Court: District Court, N.D. Florida; August 27, 2015; Federal District Court
The case presents an as-applied First Amendment challenge to Florida Administrative Code Rule 33.501.401(3)(Z) and (m), alongside a procedural due process claim under 42 U.S.C. § 1983. The litigation arose from a dispute between Prison Legal News (PLN) and Julie L. Jones of the Florida Department of Corrections (FDOC), culminating in a four-day bench trial starting January 5, 2015. The core issue is the FDOC's rejection and impoundment of PLN's magazine, which features content from legal experts and inmates.
Rule 33-501.401, titled "Admissible Reading Material," permits the FDOC to screen inmate mail and delineates specific criteria for rejecting publications, particularly subsections (l) and (m). These subsections outline that a publication may be rejected if it contains certain advertisements or poses a security threat to the correctional system or inmate safety. PLN seeks a declaratory judgment declaring the rule unconstitutional as applied, an injunction against the impoundment of its magazine, the delivery of previously withheld issues, and due process protections concerning other materials sent to inmates that were impounded.
The order also provides context regarding previous litigation between PLN and the FDOC, beginning in 2003, related to similar censorship issues, which led to amendments in the rule in 2005 that allowed for advertising content as long as it was incidental. Following this amendment, the FDOC temporarily ceased impounding PLN's magazine until the current litigation.
Four months post-amendment, the Florida Department of Corrections (FDOC) demonstrated that its new procedures permit the distribution of Prison Legal News (PLN) without rejection based solely on controversial advertising content. The Eleventh Circuit affirmed this, noting the FDOC’s lack of intent to ban the magazine on those grounds in the future. Despite prior inconsistencies, the FDOC's revised impoundment rule now allows for PLN's distribution, and since the amendment, no issues have been impounded based on incidental advertisements. However, less than three years later, the FDOC updated the Rule to include grounds for rejecting publications with "prominent or prevalent" prohibited advertisements, effective June 16, 2009. Since September 2009, all issues of PLN have been impounded.
PLN initiated legal action on November 17, 2011, filing an amended complaint on December 16, 2011. The case now includes two counts against the FDOC: Count III alleges a First Amendment violation for refusing to deliver PLN publications due to certain advertisements, claiming infringement of free speech, press, and association rights under the First and Fourteenth Amendments and 42 U.S.C. § 1983. Count VI asserts a due process violation, alleging failure to provide notice and an opportunity to contest censorship decisions, violating rights protected by the Fifth and Fourteenth Amendments and 42 U.S.C. § 1983.
A four-day bench trial commenced on January 5, 2015, after which the court allowed the parties to address specific issues. Established in 1990 by Paul Wright and Ed Meade, PLN is a nonprofit based in Lake Worth, Florida, focused on reporting legal developments related to criminal justice, advocating for prisoners' rights, and promoting criminal justice reform.
Prison Legal News has published over 700 articles regarding the Florida Department of Corrections (FDOC) and Florida prisons over the past 25 years, focusing on various legal issues and misconduct by FDOC contractors, primarily targeting prisoners as its audience. The magazine began accepting advertisements in 1996, but the FDOC first censored it in February 2003, objecting to ads for services that accepted postage stamps as payment, including three-way calling, pen pal services, and inmate artwork purchases, citing security risks associated with these services. Following a lawsuit by Prison Legal News, the FDOC amended its censorship rules multiple times during 2005, ultimately allowing incidental advertisements as long as they were not the main focus of the publication, based on the belief that existing security measures and the capabilities of its telephone vendor, MCI, could effectively mitigate risks. From 2005 to 2009, the FDOC did not reject Prison Legal News under the revised rule. However, in June 2009, the FDOC revised subsection (3)(Z), leading to renewed censorship of the magazine for prohibited advertisements, despite no major incidents occurring in the interim. The FDOC provided three credible reasons for this amendment: a disagreement among administrators regarding the adequacy of prior policies, advancements in technology necessitating a reevaluation of security measures, and the need for clearer guidelines on censorship criteria.
The FDOC observed an increase in advertisements related to postage stamps, which is central to PLN’s First Amendment challenge against an amendment to subsection (3)(l). PLN contends that FDOC lacks valid reasons for this amendment, primarily disputing the claim regarding Securus' effectiveness in blocking unauthorized call services. Securus, despite being contractually obligated to prevent three-way calling and call-forwarding, admits it cannot achieve 100% effectiveness. Monitoring by FDOC staff has revealed that inmates are able to transfer calls, with Securus detecting hundreds of thousands of attempted calls, indicating some successful transfers. Enhancing Securus' capabilities would be costly and could lead to increased false positives, disrupting legitimate calls and worsening prison morale.
