In theIn theIn the Supreme Court of the United...

NO.

In theIn theIn theIn theIn the

Supreme Court of the United StatesSupreme Court of the United StatesSupreme Court of the United StatesSupreme Court of the United StatesSupreme Court of the United States

JOHN MCGINNESS, SACRAMENTO COUNTY SHERIFF,Petitioner,

v.

CRIME, JUSTICE & AMERICA, INC.,A CALIFORNIA CORPORATION, AND

RAY HRDLICKA, AN INDIVIDUAL,Respondents.

On Petition for Writ of Certiorari to theUnited States Court of Appeals for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

JOHN ANDREJ LAVRA

Counsel of RecordAMANDA LYNN BUTTS

Longyear, O’Dea & Lavra, LLP3620 American River DriveSuite 230Sacramento, CA 95864(916) [email protected]

Counsel for Petitioner

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

November 22, 2011

i

QUESTIONS PRESENTED

1. Whether publishers have an independent FirstAmendment right to demand and require distributionof unsolicited publications to inmates in penalinstitutions.

2. Whether the Turner v. Safley factors should bereconsidered or clarified when a publisher, standingalone, seeks distribution of unsolicited publications toinmates.

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PARTIES TO THE PROCEEDING BELOW

The petitioner is John McGinness, in his officialcapacity as the Sheriff of the County of Sacramento,California (Defendant and Appellee below).

The respondents are Ray Hrdlicka, an individual,and Crime, Justice & America, Inc., a Californiacorporation (Plaintiffs and Appellants below).

Prior to oral argument, the Ninth Circuit Court ofAppeals consolidated this case with the Respondents’similar lawsuit against Perry Reniff, in his officialcapacity as Sheriff of the County of Butte, California.See App. 1a. Sheriff Reniff is not a party to thispetition.

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TABLE OF CONTENTS

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . i

PARTIES TO THE PROCEEDING BELOW . . . . . ii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . iii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . v

PETITION FOR A WRIT OF CERTIORARI . . . . . 1

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

CONSTITUTIONAL PROVISION INVOLVED . . 2

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . 2

REASONS TO GRANT CERTIORARI . . . . . . . . . 14

A. The Ninth Circuit Created A First AmendmentRight For Publishers Where The Supreme CourtConsistently Found None Existed. . . . . . . . . . 15

B. The Ninth Circuit’s Misapplication Of TheTurner Factors Demonstrates The Need ForClarification From This Court. . . . . . . . . . . . . 21

1. The Test Established In Turner v. SafleyWas Inappropriately Applied To a PrisonRegulation That Did Not Affect InmateRights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

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2. The Ninth Circuit Erred In Its Application ofthe Turner Factors by Failing to GiveDeference to Jail Authorities, Shifting theBurden of Persuasion, and Making ContentEvaluations . . . . . . . . . . . . . . . . . . . . . . . . . 23

C. The Questions Presented Are Important AndRecur Frequently. . . . . . . . . . . . . . . . . . . . . . . 32

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

APPENDIX

A: Opinion, United States Court ofAppeals for the Ninth Circuit(January 31, 2011) . . . . . . . . . . . . . . . 1a

Dissenting Opinion by Judge N.R.Smith . . . . . . . . . . . . . . . . . . . . . . . . 23a

B: Memorandum & Order, United StatesDistrict Court, Eastern District ofCalifornia(August 3, 2009) . . . . . . . . . . . . . . . . 29a

C: Order denying rehearing, UnitedStates Court of Appeals for the NinthCircuit(September 1, 2011) . . . . . . . . . . . . . 49a

Dissenting Opinion by JudgeO’Scannlain . . . . . . . . . . . . . . . . . . . 52a

v

TABLE OF AUTHORITIES

CASES

Adderley v. Florida, 385 U.S. 39 (1966) . . . . . . . . . . . . . . . . . . . 20, 21

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) . . . . . . . . . . . . . . . . . . . . . 27

Beard v. Banks, 548 U.S. 521 (2006) . . . . . . . . . . 14, 21, 25, 26, 27

Bell v. Wolfish, 441 U.S. 520 (1979) . . . . . . . . . . . . . . . . . . 31, 35

Block v. Rutherford, 468 U.S. 576 (1984) . . . . . . . . . . . . . . . . . . 22, 29

Cornelius v. NAACP Legal Defense andEducational Fund, Inc., 473 U.S. 788 (1985) . . . . . . . . . . . . . . . 15, 20, 21

Cox v. Louisiana, 379 U.S. 559 (1965) . . . . . . . . . . . . . . . . . . 21, 31

Crime, Justice & Am., Inc. v. Reniff, Case No. 2:08-cv-00343-GEB-EFB, 2009 U.S.Dist. LEXIS 21976 (E.D. Cal. Mar. 18, 2009) . . 8

Crofton v. Roe, 170 F.3d 957 (9th Cir. 1999) . . . . . . . . . . . . . . 25

Greer v. Spock, 424 U.S. 828 (1976) . . . . . . . . . . . . . . . . . . 20, 21

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Houchins v. KQED, Inc., 438 U.S. 1 (1978) . . . . . . . . . . . . . . . . . . . . . . . 34

Hrdlicka v. Cogbill, Case No. 3:04-cv-03020-MJJ, 2006 U.S. Dist.LEXIS 66453 (N.D. Cal. Sept. 1, 2006) . . . . . . . 8

Jones v. North Carolina Prisoners’ Union, Inc., 433 U.S. 119 (1977) . . . . . . . . . . . . . 12, 20, 26, 31

Jones v. Salt Lake County, 503 F.3d 1147 (10th Cir. 2007) . . . . . . . . . . . . 17

Klein v. City of San Clemente, 584 F.3d 1196 (9th Cir. 2009) . . . . . . . 19, 20, 21

Lovell v. Griffin, 303 U.S. 444 (1938) . . . . . . . . . . . . . . . . . . . . . 18

Martin v. City of Struthers, 319 U.S. 141 (1943) . . . . . . . . . . . . . . . 19, 20, 21

Montcalm Publ. Corp. v. Beck, 80 F.3d 105 (4th Cir. 1996) . . . . . . . . . . . . . . . 17

Morrison v. Hall, 261 F.3d 896 (9th Cir. 2001) . . . . . . . . . . . . . . 25

O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987) . . . . . . . . . . . . . . . . . . . . . 26

Overton v. Bazzetta, 539 U.S. 126 (2003) . . . . . . . . . . . . . 14, 21, 26, 27

Pell v. Procunier, 417 U.S. 817 (1974) . . . . . . . . . . . . . . . . . . passim

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Prison Legal News v. Cook (“PLN I”), 238 F.3d 1145 (9th Cir. 2001) . . . . . . . . . . . . . 25

Prison Legal News v. Jones, et al., Case No. 2:11-cv-00907, filed April 5, 2011 . . 34

Prison Legal News v. Lehman (“PLN II”), 397 F.3d 692 (9th Cir. 2005) . . . . . . . . . . . 19, 25

Prison Legal News v. Livingston, Case No. C-09-296, 2011 U.S. Dist. LEXIS 385(S.D. Tex. 2011 Jan. 4, 2011) . . . . . . . . . . . 17, 34

Procunier v. Martinez, 416 U.S. 396 (1974) . . . . . . . . . . . . . 14, 16, 21, 23

Regan v. Taxation with Representation, 461 U.S. 540 (1983) . . . . . . . . . . . . . . . . . . . . . 26

Saia v. New York, 334 U.S. 558 (1948) . . . . . . . . . . . . . . . . . . . . . 31

Shaw v. Murphy, 532 U.S. 223 (2001) . . . . . . . . . . . . . . . . . . passim

Thornburgh v. Abbott, 490 U.S. 401 (1989) . . . . . . . . . . . . . 14, 16, 18, 26

Turner v. Safley, 482 U.S. 78 (1987) . . . . . . . . . . . . . . . . . . . passim

United States v. Douglass, 579 F.2d 545 (9th Cir. 1978) . . . . . . . . . . . . . . 17

United States v. O’Brien, 391 U.S. 367 (1968) . . . . . . . . . . . . . . . . . . . . . 20

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CONSTITUTION

U.S. Const. amend I . . . . . . . . . . . . . . . . . . . . passim

STATUTES

28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . 1

28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . . . . . . 2, 7

REGULATIONS

Cal. Code Regs. tit. 19 . . . . . . . . . . . . . . . . . . . . . . . 4

OTHER AUTHORITIES

Distribution of Crime Justice & America Magazine, Crime Justice & America, (February 27, 2011)http://crimejusticeandamerica.com/distribution-of-crime-justice-america-magazine . . . . . . . . . . 3

Home Page, In Your Defense Magazine, http://inyourdefensemag.com . . . . . . . . . . . . . 34

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PETITION FOR A WRIT OF CERTIORARI

Petitioner John McGinness, in his official capacityas Sheriff of the County Sacramento, California,respectfully petitions for a writ of certiorari to reviewthe judgment of the United States Court of Appeals forthe Ninth Circuit in this case.

OPINIONS BELOW

The divided opinion of the Ninth Circuit Court ofAppeals (App. 1a) is reported at 631 F.3d 1044 (9thCir. 2011). The order of the court of appeals denyingrehearing (App. 49a), and Circuit Judge O’Scannlain’sopinion, joined by seven other Circuit Judges,dissenting from the denial of rehearing (App. 52a) areunreported, but are available at 2011 U.S. App. LEXIS18218 (9th Cir. Sept. 1, 2011). The opinion of thedistrict court granting respondent’s motion forsummary judgment (App. 29a) is unreported, butavailable at 2009 U.S. Dist. LEXIS 67054 (E.D. Cal.,Aug. 3, 2009).

JURISDICTION

The court of appeals issued its opinion on January31, 2011 (App. 1a). A petition for rehearing andrehearing en banc was denied on September 1, 2011(App. 49a). This Court has jurisdiction pursuant to 28U.S.C. § 1254(1).

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CONSTITUTIONAL PROVISION INVOLVED

The First Amendment to the United StatesConstitution provides:

“Congress shall make no law respecting anestablishment of religion, or prohibiting the freeexercise thereof; or abridging the freedom of speech, orof the press; or the right of the people peaceably toassemble, and to petition the Government for a redressof grievances.”

STATEMENT OF THE CASE

1. Respondent Ray Hrdlicka and Crime, Justice &America, Inc. filed suit against Petitioner Sheriff JohnMcGinness claiming their First Amendment rights arebeing violated by McGinness’ refusal to speciallydistribute, via one of Hrdlicka’s chosen methods,unsolicited copies of their quarterly periodical Crime,Justice & America (“CJA”) to inmates in theSacramento County jail. The jurisdiction of the districtcourt was invoked under the Civil Rights Act, 42U.S.C. § 1983, and under 28 U.S.C. § 1331 (generalfederal question jurisdiction).

Crime, Justice & America, Inc. is a privatecompany with the primary business purpose ofpublishing and distributing CJA. Ray Hrdlicka is thesole owner and publisher of CJA. The free publication’starget audience is county jail inmates. CJA containsgeneral articles about the criminal justice system,along with full-page advertisements for bail bondcompanies and criminal defense attorneys. It attractsadvertisers by promising to promote their message tothousands of jail inmates. As of February 2011, CJA is

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distributed to over 70 county jails in 13 states.1

Hrdlicka does not rely on subscriptions or requests fordistribution, but instead delivers unsolicitedmagazines to inmates by either (1) dropping off bulkquantities for jail staff to put in common areas, or(2) mailing to inmates through the United StatesPostal System, on a weekly basis at a ratio of onemagazine for every ten inmates. For direct mailing,Hrdlicka obtains inmate roster information throughCalifornia’s Public Records Act and similar laws.

Petitioner John McGinness, as the elected Sheriffof the County of Sacramento, was responsible formanaging the Sacramento County Jail.2 On average,there are 2,340 inmates at the jail per day. There areover 700 pieces of incoming mail and 600 pieces ofoutgoing mail per day. Approximately 60 jail staffpersons process the mail during the night shift 6 daysper week. Control room officers open, review, andinspect commercial publications and personal mailboth for content3 and for contraband prior todistribution. Each day, at least 24 personnel hours aredevoted to mail related duties at the jail.

2. Sacramento County Sheriff’s Department(“SSD”) has various regulations restricting the amount

1 See Distribution of Crime Justice & America Magazine, Crime Justice & America, (February 27, 2011) http://crimejusticeandamerica.com/distribution-of-crime-justice-america-magazine.

2 Herein all references to the jail are intended to be theSacramento County Jail unless noted otherwise.

3 The jail’s mail policy prohibits materials that contain obscenity,tend to incite murder, arson, riot, or racism, or otherwisecompromise the security of the facility.

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and type of materials that can enter the jail and bekept by inmates in their cells.

SSD’s policies prohibit the distribution ofunsolicited commercial mail at the jail. The policy doesnot consider the content of any unsolicitedpublications, nor the postage rate under whichunsolicited publications are sent. The jail will notaccept publications for distribution received on a“drop-off” basis or delivery that constitutes “bulkdelivery.” The jail considers “bulk mail” to be any mail,regardless of volume, not individually addressed andnot individually posted with U.S. postage. The purposeof prohibiting unsolicited commercial mail is tomaintain security and preserve resources. Bycontrolling the volume of mail entering the jail, theSheriff is required to commit less of his already modestresources to categorizing, searching, and distributingincoming mail. Further, the jail prohibits distributionof bulk mail due to the precedential significance ofpotentially having to accept other deliveries or dropoffs of bulk mail.

SSD also controls the volume and type of personalproperty an inmate can keep in his cell at any giventime. Inmates are limited to that which will fit withintwo copy-paper boxes. The policy further limits aninmate to no more than one newspaper, fiveperiodicals, and five soft-cover books. This regulationdoes not discriminate between items based on themanner each was acquired.

Beyond SSD’s policies, there are variousregulations that govern the Sheriff’s oversight of thejail. Pursuant to Title 19 of the California Code ofRegulations, the Sheriff is required to maintain the jail

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in a neat, orderly manner, and all places not open tocontinuous observation must be kept free fromcombustible litter and rubbish at all times. TheCalifornia Building and Fire codes require a neat andorderly facility.

