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Comments to CDCR: Banning the Bay View from California prisons would violate the First Amendment

November 13, 2014

This letter, written on behalf of the Bay View by attorney Leila Knox of Bryan Cave LLP, one of the world’s largest law firms, was emailed and mailed on Nov. 7, 2014, to Regulation and Policy Management Chief Timothy M. Lockwood, California Department of Corrections and Rehabilitation, P.O. Box 942883, Sacramento, Calif. 94283-0001. The comment period is now closed.

Re:       Comments on CDCR’s Proposed Regulations: Obscene Material

Dear Mr. Lockwood:

On behalf of the San Francisco Bay View National Black Newspaper (“Bay View”), we make this submission in response to the invitation for comments on the California Department of Corrections and Rehabilitation’s (“CDCR”) Amended Proposed Regulations relating to Obscene Material and Contraband (“Proposed Regulations”).

As was the case with the first draft of Proposed Regulations, for which the Bay View submitted comments dated June 13, 2014, a copy of which is enclosed for your convenience, the Amended Proposed Regulations continue to raise serious concerns about burdens placed on the First Amendment rights of both inmates in CDCR facilities and innocent third parties who wish to communicate with them.

In sum, the Proposed Regulations, including those provisions that the CDCR has not opened for comment with the re-noticed proposed regulations, are unconstitutionally vague, in that they do not contain a clear standard for prohibited written materials, publications, and correspondence, and invite arbitrary, inconsistent and discriminatory application by allowing prohibition of otherwise neutral documents and publications based on a recipient’s “other STG activity/behavior.”

“Pelican Bay Censorship” – Art: Michael Russell, C-90473, PBSP D7-217, P.O. Box 7500, Crescent City CA 95532

“Pelican Bay Censorship” – Art: Michael Russell, C-90473, PBSP D7-217, P.O. Box 7500, Crescent City CA 95532

Finally, the regulations are so vague that they threaten to chill speech protected by the First Amendment. Because they do not provide a clear standard for publishers, correspondents and inmates to determine what materials are banned, the regulations may chill speech and prevent communications otherwise protected by the First Amendment.

The amendments to the Proposed Regulations do nothing to cure these deficiencies, but rather exacerbate them. Of particular concern, as explained below, is the prohibition of publications, correspondence, and possession of written materials that “[a]lthough the item[s] by [themselves] may not evidence STG activity, when considered with other STG activity/behavior, … give credence to a STG nexus.” Proposed Regulations, Title 15, Division 3, Article 1, §§ New subsection 2006(c)(19); Amended subsection 3134.1(e); New subsection 3135(c)(14) (incorporating by reference subsection 3378.2(b)(5)-(6)).

I.   About The San Francisco Bay View Newspaper

The Bay View newspaper, founded in 1976, is a source for news and information for the Black community worldwide. The print edition of the Bay View is mailed to subscribers both in California and across the country, including hundreds of prisoner subscribers. Its website, available at www.sfbayview.com, is the second most visited Black newspaper on the web.

The Bay View and its editors and reporters have won numerous awards for news reporting. The Bay View provides thought-provoking stories and commentary, with a particular focus on the Black community. As with any community newspaper, news stories and commentary range from coverage of the economy, politics and current events to the arts, education, history, health and religion.

In addition, the Bay View provides in-depth coverage of both the California penal system and penal systems located in other states. Featured articles in this section might include commentary on the conditions of solitary confinement or a discussion of court orders staying executions. Stories in the Bay View are written by reporters both from within and outside the penal system.

The Bay View provides in-depth coverage of both the California penal system and penal systems located in other states. Stories in the Bay View are written by reporters both from within and outside the penal system.

II.   Bay View’s Understanding of the Amended Proposed Regulations

The Amended Proposed Regulations prohibit the possession of and distribution of publications that include, and correspondence that includes “any material or document[]… that although the item by itself may not evidence STG activity, when considered with other STG activity/behavior, … gives credence to an STG nexus.” Proposed Regulations, Title 15, Division 3, Article 1, §§ New subsection 2006(c)(19); Amended subsection 3134.1(e); New subsection 3135(c)(14) (incorporating by reference subsection 3378.2(b)(5)-(6)).