The Court determines that at the time of the 2005 litigation, FDOC believed Securus could adequately detect unauthorized calls, but it has since become evident that it cannot. PLN challenges the FDOC's claim that the volume of advertisements for stamps as payment increased between 2005 and 2009, arguing that the FDOC relied on anecdotal evidence rather than formal studies. While the magazine's page count grew from 48 to 56 pages, the percentage of prohibited advertisements increased slightly from 9.21% in 2005 to 9.8% in 2009 and averaged 15.07% in 2014. PLN asserts that the FDOC amended the rule in 2009 specifically to target Prison Legal News, pointing to email exchanges among FDOC officials that suggest awareness of the implications of the amendment on the publication.
The FDOC's 2009 amendments to the Rule are deemed substantive, indicating an intention to address specific issues, though evidence suggesting the amendments were aimed at excluding Prison Legal News (PLN) is limited. Emails presented by PLN serve as the closest evidence of targeting but do not conclusively prove malicious intent. PLN argues that the lack of incidents between 2005 and 2009 undermines the security rationale for the amendments, implying institutional bias. However, this is characterized as conjecture, as there are other plausible explanations for the amendments, including documented stamp-related issues. The FDOC denies any animus towards PLN, asserting a favorable view of the publication.
Furthermore, PLN did not provide evidence to show that the FDOC selectively censors PLN while allowing similar publications to operate. Conversely, the FDOC has shown that it has rejected other publications under the same subsection (3)(l) for reasons unrelated to PLN. The court concludes that the FDOC did not amend the Rule out of dislike for PLN and finds no evidence that it censors PLN uniquely.
Regarding subsection (3)(m), the court acknowledges that the FDOC has legitimate security concerns related to advertisements for services that have emerged since 2009, particularly prisoner concierge services. These services, which were not present in PLN in 2005, raise security risks and have led to increased censorship under subsection (3)(m). Notably, Florida is identified as the only state that censors PLN based on advertising content, with similar practices observed among private prison corporations. Other states have managed to address legitimate penological goals without banning PLN. Additionally, certain FDOC rules appear inconsistent with the grounds for censoring PLN, such as allowing inmates to call preapproved numbers.
The FDOC asserts that services like three-way calling and call forwarding pose security risks by concealing the identity and location of call recipients, yet it permits inmates to list cell phone numbers without knowing the corresponding identities or locations. This inconsistency extends to the allowance of up to 40 stamps despite security concerns. The Court recognizes that the FDOC's rationale for censoring Prison Legal News revolves around security, rehabilitation, and public protection.
The literature review process by the FDOC involves two groups of publications. The first group includes incoming publications not previously rejected by the Literature Review Committee (LRC). Upon arrival at an FDOC facility, mailroom staff may flag potential advertising violations. If an issue of Prison Legal News is flagged, it is sent to the warden or designee (limited to the assistant warden) for an impoundment decision. If deemed violating, the assistant warden completes "Form DC5-101" to document the specific reasons for impoundment. Notice to the inmate is required, but only the originating institution must inform the publisher and review committee, while not all copies of the impounded publication are provided to the LRC for review.
The LRC reviews the case to determine if the violation is significant but lacks complete information on the number and size of offending advertisements within the publication. The LRC utilizes a separate internal form for its decisions, which has not been disclosed to the Court. Following an initial impoundment, other institutions must also impound the publication pending LRC review, facilitated by a centralized database to avoid redundancy. The second group pertains to publications previously rejected by the LRC, which must be rejected by all future recipient institutions.
