.

Let me remind you that 28 CFR ? 540.71, at par. d) clearly states?Where a publication is found unacceptable, the Warden shall promptly advise the inmate in writing of the decision and the reasons for it. The notice must contain reference to the specific article(s) or material(s) considered objectionable. The Warden shall permit the inmate an opportunity to review this material for purposes of filing an appeal under the Administrative Remedy Program?.

In addition, par. e) of the same section states that ?The Warden shall provide the publisher or sender of an unacceptable publication a copy of the rejection letter. The Warden shall advise the publisher or sender that he may obtain an independent review of the rejection by writing to the Regional Director within 20 days of receipt of the rejection letter?.

As you are certainly aware, the above regulation is pursuant to the principles laid down by the U.S. Supreme Court in the matter. 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 adequate notice indicating the reasons of the censorship and offering 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, and with the Federal regulations above cited, neither XXX, nor MIM Distributors were notified of the reasons of the censorship decision. Merely stamping the publication ?refused? does not satisfy the obligation to provide both the sender and the recipient with a clear indication of the reasons of the censorship determination, and frustrates the right that both the sender and the prisoner have to appeal such determination.

With the present letter, MIM Distributors requests to be notified of the reasons of the censorship decision and to be offered a chance to appeal the exclusion of its materials and/or letter. We also request that adequate notice be provided to the prisoner. We appreciate your assistance in this matter and look forward to your response.

Sincerely,

MIM Distributors

CC: Affected parties

Director Charles L. Ryan
1601 W. Jefferson
Phoenix, AZ 85007

30 January 2010

Dear Director Ryan,

This letter is regarding the censorship of a letter from MIM Distributors to XXX in ASPC Central Unit, mailed on October 27, 2009. The content of the letter that was mailed to XXX was a study group that he participates in, run by MIM(Prisons). This letter was censored because it was deemed to be "obscene or a threat to security" by mailroom staff. No specifics were given as to which policies were violated or what about the letter was obscene.

We doubt that the study materials can be considered obscene or a threat to security as laid on in Turner v. Safely. 482 U.S. 78, 89 (1987). The material we are studying is called "What is MIM?" and an essay called "On Contradiction" by Mao Tse-tung. "What is MIM?" is a pamphlet on the history of the Maoist Internationalist Movement. MIM explicitly denounces armed struggle and violence at this time in history.

In light of these facts, we request to appeal the decision made by ASPC Central Unit mailroom staff to mark this letter as "obscene or a threat to security." We also ask for an explanation as to why this letter was censored, and lastly, for the letter to be delivered to XXX.

We look forward to your response.

Sincerely,

MIM Distributors

CC: Affected parties

Director Charles L. Ryan
1601 W. Jefferson
Phoenix, AZ 85007

13 February 2010

Dear Director Ryan,

This letter is regarding the censorship of a letter from MIM Distributors to XXX in ASPC Central Unit, mailed on October 27, 2009. The content of the letter that was mailed to XXX was a study group that he participates in, run by MIM(Prisons). We recently sent you a letter regarding this issue on 30 January 2010 asking for an explanation as to why it was said that this letter "may be obscene or a threat to security." We recently received more information that answered this question, be we are still appealing the decision.

In a "Notice of Result- Publication Review" notice that was given to XXX, Sgt. D. Lakin claimed that this study group pamphlet violated DO 914.08 1.7 "Promotes racism and/or religious oppression." It is truly fascinating that your mailroom staff could find the promotion of racism and/or religious oppression in this document. Nowhere in the letter are the following words even mentioned: religious, religion, christian, muslim, baptist, KKK, white, mexican, latino, asian or arab. The word "black" is written once in the context of a reference to the Black Panther Party's education programs. How can you even talk about religion or race enough to speak against it if you don't use any of the above mentioned words? As you have notified XXX that you are holding the letter for 3 years, I am sure your department still has it and you can see for yourself that to say that this document violates DO 914.08 1.7 takes a very far stretch of the imagination.

In light of these facts, we request to appeal the decision made by ASPC Central Unit mailroom staff to mark this letter as "Excluded" We also ask for the letter to be delivered to XXX as soon as humanly possible, as it is nearly four months past due. Lastly, we request that your mailroom staff be notified of their incorrect labeling and retrained so we can avoid these errors in the future.

We appreciate your assistance and look forward to your response.