First, the Amended Proposed Regulations are unconstitutionally vague because the regulations do not clearly delineate what they prohibit. “It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined.” Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972).

It is unclear what is meant by a “STG nexus” and the regulations do not provide guidance to publishers or correspondents what types of “activities” may be considered STG related and which may not. Additionally, the way the regulation is written, the reference to “other STG activity/behavior” seems to assume that any literature that comes into the prison and is possessed by an inmate can be considered STG activity in itself by CDCR.

The proposed regulations are unjustifiably vague because they create sweeping prohibitions but fail to “give the person of ordinary intelligence a reasonable opportunity so that he may act accordingly.” Grayned, 408 U.S. at 108-09. These regulations do not contain any meaningful standard that would allow a publisher, such as the Bay View, to ensure that its publication would not be prohibited under these regulations because the wording of the regulation prohibits materials that, in and of themselves have no inherent ties to STG activity or behavior.

Second, these regulations invite an “arbitrary and discriminatory application.” The prohibitions of written materials and documents that are not inherently related to STG activity or behavior, yet allowing for prohibition of materials that “may not indicate STG activity, but when considered with other STG activity/behavior, … give[] credence to a STG nexus” suggests that written materials or documents which themselves are not STG materials may be prohibited by CDCR based on the identity of the recipient or possessor of the written material or documents.

Receipts of identical copies of a widely available publication that otherwise has no ties to STG activity may be banned for one individual due to CDCR concerns about that individual’s other STG activity/behavior, while the same publication may be perfectly acceptable for another individual to receive.

Receipts of identical copies of a widely available publication that otherwise has no ties to STG activity may be banned for one individual due to CDCR concerns about that individual’s other STG activity/behavior, while the same publication may be perfectly acceptable for another individual to receive.

Third, these regulations severely burden the Bay View’s rights to communicate with prisoners. The Supreme Court has long recognized that restrictions on prisoners’ communications implicate the First Amendment rights of those free persons who wish to communicate with them: “Whatever the status of a prisoner’s claim to uncensored correspondence with an outsider, it is plain that the latter’s interest is grounded in the First Amendment’s guarantee of freedom of speech.” Procunier v. Martinez, 416 U.S. 396, 408-409 (1974), overruled in part on other grounds, Thornburgh v. Abbott, 490 U.S. 401 (1989).

These regulations are vague and potentially prohibit permissible acts and have a chilling effect on lawful conduct. Coates v. City of Cincinnati, 402 U.S. 611, 614 (1971). As discussed above, the regulations fail to provide a meaningful standard that would allow a publisher, such as the Bay View, to ensure that its publication would not be banned under the proposed regulations and that its subscribers would not be punished for possession or receipt of its publication.

“[P]rison walls do not form a barrier separating prison inmates from the protections of the Constitution,” including the First Amendment. Beard v. Banks, 548 U.S. 521, 528 (2006); Turner v. Safley, 482 U.S. 78, 84 (1987). Existing CDCR regulations provide mechanisms for prison officials to control and limit prisoners’ correspondence and to monitor those communications to detect and prevent possible criminal activity, while acknowledging that mail to prisoners cannot be disallowed based on “disagreement with the sender’s or receiver’s morals, values, attitudes, veracity or choice of words.” 15 CCR § 3135(b).

“[P]rison walls do not form a barrier separating prison inmates from the protections of the Constitution,” including the First Amendment. – U.S. Supreme Court

The Proposed Regulations will only work to limit and/or completely restrict prisoners’ access to publications – such as the Bay View – that clearly fall within the protection of the First Amendment. Given the lack of any discernible benefit and the significant burdens placed on important First Amendment rights of both prisoners and those who wish to communicate with them, these proposed regulations should be withdrawn.

Sincerely,

Leila Knox

This video was made to encourage comments on the first draft of the proposed censorship regulations. It is still entirely relevant except for the date of the comment period closure. The comment period for this latest version of the regulations has also closed, but letters to CDCR expressing your opinion are always timely.

 

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