Last year, on December 22, a three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit affirmed a federal district court’s grant of summary judgment in a case involving prisoners’ First Amendment and due process rights. In this column, I’ll argue that the court made the wrong call.
The First Amendment standard for rules that apply to prisoners is lower than the standard for rules that apply to others: It requires only that a challenged policy must bear a rational relationship to a legitimate penological interest.
Yet there was a strong argument, here, that the Florida Department of Corrections (FDOC) policy at issue failed to meet even that low bar.
The Plaintiff, the Services, and the Rule at Issue
The rule at issue was the FDOC’s Pen Pal Solicitation Rule—which prohibits inmates from placing advertisements for pen-pals.
The plaintiff in the case was Joy Perry, who operates two pen-pal services, Freedom in Christ Prison Ministry and Prison Pen Pals, and the website WriteAPrisoner.com (“WAP”). (WAP also, laudably, provides inmates with educational materials and an online resume-posting service, and offers scholarships to the children of inmates and of crime victims.)
The two pen-pal services connect prisoners with those who would like to correspond with them, by sending out lists of prisoners to interested persons on the outside, and vice-versa. Their services are provided free of charge. WAP charges $40 per year to inmates who seek to post advertisements for pen-pals on its website.
But now, under the Pen Pal Solicitation Rule, Florida inmates cannot avail themselves of these services.
The Claimed Reasons for the Pen Pal Solicitation Rule
Strikingly, FDOC did not cite a single case of a Florida prisoner’s pen-pal solicitation going wrong, or doing harm, in any way. It cited concerns about fraud, but apparently could not cite a single case of pen-pal-related inmate fraud that had occurred in Florida.
Instead, FDOC relied upon a former FDOC employee’s testimony, and upon what the court called “anecdotal evidence from newspaper reports around the country.”
In practically any other legal context, this paltry showing would not be enough. Only the low bar that the “rational relationship” test, cited above, sets could possibly have led to FDOC’s win on the First Amendment issue.
There was also a due process issue raised here: After the policy was put in place, all Perry’s organizations’ correspondence to inmates was returned to sender – whether or not it constituted pen-pal solicitation. Thus, those organizations’ other good works were impeded.
Meanwhile, another organization, Christian Pen Pals, was allowed to offer FDOC prisoners one-to-one pen-pal matching, on the dubious ground that that did not count as a kind of pen-pal solicitation. The claim was that one-to-one matching, as opposed to the circulation of a list containing a number of persons’ contact information, decreases the risk of fraud.
Here, too, however, it seems that FDOC did not cite any actual fraud that had occurred. And here, too, in any other legal context, that lack of evidence would have crippled FDOC’s argument.
In Theory, Prisoners Have First Amendment Rights, but a Watered-Down Test Means That, in Practice, They May Not
In reaching its result, the Eleventh Circuit panel cited a spate of Supreme Court cases that affirm that prisoners have First Amendment rights, and so do those persons who seek to correspond with them. Even advertising brochures sent to prisoners, the panel noted, may fall under this rule.
But the panel also cited cases constricting prisoners’ First Amendment rights. Such cases upheld, for instance, a ban on hardback books (with an exception for books from certain trusted sources) because they might contain contraband.
The panel focused especially on the seminal 1987 case of Turner v. Safley. There, the Supreme Court set forth the “reasonable relationship to legitimate penological interests” test that I cited above.
It also set forth the following four factors, to aid courts in applying that test: (1) whether there is “a valid, rational connection between the regulation and the prison’s legitimate governmental interest;” (2) “whether there are alternative means of exercising the right;” (3) “the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources;” and (4) “the existence of obvious, easy alternatives [, which] may be evidence that the regulation is not reasonable, but is an exaggerated response to prison concerns.”
The Application of the Supreme Court’s Turner Test in This Case
Regarding the first factor of the Turner test, the Eleventh Circuit panel held that a rational connection was proven by an expert affidavit claiming that when prisoners’ pen-pals are acquired via personal associates, not pen-pal companies, the chance of the prisoner’s defrauding the pen-pal is lower.
That’s common sense—in that people are less likely to defraud a stranger than a friend (or a friend of a friend). But given that FDOC could not come up with a single actual case of pen-pal fraud in its own long history, the question of which set of persons is more likely to be defrauded than the other seems somewhat academic.
Surely the Ninth Circuit—which resolved a parallel case that this Eleventh Circuit opinion cites—was right to require actual evidence of fraud in this context, not just a prison official’s self-interested guess as to what kind of fraud is more likely.
Moving on the second factor of the Turner test, the Eleventh Circuit panel concluded that there were, indeed, alternative avenues through which the inmates could exercise their First Amendment rights. But the panel’s logic, here, was faulty.
Essentially, the panel saw the core right here as the right to correspond, not the right to solicit correspondence. But that can’t be correct: The very gist of this case is the right of the inmate to solicit—including by posting his own advertisements.
Thus, even if the plaintiffs – the two pen-pal organizations and WAP—were to offer one-to-one pen-pal matching, as the Eleventh Circuit panel suggests that they could, the inmates themselves would still have their First Amendment rights separately compromised by the prison policy against solicitation. And so, arguably, would the organizations working with the inmates to enable them to vindicate those rights.
Regarding the third factor of the Turner test—the impact on guards, inmates, and prison resources—the Eleventh Circuit panel found a significant impact, due to anticipated bulk mail resulting from prisoner solicitation of pen-pals. According to prison officials, that additional mail would need to be sorted through with an eye to fraud, thus consuming resources and diverting staff.
But given FDOC’s inability to cite even one specific case of past pen-pal fraud in its prisons, wouldn’t it be tremendously wasteful to initiate broad screening for such fraud? The screening would be like looking for a needle in a haystack—a haystack where no other needles had been found.
Surely, it would be easier for the prison, instead, to take other measures. For instance, it could request—or perhaps even require, though that would raise other First Amendment questions—that the two pen-pal services and WAP warn those who seek to write to inmates, as a result of reading their pen-pal solicitations, to be wary of certain kinds of offers and requests that inmates might make, and that should be refused.
Pen-pal arrangements can provide prisoners with vital hope and a precious connection to the outside world; they may also pose some dangers, but those dangers can be warned against. Wouldn’t it have made more sense for FDOC to try to work with the pen-pal services and WAP, rather than cracking down on them? A regulation requiring that disclosures be made by the services, and by WAP, of the risks of corresponding with inmates would be far less burdensome, from a free-speech standpoint, than a blanket ban on pen-pal solicitation by inmates.
Finally, in considering the fourth factor of Turner’s test, the Eleventh Circuit panel looked to alternative means to prevent pen-pal scams that would impose a lesser burden on First Amendment rights. Here, too, the panel mentions the one-to-one matching pen-pal services, and an alternative that would have the two pen-pal service plaintiffs and WAP switch to one-to-one matching. But again, here, the right is the right to solicit, not just the right to correspond. Thus, this purported solution actually is no solution at all, from a First Amendment perspective.
In sum, the Eleventh Circuit should have required at least some evidence of actual fraud before instituting its harsh anti-solicitation rule. The Ninth Circuit was wise not to simply believe the vouching of prison officials in this context; the Eleventh Circuit should have done the same.