Tracking Prison Censorship in the United States

DAI Deputy Director
Department of Corrections
2729 Plaza Drive
Jefferson City, MO 65109

February 10, 2015

RE: Censorship of Under Lock & Key No. 41 (Nov/Dec 2014)

Dear DAI Deputy Director,

On January 16, 2015 we were sent a letter from Omer Clark, Warden of Operations at Southeast Correctional Center. This letter was dated January 9, 2015, and a copy is enclosed. The letter was to notify MIM Distributors of the censorship of the above named publication to several prisoners held at Southeast Correctional Center.

The reason cited for this censorship is ?Pg. 3-5 promotes anarchy.? With this letter I have also enclosed pages 3-5 of the above named publication for your reference.

I am sure you are familiar with the relevant case law on this topic. As stated in Thornburgh v. Abbott, 490 U.S. 401:

"Wardens may not reject a publication 'solely because its content is religious, philosophical, political, social[,] sexual, or . . . unpopular or repugnant,' or establish an excluded list of publications, but must review each issue of a subscription separately."

Additionally, in Procunier v. Martinez, 416, U.S. 396 (1974) and in Thornburgh v. Abbott, 490, U.S. at 416 n. 14 (1989), that prison officials violate the First Amendment when for reasons unrelated to legitimate penological interests they engage in ?censorship of . . . expression of ?inflammatory political, racial, religious or other views?.

Furthermore, the motivation alleged to support the censorship determination seems to be too vague and not sufficiently articulate to satisfy the threshold of adequate motivation established by the U.S. Supreme Court. Federal Courts have stated in several occasions that "Prison authorities cannot rely on general or conclusory assertions to support their policies." Walker v. Sumner (9th Cir. 1990) 917 F.2d 382, 385 and that "Unsupported security claims couldn't justify infringement on First Amendment rights." Crofton v. Roe (9th Cir. 1999) 170 F.3d 957

With the present letter MIM Distributors would like to:
(1) appeal the negative determination to censor the above-named publication; and
(2) request the decision be reversed and the publication be delivered to the intended recipients as soon as possible.

We appreciate your assistance in this matter and look forward to your response.

Sincerely,


MIM Distributors


CC: Affected parties

Your February 10, 2015 appeal was received of the Department of Correction's decision to censor Issue #41 of Under Lock & Key. After reviewing your appeal and the censored material, I support your appeal. I will advise the facilities that Issue #41 of Under Lock & Key will not be censored and thus should be given to the offenders.

Dave Dormire, Director

I wrote the Mail Room and asked them about the November/December issue of ULK and they claim one never arrived with my name on it. It wasn't censored or seized because my comrade received his copy.

IS REJECTED and may not be received by inmates...

REJECTION of the publication due to subject matter

(3)(a) It depicts or describes procedures for the construction of or use of weapons, ammunitions, bombs, chemical agents, or incendiary devices.

(3)(f) It encourates or instructs in the commission of criminal activity.

(3)(j) It depicts nudity in such a way as to create the appearance that sexual conduct is imminent, i.e. the display of contact or intended contact with a person's unclothed genitals, pubic area, buttocks or female breasts orally, digitally or by foreign object, or display of sexual organs in an aroused state.

(3)(m) It otherwise presents a threat to the security, good order, or discipline of the correctional system or the safety of any person.

Authorized Employee: D. Locke/TJO

IS REJECTED and may not be received by inmates...

REJECTION of the publication due to subject matter

(3)(a) It depicts or describes procedures for the construction of or use of weapons, ammunitions, bombs, chemical agents, or incendiary devices.

(3)(f) It encourates or instructs in the commission of criminal activity.

(3)(j) It depicts nudity in such a way as to create the appearance that sexual conduct is imminent, i.e. the display of contact or intended contact with a person's unclothed genitals, pubic area, buttocks or female breasts orally, digitally or by foreign object, or display of sexual organs in an aroused state.

(3)(m) It otherwise presents a threat to the security, good order, or discipline of the correctional system or the safety of any person.

Authorized Employee: D. Locke/TJO

Reason(s): Material that ... support the illegal activities of a security threat group contrary to the security interests of the facility or the individual rehabilitative goals of the recipient...