The LRC does not notify publishers of impoundment decisions unless an appeal is made. The FDOC has impounded all issues of Prison Legal News (PLN) since September 2009 but admits it does not provide a notice for every impounded copy. The FDOC claims to have sent at least one notice per issue since 2009, supported by testimony from two mailroom witnesses at Florida State Prison, who confirmed the protocol but could not recall if every notice was sent. PLN argues that the evidence does not prove it received notices for every issue. The court agrees, noting that the testimonial evidence is limited to one institution and lacks confirmation from other facilities. Additionally, the notices provided are reproductions received from prisoners, not directly from the FDOC. PLN established through witness testimony and recordkeeping that it did not receive impoundment notices for many months, specifically for 26 issues from November 2009 to December 2014, which constitutes approximately 42% of all issues during that period. Furthermore, notices received often lacked specific details about the alleged violations. The court concludes that the FDOC failed to provide notice for impoundments of both PLN's Prisoners’ Guerilla Handbook and its informational packets, leading to three main legal issues. The first is whether judicial estoppel should prevent the FDOC from censoring PLN based on Rule 33-501.401(3)(Z), which does not resolve the case entirely. The remaining issues involve the constitutionality of the FDOC's censorship under the First Amendment and the potential violation of PLN's procedural due process rights. Judicial estoppel generally prevents inconsistent claims in legal proceedings.
The judicial estoppel doctrine aims to uphold the integrity of the judicial process by preventing a party from asserting a current position that contradicts a position it previously established to persuade a tribunal. The Supreme Court identifies factors for applying this doctrine, including: (1) whether the current position is clearly inconsistent with the earlier position; (2) whether the earlier position was accepted by a court, as inconsistent claims could mislead the judiciary; (3) whether the party would gain an unfair advantage or impose a detriment on the opposing party; and in this Circuit, (4) whether the inconsistent positions were made under oath in prior proceedings; and (5) whether the inconsistencies were intended to undermine the judicial system. These factors are not absolute, allowing courts discretion based on specific case circumstances.
In the case involving the Florida Department of Corrections (FDOC) and Prison Legal News (PLN), PLN argues that the FDOC's current stance on censoring advertisements contradicts a prior assertion from 2005 that such ads did not pose a significant security threat. PLN contends that the FDOC's shift is a classic example of judicial estoppel. However, the FDOC claims that the circumstances have changed, citing advancements in technology that have compromised its previous security measures, and that the nature of PLN's advertisements has evolved. While PLN maintains that the proportion of ads has not significantly changed, the FDOC points out that the size and prominence of the ads have increased, justifying its current position. The FDOC has consistently impounded issues of PLN since September 2009 without providing adequate notice for each copy.
The FDOC presented two witnesses from the mailroom at Florida State Prison, including Ms. Patricia Goodman, who has been employed there since at least 2009. They testified about the impoundment protocol and its adherence by mailroom staff, yet neither could recall sending an impoundment notice to Prison Legal News (PLN) each time. The FDOC submitted documentation of impoundment notices from 2009 onward, but PLN contended that this did not prove PLN received a notice for every impounded issue. The court agreed with PLN, noting that the testimony was limited to Florida State Prison, and there was no evidence that other institutions followed similar protocols. Additionally, the witnesses admitted uncertainty about whether all notifications were sent. The documentation provided by the FDOC consisted of reproductions of notices received by PLN from prisoners, rather than original notices from the FDOC. PLN demonstrated that it did not receive impoundment notices for many issues between November 2009 and June 2013, including significant gaps in 2010. Specifically, PLN did not receive notices for 26 issues from November 2009 to December 2014, representing about 42% of all issues during that timeframe. Furthermore, many received notices lacked specific details about alleged rule violations, and in some cases, PLN received rejection notices without prior impoundment notices, hindering their ability to appeal. The court concluded that the FDOC failed to notify PLN consistently regarding the impoundment of both the Prisoners’ Guerilla Handbook and information packets sent to inmates. Three principal issues remain to be resolved, with the first being preliminary and unrelated to the merits of PLN’s lawsuit.
The core issue is whether the Florida Department of Corrections (FDOC) should be judicially estopped from censoring Prison Legal News (PLN) under Rule 33-501.401(3)(X). This question does not resolve the entire case, as PLN has also raised a First Amendment challenge regarding subsection (3)(m) of the Rule. The two unresolved matters are: the constitutionality of FDOC's censorship under both subsections in relation to PLN's First Amendment rights, and whether FDOC violated PLN's procedural due process rights.
Judicial estoppel may prevent the FDOC from claiming that PLN's advertising content violates Rule 33-501.401(3)(Z) if its current position is inconsistent with its previous claims. Judicial estoppel protects the integrity of the judicial process and typically applies when a party has successfully persuaded a court to accept a prior position. Factors for applying this doctrine include whether the later position is clearly inconsistent with the earlier one, whether the party succeeded in persuading the court previously, and whether not applying estoppel would give the party an unfair advantage or impose an unfair detriment on the opposing party.
