Tracking Prison Censorship in the United States

May 19, 2019

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 March/April 2019


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 prisoner. The notice states that the publication is being rejected based on “ENTIRE PUBLICATION: DEVISIVE AND RACIST.” The censorship form on its face fails to state specific and articulable references to any objectionable content. Based on the notice received it is clear that no violation of prison policy, to which you specifically point, has occurred, and the censorship is without merit. The publication contains no such content.

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). No notice can never be adequate.

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 prisoner it was addressed.

Failure to provide adequate notice of the alleged offending content within fifteen (15) days of receipt of this letter may lead to litigation.

Please govern yourself accordingly.


Sincerely,


MIM Distributors

I would like to inform you that my Offender Grievance Manual has been denied/censored by my unit mailroom, this morning 3/15/19. I appealed the denial and will also be submitting a Step 1 and Step 2 grievance to protest the access to courts or denial of due process. The appeal receipt states that "outside persons desire to appeal submit a written appeal to the Director's Review Committee PO Box 99 Huntsville, TX 77343-0099. The appeal must reach the DRC within two (2) weeks of the notification date listed."

They conveniently denied my manual on a Friday. Noe the letter will take at least 4-5 days to reach you becuase the mail has ran for the day. So it won't leave until Mon-Tue. I am marking the envelope as "urgent attention." Hopefully you submit an appeal also in time. Please respond back letting me know you received my letter and the unit did not "misplace" it in processing.

MIM(Prisons)
PO Box 40799
San Francisco, CA 94140


May 21, 2019

Texas Department of Criminal Justice
Institutions Division
Director’s Review Committee
PO Box 99
Huntsville, TX 77342-0099


Re: Appeal of Censorship of Publication
TDCJ Offender Grievance Manual
Attempted delivery to XXXX, Polunsky Unit



To Whom It May Concern:

We are in receipt of a Director’s Review Committee Decision Form (hereinafter, “Form”), dated April 4, 2019 concerning the decision to uphold censorship of the Texas Department of Criminal Justice Offender Grievance Manual. We are the mailing entity listed on the form. We would note that we have never been provided notice of the censorship related to the Form as required by Federal case law.

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

It is an arbitrary and capricious use of power to censor the TDCJ’s own publication, the Offender Grievance Manual. As a government publication it is freely available and not subject to copyright protection. Further, since the TDCJ fails to provide the manual in its law libraries, we have a Constitutional right to distribute the manual. In plain English, the TDCJ’s censorship of its own manual relating to offender grievances is “asinine.” Is the TDCJ publishing offender manuals which do not comply with TDCJ censorship guidelines?

Your failure to provide notice of censorship as well as the arbitrary and capricious nature of the censorship is a clear violation of our Constitutional rights as the mailer of the manual.

We look forward to your reply concerning this censorship of the TDCJ Offender Grievance Manual and potential litigation concerning same.

Please govern yourself accordingly.

Sincerely,


MIM Publishers