Prison Magazine Appeals Ban to 11th Circuit

(CN) - Prison Legal News asked the 11th Circuit to revive its challenge to a ban on its magazine from Florida jails and prisons.

Prison Legal News, a monthly publication of the Human Rights Defense Center, is written by and for prisoners. The muckraking 72-page magazine features articles about abuses inside prisons and jails, and has been banned from jails and prisons across the country. It has challenged the bans repeatedly in court, often successfully.

On Monday Prison Legal News filed an appeal at the 11th Circuit, asking the Atlanta-based court to review its claim that the Florida Department of Corrections violates the First Amendment by barring its distribution to state prison inmates.

It claims Florida's stated reason for barring the magazine is its ads for pen-pal services, three-way calling and postage stamps: items Florida calls "objectionable" enough to ban the entire magazine though the ads make up less than 10 percent of its content.

The group says the Florida prisons' "wildly exaggerated" response to its ads came three years after Prison Legal News thought the issue had been settled. It sued Florida after the state prisons began censoring the journal in 2003.

That case was dismissed when the FDOC amended its policy in 2006 to state that the magazine "would not be rejected for advertising content so long as those ads are merely incidental to, rather than being the focus of, the publication."

But in 2009 Florida "abruptly changed course" and began prohibiting the magazine again, according to the appeal.

Prison Legal News calls Florida a "national outlier" - the only prisons that confiscate the magazine sight unseen and refuse to deliver it to subscribers, allegedly because of its advertisements.

"There is simply no logical fit between the FDOC's renewed censorial zeal and the current evidence that would justify its alone-in-the-nation censorship of a publication uniquely focused on the plights and rights of prisoners," Prison Legal News said in the appeal.

It says it needs the paid ads to support its constitutionally protected speech, which includes "news and analysis of legal developments primarily affecting incarcerated people ... as well as political commentary largely critical of the prison system."

"Through its publications, PLN teaches inmates their rights and informs them of unconstitutional prison practices. With this knowledge inmates become another check to government encroachment on constitutional rights," according to its 82-page appeal.

The state censorship has driven down its circulation in Florida from 300 in 2009, when the ban began, to "60 or 70 at the time of trial," according to the appeal. The nonprofit says cannot afford to publish a Florida-only edition of the magazine.

A federal court in Tallahassee ruled for the state in October, finding that the prisons' "expansive censorship of PLN was logically connected to its security concerns," based on fears that ads for three-way calling services could allow prisoners to mask "the true identity and location of a call recipient."

But the court found that the FDOC had violated due process in censoring the journal. Corrections officials "failed to provide adequate notice" that the magazine was being pulled "a shocking 87 percent of the time" it was mailed to state prisons, and the notice they did provide was "often insufficient to explain the basis for impoundment," PLN said in the appeal.

It asked the 11th Circuit to reverse the denial of its First Amendment claim, and to "expand its due process ruling" by providing notice of each prisoner who is barred from reading the magazine.

Former U.S. Solicitor General Paul Clement, with Bancroft PLLC of Washington, D.C., filed the appeal, with assistance from Human Rights Defense Center attorneys in Lake Worth, Fla., the Florida Justice Institute and the ACLU, both of Miami.

The Florida Department of Corrections declined to comment.

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