Sincerely,

MIM Distributors

CC: Affected parties

Director Charles L. Ryan
1601 W. Jefferson
Phoeniz, AZ 85007

4 April 2010

Dear Director Ryan,

We received a letter from Karyn Klausner of your office regarding the censorship of a letter dated October 27, 2009 that was sent from MIM Distributors to Mr. XXX. This censorship incident occurred at ASPC Central Unit. First I would like to say that appreciate Ms. Klausner's response, but found it inadequate and, some parts, contradictory with federal case law.

In this letter, dated March 22, 2010, Ms. Klausner asserted that MIM Distributors "does not have standing to appeal an internal decision disallowing an inmate's receipt of written material." Actually, according to Procunier v. Martinez, we do:

"The court required that an inmate be notified of the rejection of correspondence and that the author of the correspondence be allowed to protest the decision and secure review by a prison official other than the original censor." Procunier v. Martinez, 416 U.S.396. 94 S.Ct 1800

The reason that Ms. Klausner gave for upholding this censorship was that it allegedly contains "content 'promoting racism and/or religious oppression.'" I would like to appeal this decision to a higher level of review, for reasons I will outline below. Like I wrote above, we are legally permitted to appeal these decisions, even if ADOC does not have a protocol in place for it.

It is truly fascinating that your mailroom staff, and now your General Counsel of the Office of the Director, could find the promotion of racism and/or religious oppression in this document. Nowhere in the letter are the following words even mentioned: religious, religion, christian, muslim, baptist, KKK, white, mexican, latino, asian or arab. The word "black" is written once in the context of a reference to the Black Panther Party's education programs. How can you even talk about religion or race enough to speak against it if you don't use any of the above mentioned words? As you have notified Mr. XXXXXX that you are holding the letter for 3 years, I am sure your department still has it and you can see for yourself that to say that this document violates DO 914.08 1.7 takes a very far stretch of the imagination.

We would like for an administrator in a superior position to Ms. Klausner to review this erroneous decision that was made by Sgt. D. Laken, and upheld by Ms. Klausner. Additionally, we would like the material to be delivered to Mr. XXX without further delay.

We appreciate your assistance and look forward to your response.

Sincerely,

MIM Distributors

CC: Affected parties

Director Charles L. Ryan
1601 W. Jefferson
Phoenix, AZ 85007

28 August 2010

Dear Director Ryan,

This letter is responding to a series of correspondences between you and my colleague [COLLEAGUE] from January to April 2010. The issue you and [COLLEAGUE] were discussing was a letter sent to Mr. XXX on October 27, 2009. I know [COLLEAGUE] is already working with you on a number of more recent incidents as well.

In your April 22, 2010 letter, you make three main claims, none of which are true as can be seen in the enclosed documents.

1) You claim Ms. Klausner did not uphold the decision to censor, yet her letter from March 22, 2010 clearly states "I reviewed the materials sent by MIM Distributors and find the decision to exclude this publication due to content? was appropriate." (see enclosed) Despite the fact that the topics of racism and religion were not even mentioned in the letter, multiple staff members have upheld this reason to censor the October 27 mail. This was the basis of [COLLEAGUE]'s appeal, which was denied.

2) You claim that there was no review made because Mr. XXX did not request one. Yet the enclosed documents show that he received notice of the censorship on November 17, 2009, requested an explanation on December 7, 2009 and requested a second review on January 1, 2010. It seems you have not thoroughly investigated the facts in this case by stating otherwise. This is why we are insistent that a legitimate, independent review occur and not just a parroting of the original decision.

3) You claim that MIM Distributors has no rights to appeal the censorship of their mail. While we are not lawyers, and may have put too much weight on the Procunier case, we still uphold that we have First and Fourteenth Amendment rights according to federal law. As employees of the state you may not deny anyone their rights to free speech and association arbitrarily and without due process. In fact, if you read Thornburgh v. Abbot, 490 U.S. 401, which you referred [COLLEAGUE] to, you will see that its procedural protection was provided because the publisher was notified of the censorship and given the right to independent review. A number of U.S. Court of Appeals decisions have upheld the right of the publisher in such instances (Montcalm Publ'g Corp. v. Beck, 80 F.3d 105, 106 (4th Cir.), Trudeau v. Wyrick, 713 F.2d 1360, 1366 (8th Cir.1983), Martin v. Kelley, 803 F.2d 236, 243-44 (6th Cir.1986) ).

In light of these issues, we are once again requesting that Mr. XXX be given the letter in question or that an independent review of the material take place. Random, unsubstantiated accusations of "promoting racism and/or religious repression" do not fulfill the Turner reasonableness standard that you recognize as governing our rights in this decision.