Material which poses a potential threat to the safety and security of the offender population or DOC employees, contract workers, and volunteers by advocating facility disruption or noncompliance with prison rules or regulations.

Disposition
Sent to reading committee

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

Warden
Smith State Prison
PO Box 726
Glennville, GA 30427-0726

February 10, 2015

RE: Illegal censorship of letter to Mr. zzz at Smith State Prison

Dear Warden,

In December 2014, MIM Distributors sent the above named prisoner two articles of mail which were never delivered to him. These items were not returned to MIM Distributors, and neither MIM Distributors nor the intended recipient (prisoner) received notifications regarding the censorship of these items. Below is a list of the items in question, the dates they were sent, and the way in which they were mailed to Mr. zzz.

12/10/2014 Under Lock & Key No. 41 (Nov/Dec 2014) via USPS Standard Mail
12/26/2014 personalized letters via USPS First Class Mail including:
Second introductory letter about MIM(Prisons)
Tips for writing articles for Under Lock & Key
Campaign updates about the grievance process, and the Tier II Step-down program

As you are certainly aware, the U.S. Supreme Court has clearly stated that both the sender and the prisoner have a right, under the First Amendment and the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution, to receive notice and an opportunity to be heard when prison administrators or staff prevent the sender’s expressive materials from reaching their intended recipients (Procunier v. Martinez, 416 U.S.396. 94 S.Ct 1800, as reaffirmed on the point by Turner V. Safley, 482 U.S. 78 (1987) and Thornburgh v. Abbott, 490 U.S. 401 (1989) and Montcalm Publ'g Corp. v. Beck, 80 F.3d 105, 106 (4th Cir.), cert. denied, 519 U.S. 928 (1996)). In plain and striking contradiction with these principles, neither the prisoners, nor MIM Distributors were notified of the censorship decision or actually of any decisions that the Mailroom staff has made with regard to the publications listed above.

In refusing to provide notice and an opportunity to be heard to both the prisoners and the publisher (MIM Distributors), under local policies and/or practices, prison administrators and staff violated clearly established constitutional law and acted under color of state law for purposes of 42 U.S.C. § 1983.

In addition, the practice of holding publications and/or letters for an indefinite time without providing notice of any determination is certainly unconstitutional, as it does not satisfy the obligation that the prison administration has to provide both the sender and the recipient with a decision in a reasonable time and ultimately frustrates the right that both the sender and the prisoner have to appeal a negative determination.

Sincerely,

MIM Distributors


CC: Affected parties

Superintendent Clare Sullivan
Spring Creek Correctional Center
3600 Bette Cato
Seward, Alaska 99664

February 10, 2015

RE: Illegal censorship of mail to xxx at Spring Creek Correctional Center

Dear Superintendent Sullivan,

From 2012 through 2014, several items were sent to the above named prisoner at Spring Creek Correctional Center. The prisoner never received them, was never given notice of censorship of these items, and MIM Distributors was never notified. Below is a list of items that were sent, the date they were sent, and the method with which they were mailed.

12/20/2014 Under Lock & Key No. 41 (Nov/Dec 2014) via USPS Standard Mail
10/2/2012 Under Lock & Key No. 28 (Sept/Oct 2012) via USPS Standard Mail
7/27/2012 Under Lock & Key No. 27 (July/Aug 2012) via USPS Standard Mail
7/27/2012 MIM Theory 13: Revolutionary Culture magazine via USPS Standard Mail (MIM Theory 13 and ULK 27 were mailed together in a single envelope)
6/1/2012 Under Lock & Key No. 26 (May/June 2012) via USPS Standard Mail
3/30/3012 Under Lock & Key No. 25 (March/April 2012) via USPS Standard Mail
3/30/2012 MIM Theory 11: Amerikkkan Prisons on Trial magazine via USPS Standard Mail (MIM Theory 11 and ULK 25 mailed together in a single envelope)

According to your Department's Policies and Procedures 810.03 Prisoner Mail, Publications and Packages, Procedure F. Disposition of Prohibited Material, 3. Non-Delivery of Mail, the prisoner is supposed to be notified within two working days the specific reasons why the mail was not delivered to the prisoner. Can you please provide us with copies of these notices? To our knowledge, Mr. xxx was never notified that the mail we sent him was non-delivered.