In this Circuit, additional factors include whether the inconsistent positions were made under oath in a prior proceeding and if such inconsistencies were intended to mock the judicial system. While these factors provide guidance, they are not exhaustive, and courts have discretion in applying the doctrine, considering the specifics of each case.
The FDOC claims that advertisements for (3)(l) services in PLN pose a security threat, justifying censorship under that subsection. PLN argues that this assertion is inconsistent with a 2005 statement indicating that such incidental ads do not represent a significant security risk to prisons.
The only change cited by Prison Legal News (PLN) regarding the Florida Department of Corrections (FDOC) is its interpretation of evidence and enforcement of rules. PLN notes that its advertising content related to prohibited services did not significantly increase from 2005 to 2009, and no major incidents occurred during this period. PLN argues that the FDOC’s inconsistent positions represent an attempt to manipulate the judiciary, which judicial estoppel aims to prevent. However, the FDOC's positions, while appearing inconsistent, are justified by changes in circumstances. Technological advancements since 2005, specifically the emergence of VoIP, have allowed inmates to circumvent FDOC’s security measures, which the FDOC initially believed could effectively block such attempts.
Additionally, while PLN claims that the proportion of advertisements for prohibited services barely changed, the nature and visibility of these ads have evolved. In 2009, PLN increased the number of larger advertisements, from two to four in the specified category, with a current trend of around six per issue. Moreover, PLN shifted focus from three-way calling service ads to advertisements for products or services purchasable with postage stamps, increasing from two to seven in the same timeframe, with further growth observed in subsequent years. Although the overall percentage of advertisements related to these services appears stable, the absolute number and visibility of such advertisements have increased, highlighting a significant shift in content rather than proportional representation.
The Court declines to override the judgment of Florida Department of Corrections (FDOC) officials regarding the security risks posed by different publications. It references the case Jones v. N. Carolina Prisoners’ Labor Union, emphasizing the need for deference to prison administrators and acknowledgment of the unique conditions of incarceration. The FDOC's past representations regarding the censorship of Prison Legal News (PLN) are scrutinized; the 2005 promise against censorship for certain advertisements is interpreted as limited, not extending to all future variations of those ads. The Moore Order confirms that the FDOC committed only to not impounding PLN in its existing format, which has since changed. The Eleventh Circuit upheld this interpretation, indicating that the FDOC's current position on censorship does not contradict its prior stance. The Court must evaluate whether the FDOC's censorship under specific rules violates PLN's First Amendment rights, recognizing that PLN has a legitimate interest in reaching prisoners who subscribe to its content. The analysis of such regulations is guided by the reasonableness standard established in Turner v. Safley, which applies to all situations where prison management intersects with constitutional rights. Under this standard, regulations are deemed valid if reasonably related to legitimate penological interests.
Several factors are crucial in assessing the reasonableness of prison regulations affecting constitutional rights. The first factor requires courts to evaluate whether the governmental objective behind the regulations is legitimate and neutral, and if the regulations are rationally related to that objective. This is an essential requirement, not merely a consideration. If the connection between the regulation and its asserted goal is deemed arbitrary or irrational, the regulation fails, regardless of the outcome of other factors.
The second factor examines whether alternative means of exercising the right are available to the plaintiff. The third factor considers the impact accommodating the asserted constitutional right will have on prison staff, other inmates, and overall resource allocation. Finally, courts must evaluate whether there are "easy alternatives" that suggest the regulation is unreasonable or an exaggerated response to prison concerns.
After identifying the impinged constitutional right, the state must present the legitimate governmental interests supporting its regulation, which in this case, are public safety and prison security—widely recognized as legitimate interests. The plaintiff bears the burden of demonstrating that the regulation is not reasonably related to these legitimate penological objectives. The Florida Department of Corrections (FDOC) contends that its application of Rule 33.501.401(3)(Z) and (m) is content-neutral, while the plaintiff argues that censoring Prison Legal News based on its advertising content fails to rationally relate to public safety and security. The central questions are whether the regulation operates neutrally without regard to content and if censoring the publication is rationally connected to the stated governmental interests.