Sincerely,

MIM Distributors

CC: Mr. XXX

First and foremost, I'd like to apologize for being vague in my grievance that was returned to me "unprocessed" on 2 October 2010. If you'd allow me, please understand that I am not a scholar, nor am I educated. But I am sincere. Often times my sincerity doesn't account for what I lack in academics. Nonetheless, I am hoping that you find it in your discretion to allow me in proceeding with my complaint (in hopes that we may come to some sort of centralized resolution).

I am grieving the procedure in D.O. 914 and its method to how its appeals process is engineered. It's so defective and should be revised addressing its flaws. I named eight reasons in my informal complaint that should be clearly rectified. More importantly, publication reviews should not take up to three years to resolve. Plus carbon copies should be distributed to prisoners so that they have actual proof we submitted these appeal forms.

My resolution to this problem would be to revise its three year exhaustion system, to 100 days, similar to that of D.O. 802: General Grievance, and provide carbon copies of grievance in this specific appeals process. This is my resolution and I am grieving D.O. 914 written instruction on its actual policy and procedure. I am not grieving any specific publication that got reviewed or excluded for I understand that appeals process has its own procedure. I am grieving the actual procedure. Thank you for allowing me the opportunity to clear that up. Thank you and have a kind day.

Director Charles L. Ryan
Arizona Department of Corrections
1601 W. Jefferson
Phoenix, AZ 85007

January 1, 2012

RE: Censorship incident occurred at ASPC Central Unit on November 17, 2009; exclusion of letter sent to prisoner Mr. XXX by MIM Distributors.

Dear Director Ryan,

I am writing this letter about regarding a censorship incident that occurred in ASPC Central Unit, on November 17, 2009. While there has already been a significant exchange of correspondence between the Department and MIM Distributors on this topic, it is desirable at this point to place in focus the precise questions that now are before us.


I. Background.

The relevant facts can be summarized as follows:

❖ At the time the incident occurred, Mr. XXX was detained (and is still detained) at ASPC Central Unit;
❖ MIM Distributors sent Mr. XXX a letter on October 27, 2009, in which a study group pamphlet ? published and distributed by MIM Distributors ? was included;
❖ The letter was examined on November 17, 2009 by the Office of Publication Review (also known as ?mailroom staff?) and excluded, because it allegedly ?promotes racism and/or religious oppression?;
❖ MIM Distributors was NOT notified of the exclusion and learned of it later, directly from the inmate to whom the letter was directed;
❖ On January 30, 2010 and on February 13, 2010, MIM Distributors wrote to the Director of the Arizona Department of Corrections (?ADC?), expressly and formally requesting that the administrative decision be reviewed by a higher authority than the Office of Publication Review;
❖ On March 22, 2010, Mrs. Karyn Klausner, General Counsel at ADC, addressing MIM Distributors? request, asserted that the ?organization (MIM Distributors, n.d.r.) does not have standing to appeal an internal decision disallowing an inmate?s receipt of written materials ?;
❖ MIM Distributors contested the above assertion in a subsequent letter, dated April 4, 2010, recalling the holding of the U.S. Supreme Court in Procunier v. Martinez and showing how the relevant case law supports the thesis that publishers are indeed entitled to administrative review within the prison system against censorships of their published materials mailed to prisoners;
❖ The Arizona Department of Corrections further replied with two letters (on April 22, 2010 and September 28, 2010) claiming, in essence, that: (i) ?Procunier v. Martinez is no longer authoritative on this issue? and it is allegedly overruled by Thornburgh v. Abbott and Turner v. Safley, which now ?are instructive on the standard of review as to the exclusion of publications by prison officials when addressed by the courts?; (ii) ?there is nothing in case law that gives rise to a publisher?s right to appeal a decision to exclude its material on an administrative level?; (iii) ?the Arizona Department of Corrections is obligated to respect, within the confines of legitimate penological interest, an inmate?s constitutional rights; it does not follow that ADC is likewise obligated to do the same for an independent distributor such as MIM?.


II. Legal issues at stake.

The legal issues at stake seem to fundamentally be the following ones: (i) whether or not an independent publisher has a right to appeal, within the prison system, administrative decisions of prison officials that exclude or censor its materials mailed to inmates; (ii) whether or not prison administrators are obligated to respect an independent publisher?s (and, more in general, a free citizen?s) constitutional rights, in relation to the publisher?s attempt to communicate with (or reaching out to) the inmates.

A careful, unbiased and comprehensive review of the relevant case law and of any applicable regulation strongly suggests to respond affirmatively to both questions, for several reasons that I will try to explain below in greater detail.