Under Procedure H. Publications, 4. Withholding a Publication, it states ?a. Staff shall give the prisoner written notice within 30 days when withholding a publication from a prisoner. The notice must include:
(1) The reason for withholding the publication; and
(2) A statement that the prisoner may challenge the decision by filing a grievance within 15 days.?
Again, to our knowledge, Mr. xxx was never notified of the withholding of the above listed publications.

As you are certainly aware, the U.S. Supreme Court has clearly stated that both the sender and the prisoner have a right, under the First Amendment and the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution, to receive notice and an opportunity to be heard when prison administrators or staff prevent the sender?s expressive materials from reaching their intended recipients (Procunier v. Martinez, 416 U.S.396. 94 S.Ct 1800, as reaffirmed on the point by Turner V. Safley, 482 U.S. 78 (1987) and Thornburgh v. Abbott, 490 U.S. 401 (1989) and Montcalm Publ'g Corp. v. Beck, 80 F.3d 105, 106 (4th Cir.), cert. denied, 519 U.S. 928 (1996)). In plain and striking contradiction with these principles, neither the prisoners, nor MIM Distributors were notified of the censorship decision or actually of any decisions that the Mailroom staff has made with regard to the publications listed above.

In refusing to provide notice and an opportunity to be heard to both the prisoners and the publisher (MIM Distributors), under local policies and/or practices, prison administrators and staff violated clearly established constitutional law and acted under color of state law for purposes of 42 U.S.C. ? 1983.

In addition, the practice of holding publications and/or letters for an indefinite time without providing notice of any determination is certainly unconstitutional, as it does not satisfy the obligation that the prison administration has to provide both the sender and the recipient with a decision in a reasonable time and ultimately frustrates the right that both the sender and the prisoner have to appeal a negative determination.

I look forward to your response.

Sincerely,


MIM Distributors


CC: Affected parties

... the material:
1. constitutes a threat to the security, good order or discipline of the institution
2. may facilitate or encourage criminal activity; or
3. may interhere with the rehabilitation of an offender


...based upon the fact that the material:
promotes, incites, or advocates violence
promotes, incites, advocates, facilitates or otherwise presents a risk of lawlessness, violence, anarchy or rebellion against a governmental authority
is so radically inflammatory as to be reasonably likely to cause violence

DAI Deputy Director
Department of Corrections
2729 Plaza Drive
Jefferson City, MO 65109

February 10, 2015

RE: Censorship of Under Lock & Key No. 41 (Nov/Dec 2014)

Dear DAI Deputy Director,

On January 16, 2015 we were sent a letter from Omer Clark, Warden of Operations at Southeast Correctional Center. This letter was dated January 9, 2015, and a copy is enclosed. The letter was to notify MIM Distributors of the censorship of the above named publication to several prisoners held at Southeast Correctional Center.

The reason cited for this censorship is “Pg. 3-5 promotes anarchy.” With this letter I have also enclosed pages 3-5 of the above named publication for your reference.

I am sure you are familiar with the relevant case law on this topic. As stated in Thornburgh v. Abbott, 490 U.S. 401:

"Wardens may not reject a publication 'solely because its content is religious, philosophical, political, social[,] sexual, or . . . unpopular or repugnant,' or establish an excluded list of publications, but must review each issue of a subscription separately."

Additionally, in Procunier v. Martinez, 416, U.S. 396 (1974) and in Thornburgh v. Abbott, 490, U.S. at 416 n. 14 (1989), that prison officials violate the First Amendment when for reasons unrelated to legitimate penological interests they engage in ‘censorship of . . . expression of “inflammatory political, racial, religious or other views”.

