February 12, 2018
Florida Department of Corrections
Office of the Secretary
501 South Calhoun Street
Tallahassee, FL 32399-2500
Re: Appeal of Censorship of Publication
Under Lock & Key Issue 59
To Whom It May Concern:
We are in receipt of a Rejection Notice (notice) for the above referenced issue of Under Lock & Key (ULK) addressed to the above referenced prisoners. The notice states that the publication is being rejected based on “stamp program advertisement.” The censorship form on its face is clear that no violation of prison policy has occurred, and the censorship is without merit.
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 2 of ULK:
“If you can afford to send donations, and if your facility rules allow, sending us stamps is the best way to donate.”
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.
It is clear the F.A.C. rule cited only applies to the purchase of goods and services. The language in ULK on page 2 clearly requests a “donation”, not a purchase of any product and only seeks such a donation if such donation is allowed by facility rules.
Further, the F.A.C. cited requires the advertisement to be the focus of the publication and/or prominent or prevalent throughout the publication. The request for donation, if facility rules allow, is the total of twenty-two (22) words in 24 pages of writing consisting of approximately 32,750 words. Clearly it is neither the focus of nor prevalent. It also is not a prominent feature of the publication as it is on page 2 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.
There is also no reference to any content which would “otherwise presents a threat to the security, order or rehabilitative objectives of the correctional system or the safety of any person.” The publication contains no such content.
The censorship of ULK, 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.
As such, we object to the censorship on the grounds it does not violate FLDOC policy. We demand ULK be delivered forthwith to the prisoners it was addressed.
Please govern yourself accordingly.
Sincerely,
MIM Distributors