It is undisputed that the Sheriff denies distributionof bulk mail for two primary reasons: “(1) theprecedential value of potentially having to accept otherdeliveries of bulk mail; and (2) the potential negativeeffect on the workload for the jail staff.” App. 32a. TheSheriff also prohibits unsolicited publications formultiple reasons including: (1) to limit inmates’ abilityto conceal contraband; (2) to limit the amount ofmaterials that inmates can use to clog toilets and floodtheir cells and pods; (3) to limit inmates’ ability toplace items over the lights and windows in their cells,allowing staff to perform mandated hourly welfarechecks more efficiently; (4) to limit the means by whichinmates can construct weapons; and (5) to enhanceinmate safety by limiting the means by which they cancommunicate inappropriate and/or violent messages orinstructions to each other.

Despite existing regulations, inmates still regularlyuse their possessions for nefarious purposes. Inmatesroutinely use paper materials to hide contraband, startfires, flood cells, make weapons, and cover lights andwindows. Magazines, specifically, are more commonlyused as weapons in the jail. According to jailadministration, inmates are more likely to usedocuments they did not solicit for nefarious purposesbecause they do not have any personal attachment toor interest in the materials. Even without a regularstream of incoming unsolicited publications, jail staffspends a significant amount of time searching for

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contraband and attempting to prevent disruptive anddangerous incidents. Hence, more paper moreproblems. Especially if that paper is the unsolicitedkind to which inmates have no personal attachment.

If the Sheriff were to place bulk copies of CJA in

the common areas of the jail, additional staff andresources would be required to monitor the copies ofthe publication, remove and replace the publication,and clean up any trash or excess created by placementof the publication. This burden would only increase if,and when, other organizations or publications decidethey want the same arrangement as CJA. Althoughthe Sheriff at one time subscribed to a newspaper forinmate use, he ceased that practice.4 The Sheriff’sprior subscription consisted of one copy of thenewspaper per pod. Unlike CJA, only limited copies ofthe newspaper were sent to the jail and were sent atthe request of the Sheriff. Hrdlicka, on a weekly basis,wants to send hundreds of copies of his magazine torandom inmates that have not requested it, or havethe jail staff distribute hundreds of copies throughoutthe common areas. Regardless, the Sheriff no longersubscribes to any publication, nor does he acceptmaterials on a drop-off basis, for distribution at thejail.

In addition to receiving legal mail, personal mail,and approved solicited commercial mail, inmates haveaccess to information via telephones, televisions,libraries, and bulletin boards. SSD’s mail policy fully

4 The Sheriff subscribed to the Sacramento Bee until early 2006,and then subscribed to USA Today for a short period. These werepaid subscriptions of approximately one copy per pod.

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respects an inmate’s right to request and receiveappropriate publications.

3. In September 2003, Hrdlicka contacted theSheriff to inquire about distribution of CJA to inmatesat the jail. Jail administration informed Hrdlicka thathe could mail individually addressed copies of CJA toinmates, but that the jail would not facilitate generaldistribution. In December 2004, Hrdlicka beganmailing hundreds of unsolicited copies of hispublication to inmates via bulk-rate mail.

In May 2005, jail administration informed Hrdlickathat in accordance with SSD’s policies it would nolonger accept unsolicited copies of CJA. The jail hasnever refused to deliver CJA to an inmate whorequested it.

4. On February 5, 2008, Hrdlicka filed a § 1983 suitfor injunctive relief against Sheriff McGinness,alleging that the Sheriff’s refusal to distributeunsolicited copies of CJA violates the FirstAmendment. App. 30a. Following limited discovery,Sheriff McGinness filed a motion for summaryjudgment. Citing a policy of judicial restraint, thedistrict court assumed without deciding that Hrdlickahas a First Amendment right to distribute hisunsolicited publication to inmates, and applied thefour-factor test established in Turner v. Safley, 482U.S. 78 (1987), to determine if SSD’s policy isconstitutional. App. 37a. The district court grantedsummary judgment holding that “the undisputed factsdemonstrate that [the Sheriff’s] regulation concerningbulk mail and drop-off distribution is logicallyconnected to and advances the proffered legitimatepenological concerns.” App. 41a. The district court

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additionally determined that Hrdlicka has alternativeavenues available for inmates to receive hispublication (App. 43a); that Hrdlicka’s proposeddistribution of his unsolicited publication wouldincrease administration, staffing, and security issueswithin the jail (App. 45a); and that Hrdlicka failed toidentify an alternative that would satisfy the Sheriff’sconcerns (App. 46a). Hrdlicka appealed.

Prior to pursuing litigation against SheriffMcGinness, Hrdlicka filed similar lawsuits against theSheriff of Butte County, Perry Reniff, and the Sheriffof Sonoma County, Bill Cogbill, to challenge thoseSheriffs’ similar mail policies. In both cases, thedistrict courts concluded that the challengedprohibition relating to unsolicited publications wererationally related to and advanced legitimatepenological interests.5 Hrdlicka also appealed thedistrict court’s decision granting summary judgment toSheriff Reniff.

5. Prior to oral arguments, the appellate courtconsolidated Hrdlicka’s appeals regarding SheriffMcGinness and Sheriff Reniff. In a joint opinion,Judges Fletcher and Reinhardt of the Ninth CircuitCourt of Appeals reversed the grants of summaryjudgment and remanded to the district court. App. 1a-23a. Judge N.R. Smith dissented. App. 23a.

5 The opinion of the United States District Court for the EasternDistrict of California in Crime, Justice & America, Inc. v. Reniff,Case No. 2:08-cv-00343-GEB-EFB, is unreported but available at2009 U.S. Dist. LEXIS 21976 (E.D. Cal. Mar. 18, 2009). Theopinion of the United States District Court for the NorthernDistrict of California in Hrdlicka v. Cogbill, Case No. 3:04-cv-03020-MJJ, is unreported but available at 2006 U.S. Dist. LEXIS66453 (N.D. Cal. Sept.1, 2006).

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As an initial matter, the majority found that apublisher has a First Amendment interest indistributing unsolicited literature to inmates, andthus, the Turner test must be applied. Id. at 9a. Themajority indirectly concludes that anytime anindividual or organization wishes to engage inexpressive conduct relating to an inmate, they have aspecial right to access those inmates unless a jail’sregulation can survive Turner analysis. App. 13a. Thecourt further stated that since publishers, or anyoutsider for that matter, cannot achieve distribution ofunsolicited materials inside a jail that “the publisherneeds some form of cooperation from jail or prisonauthorities in order to distribute its literature.” App.9a.

Analyzing the first Turner factor—whether there isa “valid, rational connection” between the regulationand the asserted legitimate governmental interest—the majority found that the Sheriffs’ lack of specificevidence showing how acceptance of CJA wouldnegatively impact security and jail resources, or wouldset an unworkable precedent, created genuine issuesof material fact for trial. The court acknowledged thatthe Sheriff had various legitimate reasons forprohibiting unsolicited publications, but concluded hedid not provide enough evidence of how the banachieved those goals. App. 14a.

Sheriff McGinness’ asserted goal of maintaining jailsecurity was undercut because (1) at one time the jaildistributed a few copies of a subscribed to newspaper,(2) the jail did not keep specific statistics of the type ororigin of the paper used by intimates in pastdestructive acts, and (3) there is a separate regulationcontrolling the amount and type of materials an

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inmate can keep in his cell. App. 15a. It was therefore“unclear the degree to which allowing distribution ofCJA” would adversely affect jail security. App. 17a.

Despite evidence of the substantial amount of mailentering the jail and the considerable time already useto process that mail, it was not enough to support thegoal of preserving jail resources because the Sheriff didnot provide an “estimate of how many additionalpersonnel hours would be required if CJA weredelivered to the jail.” App. 17a. The court found therewas not enough evidence to support the Sheriff’slegitimate concern that allowing CJA “would set anunworkable precedent” and “could obligate the [j]ail toaccept any other publications” because jailadministration could only “recall ‘maybe three’” prior“requests to distribute unsolicited publications toinmates.” App. 18a.

Analyzing the second Turner factor— “whetherthere are alternative means of exercising the right thatremain open to prison inmates”—the majorityacknowledged that both Sheriffs “will distribute CJAto inmates who request it.” App. 19a. The courtnevertheless believed that there was still “a materialquestion of fact whether, as a practical matter,Plaintiffs can effectively reach county jail inmates ifthey can deliver CJA only upon request.” Id. The courtnoted that CJA contains bail bond advertisements, andfound it significant that if inmates could only receiveCJA after submitting a request and waiting to receiveit, “the advertising in CJA will be of little to no use.”Id.

Analyzing the third Turner factor—“the impactaccommodation of the asserted right will have on

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guards and other inmates, and on the allocation ofprison resources generally”—the court reasoned thatsince the Sheriffs’ evidence regarding the first Turnerfactor was insufficient, there were “material questionsof fact as to whether, and to what degree, the jailswould be forced to expend significant additionalresources if CJA is delivered by either of the twomethods.” App. 21a. Finally, the court analyzed thefourth factor—“whether there are ready alternativesthat fully accommodate the prisoner’s rights at aminimal cost to valid penological interests”—andopined that because CJA is distributed in othercounties, “the response of the two jails in this case maybe exaggerated.” App. 22a.

The majority could not “determine as a matter oflaw that Defendants have justified banning theunsolicited distribution of CJA to county jail inmates,”and reversed and remanded both cases. App. 23a.

In his dissent, Judge Smith adamantly disagreedwith the majority’s conclusion that publishers have aspecial right to demand distribution of unsolicitedpublications to inmates. App. 27a. In his view, themajority erred by failing to abide by the separation ofpowers and not according deference to jail authorities.App. 26a.He found that Turner should not have beenapplied in this case because the Court in Turner wasfocused on formulating a standard of review for“prisoners’ constitutional claims,” App. 25a. JudgeSmith reasoned that just as members of the press haveno “special right of access” to state prisons, Hrdlickahas no “special right to demand that a Sheriff acceptone of his chosen methods of distribution.” App. 27a.He explained that while it may be costly for Hrdlickato generate an actual interest in his publication among

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subscribers, “the loss of cost advantages does notimplicate his First Amendment rights.” App. 27a(quoting Jones v. North Carolina Prisoners’ Union,Inc., 433 U.S. 119, 130-131 (1977)).

Judge Smith also argued that the majority’s Turneranalysis demonstrated “the problems with finding aspecial First Amendment right for Hrdlicka’s businessmodel.” App. 27a. He observed that in analyzingwhether Hrdlicka has alternative means to express hisrights, the majority reasoned that if inmates mustrequest CJA, the bail bond advertising would lose itsvalue, App. 28a, which was an improper considerationbecause the Turner test “simply does not accommodatevaluations of content.” App. 28a (quoting Shaw v.Murphy, 532 U.S. 223, 230 (2001)). Judge Smithexplained that because of the court’s failure to followShaw, jail and prison administrators must allow allunsolicited publications into their facilities, orevaluate the content of unsolicited publications on acase by case basis, which is “impossible underSupreme Court precedent.” App. 27a-28a. Rather thanplace jail and prison administrators in an impossibleposition, he concluded that the “simpler and saner ruleis that Hrdlicka has no special First Amendment rightto demand that a prison agree to one of his distributionmethods.” App. 28a.

6. Both Sheriff McGinness and Sheriff Reniffpetitioned the Ninth Circuit for rehearing or rehearingen banc. In a joint opinion, the full court of appealsdenied the Sheriffs’ requests for rehearing. App. 49a-52a. Judge Reinhardt, joined by Judge Fletcher, wrotea brief opinion concurring in the denial of the petition,and restating his belief that “because the value of CJAto inmates is greatest when they first arrive in the jail,

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it is unrealistic to insist, as a condition for applyingthe Turner test, that inmates have already subscribedto CJA.” App. 52a.

Judge O’Scannlain, joined by seven other judges,wrote a lengthy dissent, specifically noting that thepanel’s decision “is completely untethered fromSupreme Court precedent,” “in considerable tensionwith [Ninth Circuit] case law,” further “complicatesthe ‘difficult undertaking of prison administration,’”and “needlessly muddles our First Amendmentjurisprudence.” App. 52a-61a. He observed that thecourt committed a series of errors by wrongly applyingTurner and in its application of the Turner factors.App. 51a-52a. For example, although the issue waswhether the Sheriffs’ content-neutral policies have alogical connection to a legitimate penological interest,the panel framed the issue as whether the Sheriffswere justified in their “refusal to distribute CJA.” App.23a, 52a. Judge O’Scannlain explained that because ofthat fundamental misapplication of Turner, the courtfailed to consider “the impact its ruling producesbeyond these jails and this publication” and the “manypractical concerns that will arise from requiring jailsto distribute an unknown quantity of unsolicited mail.”App. 52a. He noted that the court improperlyconsidered the content of CJA, which placed jail andprison administrators in the impossible predicamentof having to “allow all unsolicited publications to bedistributed, or make a case by case determination ofthe quality of each publication.” App. 52a.

Finally, Judge O’Scannlain recognized thatalthough the burden was on Hrdlicka to demonstratethat the Sheriffs’s policies are arbitrary or irrational,the court improperly shifted an “onerous burden” onto

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the Sheriffs to justify their “refusal to distribute CJA”with heightened and exacting evidence, whichconflicted with the decisions in Beard v. Banks, 548U.S. 521 (2006) and Overton v. Bazzetta, 539 U.S. 126(2003). App. 51a-52a.

7. This petition follows.

REASONS TO GRANT CERTIORARI

The Ninth Circuit decided an important andrecurring issue of publishers’ First Amendment rightsin a manner that conflicts with Supreme Courtprecedent. The lower court resolved this case byexpanding First Amendment rights beyond thatrecognized by this Court or any other circuit court. Forthe first time, publishers have a special right torequire distribution of unsolicited publications toinmates. Review is warranted because the rulingconflicts with this Court’s First Amendmentprecedents. This Court recognizes that the press doesnot have a constitutional right of access to inmatesgreater than that of the public, and that a publisher’sFirst Amendment right to access an inmate in jail orprison is dependent upon an inmate’s expression ofinterest in the publisher’s message.6 In this case, noinmate has been refused a requested copy of CJA.