Furthermore, the motivation alleged to support the censorship determination seems to be too vague and not sufficiently articulate to satisfy the threshold of adequate motivation established by the U.S. Supreme Court. Federal Courts have stated in several occasions that "Prison authorities cannot rely on general or conclusory assertions to support their policies." Walker v. Sumner (9th Cir. 1990) 917 F.2d 382, 385 and that "Unsupported security claims couldn't justify infringement on First Amendment rights." Crofton v. Roe (9th Cir. 1999) 170 F.3d 957

With the present letter MIM Distributors would like to:
(1) appeal the negative determination to censor the above-named publication; and
(2) request the decision be reversed and the publication be delivered to the intended recipients as soon as possible.

We appreciate your assistance in this matter and look forward to your response.

Sincerely,


MIM Distributors
PO Box 40799
San Francisco, CA 94140

CC: Affected parties

You have received
mail containing the following
... 3B Kingdon Joins UFPP STG related article

The item(s) above will not be delivered to you pursuant to PD 05.03.118
Paragraph MM Section 4. "Mail advocating or promoting violence, group disruption, or insurrection.
Paragraph MM Section 21. "Mail depicting a sign or symbol of a security threat group designated pursuant to PD 04.04.113 "Security Threat Groups".

Reason:
Publication teaches or advocates behavior that violates the laws of Wisconsin, the United States or the rules of the Department of Corrections.

Contains prominent or prevalent advertising for three-way calling services, pen pal services, or the purchase of products or services with postage stamps.

Mail room personnel: D. Hedges

To whom it may concern,

Please be advised that the Pennsylvania Department of Corrections has denied the publication, Under Lock & Key, Nov./Dec 2014 No. 41, from distribution to inmates in the Department of Corrections. This publication was found to be in violation of PA DOC Policy 803 ADM a. Security (3) "writings that advocate violence, insurrection, or guerrilla warfare against the government or any of its facilities or which create a danger within the content of the correctional facility"; as well as section (5) "....material that could cause a threat to the inmate, staff or facility security". You can review the PA DOC 803 policy on our public website at www.cor.pa.gov.

The articles in violation of policy include "Don't Loot, Organize" and Hystory is On Our Side.

If you would like to appeal this decision, you must do so in writing to the address below within 10 working days.

Thank you.

DIANA WOODSIDE | Director of Policy & Legislative Affairs
Department of Corrections
1920 Technology Parkway
Mechanicsburg, PA 17050
Phone: 717-728-4119 | Fax: 717-728-4177
www.cor.state.pa.us

DIANA WOODSIDE | Director of Policy & Legislative Affairs
Department of Corrections
1920 Technology Parkway
Mechanicsburg, PA 17050

9 February 2015

RE: censorship of Under Lock & Key 41

Dear Ms. Woodside,

This letter is in response to your email regarding the censorship of issue 41 of the newsletter Under Lock & Key. Every issue of Under Lock & Key, clearly states, ?MIM(Prisons) and its publications explicitly oppose the use of armed struggle at this time in the imperialist countries (including the United States).? Similarly, the article cited for being in violation of your policies reads, ?Am I advocating or promoting random, unorganized violence and looting? No, I am not. I am simply stating an hystorical fact. Never in the hystory of humynkind has an oppressor ever stopped oppressing until those who were being oppressed stopped them, using structured and protracted violence aimed at replacing the powers that be and totally changing the system before them.? Therefore, I am objecting to the assertion that this article ?advocates violence, insurrection , or guerrilla warfare? as your notice stated. The article in question is criticizing the use of violence in real life that resulted in the deaths of real people.

As a government department, it is prohibited for you to use your powers to repress the sharing of ideas by the citizenry because you disagree with the opinions being expressed (in this case that violence has never been ended without organized violence). The Supreme Court decision governing the First Amendment in prisons in the United States (Thornburgh, 490 U.S. at 416 n.14) is clear that regulations barring writings that "express 'inflammatory political, racial, religious or other views'" were not sufficiently "neutral" or "unrelated to the suppression of expression" to be legally allowable. There is no direct and demonstrable threat to institutional security by the sharing of these ideas and beliefs within Pennsylvania prisons.

Therefore I am appealing for your reconsideration on this decision, and asking that you deliver copies of Under Lock & Key 41 that were sent to people held in PADOC prisons.