Limited trial evidence indicates that the Florida Department of Corrections (FDOC) censors various publications without apparent bias towards their content. Prison Legal News (PLN) failed to demonstrate that this censorship disproportionately targets publications critical of the FDOC. Instead, PLN claims the 2009 amendment to the censorship rule was motivated by animosity toward Prison Legal News, supported by a series of emails. However, the relevance of motive in the Turner inquiry remains unclear. The legal precedent suggests that a negative motive alone cannot invalidate a policy that serves legitimate penological interests. The Court found PLN's evidence of an unlawful motive insufficient to challenge the rule's validity. PLN also argues that there is no rational connection between the censorship and the stated penological objectives, despite acknowledgment from experts that the services related to the censored publications compromise public safety and prison security. PLN contends that the issue lies in the censorship of the publication itself, not the underlying services. Nonetheless, the FDOC provided a logical connection between its censorship practices and legitimate security objectives, supported by adequate evidence.
The initial response to dangerous services in prisons is to prohibit their use, a policy often disregarded by inmates. The prison environment inherently includes individuals prone to antisocial and violent behavior, as established in relevant case law. In response, the Florida Department of Corrections (FDOC) has implemented additional safeguards, such as Rule 33-501.401, to mitigate security risks posed by advertisements in publications. These ads are viewed as a "one-stop shop" for dangerous services, prompting the FDOC to limit inmates' exposure to reduce the likelihood of misuse.
Prison Legal News (PLN) argues that the FDOC's rationale for censorship is too vague to meet constitutional standards, requiring more than a mere logical connection to legitimate penological objectives. The court agrees, referencing the necessity for prison authorities to demonstrate a substantial connection between regulations and their intended outcomes. The FDOC provided expert testimony from administrators supporting the notion that censorship serves legitimate prison objectives, but PLN insists on specific past incidents caused by inmates using banned services advertised in their publication.
The court notes that no precedent in the circuit mandates the FDOC to present evidence of specific past incidents to justify censorship. Other circuits have similarly ruled that prison officials are not required to wait for harm to occur before imposing restrictions. Even if such evidence were necessary, the FDOC cited examples of issues related to services advertised in PLN. PLN's additional claim of arbitrary application of the Rule was also noted.
Evidence presented by PLN highlights inconsistent censorship of Prison Legal News across different FDOC facilities, where similar issues were censored on varying grounds. Testimony indicates that some materials were initially accepted at certain facilities but denied at others. PLN argues that advertisements for other prohibited services are not similarly censored, suggesting an irrational application of the censorship rule. Case law indicates that consistency in applying regulations is critical to their rational connection to legitimate penological objectives. PLN contends that these inconsistencies could undermine the rationale for censorship or indicate that censorship was based on content. Despite PLN's claims, the Court finds that the inconsistencies do not reach a level of randomness that would invalidate the rationale for censorship, noting that uniformity in decision-making is not expected given the volume of materials screened. The Court emphasizes that the initial censorship decisions by mailroom staff are subject to review by the LRC, which applies decisions uniformly across Florida, reducing randomness. Unlike situations where individual wardens made decisions that led to disparate treatment, the LRC's system-wide decisions result in consistent censorship of the same issues of Prison Legal News. The Court declines to assess specific inconsistencies in advertisements, citing the deference owed to prison administrators in determining which advertisements pose greater concerns. Absent evidence that the FDOC allows other magazines with similar advertisements, the Court concludes that the minor inconsistencies do not undermine the reasonableness of the FDOC's practices. Lastly, PLN's argument that other FDOC regulations compromise the Rule's connection to security lacks merit.
In the trial, various regulations governing inmate communication were highlighted, such as allowing inmates to list cell phone numbers on approved contacts and possessing up to 40 stamps. PLN argues these rules contradict the rationale behind censoring certain services. Cell phones, with features like three-way calling and call forwarding, provide communication capabilities equivalent to or superior than those promoted by PLN, and the FDOC lacks the means to track cell phone users' locations. Furthermore, despite concerns over the risks associated with stamps, the FDOC permits their use and allows families to send them to inmates. An FDOC administrator explained that banning calls to cell phones would hinder inmates from contacting relatives who use only mobile phones, potentially increasing prison tensions. A proposed rule to limit stamp mailings faced strong opposition from families, who feared for their loved ones’ welfare. FDOC officials indicated that implementing PLN's suggested accounting measures for stamps would be financially burdensome and require legislative changes. The complexity of prison management necessitates that administrators balance security and resources, which the court found justifies the censorship in question as rationally related to legitimate penological objectives. The court also noted that the remaining factors support the FDOC, as PLN retains alternative means to communicate with inmates, such as sending other written materials, and that not all of PLN’s correspondence is outright censored.
