Tracking Prison Censorship in the United States

August 28, 2017

Wisconsin Department of Corrections
Office of the Secretary
3099 E. Washington Ave.
Madison, WI 53704

Re: Appeal of Censorship of Publication
Under Lock & Key

To Whom It May Concern:

We are in receipt of your correspondence dated July 29, 2017 relating to publisher notification of censorship (hereinafter, “Notice”) related to the above referenced publication, Under Lock & Key (hereinafter, “ULK”) sent to XXXX. We are the publisher of ULK.

As the publisher, we have a First Amendment right to correspond with prisoners, including through publications such as Under Lock & Key. See Thornburgh v. Abbott, 490 U.S. 401, 407-08 (1989). The publisher also has a due process right to adequate notice of censorship. See Lane v. Lombardi, 2:12-cv-4219 (W.D. Mo. Nov. 15, 2012).

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 PLN, due process requires that PLN be told of this new reason.” 126 F. Supp. 3d 1233, 1258 (N.D. Fla. 2015) (emphasis added).

WIDOC Directive 309.05 is unconstitutional on its face and as-applied. Directive 309.05 (c) clearly states “[t]he inmate may appeal the decision to the warden within 10 days of the decision.” No such provision is included for the publisher to appeal the censorship.

The notice is also vague as it provides inadequate notice in order to justify any censorship other than a boilerplate recitation of the directive with no reference to any specific portion of the publication which is objectionable.

We also have a reasonable belief the Wisconsin Department of Corrections is excluding all issues of Under Lock & Key pursuant to a “blanket ban” on the publication. Such a “blanket ban” has been found to violate a publisher’s rights to due process. This belief is based on the notification provided which clearly states, “per Madison list,” and provides no reference to a specific issue of ULK. If this in fact the case, we demand the Wisconsin Department of Corrections cease such a “blanket ban” immediately. An individualized review of the content of each issue of a publication must be conducted prior that specific issue being censored. See Lane.

As such, we object to the violations of our First Amendment rights as a publisher:

1. The notice of censorship fails to provide adequate information upon which to formulate and base any appeal;
2. The lack of opportunity to submit an appeal;
3. The blanket ban of all issues of Under Lock & Key.

Please note we are requesting a copy of any and all records relating to all issues of Under Lock & Key censored by the Wisconsin Department of Corrections, to include date of censorship, issue number, and the specific reason for censorship.

Please provide a written response which addresses our grievances within fifteen (15) days of receipt of this letter.

You may reply to the address listed.

Sincerely,


MIM Distributors

I have reviewed the list of reviewed publications that is posted by the DAI Security Chief in Madison. The publciation is listed as not allowed as it is found to violate DOC 309-04 4 (c) 8 b. b. in that the publication's content references thingly veiled "unity amongst gangs while incarcerated to get more power" writings. Gives shout outs to Crips, Bloods uniting for revolution.

Based on the fact that the denial of the publicaiton was upheld by the DAI Security Chief, and after a review of the content by this Examiner, WCI will also deny the publicaiton for inmate possession.

Inmate [X] may dispose of the publication by contacting the Property Department to facilitate that disposal. Contraband will only be retained by the Propery Department upon an active appeal of the institution ICRS decision.

I have reviewed the list of denied publications that is posted by the DOC Security Chief in Madison. This issue is listed as not allowed based on DOC 309.04 4 (c) 8b. Poses a threat to the security. Based on the fact that the denial was upheld by the DOC Security Chief, and after review by the ICE, WCI will also deny the publication for inmate possession.

Based on the above information, inmate XXXXXX must dispose of the publication and contact the property department to facilitate that disposal. If he is appealing he will also need to contact the Property Department.

signed by T. Moon - Institution Complaint Examiner

I was denied delivery of my mail. The July/August 2016 (#51) issue of Under Lock & Key. This publication is purely political and does not contain a threat to security. Please let me have my mail.