Thank you for your consideration in this matter,

D. Material, documents or photographs that emphasize depictions or promotions of violence, disorder, insurrection, terrorist or criminal activity in violation of state or federal laws or the violation of the Offender Disciplinary Procedure

F. Material that depicts, describes, or promotes gang bylaws, initiations, organizational structure, codes, or other gang-related activity or association.

. . .
MIM Distributors
PO Box 40799
San Francisco, CA 94140


Department of Corrections
ATTN: Library Service Administrator
501 S Calhoun St
Tallahassee, FL 32399-2500

January 28, 2015

RE: Failure to notify publisher of censorship of Under Lock & Key

Dear Sir/Madam,

This letter is to document that once again MIM Distributors was not notified by the Florida Department of Corrections (FDOC) when its publications were impounded or rejected. I am requesting that the FDOC follow its own policies and respect the publisher's rights to Due Process under the Fourteenth Amendment (see Montcalm Publ'g Corp. v. Beck, 80 F.3d 105, 106 (4th Cir.), cert. denied, 519 U.S. 928 (1996)).

In September 2013, my colleague wrote to you regarding this same matter and Susan Hughes responded explaining that only one facility will notify the publisher of censorship. However, once again, no FDOC staff has notified MIM Distributors of the censorship of Under Lock & Key. Specifically Mr. XXX did not receive Under Lock & Key #41 which we mailed on December 10, 2014.

I hope that you will honor my request for an appeal of this decision to censor, since the FDOC failed to notify MIM Distributors of the censorship and therefore the 15 days within receiving notice has not yet been passed.


Sincerely,

see 2/3/15 documentation

Cuase for denial: Content
Denied: DRC letter/contains another offender's information
Received: MIM Censorship pack

Director's Review Committee
Connally Unit
899 FM 632
Kenedy, TX 78119-4491

January 22, 2015

RE: Censorship of Under Lock & Key to XXX

Dear DRC,
MIM Distributors received a letter dated January 12, 2015 from Mr. XXX notifying us that he did not receive the publications we mailed to him: Under Lock & Key 40 September 2014 (mailed on September 26).

Per your policy BP03.91 IVD: "The offender and the sender or addressee shall be provided a written statement of the disapproval and a statement of the reason for disapproval within three business days after receiving the correspondence. The notice shall be given on Correspondence Denial Forms. The offender shall be given a sufficiently detailed description of the rejected correspondence to permit effective use of the appeal procedures." In violation of this policy, we did not receive any notification of this mail rejection.

The U.S. Supreme Court has clearly stated that both the sender and the prisoner have a right, under the First Amendment and the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution, to receive notice and an opportunity to be heard when prison administrators or staff prevent the sender?s expressive materials from reaching their intended recipients (Procunier v. Martinez, 416 U.S.396. 94 S.Ct 1800, as reaffirmed on the point by Turner V. Safley, 482 U.S. 78 (1987) and Thornburgh v. Abbott, 490 U.S. 401 (1989) and Montcalm Publ'g Corp. v. Beck, 80 F.3d 105, 106 (4th Cir.), cert. denied, 519 U.S. 928 (1996)). In plain and striking contradiction with these principles, MIM Distributors was not notified of the censorship decision or actually of any decisions that the Mailroom staff has made with regard to the publications listed above.

In refusing to provide notice and an opportunity to be heard to the publisher (MIM Distributors), under local policies and/or practices, prison administrators and staff violated clearly established constitutional law and acted under color of state law for purposes of 42 U.S.C. ? 1983.

Per Texas DOC policy (BP-03.91 (rev.3)): "V. B. Any offender, other correspondent, or sender of a publication may appeal the rejection of any correspondence or publication. They may submit written evidence or arguments in support of their appeal. An offender or a correspondent may appeal the placement of the correspondent on the offender?s negative mailing list. An offender or a correspondent may appeal to the DRC for reconsideration of the negative mailing list placement after six months." Based on this we formally request an appeal of this censorship.

In your review of this censorship, please note that your own policy (BP-03.91 (rev.3)) states: "Publications shall not be rejected solely because the publication advocates the legitimate use of offender grievance procedures, urges offenders to contact public representatives about prison conditions, or contains criticism of prison authorities." In order to reject these publications for content, per your policy, you must demonstrate that the publication "contains material that a reasonable person would construe as written solely for the purpose of communicating information designed to achieve the breakdown of prisons through offender disruption such as strikes, riots, or STG activity".