The Rule applies to advertising content that meets a specific threshold, acknowledging the necessity of advertisements but asserting that the inability to print Prison Legal News (PLN) without them is not decisive. PLN has failed to demonstrate an inability to adopt advertising standards compliant with prison regulations. The third factor examines the impact on guards, inmates, and prison resources, indicating that accommodating PLN’s method of exercising its rights—through a publication with significant advertising—would adversely affect overall safety and liberty for both guards and inmates. The court defers to corrections officials, who assert that accommodation would diminish security. The final Turner factor evaluates the existence of "easy alternatives" to the regulation, which must not be seen as an inquiry into the least restrictive means. The court finds that no viable alternatives exist that would maintain prisoner rights while minimally impacting valid penological interests. Moreover, the FDOC's regulation, while not narrowly tailored to restrict only prominent advertisements, represents a less extreme response than outright censorship. The individualized assessment conducted by the regulation, determining whether a publication poses a threat to security or safety, is deemed appropriate. Although Florida’s unique stance on censoring PLN's advertisements raises concerns about the regulation being an exaggerated response, the FDOC is not obligated to adopt the least restrictive approach. Comparisons with other states, such as New York, which shifted to less restrictive measures, may be misleading due to differing operational constraints faced by FDOC.
Comparing state departments of corrections proves challenging due to insufficient evidence submitted by the parties. The vagueness of the Rule is particularly concerning, as trial witnesses failed to provide clear criteria for determining when advertisements are "prominent or prevalent." Different interpretations, such as the size and boldness of the font, highlighted this ambiguity, and there was no established cutoff for prevalence. Despite this, Florida Department of Corrections (FDOC) officials expressed confidence in their ability to assess prominence and prevalence. The decision-making process of the LRC is flawed, as it does not review entire publications, leading to potentially uninformed determinations regarding prevalence.
While there is no void-for-vagueness claim in this case, the lawsuit examines whether the FDOC has applied specific subsections to Prison Legal News in a manner aligned with legitimate penological interests. Courts have struggled to reconcile the general vagueness of regulations with the Turner analysis, which focuses on the legitimacy of prison regulations. Past cases indicate that challenges to prison regulations on vagueness grounds are infrequent, and some courts have ruled that First Amendment overbreadth claims do not apply independently in the prison context.
All Turner factors favor the FDOC, particularly as it opted for a less restrictive approach by permitting some advertising content rather than outright bans. The consistent rejection of the publication by the LRC, both initially and upon re-review, mitigates concerns regarding the intelligibility of the Rule. The Rule's application difficulties resemble those in Thornburgh v. Abbott, where vagueness did not hinder a favorable outcome for the government.
PLN has not demonstrated that the FDOC's censorship of Prison Legal News is unrelated to legitimate penological interests. The court evaluated whether the FDOC violated PLN's due process rights concerning the impoundment of various publications. Under Procunier, any censorship decision must include minimum procedural safeguards: notifying the inmate recipient, allowing the author to protest the decision, and referring complaints to a different official than the one who made the original decision. PLN contends that the review process violates these safeguards because only the institution that first impounds the publication is required to notify the publisher, while PLN argues that notice should be given every time a copy is impounded, regardless of prior decisions.
The FDOC argues that since all issues of Prison Legal News are identical, only one notice per issue is necessary. The court emphasized that due process requires the publisher to know the specific reasons for censorship, which is essential for a reasonable opportunity to protest. If a subsequent impoundment is based on a new reason, PLN must be informed. The FDOC's policy theoretically meets this requirement, as later institutions must inform inmates of the reasons for impoundment based on a centralized database. However, PLN has experienced confusion with receiving multiple impoundment notices for the same issue based on different grounds, which may occur when multiple institutions receive the same issue simultaneously and each acts as an initial impounding entity.
PLN is entitled to receive notice from the initial impounding institution, and subsequent institutions must refrain from establishing independent grounds for exclusion after the initial decision is communicated. However, there have been instances where the FDOC failed to notify PLN about impoundment decisions, leading to a situation where PLN only learned of rejections after the LRC had already reviewed the initial decisions. The FDOC argues it cannot be held liable for failing to send notices, characterizing the failure as mere negligence, citing relevant case law (Daniels v. Williams and Davidson v. Cannon) to assert that negligence does not implicate the Due Process Clause. PLN counters that the failure to provide notice itself constitutes a basis for liability, regardless of whether the failure was negligent. There is a division among circuits regarding whether the principles established in Daniels apply solely to substantive deprivations or also encompass procedural failures. The Sixth Circuit in Dale E. Frankfurth ruled that a negligent failure to provide notice does not constitute a Fourteenth Amendment deprivation, while the Third Circuit in Sourbeer v. Robinson distinguished between intentional and negligent failures to provide adequate process, asserting that cases of negligent failure to act do not meet the threshold for due process violations.
