Jenner & Block

Firm Advances Argument for Supreme Court Review of First Amendment Standard for Censorship of Prisoner Mail

Continuing the Firm’s pro bono efforts to urge the United States Supreme Court to review a Seventh Circuit decision which upheld the censorship of a Wisconsin prisoner’s outgoing mail, Jenner & Block attorneys Barry Levenstam, Howard S. Suskin and Shorge K. Sato recently filed a reply brief in support of the Firm’s petition for writ of certiorari, which was filed with the Court earlier this year. 

The reply brief, which marks the final stage in the certiorari process prior to the Court’s decision to grant or deny review, was filed after the Supreme Court took a rare step requesting the State’s response to the Firm’s petition, despite the State’s prior waiver of this option.  The reply brief advances the Firm’s request that the Supreme Court resolve whether the First Amendment permits censorship of a prisoner’s outgoing mail on general rehabilitative grounds, and to otherwise settle a substantial conflict in the federal appellate courts as to the appropriate standard of review for the censorship of outgoing prisoner mail.

The Firm’s client, who at the time was a prisoner at the Wisconsin Secure Program Facility, wrote a letter in 2002 to Northern Sun, a retail catalog that merchandises politically-themed t-shirts, posters and other materials.  In the letter, he wrote that “prison reform is not as well represented as is needed” in the Northern Sun catalog and enclosed some suggested drawings for their review.  Rather than mail his letter, prison officers seized and destroyed the client’s outgoing mail “because the prisoner used a swastika symbol as part of a political message criticizing the prison system” in one of his drawings.

After exhausting his administrative remedies, the client brought a pro se civil rights claim in federal court alleging that the prison’s censorship of his mail violated his First Amendment rights.  Although the district court recognized that the prisoner was not, in fact, a white supremacist, they granted summary judgment to the state because the drawing was incompatible with the client’s “general rehabilitative interests.”

Jenner & Block became involved upon a referral from the Uptown People's Law Center after the decision by the U.S. Court of Appeals for the Seventh Circuit was entered upholding the district court's decision.  While the Firm’s petition for en banc review was denied, three Seventh Circuit judges voted to rehear the case.  

The Firm’s reply brief addresses several points brought up in the State’s brief opposing review in this case.  The attorneys say that the respondents’ arguments “merely highlight the reasons this Court should grant, not deny, this petition.”  Highlighting a substantial circuit split regarding the First Amendment standard of review to apply to claims of outgoing prisoner mail censorship, the reply brief argues that the respondents “attempt to downplay [the] significance” of the controversy and fail to acknowledge the fundamental distinctions between the two standards of review used by the courts. 

In addition, the reply brief accentuates that the Supreme Court should grant certiorari to clarify whether the First Amendment permits the censorship of outgoing prisoner mail in furtherance of general inmate rehabilitation.  The reply brief states that the Seventh Circuit ruling would allow the censorship of the very speech protected in Procunier v. Martinez, 416 U.S. 396 (1974), “which struck down a policy generally authorizing the censorship of outgoing mail containing ‘inflammatory, political racial, religious, or other views’ or ‘otherwise inappropriate’ content.” 

"Our right to know about conditions inside our nation's prisons is inextricably tied to the right of prisoners to correspond candidly with the outside world,” said Mr. Levenstam.  “This case should be reviewed because giving prison officials editorial control over the content of prisoners’ outgoing correspondence serves no correctional purpose, but is a license to censor disfavored viewpoints." 

The Alan Morrison Supreme Court Assistance Project (SCAP) of the Public Citizen Litigation Group recently included the case in its "Cert. Petitions of Public Interest Summer Watch List."  According to SCAP, the Watch List features cert. petitions where the “question presented implicates [the organization’s] public interest mission and there is a chance of a grant.” 

The Supreme Court will determine if it will grant certiorari in the case at a conference scheduled for September 24. 


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