With this letter MIM Distributors requests
- Notification of all future denials of our mail to any prisoners in Connally Unit
- Appeal of these specific instances of censorship
- and that future incoming mail from MIM Distributors to prisoners held at Connally Unit be handled in accordance with TDCJ policies and procedures, and federal and state law.


Sincerely,

MIM Distributors
PO Box 40799
San Francisco, CA 94140

CC: Affected parties

Department of Corrections
ATTN: Library Service Administrator
501 S Calhoun St
Tallahassee, FL 32399-2500

January 22, 2015

RE: Failure to notify publisher of censorship of Under Lock & Key

Dear Sir/Madam,

This letter is to document that once again MIM Distributors was not notified by the Florida Department of Corrections (FDOC) when its publications were impounded or rejected. I am requesting that the FDOC follow its own policies and respect the publisher's rights to Due Process under the Fourteenth Amendment (see Montcalm Publ'g Corp. v. Beck, 80 F.3d 105, 106 (4th Cir.), cert. denied, 519 U.S. 928 (1996)).

In September 2013, my colleague XX wrote to you regarding this same matter and Susan Hughes responded explaining that only one facility will notify the publisher of censorship. However, once again, no FDOC staff has notified MIM Distributors of the censorship of multiple issues of Under Lock & Key including:

Two items sent to YYY at Dade Correctional Institution
Under Lock & Key 40 mailed 9/26/2014
Under Lock & Key 41 mailed 12/10/2014

Two items sent to ZZZ at Suwanee Correctional Institution
Under Lock & Key 40 mailed 9/26/2014
Under Lock & Key 39 mailed 8/1/2014

I hope that you will honor my request for an appeal of this decision to censor, since the FDOC failed to notify MIM Distributors of the censorship and therefore the 15 days within receiving notice has not yet been passed.


Sincerely,



MIM Distributors
PO Box 40799
San Francisco, CA 94140

CC: Affected parties

Department of Corrections
ATTN: Library Service Administrator
501 S Calhoun St
Tallahassee, FL 32399-2500

January 12, 2015

RE: Impounding of Under Lock & Key No. 41 at FSP

Dear Ms. Morrison,

This letter is in response to a notification received by Mr. XXX at Florida State Prison of the impounding of Under Lock & Key No. 41. The purpose of this letter is to appeal this decisions and have the newsletter delivered to Mr. XXX.

The Supreme Court decision governing the First Amendment in prisons in the United States (Thornburgh, 490 U.S. at 416 n.14) is clear that regulations barring writings that "express 'inflammatory political, racial, religious or other views'" were not sufficiently "neutral" or "unrelated to the suppression of expression" to be legally allowable.

The Florida State Prison notice cites multiple articles on several pages as justifying the denial because "It otherwise presents a threat to the security, good order, or discipline of the correctional system or the safety of any person." All of the articles listed discuss the history of prison control units and gang validation. There is nothing in these articles that present a threat to security or safety. It may be the case that those reviewing this publication disagreed with the perspective presented in these articles, but the rejection of publications that one finds disagreeable is a violation of the Constitution of the United State, which your department is bound to uphold. Certainly no ones safety is being threatened in any of these articles reporting on conditions in prisons and gang validation policies. Stating these articles are ?inflammatory? does not pass the standard set by Thornburgh for censoring mail to prisoners.

I am requesting that you allow Mr. XXX to receive Issue 41 of Under Lock & Key.


Sincerely,

Kathryn Graves, Legal Assistant
MIM Distributors
PO Box 40799
San Francisco, CA 94140

CC: Affected parties

The Literature Review Committee met on January 14, 2015. Based on the material supplied to us by Florida State Prison, the Committee voted to reject issue 41 of Under Lock & Key.

In response to your appeal, I will put this issue on the agenda for the next scheduled meeting of the Literature Review Committee. We will discuss your comments and look at the copies we have once again. I will advise you of the Committee's action after the January 28 meeting.

Sincerely,
Martha Morrison