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