Advertisers often gets a bad rap for making print and online newspapers a mess to read. However, for seventy inmates in Florida's prison system, prison officials have refused to deliver the monthly Prison Legal News publications to the inmate subscribers because of the ads in the paper.
Surprisingly, the Eleventh Circuit Court of Appeals has sided with Florida's prison officials in ruling that denying the paper to the inmates is not a First Amendment violation. However, because the Florida prisons failed to provide a sufficient notice to the publisher, as required by their own rules, both the district and circuit courts found that the publisher's due process rights were violated.
When Ads Tempt Bad
The ads that the prison and courts found to be too risky to allow inmates access to included solicitations for three-way calling services, pen-pal services, cash-for-stamps services, and other types of advertising geared towards helping inmates engage the outside world. Despite what First Amendment advocates had to say, the appellate court would not be persuaded, particularly as the publisher and amici were pushing for the court to not grant prison officials deference in their decision-making process regarding inmate reading material.
Interestingly, the appellate opinion, which opens with a nod to Oscar Wilde, is chock-full of colorful language to support the rejection of the First Amendment challenge:
"The Beard decision confirms that whatever the Supreme Court has done in other First Amendment cases, it has not adopted a damn-the-deference, full-speed-ahead approach to First Amendment rights within prison walls...
"Last and most definitely least, PLN proposes that the Department follow New York's lead and simply attach to each issue of Prison Legal News a flyer reminding inmates not to use the prohibited services. Really? If all New York has to do to prevent inmate misconduct and crime is gently remind them not to misbehave, one wonders why that state's prisons have fences and walls. Why not simply post signs reminding inmates not to escape? If New York wants to engage in a fantasy about convicted criminals behaving like model citizens while serving out their sentences, it is free to do so, but the Constitution does not require Florida to join New York in la-la-land."
There's a Process
Not to be accused of only using heavy handed language when ruling against the publisher, the appellate court did not hold back in taking the state secretary to task:
"This is not a case of one or two notice letters lost in the mail or mailroom. PLN did not receive notice forms for 42% of the impounded issues, and many forms it received for other issues were defective. PLN's effort to enjoin the ongoing violation of its right to due process is appropriate, and it seeks only prospective relief against the Department ... The Secretary should not protest too loudly an order to enforce a rule she is statutorily required to enforce."