Contrary to the view of the majority below, Turnerdoes not apply to all prison regulations involvingcommunications with inmates. Instead, “Turnerdecided only the standard of review to apply when a

6 See Thornburgh v. Abbott, 490 U.S. 401, 408 (1989); Pell v.Procunier, 417 U.S. 817, 834 (1974); Procunier v. Martinez, 416U.S. 396, 408 fn. 11 (1974).

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prison regulation impinges upon inmates’ FirstAmendment rights.” App. 52a (citing Turner, 482 U.S.at 89). In morphing the test to evaluate whether apublisher’s, and not an inmate’s, constitutional rightswere violated, the Ninth Circuit’s application of theTurner test is inconsistent with accepted SupremeCourt precedents, common sense, and public policy.Evaluating the jail’s regulation, the lower court failedto accord deference to the undisputed professionaljudgment of jail authorities, shifted the burden ofpersuasion to the Sheriff, and considered the contentof the publication along with the appeal and time-sensitive nature of the information to inmates.

Prompt resolution of this issue is criticallyimportant to prison and jail administration throughoutthe Ninth Circuit and the United States. The court ofappeals’ decision seriously impedes the government’sability to efficiently oversee penal institutions andpaves the way for the already mounting flood ofpublications to require distribution of unsolicitedmaterials in penal institutions. As the questionspresented in this case are important, and the court ofappeals erred in its decision, this Court shouldintervene to resolve the matter.

A. The Ninth Circuit Created A FirstAmendment Right For Publishers WhereThe Supreme Court Consistently FoundNone Existed.

This Court instructs that the initial step whenconsidering a First Amendment claim is to determinewhether the expressive activity in the applicablecontext is speech protected by the First Amendment.Cornelius v. NAACP Legal Defense and Educational

16

Fund, Inc., 473 U.S. 788, 797 (1985). In this case, thelower court skipped this first step, assumed thepublisher had a First Amendment right to distribution,and jumped immediately to evaluating whether theregulation prohibiting distribution was reasonablyrelated to legitimate penological goals. Prior to themajority’s decision, no outsider (whether a publisher,news reporter, or other) had a First Amendmentinterest or freestanding right to unsolicited contactwith inmates. Pell v. Procunier, 417 U.S. 817, 834(1974). There existed no Supreme Court or circuitauthority acknowledging a First Amendment right ofa publisher to demand and require distribution of itsunsolicited materials to inmates. Instead, SupremeCourt precedent establishes that in the context of jailsand prisons, it is the request of the inmate to receivethe publication that creates the First Amendmentright on behalf of the publisher.7 Disregarding thatprecedent the Ninth Circuit held that “[a] FirstAmendment interest in distributing and receivinginformation does not depend on a recipient’s priorrequest for that information.” App. 9a. When aninmate has not requested the publication, the contoursof the First Amendment should not extend so far as togrant a publisher the right to demand and requiredistribution of unsolicited materials to inmates,

7 Thornburgh, 490 U.S. at 408 (“There is no question thatpublishers who wish to communicate with those who, throughsubscription, willingly seek their point of view have a legitimateFirst Amendment interest in access to prisoners.”); Martinez, 416U.S. at 408, fn. 11 (While personal correspondence betweeninmates and those who have a particularized interest incommunicating with them implicates the rights of the sender,“different considerations may come into play in the case of massmailings.”)

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especially when no other individual would be able to dothe same.

No other circuit has recognized a First Amendmentright of publishers to demand and require distributionof unsolicited publications to inmates.8

1.”[P]risons are one of a few ‘public institutionswhich do not perform speech-related functions at all...[where] the government is free to exclude evenpeaceful speech and assembly which interferes in anyway with the functioning of those organizations.” App.24a (quoting United States v. Douglass, 579 F.2d 545,549 (9th Cir. 1978)).

In Pell, four inmates and three journalists broughtsuit challenging a prison regulation that prohibitedmedia interviews with specific inmates. The courtanalyzed the journalists’ First Amendment rightsseparate from the inmates’ rights. 417 U.S. at 829. TheCourt affirmed that the First Amendment “barsgovernment from interfering in any way with a freepress,” but elaborated that “[t]he Constitution doesnot, however, require government to accord the pressspecial access to information not shared by members

8 See Jones v. Salt Lake County, 503 F.3d 1147, 1162 (10th Cir.2007) (A publisher “has a First Amendment interest in providingits magazine to inmates who subscribe to it.”); Montcalm Publ.Corp. v. Beck, 80 F.3d 105, 109 (4th Cir. 1996) (Recognizing apublisher has a First Amendment interest in communicating withits inmate-subscribers, but specifically recognizing that the rightmay differ if mass mailings were involved.); Prison Legal News v.Livingston, Case No. C-09-0296, 2011 U.S. Dist. LEXIS 385, *24-25 (S.D. Tex. Jan 4, 2011) (Publisher seeking to distributeunsolicited books to prisoners could not state a valid FirstAmendment claim without demonstrating that at least one inmatewillingly sought the publisher’s books.).

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of the public generally.” Id. at 834. The Court alsoopposed the suggestion “that the Constitution imposesupon government the affirmative duty to makeavailable to journalists sources of information notavailable to members of the public generally.” Id. at834-35.

In accordance with Pell, publishers, as members ofthe press9, should not have a special right of access todistribute their unsolicited materials, and the Sheriffshould not have a duty to make available to publishersmethods of distribution not available to the public.Members of the public cannot drop off materials,regardless of the amount, at the jail and demand thatjail staff distribute it as requested. Instead, member ofthe public must send properly addressed and postedmail directly to individual inmates if they wish tocommunicate. Here, Hrdlicka demands a special right,as a publisher, not granted to the public. In the face ofSupreme Court precedent to the contrary, the NinthCircuit obliged.

“[T]he only time the [Supreme] Court has everacknowledged a publisher’s ‘interest in access toprisoners’ is when those prisoners ‘throughsubscription, willingly seek their point of view.’”App.55a (quoting Thornburgh, 490 U.S. at 408). InThornburgh, three publishers joined a suit brought byinmates challenging the rejection of various incomingpublications by prison officials. 490 U.S. at 403. Thecourt held that the publishers had a First Amendmentright to access prisoners who subscribed to their

9 See Lovell v. Griffin, 303 U.S. 444, 452 (1938) (“The press in itshistoric connotation comprehends every sort of publication whichaffords a vehicle of information and opinion.”)

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publication because those inmates by subscribinghad sought the publisher out and expressed interest inits message. Id. at 408. The court did not find thatpublishers have an unequivocal First Amendmentright of access to prisoners.

Prior to the majority’s ruling in this case, the NinthCircuit evaluated a ban on non-subscription bulk mailand catalogs in the jail. Prison Legal News v. Lehman,397 F.3d 692 (9th Cir. 2005). In Lehman, the courtspecifically noted that each piece of mail sent by thepublisher was the result of an inmate’s request. Thecourt further recognized that the publisher was nottrying to send its publication to all inmates regardlessof a request. Id. at 700-01 (“[I]t is the fact that arequest was made by the recipient, and not the factthat the recipient is paying to receive the publication,that is important.”)

Hrdlicka is not attempting to communicate withinmates who have expressed an interest in receivinghis publication. No inmate’s First Amendment rightsare implicated. Instead, Hrdlicka seeks a special rule,under the First Amendment, granting him anautomatic right to require jail administration to serveas a “de facto distribution arm” for his publication, orface burdensome litigation. App. 24a and 52a.

2. The Ninth Circuit supports its holding that “[a]First Amendment interest in distributing andreceiving information does not depend on a recipient’sprior request for that information” with case lawregarding distribution of unsolicited advertisements inpublic fora. App. 9a (citing Klein v. City of SanClemente, 584 F.3d 1196, 1204-05 (9th Cir. 2009) andMartin v. City of Struthers, 319 U.S. 141, 143, 148-49

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(1943)). The lower court sees no reason why theprinciples of those cases should not apply to apublisher’s interest in distributing unsolicitedmaterials within penal institutions. App. 9a. TheNinth Circuit fails to account for Supreme Courtprecedent distinguishing public from non-public fora.10

In Klein, activists challenged a city’s anti-litterordinance that prohibited placing leaflets on carsparked on city streets claiming that it violated theirFirst Amendment free speech rights. The courtundertook a time, place, and manner analysis because“placing leaflets with a political message on cars isexpressive conduct,” and that expressive conductoccurred in a public forum. 584 F.3d at 1201 fn. 2(citing United States v. O’Brien, 391 U.S. 367 (1968)).In Martin, the court held an ordinance that prohibitedindividuals from knocking on residential doors for thepurpose of distributing handbills invalid because itwas “in conflict with the freedom of speech and press.”319 U.S. at 149.

This Court has expressed that in the context of anonpublic forum, “[t]he guarantees of the FirstAmendment have never meant ‘that people who wantto propagandize protests or views have a constitutionalright to do so whenever and however and whereverthey please.’” Greer v. Spock, 424 U.S. at 838 (quotingAdderley, 385 U.S. at 48). “The State, no less than aprivate owner of property, has the power to preservethe property under its control for the use to which it is

10 Cornelius, 473 U.S. at 809; Jones, 433 U.S. at 130-31; Adderleyv. Florida, 385 U.S. 39 (1966); Greer v. Spock, 424 U.S. 828 (1976).

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lawfully dedicated.” Adderley, at 47.11 A main problemwith the ordinance in Martin was that it substitutedthe judgment of the community for the judgment of theindividual homeowner, an understandable injustice inthe context of a public forum. However, in prisons andjails, the judgment of prison administration shouldtake priority and should be substituted for thejudgment of inmates in determining how mail will bereceived and distributed.12 There is no general rightof distribution in non-public fora.13 Therefore,Klein and Martin are easily distinguishable from thecircumstances of this case.

It is respectfully submitted that a publisher’sdistribution of unsolicited copies of its publication toinmates does not constitute protected speech under theFirst Amendment.

B. The Ninth Circuit’s Misapplication Of TheTurner Factors Demonstrates The NeedFor Clarification From This Court.

In Turner, this Court promulgated areasonableness standard to judge prisoners’constitutional claims, holding that “when a prisonregulation impinges on inmates’ constitutional rights,

11 See also Cox v. Louisiana, 379 U.S. 559, 560-64 (1965).

12 See Turner v. Safley, 482 U.S. at 84-85; Procunier v. Martinez,416 U.S. at 406; Beard v. Banks, 548 U.S. 521, 529-30 (2006);Overton v. Bazzetta, 539 U.S. 126, 132 (U.S. 2003).

13 See, e.g., Cornelius, 473 U.S. at 809 (“The First Amendmentdoes not demand unrestricted access to a non-public forum…”);Adderley, 385 U.S. at 47; Greer, 424 U.S. at 838 (no generalizedconstitutional right to distribute leaflets at a military base).

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the regulation is valid if it is reasonably related tolegitimate penological interests.” 482 U.S. at 89(emphasis added). In determining reasonableness, theCourt listed four relevant factors. First, whether thereis a “‘valid, rational connection’ between the prisonregulation and the legitimate governmental interestput forward to justify it.” Id. at 89-90 (quoting Block v.Rutherford, 468 U.S. 576, 586 (1984)). Second,“whether there are alternative means of exercising theright that remain open to prison inmates.” Id. at 90(emphasis added). Third, the impact accommodation ofthe asserted right will have on guards and otherinmates, and on the allocation of prison resourcesgenerally. Id. Finally, whether there are readyalternatives that fully accommodate the prisoner’srights at a minimal cost to valid penological interests.Id. at 90-91 (emphasis added).

1. The Test Established In Turner v. SafleyWas Inappropriately Applied To a PrisonRegulation That Did Not Affect InmateRights

Turner analysis was not justified in this matterbecause the four-factor test only governs prisonregulations affecting inmate rights, not the rights ofthose seeking access to inmates standing alone.“Turner decided only the standard of review to applywhen a prison regulation impinges upon inmates’ FirstAmendment rights.” App. 52a (citing Turner, at 89).The Ninth Circuit expanded the scope of the Turnertest to apply to all prison regulations involvingcommunications with inmates.

As the Turner test was established to deal withinmates’ rights, significant issues arise when the test

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is applied, as here, to evaluate only a publisher’srights. As Judge O’Scannlain points out in his dissent,“what does it mean to consider ‘whether thereare alternative avenues that remain open to theinmates to exercise the right’ or ‘the impact thataccommodating the asserted right will have on otherguards and prisoners’ when no one contends that aninmate’s rights are at risk?”App. 57a. In morphing thetest to evaluate whether a publisher’s, and not aninmate’s, constitutional rights were violated, the NinthCircuit flouts the purpose behind the Turner test,which was to balance prisoners’ First Amendmentrights and the government’s ability to operate efficientand safe penal institutions. The lower court“inexplicably provides special rights to Hrdlickabecause he was attempting to communicate withsomeone who has been incarcerated.”App. 57a.

2. The Ninth Circuit Erred In Its Application ofthe Turner Factors by Failing to GiveDeference to Jail Authorities, Shifting theBurden of Persuasion, and Making ContentEvaluations

a. This Court stated that its task in Turner was “toformulate a standard of review for prisoners’constitutional claims that is responsive both to the‘policy of judicial restraint regarding prisonercomplaints and [to] the need to protect constitutionalrights.’” 482 U.S. at 85 (emphasis added) (quotingMartinez, 416 U.S. at 406). This Court specificallystated:

“Running a prison is an inordinately difficultundertaking that requires expertise, planning,and the commitment of resources, all of

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which are peculiarly within the province ofthe legislative and executive branchesof government. Prison administration is,moreover, a task that has been committed to theresponsibility of those branches, and separationof powers concerns counsel a policy of judicialrestraint. Where a state penal system isinvolved, federal courts have…additionalreasons to accord deference to the appropriateprison authorities.”

