Civil Detainee’s Free Speech Case Revived

     (CN) – Reviving a challenge to a newsletter ban, the 11th Circuit found that a civil detainee in a facility for violent sexual predators is not subject to the same restrictions as a prison inmate.
     James Pesci is a detainee at the Florida Civil Commitment Center (FCCC), where he and 600 others are committed under the Involuntary Civil Commitment of Sexually Violent Predators Act.
     The residents of the FCCC are not prisoners, having already fulfilled their terms of incarceration, but civil detainees.
     For years, Pesci has published a newsletter both in print and online called Duck Soup that is highly critical of the center and its policies.
     The newsletter described the state contractor that runs the facility, GEO Group, as a “white collared [sic], criminal enterprise,” and said that FCCC residents were “cowards” for not collectively protesting the facility’s treatment programs.
     Pesci also personally attacked staff members by name – accusing one lieutenant of liking to watch residents shower, facility director Timothy Budz of using illegal drugs, and a medical staff member of causing a resident’s death.
     To limit Duck Soup circulation, director Budz forbade residents in 2009 from copying the newsletter, which he claimed disrupted order at the FCCC and adversely affected its mission of rehabilitating the residents.
     Pesci sued Budz pro se for violating his First Amendment rights, leading Budz to implement an even stricter rule, declaring Duck Soup “contraband,” and prohibiting its possession or distribution.
     A federal judge ruled against Pesci as to the 2009 policy, but did not discuss the revised policy, even though it was implemented before the director won summary judgment.
     The 11th Circuit vacated and remanded the case Monday, finding that the lower court should have discussed the revised policy since it was clearly before the court when it made its ruling.
     “As we see it, it makes far more sense to consider the second policy along with the first,” Judge Stanley Marcus wrote for a three-member panel. “The new policy replaced in toto the 2009 policy, rendering moot any discussion about whether injunctive relief could lie against the first policy. Second, it banned outright all possession and distribution of the newsletter as opposed to simply limiting the means of its propagation. Third, the record is largely undeveloped and Pesci, although now counseled, was proceeding pro se throughout the summary judgment proceedings.”
     Furthermore, the District Court applied the legal standard found in the Supreme Court’s opinion in Turner v. Safley, which states that a prison regulation is valid if it is “reasonably related to legitimate penological interests.”
     Pesci correctly notes, however, that he is not a prison inmate, but a civil detainee.
     “The standard must be modified to reflect the salient differences between civil detention and criminal incarceration,” the 21-page opinion states. “The government’s interests in retribution and general deterrence – plainly legitimate justifications for prison regulations – decidedly are not a proper foundation for the restriction of civil detainees’ constitutional rights.” (Emphasis in original.)
     At the same time, as in Turner, the facility’s staff is best equipped to make difficult decisions in order to serve its rehabilitative purpose and should be given deference, the judge found.
     However, “deference to the professional judgment of the facility administration is not tantamount to carte blanche permission to deny the fundamental rights of free speech and free expression,” Marcus wrote. “Care must be exercised to examine each claim individually and particularly.”

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