Holding that an injury from certain conduct constitutes a deprivation under the Fourteenth Amendment would undermine the foundational principle of due process. In this case, the intentional act of keeping Sour-beer in administrative custody resulted in a deprivation of liberty, negating the need for further findings regarding state of mind. There is no authority to suggest that an intentional deprivation, even if the failure to provide due process was without fault, does not violate due process. The court favors the reasoning of the Third Circuit regarding the relief sought, which is declaratory and injunctive in nature. While past failures may affect damage recovery against the government, injunctive relief hinges on an independent legal right being infringed, particularly concerning fundamental due process demands like notice.
The Florida Department of Corrections (FDOC) has failed to meet its constitutional obligation to provide notice, as evidenced by a 42% failure rate in notifying the Prison Legal News (PLN) about impoundments, indicating recklessness or gross negligence. This supports a due process violation claim. The systemic nature of these failures justifies the injunction sought by PLN, especially given that FDOC personnel neglected to notify PLN about the impoundment of the Prisoners’ Guerilla Handbook and related materials.
The FDOC argues that PLN waived its due process rights by ceasing to appeal impoundment decisions, reasoning that PLN believed further appeals were futile. However, this reasoning is flawed, as the reasons for impoundments can vary, and PLN's lack of appeal does not equate to a waiver of future appeals regarding different circumstances. The relevant administrative rule requires that each issue of a periodical be reviewed individually, indicating that past non-appeals do not eliminate the obligation to provide notice for future actions.
Past behavior does not predict future performance in the context of the Florida Department of Corrections (FDOC) and Prison Legal News (PLN), particularly due to changes in circumstances over time. The FDOC failed to adequately notify PLN regarding numerous impoundment decisions, leading to PLN's inability to appeal since it was unaware of the censorship issues, including the specific institution and grounds for censorship. Timely notice, which includes a clear basis for censorship, was often lacking in the impoundment notices presented at trial. Consequently, PLN did not waive its due process rights by not appealing.
PLN argues that the practice of the Legal Review Committee (LRC) affirming impoundment decisions on different or additional grounds than those provided by the initial institution contravenes the standards set by Procunier, which mandates certain procedural safeguards for censorship decisions. Specifically, Procunier requires that a different prison official review complaints about censorship, but PLN contends that the LRC effectively acts as the original decision-maker when it alters the grounds for censorship without external review. PLN believes that the rationale for censorship defines the original decision-maker, leading to a violation of due process when the LRC reviews its own decisions without an independent assessment.
The Supreme Court has affirmed that constitutional protections extend to inmates, emphasizing the importance of inmates understanding their rights, which PLN helps facilitate through its publications. However, the Constitution does not guarantee PLN unrestricted communication with inmates; such rights must be balanced against legitimate correctional interests. The FDOC mandates PLN to adhere to Rule 33-501.401(3), which restricts publications containing certain advertisements.
The Court determined that the Florida Department of Corrections (FDOC) censorship of Prison Legal News (PLN) under specific subsections of the Rule does not infringe upon PLN's First Amendment rights, as it relates to public safety and prison security. However, the FDOC's actions violate PLN's Fourteenth Amendment due process rights due to a lack of proper notification when impounding and rejecting PLN's communications. The Court issued several orders:
1. Judicial estoppel does not prevent the FDOC from its current litigation stance.
2. The FDOC's censorship under the specified Rule does not breach PLN’s First Amendment rights.
3. The FDOC's procedures for censorship infringe on PLN's due process rights.
4. The Clerk is instructed to enter judgment dismissing PLN’s First Amendment claim with prejudice while affirming the due process violation.
5. The FDOC is permanently enjoined from censoring PLN communications without due process, necessitating modifications in notification procedures, including:
- Immediate notification to PLN upon impounding a communication, detailing the specific rule violated.
- Subsequent impoundments do not require notification unless based on new reasons.
