Jenner & Block

Firm Urges Supreme Court to Review First Amendment Standard for Censorship of Prisoner Mail

Jenner & Block attorneys Barry Levenstam, Howard S. Suskin and Shorge K. Sato recently filed a petition to the United States Supreme Court urging the Justices to review a Seventh Circuit decision which upheld the censorship of a Wisconsin prisoner’s outgoing mail.  According to the Firm’s petition for writ of certiorari, the case presents an important First Amendment issue not only for prisoners, but also for the “consequential rights of all American citizens with whom such prisoners might correspond.” 

The pro bono client in this case, who at the time was a prisoner at the Wisconsin Secure Program Facility, wrote a letter in December 2002 to Northern Sun, a retail catalog that merchandises politically-themed t-shirts, posters and other materials, making several inquiries about their products.  In addition, 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, the district court 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 U.S. Court of Appeals for the Seventh Circuit decision 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.  

According to the petition for certiorari, the case warrants review by the Supreme Court because a “substantial degree of confusion” exists among the federal appellate courts regarding the appropriate standard of review for claims of censorship of outgoing prisoner mail.  The widely inconsistent approaches of the appellate courts have led “to the detriment of First Amendment rights of expression,” says the petition.

Further, the failure of the State of Wisconsin to substantiate its assertions that the drawing would hinder the prisoner's rehabilitation suggests that the State’s purported rehabilitative goal is no more than a pretextual excuse for censorship.  The petition concludes that this case provides the Supreme Court with the opportunity to resolve whether the First Amendment permits censorship of a prisoner’s outgoing mail on general rehabilitative grounds, and to otherwise settle the clear conflict in the appellate courts as to the appropriate standard of review for the censorship of outgoing prisoner mail.

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