482 U.S. at 84-85.

Although this Court’s precedent requiressubstantial deference to the judgment of prisonadministrators, the Ninth Circuit disregarded theundisputed evidence and the Sheriff’s judgment, andrequired the Sheriff to provide more exhaustiveevidence regarding incidents of paper related problemsand the amount of resources required to accommodateHrdlicka’s proposed distribution. It is undisputed thatincreasing the amount of paper in the jail increases theamount of materials available to inmates to use forimproper and nefarious purposes. It is undisputed thatin the jail administration’s experience, inmates willuse paper to clog toilets, cover lights, create weapons,conceal contraband, etc. It is undisputed that in theopinion of jail administration, inmates are more likelyto use non-personal items for improper and nefariouspurposes. It is undisputed that other jail regulationsdo not control an inmate’s access to materials that hehas no personal attachment to or interest in. It isundisputed that at the time the Sheriff denieddistribution of CJA the jail’s administration hadconcerns that distribution of unsolicited publicationswould pose a security threat. Contrary to Supreme

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Court precedent, the lower court rejects theundisputed professional judgment of jailadministrators and interjects its own.14

Despite the foregoing, the Ninth Circuit opined thatit had a better solution than deny distribution ofunsolicited materials. The Ninth Circuit implies thatjail administration should work with publications toestablish workable distribution methods andschedules. App. 21a. Essentially, the Ninth Circuitrequires the Sheriff to powwow with publishers toaccommodate the publisher’s desire to send itsmaterials to inmates that have not even expressed aninterest in receiving them. Instead of requiring thepublication to devote the time and effort to build itsreadership and expand its market, by shifting theburden to the Sheriff, it can now “commandeer” the jailfor its “personal gain.” App. 59a.

The Ninth Circuit has applied the Turner test nowin five cases involving the distribution of literature toinmates. In each case, the circuit court found that thatjail’s regulations were unconstitutional.15 For a courtclaiming to “evaluate the policies of a jail or prisonwith ‘due regard for the inordinately difficultundertaking that is modern prison administration,’recognizing that ‘certain proposed interactions, though

14 See Beard, 548 U.S. at 529-30 (With regard to disputed mattersof professional judgment, the court’s inferences must accorddeference to the views of prison authorities).

15 See Crofton v. Roe, 170 F.3d 957, 960-61 (9th Cir. 1999); PrisonLegal News v. Cook (“PLN I”), 238 F.3d 1145, 1151 (9th Cir. 2001);Morrison v. Hall, 261 F.3d 896, 898 (9th Cir, 2001); Prison LegalNews v. Lehman (“PLN II”), 397 F.3d 692 (9th Cir. 2005); App. 1a-28a.

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seemingly innocuous to laymen, have potentiallysignificant implications for the order and security ofthe prison,’” the Ninth Circuit has yet to find that ajail authority’s regulation was reasonable. App. 11a(quoting Thornburgh, 490 U.S. at 407 (internalquotations omitted)). When dealing with “challenges tojail or prison regulations limiting outside contact withprisoners” this Court consistently recognizes the needto balance “constitutional imperatives,” and practicejudicial restraint. App. 54a (citing Turner, 482 U.S. at84-85, and Beard, 548 U.S. at 528). Despite thisprecedent, the Ninth Circuit failed to accord deferenceto the undisputed professional judgment of jailauthorities. As Judge O’Scannlain expressed in hisdissent, “federal judges must allow prison officials to‘reach[] experienced-based conclusion[s]’ about which‘policies help to further legitimate prisonobjectives.’”App. 60a.

b. Supreme Court precedent places the burden onHrdlicka “to show that the regulations were notsupported by any rational basis.” App. 59a (citingRegan v. Taxation with Representation, 461 U.S. 540,547-51 (1983)).16 According to Overton v. Bazzetta,when a prison regulation is challenged, “[t]heburden… is not on the State to prove the validity ofprison regulations but on the prisoner to disprove it.”539 U.S. at 132 (citing Jones, at 128).17 Although at thesummary judgment stage, the court was required to“draw ‘all justifiable inferences’ in [Hrdlicka’s]

16 See also Beard, 548 U.S. at 529 (citing Overton, 539 U.S. at 132(the party challenging the prison regulation “bears the burden ofpersuasion.”)).

17 See also O’Lone v. Estate of Shabazz, 482 U.S. 342, 350 (1987);Shaw, 532 U.S. at 232.

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‘favor,’… [it] must distinguish between evidence ofdisputed facts and disputed matters of professionaljudgment.” Beard, 548 U.S. at 529-530 (quotingAnderson v. Liberty Lobby, Inc., 477 U.S. 242, 255(1986)). Concerning disputed matters of professionaljudgment, the court’s inferences “must accorddeference to the views of prison authorities.” Id. at 530(citing Overton, at 132). As the challenging party,Hrdlicka needed to offer evidence sufficient to rebutthe overwhelming evidence that the Sheriff’sregulation is rationally connected to the jail’s need tomaintain security, efficiency, and order.

The Ninth Circuit placed the burden on the Sheriff,and for the first time imposed upon “jailadministrators the onerous burden of showing ‘thedegree to which the[] purposes [behind the regulations]are actually served by a refusal to allow’ distribution”of unsolicited mail. App. 59a. Instead of evaluatingwhether the regulation rationally furthered alegitimate penological purpose, the Ninth Circuitrequired the Sheriff to show that the regulation hadactually advanced the stated purpose. App. 14a-16a.This approach flatly contradicts Shaw v. Murphy,which required only that the connection between therestriction and the purpose behind it not be arbitraryor irrational. 532 U.S. at 239.

Again, it is undisputed that increasing the amountof paper in the jail increases the amount of materialsavailable to inmates to use for improper and nefariouspurposes. It is undisputed that in the jailadministration’s experience, inmates will use paper toclog toilets, cover lights, create weapons, concealcontraband, etc. It is undisputed that in the opinion ofjail administration, inmates are more likely to use

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non-personal items for improper and nefariouspurposes. It is undisputed that other jail regulationsdo not control an inmate’s access to materials that hehas no personal attachment to or interest in. It isundisputed that at the time the Sheriff denieddistribution of CJA the jail’s administration hadconcerns that distribution of unsolicited publicationswould pose a security threat. Still, the Ninth Circuitdetermined it was “unclear the degree to whichallowing distribution of CJA in the jails would produceadditional clutter in inmates cells or otherwiseadversely affect jail security.”App. 17a. Because thejail did not keep records of the origin or type of paperinmates used to clog toilets, cover lights, etc., theSheriff had not done enough to show that unsolicitedpublications had a higher potential of being used fornefarious purposes, even though the undisputedprofessional judgment of jail administrationestablished otherwise. App. 15a.

In the Sheriff’s professional judgment processingand distribution of unsolicited commercialpublications, whether mailed in bulk or dropped off,constitutes an inefficient use of his limited and varyingresources. The more copies of unsolicited publicationsarriving at the jail for distribution, the more time andresources that are used to process and distribute thosepublications, leaving fewer resources available tomanage the jail and maintain security. Despiteevidence of the tremendous amount of time alreadyneeded to inspect incoming mail, not includingunsolicited copies of CJA or other unsolicitedpublications, the Ninth Circuit demanded specificevidence of “how many additional personnel hourswould be required if CJA were delivered to thejail…”App. 17a.

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It is undisputed that jail administration hadconcerns that allowing unsolicited copies of CJA would“set an unworkable precedent for the [j]ail and couldobligate the [j]ail to accept any other publications thatappeared on the doorstep.”App. 18a. The Ninth Circuitdisregarded these concerns and the jailadministration’s professional judgment because theadministration could only recall three prior incidentsof unsolicited publications requesting distribution inthe jail. Id. Apparently, three was not enough to makethe concern legitimate.

Contrary to this Court’s precedent, the NinthCircuit imposed its judgment for that of jailadministration and required the Sheriff to do far morethan show “a valid, rational connection” between theregulation and his interests in preserving resourcesand maintaining an efficient, secure facility. SeeTurner, 482 U.S. at 89; Shaw, 532 U.S. at 239.

c. The second Turner factor evaluates “whetherthere are alternative means of exercising the right thatremain open to prison inmates.” Turner, 482 U.S. at89-90 (quoting Block v. Rutherford, 468 U.S. at 586).Despite the Supreme Court’s direction to look atwhether alternative avenues remain open to inmates,the lower court only considered the alternativesavailable to Hrdlicka for communicating with inmates.App. 19a-20a. Further, the Ninth Circuit considerednot only whether alternative avenues existed, but alsowhether those alternatives were the least restrictive;

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precisely the type of decision-making the Turner Courtwanted to avoid.18

Despite the requirement to evaluate the alternativeavenues available to inmates, the lower courtdisregarded the undisputed fact that inmates could atany time request to receive CJA. Further, inmates hadaccess to the type of information contained in CJAthrough phone books, the jail’s libraries, television,bulletin boards, and unlimited interaction with theirattorneys. App. 33a. In regard to Hrdlicka’s alternativeavenues, the Ninth Circuit recognized the following:(1) Hrdlicka could mail the publication directly toinmates if individually addressed to specific inmatesand properly posted by the U.S. Post Office; (2) ifinmates subscribed to or requested CJA the Sheriffwould not deny its delivery; and (3) Hrdlicka couldadvertise his publication in the phone book or ontelevision to gain readership, both of which areavailable to inmates. App. 19a-20a. The Ninth Circuitsimply decided that those alternatives were not goodenough. Id. at 20a. That type of analysis directlyconflicts with this Court’s precedent that “[w]here‘other avenues’ remain available for the exercise of theasserted right...courts should be particularly consciousof the ‘measure of judicial deference owed tocorrections officials... in gauging the validity of the

18 See Turner, 482 U.S. at 89 (“Subjecting the day-to-dayjudgments of prison officials to an inflexible strict scrutinyanalysis would seriously hamper their ability to anticipatesecurity problems and to adopt innovative solutions to theintractable problems of prison administration. The rule would alsodistort the decisionmaking process, for every administrativejudgment would be subject to the possibility that some courtsomewhere would conclude that it had a less restrictive way ofsolving the problem at hand.”)

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regulation.’” Turner at 90 (quoting Jones, 433 U.S. at131 and Pell, 417 U.S. at 827).

d. The Ninth Circuit’s decision conflicts with Shawv. Murphy, which established that the level ofconstitutional protection cannot be based upon thecontent of the communication and that the Turner test“does not accommodate valuations of content.” 532U.S. at 230. The lower court’s decision grants specialrights to publications sent to inmates that containtime sensitive content appealing to the inmatepopulation. App. 20a.

Instead of accepting the undisputed alternatives forcommunication available to Hrdlicka and inmates, thelower court considered the time sensitive nature of thepublication’s advertising. App. 20a (“Inmates typicallywant information about bail bonds and attorneys assoon as they arrive at the jail. For those who receiveCJA only after a significant wait, the advertising inCJA is of little or no use.”) The Ninth Circuit defiesSupreme Court precedent by inviting jailadministration to consider the content of a publicationand “make a case by case determination of the qualityof the publication” when deciding whether to allow itwithin jail walls. Turner, at 90 (citing Pell, 417 U.S. at828 and Bell v. Wolfish, 441 U.S. 520, 551 (1979)).19

Public officials may not constitutionally prohibit theexercise of First Amendment rights according to theirown conception of what may be the socially beneficialcourse.20 Despite significant Supreme Court precedent

19 See also Shaw, 532 U.S. at 230 (the Turner test “does notaccommodate valuations of content.”).

20 See Cox, 379 U.S. at 557-58; Saia v. New York, 334 U.S. 558(1948).

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to the contrary, the Ninth Circuit holds prisonadministration to stricter standards for publicationssent to inmates that contain time sensitive contentappealing to the inmate population. App. 20a.

C. The Questions Presented Are ImportantAnd Recur Frequently.

This issue is critically important to administrationof penal institutions in the Ninth Circuit and will havenationwide implications for the First Amendmentrights of publishers and other sources of news andinformation in non-public forums, specifically jails andprisons. The court of appeal’s decision, if allowed tostand, will hinder the ability of jail authorities tocontrol the quantity of mail entering its facility, thusplacing an undue burden on the jail’s limited andvarying resources, ultimately resulting in greatersecurity risks. The decision threatens to open thefloodgates to all unsolicited publications (subscriptionbased or not), the press, and free citizens seeking totarget the inmate audience. It will result in a dramaticincrease in litigation over which materials deservedistribution, by what means, and when. This willresult in an uncontrollable snowball effect that willbury jail resources.

1. According to jail authorities, inmates are morelikely to use paper and other materials that they haveno personal attachment to or interest in for nefariouspurposes. The lower court’s decision forces SheriffMcGinness and sheriffs of all other counties within theNinth Circuit to furnish inmates with exactly the typeof materials more likely to be used for improper actssimply because a publisher unilaterally decides itwishes to communicate with inmates. Every item that

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enters the jail is one more item that can be used as atool of destruction. Regulations, such as the one inquestion, that seek only to limit unnecessary,unrequested, and unwanted materials are no longerlawful. This exposes penal institutions to unknownquantities of unsolicited mail. Now, jail administrationmust not only consider inmates’ rights and the welfareof the facility, but also the interests of third partysolicitors.

2. The lower court’s decision exposes jails andprisons to the demands of not only Hrdlicka but tothose of already existing and future publishers seekingto expand their readership and grow their business.Over the past decade, penal institutions have beenintroduced to the recurring trend of newsletters andother publications geared to inmates. These types ofpublications lure advertisers who specifically targetincarcerated individuals (e.g., criminal defenseattorneys and bail bonds agents) with the ability toaccess a literally captive audience. While containingsome information that may aid inmates, theoverwhelming purpose is to solicit business for bothadvertisers and the publication in general.

Shortly after the Ninth Circuit’s decision, anotherprominent publisher and litigator in this arena, PrisonLegal News (“PLN”), filed suit against the SacramentoCounty Sheriff, in part, over the Sheriff’s refusal todistribute PLN’s unsolicited brochures to inmates.Since 1999, PLN has filed lawsuits all over the countrychallenging jail regulations that affect distribution ofits publication. In its recent action against the Countyof Sacramento and another action in a Texas DistrictCourt, PLN seeks to distribute materials not requested

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by inmates.21 Further, following the Ninth Circuit’srefusal to hear this case en banc, the publisher of InYour Defense Magazine, whose goal is to assistcriminal defense attorneys in advertising to inmates22,cited the court’s decision in its demand that theRiverside County Sheriff distribute its unsolicitedpublication.