It is also important to consider at the onset that the two above issues are closely interwoven; more precisely, the determination of the extent of a publisher?s constitutional rights in reaching out to prisoners seems to be logically preliminary to the resolution of the question regarding the existence of a publisher?s right to appeal, within the prison system, decisions of exclusion or censorship of its published material.


III. First Amendment rights in the prison context.

It has been the constant teaching of the U.S. Supreme Court that a prison inmate retains only those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system. Procunier v. Martinez, 416, U.S. 396 (1974).

Not equally consistent has been the view that the Supreme Court has displayed on what standard of jurisdictional review Courts should apply to prison regulation that curb prisoners? (and publishers?) First Amendment rights. The matter was in fact examined for the first time in Procunier v. Martinez and the Court?s perspective on it has been subject to some variations since then.

In Procunier v. Martinez, the Court seemed to apply a strict scrutiny standard to regulations aimed at compressing an inmate?s constitutional right. The Court stated that ?the censorship of direct personal correspondence involves incidental restrictions on the right to free speech of both prisoners and their correspondents, and is justified if the following criteria are met: (1) it must further one or more of the important and substantial governmental interests of security, order, and the rehabilitation of inmates, and (2) it must be no greater than is necessary to further the legitimate governmental interest involved?.

The standard of review was later re-examined in Turner v. Safley, 482 U.S. 78 (1987), and in Thornburgh v. Abbott 490, U.S., 401 (1989) and the Court came to a slightly different formulation of it. As stated in Turner v. Safley, the new standard of review focuses rather on the reasonableness of prison regulations: thus, the relevant inquiry is whether the actions of prison officials are "reasonably related to legitimate penological interests?. Whenever those regulations are in fact reasonably related to a legitimate penological interest, they will pass the constitutional scrutiny and will be deemed valid and legitimate.

This more deferential standard was later confirmed in Thornburgh v. Abbott, and hasn?t been subject to modifications since then. It is fair to acknowledge, therefore, that it is the current applicable standard of review to prison regulations that carry restrictions on prisoners? First Amendment rights.

In this limited sense, and only within the narrow confines of this meaning, your general counsel?s assertion that Procunier v. Martinez has been overruled by Turner and Thornburgh, may be deemed as correct.


IV. Censorship of mail by prison administrators does not only involve prisoners? rights.

However, Courts? rulings must be read in their integrity, with due accuracy and unbiased eyes, in order to avoid misinterpretations that may lead to mistaken beliefs and illegitimate administrative activity. As we will see in a moment, the individuation by the Supreme Court of a slightly different standard of review for regulations that limit censorship of mail sent to inmates, does not imply, at any rate, that prison administrators (ADC in this case) aren?t bound to take into account and respect an independent publisher?s constitutional rights; nor does it mean that publishers (MIM Distributors in the present case) do not have standing, within the prison system, to appeal a decision of prison official that censors its published materials.

While enunciating the new standard of review, the Supreme Court has also made it clear, in Thornburgh, that ?there 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?.

As stated in Turner v. Safley and recalled in Thornburgh v. Abbott, ?there is little doubt that the kind of censorship just described (censorship of a publication sent by an independent publisher to an inmate, n.d.r.) would raise grave First Amendment concerns outside the prison context. It is equally certain that prison walls do not form a barrier separating prison inmates from the protections of the Constitution, nor do they bar free citizens from exercising their own constitutional rights by reaching out to those on the inside?.

The premise from which the Court moves is that ?we do not deal here with difficult questions of the so-called "right to hear" and third-party standing, but with a particular means of communication in which the interests of both parties (the sender and the prisoner, n.d.r) are inextricably meshed?. It is quite evident to the Court that ?mail censorship implicates more than the right of prisoners. Communication by letter is not accomplished by the act of writing words on paper. Rather, it is effected only when the letter is read by the addressee. Both parties to the correspondence have an interest in securing that result, and censorship of the communication between them necessarily impinges on the interest of each. Whatever the status of a prisoner's claim to uncensored correspondence with an outsider, it is plain that the latter's interest is grounded in the First Amendment's guarantee of freedom of speech? (Procunier v. Martinez).

The language employed by the Supreme Court in Procunier and in Thornburgh as to the question of senders? (or publishers?) First Amendment rights is undeniably the same; in both cases, the Court has clearly stated that (not only prisoners? constitutional rights, but) also First Amendment rights of those who seek to communicate with inmates are at stakes, when reviewing prison regulations that restrict that very channel of communication. Those rights may be compressed only if the limiting regulations reasonably respond to and further a legitimate governmental interest.

