Inmates deserve access to prisoner magazine

Friday, September 2, 2011

The distribution — or denial of distribution — of Ray Hrdlicka’s magazine Crime, Justice & America in California jails has caused quite a split in the 9th U.S. Circuit Court of Appeals.

Hrdlicka sued a couple of California jails in Sacramento and Butte Counties after they refused to deliver unsolicited copies of the magazine to inmates. Prison officials contended that the increased amount of paper increased the likelihood of fires, clogged toilets and other safety and maintenance concerns.

After federal district courts ruled in favor of the jails, Hrdlicka appealed. In February, a divided three-judge panel reinstated the lawsuit, finding that Hrdlicka had a First Amendment interest in distributing the publication to inmates. The panel majority also reasoned that prisoners have a First Amendment right to receive information and ideas.

The jails petitioned for en banc, or full panel, review. Yesterday the majority of the 9th Circuit refused to review the panel decision in its ruling in Hrdlicka v. Reniff. That means Hrdlicka’s lawsuit can proceed. However, eight judges dissented, voting to hear the case. Writing for the eight, Judge Diarmuid O’Scannlain used strong language to explain why he thought the full court should have accepted review.

O’Scannlain said that the “majority’s opinion is completely untethered from Supreme Court precedent and is in considerable tension with our own caselaw.” He questioned the panel majority’s application of the usual standard for evaluating restrictions on prisoner First Amendment rights in Turner v. Safley (1987). In Safley, the U.S. Supreme Court ruled that prison officials do not violate inmates’ constitutional rights if their reasons for a speech-related restriction are “reasonably related to legitimate penological concerns” — such as safety or rehabilitation.

The Safley tests require courts to consider four factors: (1) whether the regulation is rationally related to a legitimate and neutral government interest; (2) whether there are alternative avenues for exercising the right; (3) whether accommodating the First Amendment right will affect prison resources; and (4) whether alternatives to the regulation show that the prison’s restriction was an exaggerated response.

In his opinion for the panel majority, Judge William Fletcher concluded that the absolute ban on the distribution of Crime, Justice & America was an exaggerated response not rationally related to a legitimate and neutral government interest.

O’Scannlain — like Judge N.R. Smith, who dissented in the original three-judge panel decision — said the majority got it wrong by applying Turner v. Safley to a First Amendment claim by a publisher, not by inmates.

He concluded that “assuming Hrdlicka has an independent First Amendment interest involved in this case, that interest does not extend to commandeering public facilities for his personal gain.”  O’Scannlain several times disparages Crime, Justice & America as “unsolicited junk mail.”

The reality is that this so-called junk mail offers valuable information to people in jail. Judges Stephen Reinhardt and William Fletcher, the two in the panel majority, wrote a special concurring opinion supporting yesterday’s denial of full-panel review. They pointed out that Crime, Justice & America “is of unquestioned value to county jail inmates.” The publication tells inmates how the criminal-justice system works, describing court procedures, bail bonding and parole. It helps new convicts prepare for prison life. And it reports stories of rehabilitation. Obviously such a magazine can be of intense interest to many prisoners.

In yesterday’s dissent, Reinhardt and Fletcher restated language from Fletcher’s majority opinion in February: “The fact that in this case the publication was unsolicited may, of course, be taken into account in applying the Turner test. But the fact that the publication was unsolicited does not make the Turner test inapplicable.”

O’Scannlain’s opinion shows a glaring lack of concern for inmate rights and ignores their right to receive information and ideas.

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