Various other publications throughout the nationare also marketed to inmates, and the lower court’sdecision is not limited to CJA, or even writtenpublications. Although the Ninth Circuit’s opiniondiscusses only publishers’ rights, the scope of the ruleactually applies to all outsiders who seek access toinmates, because “newsmen have no constitutionalright of access to prisons or their inmates beyond thatafforded the general public.”App. 52a (quoting Pell,417 U.S. at 834 and citing Houchins v. KQED, Inc.,438 U.S. 1, 11-12 (1978)).

The decision is far-reaching and will unnecessarilyburden and confuse penal institutions. The NinthCircuit implies that jail administration should workwith publications to establish workable distributionmethods and schedules. App. 21a. It imposes on theadministration the burden of assisting publicationslike CJA in building their reader base and getting outtheir message. App. 9a (“the publisher needs someform of cooperation from jail or prison authorities inorder to distribute its literature.”) This time it is

21 See Prison Legal News v. Jones, et al., Case No. 2:11-cv-00907,filed April 5, 2011; Prison Legal News v. Livingston, Case No. C-09-296, 2011 U.S. Dist. LEXIS 385 (S.D. Tex. Jan 4, 2011).

22 See Home Page, In Your Defense Magazine, http://inyourdefensemag.com.

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Hrdlicka asking the court to create a special ruleprotecting his chosen method of distribution, but he issure not be the last or even the least demanding.There is nothing to prevent organizations or individualcitizens from demanding distribution of their messagein the jail and requiring authorities to work with themto develop a means to achieve their goals. App. 52a.

Additionally, the Ninth Circuit’s decision impliesthat certain publications may be more worthwhile ofdistribution due to their appeal to inmates and thetime sensitive nature of their information. Therefore,the jail must either allow and distribute allunrequested publications or make a case-by-casedetermination of the quality of the publication, whichwould expose the jail to additional constitutionalclaims for failing to apply restrictions in a neutralfashion. App. 27a-28a.23 Jail administration will needto review the type and content of the publication,beyond the typical screening out of materials that areobscene, violent, etc., to determine if it has particularrelevance to its facility before imposing a regulation.Due to the burden placed on jail administrators, jailswill be forced to distribute and wait to see how theirfacilities are affected before they can adequatelysupport a regulation. This confusing and unworkablestandard has the potential to result in additional andfrequent litigation for jail administration.

23 See also Turner, 482 U.S. at 90; Pell, 417 U.S. at 828; Bell, 441U.S. at 551.

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CONCLUSION

The petition for a writ of certiorari should begranted.

Respectfully submitted,

John Andrej Lavra Counsel of RecordAmanda Lynn ButtsLongyear, O’Dea & Lavra, LLP3620 American River DriveSuite 230Sacramento, CA 95864(916) [email protected]

November 22, 2011

Counsel for Petitioner

i

APPENDIX

TABLE OF CONTENTS

Appendix A: Opinion, United States Court ofAppeals for the Ninth Circuit(January 31, 2011) . . . . . . . . . . . 1aDissenting Opinion by Judge N.R.Smith . . . . . . . . . . . . . . . . . . . . 23a

Appendix B: Memorandum & Order, UnitedStates District Court, EasternDistrict of California(August 3, 2009) . . . . . . . . . . . . 29a

Appendix C: Order denying rehearing, UnitedStates Court of Appeals for theNinth Circuit(September 1, 2011) . . . . . . . . . 49aDissenting Opinion by JudgeO’Scannlain . . . . . . . . . . . . . . . 52a

1a

APPENDIX A

FOR PUBLICATION

UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT

[Filed January 31, 2011]

No. 09-15768D.C. No. 2:08-cv-00343-GEB-EFB

RAY HRDLICKA, an individual; )CRIME, JUSTICE & AMERICA, )INC., a California corporation, )

Plaintiffs-Appellants, ))

v. ))

PERRY L. RENIFF, in his official )capacity of Sheriff of the )County of Butte, California, )

Defendant-Appellee. ) )

Appeal from the United States District Courtfor the Eastern District of California

Garland E. Burrell, United States District Judge,Presiding

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No. 09-16956D.C. No. 2:08-cv-00394-FCD-EFB



v. ))

JOHN MCGINNESS, Sacramento )County Sheriff, )


OPINION

Appeal from the United States District Courtfor the Eastern District of California

Frank C. Damrell, Senior United StatesDistrict Judge, Presiding

Argued and SubmittedMay 13, 2010—San Francisco, California

Filed January 31, 2011

Before: Stephen Reinhardt, William A. Fletcher andN. Randy Smith, Circuit Judges.

Opinion by Judge William A. Fletcher;Dissent by Judge N.R. Smith

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COUNSEL

Andrew Alexander Dosa, Alameda, California, SpencerD. Freeman, Tacoma, Washington, for the appellants.

Bradley Justin Stephens, OFFICE OF THE COUNTYCOUNSEL, Oroville, California, for appellee PerryReniff.

Amanda Lynn Butts, Jeri Lynn Pappone, LONGYEARO’DEA AND LAVRA, Sacramento, California, forappellee John McGinness.

Paul R. Coble, Martin J. Mayer, JONES & MAYER,Fullerton, California, for Amicus Curiae.___________________________________________________

OPINION

W. FLETCHER, Circuit Judge:

Plaintiffs, Ray Hrdlicka and his publication Crime,Justice & America (“CJA”), brought two suits claimingthat their First Amendment rights are being violatedby the mail policies at two county jails in Californiathat refuse to distribute unsolicited copies of CJA toinmates. The district courts in each case grantedsummary judgment to defendants after applying thefour-factor test of Turner v. Safley, 482 U.S. 78 (1987).

In these related appeals, we conclude thatquestions of material fact preclude summary judgmentto defendants. On this record, we cannot hold as amatter of law under Turner that defendants havesufficiently justified their refusal to distribute

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unsolicited copies of CJA to jail inmates. We thereforereverse and remand to the respective district courts.

I. Background

Ray Hrdlicka, a former bail bondsman, beganpublishing CJA in 2002. CJA addresses criminaljustice topics relevant to jail inmates. One recent issueof the publication included, for example, a sectiondescribing the steps between a felony arrest andconviction, an article on firearms enhancements tosentences, and a page of humor. Approximately three-fourths of each publication contains such content. Theremainder contains advertisements for bail bondagents and lawyers. CJA attracts advertisers bypromising to get their message in front of thousands ofjail inmates who are in immediate need of theirservices. Since 2002, CJA has published 14 editionsand over 1 million copies. CJA is currently distributedin jails in more than 60 counties in 13 states, including32 county jails in California.

The Principal Librarian for the CaliforniaDepartment of Corrections has recommended CJA asan acceptable donation to the California Departmentof Corrections Law Libraries. Fortune Small Businessdescribed CJA as a “surprisingly professional-looking40-page upstart quarterly with articles writtenby lawyers and other criminal-justice-systemprofessionals and spotlighting issues most glossiesprefer to avoid.” The record contains over 100 letters ofappreciation from inmates who have found thepublication valuable.

CJA does not rely on subscriptions or requests fordistribution. Instead, CJA delivers unsolicited

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magazines to inmates through one of two methods. Ifa jail agrees to accept general distribution, CJAdelivers weekly supplies of magazines that jail staffthen leave in common areas of the jail. If a jail declinesto accept general distribution, CJA mails individuallyaddressed issues directly to some inmates afterobtaining inmate roster information. Under eithermethod, CJA is typically delivered weekly at a ratio ofabout one copy for every ten inmates.

A. Hrdlicka v. McGinness

In September 2003, Plaintiffs contacted theSacramento County Sheriff’s Office to inquire aboutdistributing CJA to inmates in the jail in SacramentoCounty, California. Captain Scott Jones initiallyresponded that individually addressed copies of CJAcould be delivered to jail inmates, but that the jailwould not facilitate general distribution. Plaintiffsmade several requests for electronic copies of theinmate roster. These requests were denied, butCaptain Jones informed Plaintiffs that a daily list ofinmates was available in the jail lobby. Using that list,in December 2004 CJA began mailing individuallyaddressed unsolicited copies to inmates at a ratio ofone copy for every ten inmates.

In May 2005, Captain Jones informed Plaintiffsthat the jail would no longer permit delivery ofunsolicited copies of CJA. Captain Jones cited the jail’sOperations Order, which prohibits the distribution ofunsolicited publications regardless of content orpostage rate. According to Captain Jones, the jail hasnever refused to deliver CJA to an inmate whorequested it. The jail has a separate policy limiting thepersonal property an inmate can keep in his cell to the

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amount that can be held in two copy-paper boxes. Aninmate may keep up to one newspaper, fiveperiodicals, and five soft-covered books in his cell atany given time.

On February 5, 2008, Plaintiffs filed a § 1983 suitfor injunctive relief against Sacramento County SheriffJohn McGinness, alleging that the jail’s refusal todistribute unsolicited copies of CJA violates the FirstAmendment. The district court granted summaryjudgment to Sheriff McGinness under Turner.

Plaintiffs timely appealed.

B. Hrdlicka v. Reniff

In August 2004, Plaintiffs contacted the ButteCounty Sheriff’s Department to inquire aboutdistributing CJA to inmates in the jail in ButteCounty, California. Plaintiffs proposed a generaldistribution of CJA. Alternatively, they requested alist of inmates so that Plaintiffs could mailindividually addressed issues of CJA. Plaintiffsproposed weekly distribution of one issue for every teninmates. Sheriff’s Department officials informedPlaintiffs that the jail would not allow delivery ofunsolicited copies of CJA to inmates through eithermethod. They explained that the jail’s mail policyprohibits distribution of unsolicited commercial mailthrough either general or individually addresseddelivery.

The Butte County jail’s mail policy is contained ina Departmental Order. That order was issued onSeptember 23, 2004, one month after CJA contactedthe Sheriff’s Department. The order prohibits the

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distribution of all unsolicited commercial mail toinmates, regardless of content or postage rate. TheButte County jail has policies limiting the amount ofwritten materials inmates can keep in their cells andprohibiting inmates from leaving items in commonareas.

On February 5, 2008, Plaintiffs filed a § 1983 suitfor injunctive relief against Butte County Sheriff PerryReniff, alleging that the jail’s refusal to distributeunsolicited copies of CJA violates the FirstAmendment. The court granted summary judgment toSheriff Reniff under Turner.

Plaintiffs timely appealed.

II. Standard of Review

We review de novo a district court’s order grantingsummary judgment. Bamonte v. City of Mesa, 598 F.3d1217, 1220 (9th Cir. 2010). Viewing the evidence in thelight most favorable to CJA and Hrdlicka, we mustdetermine whether there are any genuine issues ofmaterial fact and whether the district courts correctlyapplied the relevant substantive law. See id.

III. Discussion

A. First Amendment

[1] Defendants argue categorically that the FirstAmendment does not protect distribution of apublication to inmates who have not requested it. Theproper analysis, however, is more nuanced. Inexamining regulations that restrict communicationswith inmates, we first determine whether any First

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Amendment interest is implicated. If such an interestis implicated, we apply the four-factor Turner test todecide whether that interest gives rise to a protectedFirst Amendment right.

[2] The Supreme Court applied this two-stepanalysis in Thornburg v. Abbott, 490 U.S. 401, 408(1989). The Court began by stating that “there is noquestion that publishers who wish to communicatewith those who, through subscription, willingly seektheir point of view have a legitimate First Amendmentinterest in access to prisoners.” Id. at 408. Havingfound such a “First Amendment interest,” the Courtthen turned to the question of whether the publishershad an actual First Amendment right to send, and theinmates to receive, the particular communications atissue. Applying Turner, the Court held thatregulations prohibiting certain communications werevalid despite the unquestioned First Amendmentinterest. Id. at 419. Similarly, in Pell v. Procunier, 417U.S. 817 (1974), the Court wrote that “restrictions thatare asserted to inhibit First Amendment interestsmust be analyzed in terms of the legitimate policiesand goals of the corrections system.” Id. at 822. TheCourt noted that inmates might have a “constitutionalinterest” in the particular form of communication theysought, but ultimately held in that case that theinterest did not give rise to a protected FirstAmendment right because of the strong countervailinginterests of prison administration. Id. at 823-24,827-28.

[3] In this case, we first decide whether a publisherhas a First Amendment interest in distributing, andinmates have a First Amendment interest in receiving,unsolicited publications. We have repeatedly

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recognized that publishers and inmates have a FirstAmendment interest in communicating with eachother. See, e.g., Prison Legal News v. Lehman, 397 F.3d692, 699 (9th Cir. 2005) (“PLN II”); see alsoThornburgh v. Abbott, 490 U.S. 401, 408 (1989). AFirst Amendment interest in distributing andreceiving information does not depend on a recipient’sprior request for that information. See Klein v. City ofSan Clemente, 584 F.3d 1196, 1204-05 (9th Cir. 2009)(“The mere fact that an unwilling recipient must takethe unsolicited leaflet from her windshield and placeit in the garbage cannot justify an across-the-boardrestriction.”); see also Martin v. City of Struthers, 319U.S. 141, 143, 148-49 (1943) (striking down asunconstitutional a municipal ordinance that made itunlawful to go door to door distributing handbills,circulars, or advertisements). We see no reason whythis well-established principle does not apply to apublisher’s interest in distributing, and an inmate’scorresponding interest in receiving, unsolicitedliterature.

[4] Because a publisher cannot deliver unsolicitedcommunications to an inmate by distributing handbillson the street, or by leaving unsolicited leaflets on cars,the publisher needs some form of cooperation from jailor prison authorities in order to distribute itsliterature. (Indeed, some cooperation is needed forsolicited communications as well.) However, jail orprison authorities cannot be required to distributeunsolicited communications irrespective of the burdenssuch distribution might place upon them. Whetherthe First Amendment interest in unsolicitedcommunication with inmates gives rise to a FirstAmendment right thus implicates very differentconcerns from such communication in public fora. The

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Supreme Court’s opinion in Turner addresses preciselythose concerns.