There is little doubt, therefore, that the statement that Procunier v. Martinez was later overruled by Thornburgh v. Abbott and Turner v. Safley, although formally correct, is entirely irrelevant in this case, in which we?re discussing a different issue than the one as to which the holding in Procunier was overruled.

It is instead wholly misplaced the statement (also made in Mrs. Klausner?s letter dated September 28, 2010) that ADC would not be obliged to respect an independent distributors? constitutional rights. As we have seen, the standard of review is exactly the same, whether prisoners? rights or publishers? rights are involved, and prison administrators are indeed obligated to equally respect prisoners? and publishers? First Amendment rights.


V. Publishers do have standing, within the prison system, to appeal decisions that exclude and/or censor their materials.

Let?s now turn to the more practically important question of whether or not an independent publisher has standing to appeal prison administrators? decisions that exclude or censor its materials.

The correct approach to solve this issue may not disregard the conclusions we have reached about the preliminary and more general inquiry regarding publishers? First Amendment rights in the prison context.

Moving from that premise, it becomes quite obvious that the only inference that may be drawn on the publisher?s standing issue from the modification of the standard of review that the Supreme Court laid down in Turner and Thornburgh, it is opposite the one your Department suggests. A standard of review, evidently, is only imaginable in relation to a non-arbitrary administrative activity. In other words, if prison administrators were not obliged to respect any prisoners? or free citizens? constitutional rights, no possible jurisdictional review of their activity and/or decisions would be even conceivable.

That is why the Supreme Court, even in Thornburgh, recalled the regulations set forth at 28 CFR ?? 540.70 and 540.71, highlighting that such regulations ?provide procedural safeguards for both the recipient and the sender?. In particular, the Warden must advise the inmate promptly in writing of the reasons for the rejection, ? 540.71(d), and must provide the publisher or sender with a copy of the rejection letter, ? 540.71(e) and the sender (that may well be an independent publisher or distributor) may obtain an independent review of the warden's rejection decision by a timely writing to the Regional Director of the Bureau. ? 540.71(e).

The Court had already come to an identical conclusion in Procunier, in which it flatly stated that ?the decision to censor or withhold delivery of a particular letter must be accompanied by minimum procedural safeguards?. More importantly for our concerns, those protections evidently are the typical due process safeguards, which substantiate any other constitutional right and afford individuals a chance to appeal governmental decisions that affect their fundamental rights, among which the most cherished certainly are First Amendment rights.

In light of the above considerations, thus, there is no doubt that Procunier v. Martinez remains in full effect with regard to the necessity that decisions that affect publishers? First Amendment rights in the prison context be accompanied by the typical due process safeguards, i.e. by procedural mechanisms that offer the publisher the opportunity to contest and fight the decision to exclude its materials. With regard to this specific matter, it is fully correct to say that not only Procunier v. Martinez wasn?t overruled by Turner and Thornburgh, but Turner and Thornburgh actually reaffirmed the Procunier holding.


VI. Federal and State Regulations.

The above mentioned Federal Regulations (28 CFR ?? 540.70 and 540.71) already provide sufficient safeguards, compelling prison administrators to notify publishers of any decision of exclusion and/or censorship and to offer them the chance to appeal such decisions, within the prison system, in accordance with the Administrative Remedy Program.

I am well aware that your Director?s Order no. 914 (which applies to Arizona State Prisons, such as the one in which Mr. XXX is detained) does not expressly provide the same safeguards. However, even in the absence of an express provision that offers the same or similar protections to the publishers whose First Amendment rights are affected by prison administrators decisions, the Arizona Department of Corrections must simply comply with the principles laid down in the above reviewed case law and provide publishers with the right to appeal decisions that exclude or censor their materials. Any different administrative conduct would be deemed as irremediably unconstitutional.

MIM Distributors has requested, from its very first letter to ADC (on January 30, 2010), that those elementary safeguards be made available for it in the present case and ADC has constantly and illegitimately denied them, on the basis of a deplorable misinterpretation of the relevant case law on the matter. MIM Distributors, therefore, insists once again to appeal the decision made by ASPC Central Unit mailroom staff to mark the letter as "Excluded" and once again requests that the decision be reversed for all the reasons already stated in the letters that MIM Distributor has previously written to ADC, on January 30, February 13 and April 4, 2010. MIM Distributors also requests that the letter be delivered to Mr. XXX as soon as possible.

Sincerely,

MIM DISTRIBUTORS

CC: Affected parties

Prison Law Office
Mrs. Sara Norman
General Delivery
San Quentin, CA 94964

Perkins & Coie LLP
2901 Central Ave., Suite 2000
Phoenix Az, 85012-2788