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

August 28, 2017

Missouri Department of Corrections
Office of the Director
2927 Plaza Drive
Jefferson City, MO 65102

Re: Appeal of Censorship of Publication
Under Lock & Key Issue 56

To Whom It May Concern:

We have been notified of censorship by the Missouri Department of Corrections of issue 56 of Under Lock & Key (hereinafter, ULK) sent to XXXX. 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.

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

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.

You may reply to the address listed.


Sincerely,


MIM Distributors