The institution's decision reasonably and appropriately addressed the issue raised by this inmate. On appeal, the inmate presented no information to warrant a recommendation overturning that decision. per DAI this has been denied in accordance with DOC 309.04(4)(c)(8)(b). Thus, it is recommended this appeal be dismissed.

Signed B. Hompe - Corrections Complaint Examiner
Approved by C. O'Donnell - Office of the Secretary

I've read this publication many times before and never felt like I hda to start a riot because of it or anything like that. It's strictly political and a reviw of the material will support that you guys don't need to be this restrictive. It's not necessary. You guys are pushing too hard.

A decision was made on your appeal and that decision is final. There will be no further review of that complaint. Your use of the "Request for Review of Rejected Complaint" form is misplaced. Your complaint was not rejected. it was dismissed. Once you receive a decision from the Office of the Secretary, that decision is final and there will be no further review.

I have reviewed the list of denied publications that is posted y the DOC Security Chief in Madison. The issue is listed as not allowed based on DOC 309.05 2(b)1. 1. Teach or advocate violence. After review andbased on the fact that the denial of the publication wasupheld by the DOC Security Chief, WCI will also deny the pu lication for inmate possession.

Based on the aboe infromation, inmate XX must dispose of the publication and contact the Property Deparment to facilitate that disposal.

Signed T. Moon - Institution Complaint Examiner

Reason:
Publication teaches or advocates violence and presents a clear and present danger to institutional security.

Item(s) rejected:
3 used "Under Lcoc[sic] & Key" publications

Reason:
Item contains contraband

Item(s) rejected:
3 used "Under Lcoc[sic] & Key" publications

Reason:
Item contains contraband

Item(s) rejected:
3 used "Under Lcoc[sic] & Key" publications

Reason:
Item contains contraband

Mr. Michael Thurmer, Warden
Waupun Correctional Institution
PO Box 351
Waupun, WI 53963-0351

27 April 2009


Dear Mr. Thurmer,

Thank you for addressing my concerns from the March letter I sent regarding censorship of mail from MIM Distributors to Mr. XXXXXX XXXXXX (#XXXXXX). Unfortunately, we seem to be facing the same problem. Only this time, the reasoning for the censorship seems to be disagreements that Capt. Muraski has with the content of the newsletter. The captain?s problem with page 2 is regarding a factual statement about history. Then on page 10 the cite is of an article that is critical of practices carried out by the Oklahoma Department of Corrections.

As I pointed out in my last letter XXXXXX v. Raemisch, (W.D.W.I. 2008), re-established that it is illegal for prison administrators to censor publications because they are critical of the actions of the department they work for. Therefore, it would follow that you cannot censor materials for being critical of the practices of another state?s department.

I hope that you can once again ensure that Mr. XXXXXX receives Under Lock & Key issue 7. In addition, I request that staff that are responsible for reviewing mail coming into Waupun CI be briefed on the current laws and regulations applying to their job so that we can avoid this problem in the future.

Thank you,

Mr. Michael Thurmer, Warden
Waupun Correctional Institution
PO Box 351
Waupun, WI 53963-0351

17 March 2009


Dear Mr. Thurmer,

I am writing regarding the enclosed notice of censorship of mail from MIM Distributors. The notice claims that the newsletter Under Lock & Key teaches or advocates breaking the law. Not only is this statement false, in addition every issue of Under Lock & Key explicitly discourages prisoners from breaking any laws.

As you are probably aware, the recent case of XXXXXX v. Raemisch, (W.D.W.I. 2008), re-established that it is illegal for prison administrators to censor publications because they encourage actions that are critical of the actions of the department they work for. Therefore I am requesting that you either cite where the publication advocates breaking the law and what law it advocates breaking, or that you ensure that Mr. XXXXXX receives Under Lock & Key.

Please note that the envelope was postmarked March 9, 2009, so it would have been impossible for us to respond within 10 days of the decision as stated on the notice.

Sincerely,