The Court in Turner upheld a prison policy thatrestricted the exchange of non-legal mail betweeninmates in different institutions who were not familymembers. The Court stated that “[p]rison walls do notform a barrier separating prison inmates from theprotections of the Constitution.” Turner, 482 U.S. at84. The Court recognized, however, that “[r]unning aprison is an inordinately difficult undertaking thatrequires expertise, planning, and the commitment ofresources, all of which are peculiarly within theprovince of the legislative and executive branches ofgovernment.” Id. at 84-85. The Court held that“when a prison regulation impinges on inmates’constitutional rights, the regulation is valid if it isreasonably related to legitimate penological interests.”Id. at 89.

The Court in Turner provided a four-factor test forevaluating the reasonableness of a prison or jailregulation impinging on a constitutional right. TheCourt ultimately accepted the government’sjustification that correspondence between unrelatedinmates at different institutions facilitated gangactivity and could be used to coordinate escape plansor violent acts. 482 U.S. at 91. It concluded that thepolicy “is content neutral, it logically advances thegoals of institutional security and safety . . . , and it isnot an exaggerated response to those objectives.” Id. at93.

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[5] The four-factor Turner test considers:

(1) whether the regulation is rationally relatedto a legitimate and neutral governmentalobjective, (2) whether there are alternativeavenues that remain open . . . to exercise theright, (3) the impact that accommodating theasserted right will have on other guards andprisoners, and on the allocation of prisonresources; and (4) whether the existence of easyand obvious alternatives indicates that theregulation is an exaggerated response by prisonofficials.

PLN II, 397 F.3d at 699 (citing Turner, 482 U.S. at 89).We evaluate the policies of a jail or prison with “dueregard for the ‘inordinately difficult undertaking’ thatis modern prison administration,” recognizing that“certain proposed interactions, though seeminglyinnocuous to laymen, have potentially significantimplications for the order and security of the prison.”Thornburgh, 490 U.S. at 407 (quoting Turner, 482 U.S.at 85).

We have applied the Turner test in four casesinvolving the distribution of literature to inmates. Ineach case, we have held unconstitutional prisonpolicies that placed restrictions on the distribution ofgift and solicited publications. In Crofton v. Roe, 170F.3d 957, 960-61 (9th Cir. 1999), we struck down aregulation that prohibited a prisoner from receiving abook that had been ordered for him by his stepfather.We held that “although the state has had ampleopportunity to develop a record, it has offered nojustification for a blanket ban on the receipt of all giftpublications.” Id. at 960-61. In Prison Legal News v.

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Cook (“PLN I”), 238 F.3d 1145, 1151 (9th Cir. 2001),we struck down a ban on bulk-rate mail as applied tosubscription non-profit publications. We noted that“the receipt of such unobjectionable mail [does not]implicate penological interests.” Id. at 1149. InMorrison v. Hall, 261 F.3d 896, 898 (9th Cir. 2001), weextended the holding in PLN I and struck down asimilar regulation as applied to “pre-paid, for-profit,subscription publications.” We recognized that “thenumber of subscription for-profit publications thatenter the [prison] may be greater than the number ofsubscription non-profit publications,” id. at 902(emphasis in original), but we noted that thegovernment provided no evidence “regarding theimpact that processing pre-paid, for-profit subscriptionpublications would have on prison resources.” Id. at903 (emphasis omitted). Finally, in Prison Legal Newsv. Lehman (“PLN II”), 397 F.3d 692 (9th Cir. 2005), westruck down a prison ban on “non-subscription bulkmail” (publications that inmates request but do notpay for). We affirmed the district court’s finding that“the ban on non-subscription bulk mail was notrationally related to a neutral government objective.”Id. at 699.

Our dissenting colleague concludes that because aprison is a non-public forum, a publisher has no FirstAmendment interest in distributing, and an inmatehas no First Amendment interest in receiving,unsolicited publications. He therefore concludes thatthe Court’s four-part Turner test is inapplicable. Werespectfully disagree.

[6] The Supreme Court and our court haveconsistently applied the Turner test to determinewhether various forms of written communication with

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inmates are protected by the First Amendment. See,e.g., Thornburgh (applying Turner to prison regulationprohibiting specific publications); Crofton v. Roe(applying Turner to prison regulation banning giftpublications); PLN I (applying Turner to prisonregulation banning bulk-rate mail); Morrison v. Hall(applying Turner to prison regulation banningbulk-rate, and third and fourth class, mail); PLN II(applying Turner to non-subscription bulk-rate mail).In the context of deciding whether the Turner testapplies, we see no way to distinguish what was atissue in those cases from what is at issue here. Allcases, including the case now before us, haveindividual challenges to prison or jail regulationsforbidding various forms of written communications.The fact that in this case the publication wasunsolicited may, of course, be taken into account inapplying the Turner test. But the fact that thepublication was unsolicited does not make the Turnertest inapplicable.

We therefore review the jails’ policies under thefour-factor Turner test. Because we review summaryjudgments granted to defendants, we view theevidence in the light most favorable to CJA.

1. “Rationally Related to a Legitimate PenologicalObjective”

The first Turner factor is a sine qua non: “[I]f theprison fails to show that the regulation is rationallyrelated to a legitimate penological objective, we do notconsider the other factors.” Ashker v. Cal. Dep’t ofCorr., 350 F.3d 917, 922 (9th Cir. 2003). But if theregulation is rationally related to a legitimatepenological objective, that is not the end of the inquiry.

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The other three Turner factors must also be evaluatedbefore a court can decide whether the prison regulationor policy is permissible.

a. Jail Security

[7] Officers at the Sacramento and Butte Countyjails assert that refusing to allow the distribution ofunsolicited copies of CJA promotes security in the jailsby reducing the likelihood of contraband entering thejail, and by reducing the amount of clutter in eachinmate’s cell thereby reducing the risk of fires andenabling efficient cell searches. The officers also assertthat the policies promote security because, once in thejail, unsolicited publications are more likely than otherpublications to be used for “nefarious purposes” suchas blocking lights or clogging toilets. We do notquestion the importance of reducing the likelihood ofcontraband entering the jails, reducing the risk of fire,and enabling efficient cell searches. Nor do wequestion the importance of discouraging or preventinginmates from using paper for improper purposes.However, defendants’ general statements are undercutby the specific evidence they offer in an attempt toshow the degree to which these purposes are actuallyserved by a refusal to allow the requested distributionof CJA.

For example, Captain Jones of the SacramentoCounty jail stated in his deposition that until 2006 thejail accepted delivery of multiple unsolicited copies ofthe Sacramento Bee (the primary general circulationdaily newspaper for the Sacramento area) on a“drop-off basis.” The jail stopped delivery of the Bee in2006, but for reasons unrelated to those it now givesfor refusing to accept delivery of CJA. Captain Jones

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stated in his deposition, “I think at the time the Beewas stopped because of a perceived crusade against thesheriff’s department during that time period.” CaptainJones elaborated, “It was very expensive, as well, so Ithink it was a combination of factors, but I believe thattheir coverage of the department during that timeperiod was the catalyst to start looking at those otherfactors.”

After delivery of the Bee was canceled, the jailaccepted USA Today on an unsolicited drop-off basis.USA Today was cancelled after about a year because,according to Captain Jones, the jail no longer wishedto pay for it. Captain Jones did not list security risksas among the “combination of factors” that motivatedthe jail’s decision to stop distributing either unsolicitednewspaper to inmates. He was specifically askedwhether there was any diminution of incidents of“covering lights [and] clogging toilets” when USAToday was cancelled. He responded, “I wouldn’tknow. . . . I don’t think we ever kept track of suchnumbers.”

Captain Jones stated in his declaration that“inmates are not permitted to leave any materials inthe common areas of the Jail,” and that “[t]here arenot materials which are made available to inmates byplacing copies in any of the day rooms.” However, hestated the opposite in his deposition: “[I]f someone hasa subscription and gets done with it often times they’llput it out for the other inmates to read. . . . [I]f aninmate gets done with a novel, they might put it outfor someone else to get[.]” When asked “Would aninmate be allowed to leave out a copy of TimeMagazine when they’re done with it?”, Captain Jonesanswered “Yes.”

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Captain Jones sought to distinguish the securitythreat posed by the availability of newspapers in thecommon areas compared to the availability of CJA. Hesaid in his deposition, “If there were one Crime,Justice & America in a housing unit, I don’t think itwould cause any greater security concern than anewspaper would.” He was then asked, “What if therewas three copies [of CJA]?” He responded, “Well, threewould cause three times, you know, if you have aminor concern, then you have three times a minorconcern, so it’s still not — I don’t think it would causean error [sic] of panic, but nor would it be withoutconsequence.” Captain Jones did not account for thefact that a general circulation newspaper ordinarilyhas more pages than CJA, nor for the fact that a newcopy of a newspaper is typically delivered every day,whereas new copies of CJA would be delivered onlyweekly.

Lieutenant Bryan Flicker of the Butte County jailstated in his declaration that inmates at that jailalready have access to paper that they use forimproper purposes. He stated that Butte County jailinmates regularly misuse torn out pages from thetelephone books the jail provides in every dayroomarea, as well as from books donated to the jail by thelocal community. Lieutenant Flicker did not specifywhether distribution of CJA was likely to increase therate of such use of paper by inmates.

[8] Further, both jails already have separatepolicies regulating inmates’ possession of property,including paper, in their cells. See Morrison, 261 F.3dat 902 (“In light of the regulation limiting the totalamount of property in a cell, . . . permitting inmates toreceive for-profit, subscription publications could not

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possibly increase the total volume of cell materials.”);see also PLN II, 397 F.3d at 700; PLN I, 238 F.3d at1150-51. It is thus unclear the degree to whichallowing distribution of CJA in the jails would produceadditional clutter in inmates cells or otherwiseadversely affect jail security.

b. Staff Resources

[9] Officers at both jails expressed concern thatallowing delivery of unsolicited copies of CJA wouldrequire additional staff time. Officer James Fox of theSacramento County jail stated in a declaration thatthere are 700 pieces of incoming mail and 600 pieces ofoutgoing mail per day at the jail. “The mail isprocessed during the night shift by a total of sixty (60)persons, thirty (30) individuals per shift over two(2) shifts. . . . A total of twenty-four (24) personnelhours are used per day on mail related duties at theJail.” But Officer Fox gave no estimate of how manyadditional personnel hours would be required if CJAwere delivered to the jail once a week at a ratio of oneissue for every ten inmates. Officers at Butte CountyJail provided no information quantifying theadditional resources that would be required todistribute CJA. Indeed, they did not even provideinformation about the resources the jail currentlydevotes to mail delivery.

[10] Neither jail has suggested that unsolicitedpublications are more difficult to inspect and deliverthan solicited publications. Cf. PLN I, 238 F.3d at 1150(“The Department has presented no evidencesupporting a rational distinction between the risk ofcontraband in subscription non-profit organizationstandard mail and first class or periodicals mail.”).

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c. Slippery Slope

Captain Jones expressed a concern in hisdeclaration that “to accept publications or magazinesfrom one publisher would set an unworkable precedentfor the Jail and could obligate the Jail to accept anyother publications that appeared on the doorstep.” ButCaptain Jones acknowledged in his deposition that theslippery slope problem was not a concern when the jailaccepted unsolicited copies of the Sacramento Bee andUSA Today. He specifically stated that the jail did notcease distributing the USA Today “because of anyconcern about a precedential value that it would set.”

Captain Jones could recall “maybe three” requeststo distribute unsolicited publications to inmates inSacramento County jail since 2000. Of those threerequests, Captain Jones could not remember if anywere for regular publications as opposed to merelyone-time-only leaflets. Butte County jail officers didnot present any evidence about other requests todistribute unsolicited mail.

d. Interference with Existing Advertising

[11] Sheriff Reniff of the Butte County Jail assertsas an additional interest his desire to maintain controlover advertising of bail in the jail. Butte County jailhas a contract with Partners for a Safer America, Inc.(“PSA”), under which PSA operates bulletin boards inthe jail on which bail bond agents are allowed to postadvertisements. PSA pays the jail a percentage of itsprofits from its sale of advertising space on the bulletinboards. Sheriff Reniff stated that distributingunsolicited copies of CJA to inmates would beinconsistent with the jail’s contract with PSA.

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However, it is not clear on the record before us that, infact, distributing CJA would be inconsistent with thecontract.

[12] More important, it is obvious (though notstated by Sheriff Reniff) that if unsolicited copies ofCJA are permitted in the jail, the value to bail bondagents of advertising on the jail bulletin boards will bediminished. That diminution in value may well bereflected in a lower price paid to PSA by theadvertisers, and in a corresponding lower amount paidto the jail by PSA. We do not believe that a jail has alegitimate penological interest, for purposes of Turner,in protecting a profit made by impinging on inmates’First Amendment rights. Sheriff Reniff cites no casesupporting such a proposition, and we are aware ofnone.

The Sacramento County jail, like the Butte Countyjail, has bulletin boards posted with information aboutbail bond agents. Unlike the Butte County jail,however, the Sacramento County jail is paid no moneyin return for allowing these postings.

2. Alternative Avenues to Exercise the Right

[13] The second Turner factor is whether “otheravenues remain available for the exercise of theasserted right.” Turner, 482 U.S. at 90 (internalquotation marks and citation omitted). Defendantsargue that CJA has alternative avenues tocommunicate with inmates because the jails willdistribute CJA to inmates who request it. But there isa material question of fact whether, as a practicalmatter, Plaintiffs can effectively reach county jailinmates if they can deliver CJA only upon request.