- The Literature Review Committee must inform PLN of final decisions on its communications, including reasons for such decisions.
- Similar notification rules apply for subsequent rejections of communications.
The Court retains jurisdiction to address costs and attorney's fees, and PLN has since rebranded as the Human Rights Defense Center.
PLN is the entity referenced in the order, with Julie L. Jones, the current Secretary of the Florida Department of Corrections (FDOC), as the sole remaining defendant. Two previous secretaries, Kenneth S. Tucker and Michael D. Crews, were involved earlier in the litigation. The Secretary manages the Florida prison system and enforces FDOC rules, policies, and administrative code provisions.
The order clarifies that the 2009 version of Rule 33-501.401, amended in 2010, retains prohibitions against advertisements for certain services and business conduct while incarcerated, which are categorized under subsections (3)(Z) and (3)(m). PLN's attempt to introduce a void-for-vagueness claim was denied due to a lack of good cause, and their motion to amend the complaint was also rejected as it was filed too late before the trial, which had been delayed.
PLN's claims included a First Amendment challenge to the censorship of its magazine and an argument that Rule 33-602.207, which restricts prisoners from outside business activities, infringed on its rights as a publisher, though this was ultimately rejected by the Eleventh Circuit. PLN had initially included a due process claim under the Fifth and Fourteenth Amendments but abandoned it before the bench trial.
The FDOC has frequently changed its interpretation of the Rule. In early 2003, the FDOC began impounding PLN’s magazine due to ads for three-way calling services, citing security risks. After briefly allowing some issues, the FDOC re-impounded the magazine before later approving its delivery again when security concerns were resolved.
The magazine originally titled "Prisoner’s Legal News" was renamed "Prison Legal News" in 1992 to broaden its audience. The Florida Department of Corrections (FDOC) contended that advertisements were unnecessary for the magazine's operation, a claim that was overwhelmingly contradicted by evidence indicating that advertisements were essential for its publication. The court determined that producing a Florida-only edition of the magazine would be financially unfeasible. Throughout the litigation, the FDOC maintained that the 2009 revisions to the publication guidelines were merely clarifications rather than substantive changes. However, trial witnesses disagreed on this point, and the FDOC's actions suggested increased censorship following the rule change. After the implementation of the 2009 amendment, all issues of Prison Legal News were rejected starting September 2009 without any significant content changes. The court indicated that the rise in advertising content prior to the rule change could explain the initial acceptance of the magazine, but ultimately concluded that the 2009 amendment was indeed substantive. Testimony from Susan Hughes, a committee chair, supported this view. The FDOC cited renewed security concerns as additional reasons for rejecting the magazine, along with new censorship guidelines regarding specific advertisements. There was evidence of rule violations among companies and prisoners related to exchanging stamps for services, contributing to the decision to amend the guidelines. Although the court noted the increasing advertising content since 2005, it accepted the publisher’s claim that they did not intend to expand this further. The court also mentioned that it did not find sufficient evidence to suggest that FDOC officials acted with malice when amending the rules in 2009.
The parties are in disagreement over who is responsible for making a copy for the publisher each time a Florida Department of Corrections (FDOC) facility confiscates a publication. The court finds that creating a copy for the publisher would impose only a minimal burden on the FDOC. Concerns about copyright infringement prevent the FDOC from copying entire publications. The court plans to address whether due process requires specific notice for each confiscated copy later.
The FDOC argues that judicial estoppel should not apply since it would undermine the state's interest in enforcing prison safety and public policy. However, the court determines it need not resolve this issue, as the overall circumstances do not support judicial estoppel, although security concerns are a significant reason.
The court also notes that vagueness in the rule contributes to inconsistent applications, and while PLN (Prison Legal News) has filed for a void-for-vagueness claim, the court treats it as separate from other claims. The discussion references relevant case law establishing due process rights for prisoners and publishers, indicating that a publisher's right does not depend on notifying the inmate. The FDOC appears to have withdrawn its reliance on the Mathews v. Eldridge framework, and even if it were applicable, it would require procedural safeguards that the court is establishing.
The court emphasizes that fundamental due process entails giving PLN adequate notice of the reasons for confiscation, which is vital for reducing wrongful deprivation risks. Evidence indicates that the costs of making additional copies are minimal, aiding the government's interest in ensuring due process and allowing PLN meaningful opportunities to contest confiscations, particularly important given the limited resources and legal access available to inmates.
