Tracking Prison Censorship in the United States

March 5, 2019

Missouri Department of Corrections
Deputy Division Director
2927 Plaza Drive
Jefferson City, MO 65102

Re: Appeal of Censorship of Publication
Under Lock & Key Issue 65

[Prisoner XX]

To Whom It May Concern:

We have been notified of censorship by a prisoner in the custody of Missouri Department of Corrections of issue 65 of Under Lock & Key (hereinafter, ULK). We are the publishers of Under Lock & Key. Our notification of censorship was received from a prisoner, not the Missouri Department of Corrections.

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).

We demand the Missouri Department of Corrections provide notice as to the publication censored and most importantly detailed reasons for such censorship with specific references to the material found to be objectionable. We reserve our right to appeal any censorship of ULK upon receipt of said notice.

We also have reason to believe that the Missouri Department of Corrections is excluding all issues of Under Lock & Key pursuant to a “blanket ban” on the publication. As you are aware such a “blanket ban” has been found to violate a publisher’s rights to due process. If this in fact the case, we demand the Missouri Department of Correctios cease such a “blanket ban” immediately. An individualized review of the content of each issue of a publication must be reviewed prior to it being censored. Lane.

The reason cited for the censorship was “anarchy and rebellion against government authority.” May we remind you that such a broad-based vague response is unconstitutional. Given this reason for censorship any book or article concerning the American Revolution must be banned. Please provide a copy of all publications pertaining to the American Revolution banned for this reason. This request should be considered a request for open records under Rs Mo. 610.010 et seq.

As a general response to the censorship, and without waiving our objection to the failure to provide notice, we have reviewed ULK and do not believe it meets the criteria for censorship as outlined in Missouri Department of Corrections Censorship Procedure IS13-1.2.

We request the decision of the Publication Review Committee be vacated and issue 55 of Under Lock & Key be forwarded to those to whom it was addressed.

Failure to provide appropriate notice and adherence to your policies may result in legal action.

Please govern yourself accordingly.

I am in receipt of and have reviewed your written correspondence requesting to appeal the Department of Correction's decision to censor the publication Under Lock & Key, Issue #65.

The publication was correctly censored in conjunction with our censorship policy. Content in the publication promotes, incites, advocates, facilitates or otherwise presents a risk of lawlessness, violence, anarchy or rebellion against a government authority.

Sincerely,

Alana Boyles, Director
Division of Adult Institutions

January 3, 2019

California Department of Corrections and Rehabilitation
Chuckawalla Valley State Prison
Office of the Warden
19025 Wiley’s Well Road
PO Box 2289
Blythe, CA 92225


Re: Appeal of Censorship of Publication
Under Lock and Key Issue 65


To Whom It May Concern:

We are in receipt of your notice of censorship regarding Under Lock and Key (ULK), issue 65, addressed to the above prisoners.

You cite pages 8, 9, 11, 12, 14, 15, 16, and 17 as containing objectionable material which allegedly violates California Code of Regulations Title 15 Section 3006 (1) in that it allegedly contains “matter of a character tending to incite murder,; arson, riot; or any form of violence or physical harm to any person, or any ethnic, gender, racial, religious, or other group.” You specifically note that the material allegedly tends to “incite riot or any form of violence or physical harm to any person.” Included in the notice were highlighted copies of pages from ULK 65.

On page 8, the article title “Black Panthers in Today’s Climate” is the only verbiage highlighted. This is clearly not objectionable content under any reasonable interpretation of the code. Again on page 9, the only material highlighted is “…Continued from previous page… Today” – again not objectionable.

Pages 11, 12, and 14 have the entire article “Debating Missouri Uprising” highlighted. A careful reading of the article clearly shows that there is no call to riot or any form of violence.” In fact over half of the highlighted article specifically counsels against such rioting or violence. This cannot be shown to be objectionable content, but in its context is commentary on a newsworthy event which specifically advises against violence or rioting.

Page 14 highlights the title “The Murder of Jamal Khashoggi is Merely the Latest CNN Opera.” Without more this is not objectionable content. Page 15 highlights the single word “Khashoggi,” again not in any way objectionable. Pages 16 and 17 highlight the continuation of the Khashoggi article. The entire Khashoggi article is taken in it’s entirety from a media news site. That the news site is one your censors may have political and philosophical differences cannot form the basis for censorship. In reading the entire article is it clear that there are no calls to riot or violence. There is one phrase which generally mentions “revolution;” however, that alone does not suffice to justify censorship. If it did then all American history relating the American Revolution would be censorable, an absurd outcome.

The notice provided is far from adequate in providing specificity as to the alleged offending material. Rather than highlighting entire article only certain key portions should be highlighted to identify the allegedly offending material. The manner in which you have provided notice serves as no notice whatsoever.

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).

We must insist that you cease your unlawful censorship and provide ULK 65 to the prisoners to whom it was addressed forthwith. Failure to do so may result in legal action, solely at our discretion.

Please govern yourselves accordingly.


Sincerely,


MIM Distributors

The appeal log # is CVSP-X-19-00074 accepted at the first level of review on 5 Feb 19.

Per CCR Title 15 Processing of Publications the DAI has 30 days to issue a decision to either allow or disallow censorship of a publication. It has been 50 days since ULK 65 was "sent" to DAI for review. As such the Title 15 states that my appeal must be forwarded to the Director of Adult Institutions for a decision. My appeal is currently being reviewed by the Associate Warden of Operations.

I've long suspected that every time this institution's mailroom "forwards" a publication to DAI for review what they're really doing is just lying and breaking the law by just refusing to give people their publications. We'll find out soon enough.

First, I met with the mailroom lieutenant here yesterday concerning my appeal of the censorship of ULK 65. He stated that the Division of Adult Institutions in Sacramento still hasn't issued a decision as to allow or disallow ULK 65. He told me he persynally called the lieutenant responsible for reviewing the witholding of publications in Sacramento (DAI) and he told him that ULK 65 was forwarded to the Director of DAI for a decision, who subsequently kicked it back down to the aforementioned Lt in Sacramento who then shot it back to the Director again with no decision made as of yet! From what I was able to gather it seems that ULK 65 is a hot potato no one wants to touch.

According to the California Code of Regulations Title 15 3134.1 Processing of Publications (d) DAI shall provide a decision to allow or disallow the publication within 30 calendar days. It has now been 65 calendar days (December 18 2018) which means that DAI is currently violating my due process and first amendment rights. Per CCR Title 15 3137(c) Appeals Relating to Mail and Correspondence "Persons other than inmates should address any appeal relating to departmental policy and regulations to the Director of Division of Adult Institutions (DAI)..." Although you already sent a letter/appeal to the warden Jan.3, 2019, you can now appeal to DAI. "...Appeals that are not satisfactorily resolved at this level may be forwarded in writing to the Director of the DAI who shall provide a written response within 20 working days."

I'm gonna re-submit the appeal (#CVSP-x-19-00074) tonight and ask that since DAI is refusing to issue a decision they give me ULK 65 or send it to the director's level as my due process and first amendment rights are currently being violated.