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In Morrison, 261 F.3d at 904, we held that thesecond Turner factor weighed against the legitimacy ofa mail policy when restricted publications would bedelivered only if they were sent at a higher rate.“ ‘[P]aying a higher rate is not an alternative becausethe prisoner cannot force a publisher who needs to use,and is entitled to use, the standard rate to takeadditional costly steps to mail his individualnewsletter.’ ” Id. (quoting PLN I, 238 F.3d at 1149).Here, unlike our earlier cases, the jails’ policies do notrequire inmates to pay for CJA, or for CJA to mail itsissues at a higher postage rate. Cf. Morrison, 261 F.3dat 904.

However, in practice, it is difficult to create a broadawareness of CJA among inmates in jails where,unlike in prisons, populations turn over quickly. It istrue that CJA can advertise its publication to inmatesthrough the yellow pages or television, both of whichare available in the jails, and through word of mouth.But many inmates will have left the jail before theycan learn about the existence of CJA, request that it besent to them, and then receive it. Inmates typicallywant information about bail bonds and attorneys assoon as they arrive at the jail. For those who receiveCJA only after a significant wait, the advertising inCJA is of little or no use.

3. Impact of Accommodating the Asserted Right

[14] The third Turner factor is “the impactaccommodation of the asserted constitutional right willhave on guards and other inmates, and on theallocation of prison resources generally.” Turner, 482U.S. at 90. “When accommodation of an asserted rightwill have a significant ‘ripple effect’ on fellow inmates

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or on prison staff, courts should be particularlydeferential to the informed discretion of correctionsofficials.” Id.

[15] As discussed above, there are materialquestions of fact as to whether, and to what degree,the jails would be forced to expend significantadditional resources if CJA is delivered by either of thetwo methods sought by Plaintiffs. Plaintiffs state thatthey are willing to work with jail officials to makedistribution as easy and efficient as possible. Plaintiffsseek to deliver only one copy of CJA for every teninmates each week, and have offered the jails theoption of either general delivery or individuallyaddressed mailings. Cf. PLN I, 238 F.3d at 1151.Officers at the jails have not explained how mailinspectors will distinguish between a copy of CJA thatis solicited and one that is not. If the jails have tocompile subscription lists and compare incoming mailto those lists, a ban on unsolicited mail could actuallyconsume more prison resources than accepting suchmail. Cf. id. (prison officials arguing that it isimpractical to distinguish between solicited andunsolicited mail).

4. Exaggerated Response by Prison Officials

[16] The fourth Turner factor requires us toconsider “whether the existence of easy and obviousalternatives indicates that the regulation is anexaggerated response by prison officials.” PLN II, 397F.3d at 699. “This is not a ‘least restrictive alternative’test: prison officials do not have to set up and thenshoot down every conceivable alternative method ofaccommodating the claimant’s constitutionalcomplaint.” Turner, 482 U.S. at 90-91. “[A]n

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alternative that fully accommodates the [asserted]rights at de minimis cost to valid penological interests”suggests that the “regulation does not satisfy thereasonable relationship standard.” Id. at 91. Here, thesuggested alternative is the limited distribution soughtby Plaintiffs, compared to the outright ban imposed bythe Sacramento County and Butte County jails.

[17] The undisputed fact that CJA is currentlydistributed in more than 60 counties throughout 13states, including in 32 California county jails, suggeststhat the response of the two jails in this case may beexaggerated. There is a marked contrast betweendefendants’ strong general statements about the waysthe ban on unsolicited copies of CJA serves theirpenological purposes, on the one hand, and the weak,and to some degree contradictory, specific evidencethey offer to support those statements, on the other.Further, defendants have not demonstrated that theycannot work with CJA to establish distributionschedules that minimize the drain on jail resources.Finally, the possibility that Butte County Jail’s policyis motivated by a concern with losing revenue frombail bond advertisements also suggests that the jail’spolicy may be an exaggerated response.

5. Summary

[18] Taking the evidence in the light most favorableto Plaintiffs and evaluating that evidence under thefour Turner factors, we hold that neither defendant isentitled to summary judgment.

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B. California Law

Defendants assert as a separate justification fortheir refusal to deliver unsolicited copies of CJA toinmates that distribution of CJA violates California’sbail licensee regulations. The district courts did notreach this issue, and we decline to decide it in the firstinstance.

Conclusion

[19] For the foregoing reasons, we reverse thedistrict courts’ orders granting summary judgment toDefendants. On the record before us, we cannotdetermine as a matter of law that Defendants havejustified banning the unsolicited distribution of CJA tocounty jail inmates under the four-factor Turner test.We remand to the district courts for furtherproceedings consistent with this opinion.

REVERSED and REMANDED.

___________________________________________________

N.R. SMITH, Circuit Judge, dissenting:

Ray Hrdlicka publishes Crime, Justice & America(“CJA”), a glossy quarterly publication that isdistributed for free to prison inmates across the UnitedStates. Hrdlicka has chosen a free distribution modelof business in which CJA is either given to correctionalfacilities to be put in common areas on a weekly basisor sent to a list culled from the inmate rolls (which arepublic record). Apparently, it has been a successfulbusiness model. Since its introduction in 2002, overone million copies of CJA have been distributed to

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inmates across the United States. CJA’s revenuecomes from its advertisers, who are primarily bailbonds agents and lawyers. In soliciting advertisers,CJA claims the advertisements will be seen by“hundreds to thousands” of pre-trial inmates.

Hrdlicka now asks this court to assist him infurther increasing the circulation of CJA over theobjections of two sheriffs who believe thataccommodating Hrdlicka’s distribution model wouldburden the administration of their correctionalfacilities. While we have previously found that theFirst Amendment guarantees Hrdlicka access toprisoners that have requested CJA, there have been noprisoner requests here. Further, there is no precedentsuggesting that the First Amendment guaranteesHrdlicka the special right to sue any sheriff whorefuses to be a de facto distribution arm of the CJA.

The majority holds that there is a “FirstAmendment interest in distributing and receivingunsolicited publications.” It cites Klein v. City of SanClemente, 584 F.3d 1196 (9th Cir. 2009), for theproposition that the First Amendment protections donot depend on the request of the recipient. Klein,however, explicitly deals with First Amendmentrestrictions in “public fora.” 584 F.3d at 1200-01.Prisons are not public fora. See United States v.Douglass, 579 F.2d 545, 549 (9th Cir. 1978). Insteadprisons are one of a few “public institutions which donot perform speech-related functions at all . . . [where]the government is free to exclude even peaceful speechand assembly which interferes in any way with thefunctioning of those organizations.” Id.; see alsoAdderley v. State of Florida, 385 U.S. 39, 41 (1966)

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(“Jails, built for security purposes, are not [publicfora].”)

The majority’s statement, that “Turner [v. Safely,482 U.S. 78 (1987)] addresses” any “concerns”regarding the difference between public fora andprisons, is unavailing. As the Supreme Court stated inTurner, “[o]ur task, then . . . is to formulate a standardof review for prisoners’ constitutional claimsI[.]” 482U.S. at 85 (emphasis added). No prisoners’constitutional claims are implicated in this case. Bothbefore and after Turner, the Supreme Court and thiscourt have uniformly and frequently cautioned againsta judicial rule allowing publishers of unsolicitedpublications a right to demand distribution withinprisons. See Morrison v. Hall, 261 F.3d 896, 905 (9thCir. 2001) (“[P]risons can and have adopted policiespermitting prisoners to receive [requested]publications, while at the same time, prohibitingprisoners from receiving unsolicited junk mail.”)(emphasis added); Prison Legal News v. Lehman, 397F.3d 692, 701 (9th Cir. 2005) (Distinguishing Jones v.North Carolina Prisoners’ Labor Union, Inc., 433 U.S.119 (1977), by stating: “In this case, every piece of mailsent by PLN is sent as a result of a request by therecipient . . . it is the fact that a request was made bythe recipient . . . that is important.”)

No party disputes that we have no request on apart of any prisoner to receive the CJA. Prisoners’First Amendment rights are not implicated in anyway. Instead, Hrdlicka is asking the court to create aspecial rule, under the First Amendment, protectinghis chosen method of distributing CJA to inmates.

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Any First Amendment analysis involving prisonsmust be couched in the understanding that:

[C]ourts are ill equipped to deal with theincreasingly urgent problems of prisonadministration and reform. . . . Running aprison is an inordinately difficult undertakingthat requires expertise, planning, and thecommitment of resources, all of which arepeculiarly within the province of the legislativeand executive branches of government. Prisonadministration is, moreover, a task that hasbeen committed to the responsibility of thosebranches, and separation of powers concernscounsel a policy of judicial restraint. Where astate penal system is involved, federal courtshave . . . additional reason to accord deferenceto the appropriate prison authorities.

Turner, 482 U.S. at 84-85 (discussing Procunier v.Martinez, 416 U.S. 396 (1974) (internal quotationmarks and citations omitted). With thisunderstanding, the Supreme Court has held that thepress has “no constitutional right of access to prisonsor their inmates beyond that afforded the generalpublic.” Pell v. Procunier, 417 U.S. 817, 834 (1974).While Pell dealt with the press attempting to accessprisons in order to gather information, it remains oneof the only cases that has dealt with the press’s rightof access to prisons when no concurrent right ofprisoners has been implicated.1

1 Pell also dealt with an inmate’s right of access to the press.However, the analysis was done separately from the press’s rightof access to the prison. See Pell, 417 U.S. at 823-828.

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Just as the press had no special right of access toprisons in Pell, here Hrdlicka has no special right todemand a sheriff accept one of his chosen methods ofdistribution, especially given that a prison is not apublic forum. If Hrdlicka would like prisoners to readCJA, he has the option of spending the time andmoney that all other members of the press spend inorder to acquire new readership. Namely, Hrdlicka canadvertise both in and outside of the jail in an effort toconvince inmates (or noninmates) to request hispublication.2 He can also rely on the word of mouththat many publications take the time to develop amongtheir readers. While this method of acquiring readersmay be costly, in the context of prisons, losing “costadvantages does not fundamentally implicate freespeech values.” Jones, 433 U.S. at 130-31; see alsoCornelius v. NAACP Legal Defense and EducationFund, Inc., 473 U.S. 788, 809 (1985) (“The FirstAmendment does not demand unrestricted access to anon-public forum merely because use of that forummay be the most efficient means of delivering thespeaker’s message.”). Hrdlicka has chosen not toadvertise to acquire new readership. Instead, he seeksthe cost advantage of automatic distribution at any jailhe chooses to target. He does not have such a right.

The majority’s analysis under Turner furtherdemonstrates the problem with finding a special FirstAmendment right for Hrdlicka’s distribution method.By allowing CJA the right to demand unrequesteddistribution, the majority forces sheriffs either to allowall unrequested mail to reach inmates or to make acase by case determination of the quality of the

2 No inmate has been refused a requested copy of CJA.

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publication. In discussing the Turner factors, themajority notes “[f]or those who only receive CJA aftera significant wait, the bail bond advertising in CJA isof little or no use.” But the Supreme Court hasdictated that the value of information to inmates is nota valid consideration. “[T]he Turner test, by its terms,simply does not accommodate valuations of content.”Shaw v. Murphy, 532 U.S. 223, 230 (2001). Themajority would now require valuation of content forany publisher or bulk mail advertiser that asked foraccess to prisons (if no valuation is to be made then themajority would suggest that all unrequested mailshould be allowed unless Turner is satisfied). Suchassessment is impossible under Supreme Courtprecedent.

Instead, the simpler and saner rule is that Hrdlickahas no special First Amendment right to demand thata prison agree to one of his distribution methods. Aprison is not a public forum, and a ban on unrequestedpublications is a content neutral method for sheriffs toensure efficient administration of their facilities. Apublisher wishing to develop readership amongprisoners is free to advertise or develop word of mouthprograms to encourage the request of a publication.The publisher is not entitled to use the FirstAmendment for cost savings in acquiring new readers.Therefore, Hrdlicka does not have a special FirstAmendment right to demand distribution in prisons,and Sheriffs Reniff and McGuinnes are entitled tosummary judgment.

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APPENDIX B

UNITED STATES DISTRICT COURTEASTERN DISTRICT OF CALIFORNIA

NO. CIV. 08-cv-00394 FCD EFB

[Filed August 3, 2009] CRIME, JUSTICE & AMERICA, INC., )a California Corporation; and )RAY HRDLICKA, an individual, )

)Plaintiffs, )

)v. )

)JOHN McGINNESS, in his official )capacity of Sheriff of the County of )Sacramento, California, )

)Defendants. )

)

MEMORANDUM & ORDER

----oo0oo----

This matter is before the court on defendant JohnMcGinness’ (“defendant” or “McGinness”) motion forsummary judgment pursuant to Rule 56 of the FederalRules of Civil Procedure. Plaintiffs Crime, Justice &America, Inc. and Ray Hrdlicka (“Hrdilicka”)

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(collectively “plaintiffs”) oppose the motion.1 For thereasons set forth below,2 defendant’s motion forsummary judgment is GRANTED.

BACKGROUND3

Plaintiffs filed this action, arising out of the policiesof the Sacramento County Jail in its distribution ofplaintiffs’ magazine, Crime, Justice & America(“CJA”). (Compl., filed Feb 22, 2008.) Plaintiffs assertthat defendant’s policies violate their Constitutional

1 Plaintiffs previously filed a motion to continue defendant’smotion for summary judgement pursuant to Rule 56(f) and amotion to modify the scheduling order to reopen discoverypursuant to Rule 16. The court granted the motion.

2 Because oral argument will not be of material assistance, thecourt orders the matter submitted on the briefs. E.D. Cal. L.R.78-230(h).

3 Unless otherwise noted the facts herein are undisputed. (SeeUndisputed Material Facts in Support of Summ. J. (“DUF”), filedApr. 14, 2009; Undisputed Material Facts in Opp’n to Summ. J.(“PUF”), filed July 10, 2009).

While plaintiffs filed their own statement of undisputed facts,they failed to respond to defendant’s statement. However, thecourt will look to the underlying evidence to determine whetherthere is an actual dispute of fact.

Moreover, the court notes that plaintiffs have failed to complywith numerous local rules and court orders relating to a filing ofa Statement of Undisputed Facts rather than a Statement ofDisputed Facts, citation to the record in their Statement ofUndisputed Facts, and vastly exceeding the court’s pagelimitations without request or approval. However, in the interestof justice, the court nevertheless considers all the materials filedby plaintiffs.

