Ban on unsolicited magazines in Butte County jail OK, 9th Circuit rules

After nearly a decade of litigation, the 9th U.S. Circuit Court of Appeals has ruled that a county jail may ban unsolicited magazines sent to inmates, despite a publisher’s First Amendment challenge to the policy.

The court held Wednesday that Butte County had sufficiently shown that inmate abuse of excess paper materials was sufficient to justify the ban.

“Butte County Jail’s ban on unsolicited commercial mail is not an arbitrary form of volume control; it is a rational response to the fact that its inmates consistently misuse unsolicited paper in ways that threaten institutional security,” Judge Richard C. Tallman wrote for the unanimous majority. Crime & Justice America v. Honea, 2017 DJDAR 11258.

The county had told the court that inmates regularly use paper to cover windows, speakers and lights and to clog toilets, block vents, start fires and conceal contraband.

The case started in 2008 when the publisher of Crime & Justice America Inc., Ray Hrdlicka, sued the county for prohibiting him from mailing his magazine to randomly selected jail inmates.

In 2011, the 9th Circuit reversed a summary judgment in favor of the county, ruling questions of fact needed to be determined before deciding whether the ban squared with the First Amendment.

The 2011 decision garnered a dissent from Judge N. Randy Smith and went to en banc vote. Hrdlicka v. Reniff, 631 F.3d 1044, 1046 (9th Cir. 2011).

In the denial of rehearing en banc, Judge William A. Fletcher wrote that the magazine was “of unquestioned value to county jail inmates.”

The magazine contains articles about consulting attorneys and court appearances as well as ads for bail bondsmen. Throughout the case, the publication’s attorneys argued that making inmates aware of the magazine quickly was essential for it to be successful. And in 2011, Fletcher agreed.

“Because inmates are typically in county jail for relatively short periods, and because the value of CJA to inmates is greatest when they first arrive in the jail, it is unrealistic to insist, as a condition for applying the Turner test, that inmates have already subscribed to CJA,” he wrote in the en banc denial order.

But on Wednesday, the court said that electronic “kiosks” that had been introduced since the 2011 ruling were a sufficient alternative to print copies.

“With the kiosks in place, there are thirty-one locations throughout the jail where inmates could access an electronic version of the magazine, plus two portable kiosks,” Tallman wrote.

Notably, Fletcher sat on the panel that issued the Wednesday opinion and concurred in full with Tallman’s opinion.

The county introduced evidence of the kiosks when the case was remanded to U.S. District Judge Troy L. Nunley for trial. However, at the time, they were not operational.

While the case was under submission, the county moved to reopen the case to submit a declaration that the kiosks were fully operational. The magazine publisher objected, wanting more discovery on how the kiosks worked, but Nunley denied the objection and considered the county’s information. He ultimately ruled that the ban was constitutional.

Savannah R. Blackwell, an attorney who represented the magazine, said she was disappointed that the 9th Circuit didn’t address whether the kiosks would make inmates aware of the magazine’s existence.

“[I]n deciding whether a rational connection exists between banning unsolicited commercial mail and protecting security interests…, the decision completely ignores the fact that the 9th Circuit already determined that the magazine, featuring content specifically needed by pre-trial detainees, is of ‘unquestioned value’ to inmates and ‘of greatest use’ when they first arrive at the jail,” she said in an email. “No evidence was presented at trial undercutting that determination.”

The magazine’s attorneys had argued on appeal that the admission of the post-trial update concerning the functionality of the kiosks was improper. Tallman said in the opinion that the magazine had “abandoned” the argument because it had not explained why it objected to the declaration.

John R. Whitefleet, a shareholder at Porter Scott APC who represented the county, did not respond to a request for comment.

U.S. District Judge Kenneth M. Hoyt, visiting from the Southern District of Texas, joined Tallman’s opinion.