(CN) – For the fifth time in just over a decade the 9th Circuit on Monday questioned the constitutionality of policies that restrict access to publications in prisons and jails, renewing a publisher’s hopes of distributing a free magazine to inmates at two county jails in California.
The San Francisco-based federal appeals panel reversed a District Court’s granting of summary judgment to the sheriffs of Sacramento County and Butte County in two separate lawsuits where the officials had barred publisher Ray Hrdlicka from distributing unsolicited copies of his publication, Crime, Justice & America (CJA), in their jails.
Hrdlicka has published the weekly magazine since 2002, reaching jails in 60 counties (32 of which are in California) and 13 states. The magazine’s advertising and editorial content is aimed at inmates, especially those seeking bail bonds and legal assistance, according to the ruling. Depending on the policies at each corrections facility, the magazine is distributed free to a jail’s general population or mailed to specific inmates.
The sheriffs had argued that valid “penological interests” – including security – were served in banning the magazine’s distribution, and the two federal judges from California’s Eastern District agreed with them. The three-judge appeals panel, however, was unconvinced.
In its fifth ruling since 1999 in favor of prisoners’ right to receive publications, the circuit found that the sheriffs had shown only “weak, and to some degree contradictory” evidence that the bans served any such interest.
Particularly damning to the sheriffs’ defense, the panel found, was the testimony of Sacramento County Jail employees that both the Sacramento Bee and USA Today had at various times been distributed to the general population of the jail in an unsolicited fashion similar to that which Hrdlicka requested.
“There is a marked contrast between defendants’ strong general statements about the ways the ban on unsolicited copies of CJA serves their penological purposes, on the one hand, and the weak, and to some degree contradictory, specific evidence they offer to support those statements, on the other,” Judge William A. Fletcher wrote for the panel. “Further, defendants have not demonstrated that they cannot work with CJA to establish distribution schedules that minimize the drain on jail resources.”
The 9th Circuit in recent years has struck down unconstitutional prison polices that restrict the distribution of gift and solicited publications, and a ban on bulk-rate mail that kept prisoners from receiving nonprofit publications. The circuit has also ruled against bans on distributing “prepaid, for-profit, subscription publications” in prisons, and on policies against distributing “non-subscription bulk mail,” according to the ruling.
Writing in dissent, Judge N. Randy Smith argued that, instead of merely ensuring First Amendment protections, the majority’s decision amounts to a “special right” that could be taken too far.
“There is no precedent suggesting that the First Amendment guarantees Hrdlicka the special right to sue any sheriff who refuses to be a de facto distribution arm of the CJA,” he wrote. “No party disputes that we have no request on a part of any prisoner to receive the CJA. Prisoners’ First Amendment rights are not implicated in any way. Instead, Hrdlicka is asking the court to create a special rule, under the First Amendment, protecting his chosen method of distributing CJA to inmates.”