5th Circuit upholds prison book censorship in Texas

Thursday, June 7, 2012

The Texas Department of Criminal Justice did not violate the First Amendment when it rejected five books that Prison Legal News sought to distribute to various inmates throughout the state, a federal appeals court has ruled.

The ruling by the 5th U.S. Circuit Court of Appeals shows excessive judicial deference to prison administrators and fails to recognize the irrationality of the censorship decisions.

Under Texas prison policy — which PLN agreed was on its face constitutional — mailroom employees check incoming books against a database of 94,000 approved and unapproved books. If a book is not in the database, the employees apply the policy, which requires rejection of books that contain contraband, teach how to make explosives, include material designed to incite disorder or riots, encourage deviant sexual behavior, explain how to set up criminal operations, promote racial discord or present sexually explicit images.

Applying this standard, mailroom employees censored the following five books that PLN sought to distribute at various times:

  • Prison Masculinities (2001)
  • The Perpetual Prison Machine: How America Profits from Crime (1999)
  • Lockdown America: Police and Prisons in the Age of Crisis (2000)
  • Soledad Brother: The Prison Letters of George Jackson (1970)
  • Women Behind Bars: The Crisis of Women in the U.S. Prison System (2007)

Mailrooms in various state prisons determined that all five books either contained racial material or material that might encourage deviant sexual behavior. One mailroom denied Prison Masculinities because it describes rape in prison and includes racial material. Another rejected The Perpetual Prison Machine, claiming it would lead to deviant sexual behavior. Lockdown America was denied because of racial material. Similarly, Soledad Brother was denied because an employee noticed that the terms “whitey” and “honky” appeared. Women Behind Bars was blocked because an employee found that it might encourage deviant sexual behavior. Later, prison officials allowed this last book into the prison.

PLN sued, contending that the denial of access to these books violated the First Amendment. However, a federal district court judge granted summary judgment to the prison officials in January 2011. PLN appealed to the 5th Circuit, a three-judge panel of which affirmed the lower court in June 1 in Prison Legal News v. Livingston.

Judge Edith Brown Clement wrote the panel’s opinion and applied a legal test from the U.S. Supreme Court ruling in Turner v. Safley (1987) — whether the prison regulation is reasonably related to legitimate penological interests such as safety or rehabilitation. The opinion examined each book and determined that the prison officials’ actions were not irrational.

The Texas Department of Criminal Justice conceded — and the 5th Circuit recognized — that application of the policy led to inconsistent results, as different employees applied the policy differently. But Clement reasoned that “the types of subjective assessments” that lead to these inconsistent results “usually fall within prison administrators’ discretion.”

Clement wrote that “PLN’s individualized challenges must be viewed in the context of TDCJ’s broader book-review scheme, which certainly bears a reasonable relationship to valid penological objectives.” She added that “deference must be at its zenith in the context of challenges to individualized decisions implementing a facially constitutional policy.”

Prison officials have a difficult job and are entitled to deference. But when an organization such as PLN presents evidence that books with valuable information for prisoners are being unnecessarily censored, then a court may be the only institution that can keep such denials in check.

Judge Clement says “deference must be at its zenith.” But it should not be absolute.

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