G. Prisoners Have First Amendment Right To Receive Junk Mail

     The First Amendment right of publishers to send standard rate bulk mail to prisoners, and of prisoners to receive such mail, was recently upheld when the U.S. Court of Appeals for the Ninth Circuit declared that the Oregon Department of Corrections cannot bar receipt of standard rate mail.  The case, Prison Legal News v. Cook, 238 F.3d 1145 (9th Cir. 2001), allows prisoners to receive junk mail just like any other members of society.

     Beginning in 1988, the Oregon Department of Corrections prohibited the receipt of bulk mail into Oregon prisons due to its voluminous nature and general lack of value to prisoners.  When inmate mail entered the prison mail system, it was sorted into two categories.  The first included express mail, priority mail, first class mail, and periodicals, which were the only classes of mail inmates could receive.  For each piece of mail that was opened and deemed unauthorized due to content or other reasons, mailroom staff had to write a “Mail Violation Notice” for correspondence or  “Publications Violation Notice” for  publications.     

     All other mail, including standard mail, was returned to the U.S. Postal Service.  If standard mail were included in the first category, the Oregon Department of Corrections argued, it would require the investment of a significant amount of resources to determine whether the mail is authorized or not.  Oregon is the only prison system in the United States that refused to deliver subscription standard mail from nonprofit organizations like the mail at issue. 

     Prison Legal News is a nonprofit organization that prepares and circulates a newsletter addressing prison-related issues.  The group takes advantage of Standard A “nonprofit organization” rates to mail its newsletter; these rates are substantially lower than those for express mail, priority mail, first class mail, or periodicals.  The newsletter has approximately 2,600 subscribers, including 15 subscribers within the Oregon prison system. 

     Though the Oregon Department of Corrections reviewed Prison Legal News’s publications and deemed the content acceptable for admission, the publications were rejected strictly because of the Standard A postage rate.  Prison Legal News challenged this decision in the U.S. District Court for the District of Oregon, which granted summary judgment in favor of the Department of Corrections.  Prison Legal News appealed this ruling.

     The U.S. Court of Appeals for the Ninth Circuit first framed the unique context in which this dispute arose, noting that, although prisoners do not necessarily have the same rights as the rest of society, they do have some First Amendment rights: “The Supreme Court makes clear that in the prison context, an inmate retains those First Amendment rights not ‘inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system.’”  Prison Legal News, 238 F.3d at 1149 (citing Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119, 129 (1977)). 

     The Ninth Circuit also recognized the First Amendment right of publishers who wish to communicate with inmates by sending them requested subscriptions.  The court held that this case directly implicates both groups’ First Amendment rights.  The court stated that “[t]he speech at issue is core protected speech, not commercial speech or speech whose content is objectionable on security or other grounds.”  Prison Legal News, 238 F.3d at 1149.

     According to the Ninth Circuit, there exists a four-part test to determine whether a prison regulation impinges on inmates’ constitutional rights: (1) whether the regulation is rationally related to a legitimate and neutral governmental objective; (2) whether there are alternative avenues that remain open to the inmates to exercise the right; (3) the impact that accommodating the asserted right will have on guards and other prisoners, and on the allocation of prison resources; and (4) whether the existence of easy and obvious alternatives indicates that the regulation is an exaggerated response by prison officials.  Id. (citing Turner v. Safley, 482 U.S. 78, 89-90 (1987)).  The court needed reach only the first part before deciding that this regulation violated the First Amendment. 

     The first factor in this analysis has two subparts.  First, a court must determine whether the governmental objective is legitimate and neutral. Second, it must assess whether there is a rational relationship between the governmental objective and the regulation.  The court of appeals found that this restriction was not rationally related to any legitimate penological interest set forth by the Department of Corrections.

     Four interests were asserted in support of this distinction between standard mail and other classes of mail.  First, the Department of Corrections claimed that standard mail often contains contraband.  Therefore, allowing standard mail to enter the prison system would require prison staff to expend significant time and resources checking each piece of mail.  The court rejected this interest, however, noting that there was no evidence to support the idea that standard mail contained any more contraband than other forms of mail.

     The court of appeals also rejected the argument that the ban reduced a potential fire hazard by limiting the quantity of flammable material in inmates’ cells.  Because Department of Corrections regulations already limited the amount of material an inmate could possess, limiting the amount of bulk mail in an inmate’s cell would have only a minimal effect in protecting this interest.

     Third, the state claimed the ban would increase the efficiency with which random cell inspections could be conducted.  The Department of Corrections claimed that the accumulation of standard mail in an inmate’s cell creates a good environment for hiding contraband.  However, the same limitation discussed above, regarding the overall amount of material that can be kept in an inmate’s cell, also invalidated this claim. 

     Finally, it was asserted that the ban allows mailroom staff to concentrate its efforts on the timely processing of acceptable mail and the thorough inspection of such mail for inappropriate content and contraband.  The record, however, demonstrated otherwise.  It showed that distinguishing between nonprofit organization standard mail and commercial standard mail was not unduly cumbersome -- in reality it would add 15 to 30 pieces of mail to the 5,000 to 8,000 pieces of mail processed daily.  Thus, the regulation had no legitimate relation to any of its asserted objectives. 

     Because there is a constitutional right to receive this mail, the court of appeals went on to hold that such mail must be provided the same procedural protections afforded first class and periodical mail under department regulations before being rejected due to content.  However, the court rejected the appellants’ claims that they could sue prison officials in their personal capacity, and affirmed the lower court’s determination that those prison officials were entitled to qualified immunity from suit.

-- Richard M. Schmidt, Jr. and Kevin Goldberg