Tracking Prison Censorship in the United States

April 16, 2018

Florida Department of Corrections
Office of the Secretary
501 South Calhoun Street
Tallahassee, FL 32399-2500

Re: Appeal of Censorship of Publication
Introductory Study Group Invitation (December 2017)


To Whom It May Concern:

We are in receipt of a Rejection Notice (notice) for the above referenced issue of Introductory Study Group Invitation (hereinafter, “Invitation”) addressed to the above referenced prisoner. The notice states that the publication is being rejected because it “[c]ontains prominent or prevalent advertising for three-way calling services, pen pal services, or the purchase of products or services with postage stamps.” The censorship form on its face is clear that no violation of prison policy has occurred, and the censorship is without merit. The Invitation contains no advertisements and make one reference to supporting the study guide by make a voluntary payment of $10. The Invitation further states “If your facility rules allow you to send stamps…” (emphasis added). No demand is made for payment, in fact the next paragraph provides information to receive the study materials without payment.

Due process requires adequate notice of the reasons for censorship. Instructive is the District Court’s reasoning set forth in Prison Legal News v. Jones, “Procunier demands that the publisher "be given a reasonable opportunity to protest" the censorship. Id. at 418. For an opportunity to be reasonable, the publisher must know of the grounds upon which the publication has been censored. See Henry J. Friendly, "Some Kind of Hearing", 123 U. Pa. L. Rev. 1267, 1280 (1975) (explaining that it is "fundamental" to due process that "notice be given . . . that . . . clearly inform[s] the individual of the proposed action and the grounds for it"). This knowledge component of due process does not turn on whether the publication is the first copy or a subsequent copy. What matters is the basis for censorship. If a subsequent impoundment decision is based on a different reason not previously shared with [the publisher or distributor], due process requires that [the publisher or distributor] be told of this new reason.” 126 F. Supp. 3d 1233, 1258 (N.D. Fla. 2015).

The “stamp program” referenced includes the following language in its entirety on page 1 of the Invitation:

“We work to make our study groups as self-sufficient as possible. To do this we are asking you to pay for the materials that we will be reading. The minimum cost of this two level intro study course is $10 for the reading and postage. If your facility rules allow you to send stamps, that is best. If you can only send a check or money order, let us know and we will send you further instructions for how to do that.

If you cannot afford to pay by money or stamps, we certainly won’t leave you out...”

F.A.C. 33-501.401 (l) states (emphasis added):

(l) It contains an advertisement promoting any of the following where the advertisement is the focus of, rather than being incidental to, the publication or the advertising is prominent or prevalent throughout the publication.
1. Three-way calling services;
2. Pen pal services;
3. The purchase of products or services with postage stamps; or
4. Conducting a business or profession while incarcerated.
(m) It otherwise presents a threat to the security, order or rehabilitative objectives of the correctional system or the safety of any person.

Further, the F.A.C. cited requires the advertisement to be the focus of the publication and/or prominent or prevalent throughout the publication. Clearly it is neither the focus of nor prevalent. It also is not a prominent feature of the publication as it is on page 1 in normal font within the body of a paragraph.

It is clear the censorship based on a “stamp program” is arbitrary and capricious. It is also a clear misapplication of the Florida Administrative Code on its face.

The censorship of the Invitation, based on the reasons set forth in the Notice, constitute a clear violation of our Constitutional rights. These reasons are clearly not applicable under any reasoned interpretation of the Code and cannot have been made in a good faith reliance on any such application.

I also bring to your attention a recent decision by the FLDOC which clearly indicates such a statement is not a violation of the “stamp policy” and reversed a previous censorship decision as noted in a letter dated February 26, 2018. It is clear the person reviewing the Invitation does not have sufficient training or knowledge of the FLDOC policies. This letter serves to again put you on notice of such violations by FLDOC employees. A failure to address such employee malfeasance may subject you to any and all legal remedies at our disposal.

As such, we object to the censorship on the grounds it does not violate FLDOC policy. We demand the Invitation be delivered forthwith to the prisoner to whom it was addressed.

Please govern yourself accordingly.


Sincerely,

MIM Distributors