REDWOOD CITY, Calif. (CN) — A California county’s ban on physical mail in jails faces multiple challenges from incarcerated people and First Amendment attorneys, including claims that it violates the First Amendment rights of incarcerated people.
In San Mateo Superior Court on Monday, Superior Court Judge V. Raymond Swope heard only arguments on the claim of First Amendment rights, facing a motion for judgment on all pleadings in a case brought by some members of the county’s incarcerated community.
The plaintiffs sued San Mateo County and its sheriff in 2021for banning them from receiving physical mail aside from attorney communications. They say the policy — which requires digitizing mail while destroying original copies and forces viewing on shared tablets, with additional scanning or destruction by a private company — is unconstitutional. Mail senders must route their letters to Florida-based company Smart Communications, whose database allows any county employee to access all digital copies of mail which people receive.
The judge allowed only discussion of the First Amendment challenge in court Monday, due to time constraints.
Scott Wilkens, senior counsel at the Knight First Amendment Institute and representative for the plaintiffs, opposed the judge’s statement in a recent tentative ruling that incarcerated plaintiffs lack standing for this claim. He said that inadequate technology and access to it absolutely limits people’s rights in jail to both speak and receive speech or information.
“The mail policy also affects their ability to engage in religious practice,” he said, adding that other plaintiffs reported that the ban impacted their ability to properly participate in correspondence courses they are enrolled in.
The county’s attorney Chad Deveaux said that the county's main concerns about receiving mail include the concerns of contamination of physical mail with fentanyl, a highly addictive synthetic opioid which he claimed could affect anyone who handles it.
“Fentanyl can come in anywhere — it can even be in this paper,” Deveaux said, holding up a piece of paper. “It could be, and none of us here would know. We all know here in the Bay it’s everywhere.”
He repeated several claims about fentanyl in paper being able to affect or harm people who touch it casually, a theory that has been disputed by scientists. UC Davis Health reported in a 2022 article that according to the university's Department of Emergency Medicine co-director Daniel Colby, fentanyl cannot cause an overdose through casual skin exposure to it on paper.
Wilkens disagreed with the defense's phrasing of claims about fentanyl on mail items, and the basis that any concern about fentanyl exposure is enough to override basic constitutional rights.
“Does that usurp the protection of all incarcerated people and jail staff from fentanyl?” the judge asked him.
Wilken said the need for discovery to demonstrate facts of the case is necessary, including to establish if fentanyl was the leading reason for the county’s enacting such the physical mail ban.
Swope did not indicate how he may rule. The parties must return to court to complete arguments for judgment on all other claims Jan. 31.
Plaintiffs A.B.O. Comix — a collective of artists working with incarcerated LGBTQ people — alongside Kenneth Roberts, Zachary Greenberg, Ruben Gonzalez-Magallanes, Domingo Aguilar, Kevin Prasad, Malti Prasad and Wumi Oladipo are represented by the Electronic Frontier Foundation and seek declaratory and injunctive relief. They say San Mateo County’s policy violates the expressive, associational, privacy and religious rights of people in jails and those who send them mail meant to be read or responded to in private.
“Banning physical mail deprives incarcerated people and their communities of a uniquely expressive form of communication. Physical mail allows people to express themselves in ways that may feel too personal or sensitive for other modes of communication; it encourages deeper connection by giving correspondents the space to read and reflect before responding; and it evokes stronger and more lasting emotional meaning than digital correspondence,” the plaintiffs say in their complaint.
The policy also subjects both the senders and recipients of mail to increased surveillance by San Mateo County, they say, including investigators in the sheriff’s office and district attorney’s office who can read mail without notice or suspicion of wrongdoing.
The plaintiffs want the court to declare the policy is in violation of the First and Fourth Amendments and sections of the California Constitution and the Religious Land Use and Institutionalized Persons Act. They want the county enjoined from digitizing and destroying or denying incarcerated people access to physical mail, and from retaining digital copies of incoming physical mail without reasonable suspicion of wrongdoing. They also demand that the county provide all people incarcerated in local jails with physical copies of all digitized mail and prevent county employees from getting access to mail and other information collected through MailGuard.
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