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rights guaranteed by the First Amendment be denyingdistribution of CJA whether directly mailed to inmatesor dropped off for bulk distribution. (Compl. ¶¶ 31-37.)Plaintiff Crime, Justice & America, Inc. is a privatecompany with the primary business purpose ofpublishing and distributing the quarterly periodicalCJA. (Compl. ¶ 6.) Plaintiff Hrdlicka is the sole ownerand the publisher of CJA. (Compl. ¶ 7; PUF ¶ 1.)Defendant McGinness is the Sheriff of the County ofSacramento at all relevant times. (Compl. ¶ 8.)

The Sheriff is in charge of managing theSacramento County Jail (the “Jail”). (DUF ¶ 1.) Onaverage, there are 2,340 inmates at the Jail per day.(DUF ¶ 2.) There are over seven hundred pieces ofincoming mail and six hundred pieces of outgoing mailper day. (DUF ¶ 5.) In accordance with applicableregulations, defendant implemented policies andprocedures relating to the receipt of mail for inmatesin the jail. (DUF ¶ 3.)

The mail at the Jail is processed during the nightshift six days a week by a total of sixty persons. (DUF¶¶ 7, 13.) Control room officers are responsible foropening and inspecting the mail, and floor officersdistribute the mail. (DUF ¶ 8.) Commercialpublications and personal mail are reviewed forcontent and searched for contraband prior todistribution. (DUF ¶ 9.) A total of twenty-fourpersonnel hours is used per day on mail related dutiesat the Jail. (DUF ¶ 12.)

The mail policy currently in place at the Jailprohibits the distribution of unsolicited commercialmail. (DUF ¶ 15.) The policy does not take into accountthe content of any unsolicited publications, nor the

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postage rate under which unsolicited publications aresent. (DUF ¶ 16.) The Jail will not accept publicationsfor distribution received on a “drop-off” basis ordelivery that constitutes “bulk delivery.” (DUF ¶ 17.)The Jail considers “bulk mail” to be any mail,regardless of volume not individually addressed andnot individually posted with U.S. Postage. (PUF ¶ 81.)Defendant contends that the primary purpose of therefusal to accept and distribute unsolicited commercialmail is to allow the Sheriff to control the volume ofmail that enters the Jail, which allows for control overthe amount of time and resources used to categorize,effectively search, and distribute incoming mail. (DUF¶ 18; see PUF ¶ 54 (“Sacramento County Jail deniesdistribution of bulk mail for two reasons: (1) theprecedential value of potentially having to accept otherdeliveries of bulk mail; and (2) the potential negativeeffect on the work load for the Jail staff.”))

Further, inmates are only allowed to keep a limitedamount of written materials in their cells and are notpermitted to leave any materials in the common areasof the jail. (DUF ¶ 23.) Moreover, the Sheriff isrequired to maintain the Jail in a neat, orderlymanner, and all places not open to continuousobservation must be kept free from combustible litterand rubbish at all times. (DUF ¶ 22.) The purportedpurpose of these rules and requirements are to:(1) limit inmates’ ability to secret contraband; (2) limitthe amount of materials that inmates can use to plugtoilets and flood their cells and pods; (3) limit inmates’ability to place items over the lights and windows intheir cells, allowing staff to perform mandated hourlywelfare checks more efficiently; and (4) enhanceinmate safety by providing fewer avenues in whichthey can communicate inappropriate and violent

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messages and instructions to each other. (DUF ¶ 24.)Even with the various rules already in place, inmatesroutinely attempt to hide contraband, start fires, floodtheir cells, and cover their lights and windows. (DUF¶ 26.) Further, Jail staff spend a significant amount oftime searching for contraband and attempting toprevent disruptive and dangerous incidents. (DUF¶ 27.)

The Jail has multiple common areas, also known asDay Rooms, which contain telephones, televisions, andbulletin boards with advertising. (DUF ¶ 28.) Thereare no materials which are made available to inmatesby placing copies in any of the day rooms; this preventsinmates from exchanging messages with each otherand limits fire and other safety hazards. (DUF ¶ 34.)Defendant asserts that if the Jail were to place bulkcopies of CJA in the common areas, additional staffand resources would be required to monitor the copiesof the publication, remove and replace the publicationon a daily basis, and clean up an trash or excesscreated by the placement of the publication. (DUF¶ 35.)

Inmates at the Jail are provided with access to alaw library and a general circulation library. (DUF¶ 36.) Inmates can also receive magazines that theysubscribe to, if nothing precludes delivery of theparticular magazine on the basis of subject matter(e.g., pornography). (DUF ¶ 40.)

CJA is currently distributed in correctionalfacilities in more than sixty counties throughoutthirteen states. (PUF ¶ 16.) It is generally distributedto inmates of correctional facilities in one of twomanners: (1) direct mailings to inmates; or (2) general

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distribution. (PUF ¶ 18.) In the case of direct mailing,CJA is sent, individually addressed, through the U.S.Mail to inmates at a correctional facility at a ratio ofapproximately one issue for every ten inmates. (PUF¶ 19.) In the case of general distribution, plaintiffsdrop off a weekly distribution of CJA at a ratio ofapproximately one issue for every ten inmates, and thejail staff leaves a small stack of magazines in commonareas. (PUF ¶ 26.)

Sometime in September 2003, plaintiffs inquiredwith the Sheriff whether he would be amenable toallow inmates at the Jail to receive CJA. (DUF ¶ 41.)On September 30, 2003, plaintiffs were informed bySheriff Lou Blanas, Sacramento County Sheriff at thetime, via Sergeant Scott Jones (“Jones”), that so longas the material and content of the magazine did notfall within prohibited guidelines for inmate mail, theywere free to mail the publication to any inmates withinthe jail facilities. (DUF ¶ 42.) Jones also informedplaintiffs that a list of each inmate housed at the Jail,along with their identifying criteria for receiving mail,was made available to the public on a daily basis in thelobby. (DUF ¶ 43.) However, Jones told Hrdlicka thatthe Jail would not facilitate the publication’s deliveryto inmates on a “drop-off” basis. (DUF ¶ 44; PUF ¶ 35.)

On January 6, 2004, Jones again wrote plaintiffsand informed them that the Jail would not accept thepublication delivered en masse, but that plaintiffscould mail the magazine to individual inmates. (DUF¶ 45.) Over the next few months, plaintiffs requesteda weekly electronic copy of the list of inmate namesand housing information or, in the alternative, apaper-based copy. (DUF ¶¶ 46-48.) On May 21, 2004,Jones reiterated that a printed list of inmates and

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relevant information was available in the lobby of theJail, but that he was not required to send or mail acopy of the list to plaintiffs and would not undertakesuch a duty. (DUF ¶ 49.) On April 5, 2005, Jonesresponded to another request for electronic records,informing plaintiffs that the information sought didnot exist in electronic format that could be provided,but that a printed list was available in the lobby. (DUF¶ 50.) At some point prior to January 2007, thetechnology at the Jail was upgraded and an electroniclist became available. (DUF ¶ 57.) After this time, anelectronic copy of the information was provided toplaintiffs. (DUF ¶ 57.)

Plaintiffs were notified on multiple occasions thatCJA could be mailed directly to inmates withoutobjections. (DUF ¶ 55.) In approximately December2004, plaintiffs began sending copies of CJA toinmates at the Jail through bulk-mail. (PUF ¶¶ 43-45.)Plaintiffs contend that the copies were paid forindividually and were addressed to an individualinmate; however, postage was paid at the bulk rate of14.7 cents per magazine as opposed to individuallystamped copies that would have cost $1.21 permagazine. (PUF ¶ 45.) Plaintiffs sent hundreds ofcopies of their publication to the Jail on this bulk-mailbasis. (DUF ¶ 51.) In May 2005, CJA was deniedfurther distribution in the Jail through bulk-mailbecause of the perceived extra burden on the jail staff.(PUF ¶ 77.) Plaintiffs also concede that thedistribution of CJA in the Jail is a concern because ofthe introduction of written materials into the Jail overwhich inmates do not have ownership. (PUF ¶ 86.)

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STANDARD

The Federal Rules of Civil Procedure provide forsummary judgment where “the pleadings, thediscovery and disclosure materials on file, and anyaffidavits show that there is no genuine issue as to anymaterial fact and that the movant is entitled tojudgment as a matter of law.” Fed. R. Civ. P. 56(c); seeCalifornia v. Campbell, 138 F.3d 772, 780 (9th Cir.1998). The evidence must be viewed in the light mostfavorable to the nonmoving party. See Lopez v. Smith,203 F.3d 1122, 1131 (9th Cir. 2000) (en banc).

The moving party bears the initial burden ofdemonstrating the absence of a genuine issue of fact.See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).If the moving party fails to meet this burden, “thenonmoving party has no obligation to produceanything, even if the nonmoving party would have theultimate burden of persuasion at trial.” Nissan Fire &Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102-03(9th Cir. 2000). However, if the nonmoving party hasthe burden of proof at trial, the moving party onlyneeds to show “that there is an absence of evidence tosupport the nonmoving party’s case.” Celotex Corp.,477 U.S. at 325.

Once the moving party has met its burden of proof,the nonmoving party must produce evidence on whicha reasonable trier of fact could find in its favor viewingthe record as a whole in light of the evidentiary burdenthe law places on that party. See Triton Energy Corp.v. Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995).The nonmoving party cannot simply rest on itsallegations without any significant probative evidencetending to support the complaint. See Nissan Fire &

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Marine, 210 F.3d at 1107. Instead, through admissibleevidence the nonmoving party “must set forth specificfacts showing that there is a genuine issue for trial.”Fed. R. Civ. P. 56(e).

ANALYSIS

Through this action, plaintiffs contend that theyhave a First Amendment right to distribute CJA in theSacramento County Jail because defendant does nothave any legitimate penological interests that areserved by the current mail procedures relating to thedistribution of magazines. Defendant moves forsummary judgment on the basis that his refusal todistribute CJA in the manner advanced by plaintiffs isrationally related to the jails’ legitimate penologicalinterest.4

“In a prison context, an inmate does not retainthose First Amendment rights that are ‘inconsistentwith his status as a prisoner or with the legitimatepenological objectives of the corrections system.’” Jonesv. N.C. Prisoners’ Labor Union, Inc., 433 U.S. 119, 129(1977) (quoting Pell v. Procunier, 417 U.S. 817, 822(1974)). Specifically, “there is no question that

4 Defendant also asserts that plaintiffs have no First Amendmentright to distribute their unsolicited publication to inmates.Assuming arguendo that plaintiffs have such a right, as set forthinfra, defendant’s policies are constitutional pursuant to Turnerv. Safley, 482 U.S. 78, 89-90 (1987). As such, the court does notreach this issue. See United States v. Kaluna, 192 F.3d 1188, 1197(9th Cir. 1999) (quoting Jean v. Nelson, 472 U.S. 846, 854 (1985)(“[A] fundamental rule of judicial restraint” is that “courts are ‘notto decide questions of a constitutional nature unless absolutelynecessary to a decision of the case.’”)).

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publishers who wish to communicate with those who,through subscription, willingly seek their point of viewhave a legitimate First Amendment interest in accessto prisoners.” Thornburgh v. Abbott, 490 U.S. 401, 408(1989). However, this right “is subject to substantiallimitations and restrictions in order to allow prisonofficials to achieve legitimate correctional goals andmaintain institutional security.” Prison Legal News v.Lehman, 397 F.3d 692, 699 (9th Cir. 2005). Indeed, theSupreme Court has “repeatedly recognized the need formajor restrictions on a prisoner’s rights” in balancingthe institutional needs and objectives of prisons andrights generally afforded by the Constitution. Id.

In Turner v. Safley, the Supreme Court laid out afour-factor test to determine whether a prisonregulation that impinges upon First Amendmentrights is “reasonably related to legitimate penologicalinterests”:

(1) whether the regulation is rationally relatedto a legitimate and neutral governmentobjective; (2) whether there are alternativeavenues that remain open to the inmates toexercise the right; (3) the impact thataccommodating the asserted right will have onother guards and prisoners, and on theallocation of prison resources; and (4) whetherthe existence of easy and obvious alternativesindicates that the regulation is an exaggeratedresponse by prison officials.

Prison Legal News, 397 F.3d at 699 (quotations andcitations omitted); see Turner, 482 U.S. 78, 89 (1987).The Court noted that “such a standard is necessary if‘prison administrators . . . , and not the courts, [are] to

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make the difficult judgments concerning institutionaloperations.’” Turner, 482 U.S. at 89 (quoting Jones,433 U.S. at 128).

A. Rational Relationship to LegitimatePenological Interest

In analyzing the first Turner factor, the court mustdetermine whether there is a “‘valid, rationalconnection’ between the prison regulation and thelegitimate governmental interest put forward to justifyit.” Id. (quoting Block v. Rutherford, 468 U.S. 576, 586(1984)). “[A] regulation cannot be sustained where thelogical connection between the regulation and theasserted goal is so remote as to render the policyarbitrary or irrational.” Id. at 89-90. Further, thegovernmental objective must be legitimate and neutraland must operate neutrally with regard to the contentof the expression. Id. at 90.

It is undisputed that the Jail denies distribution ofbulk mail for two primary reasons: (1) the precedentialvalue of potentially having to accept other deliveries ofbulk mail; and (2) the potential negative effect on thework load for the Jail staff. Moreover, defendantcontends that its current policies regarding bulk mailand general distribution of publications serves to(1) limit inmates’ ability to secret contraband; (2) limitthe amount of materials that inmates can use to plugtoilets and flood their cells and pods; (3) limit inmates’ability to place items over the lights and windows intheir cells, allowing staff to perform mandated hourlywelfare checks more efficiently; and (4) enhanceinmate safety by providing fewer avenues in which

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they can communicate inappropriate and violentmessages and instructions to each other.5

Plaintiffs concede that defendant has an interest inmaintaining mail quality control, ensuring jailsecurity, and allocating jail resources. However,plaintiffs argue that the regulations at issue are notrationally related to those legitimate interests.

The court disagrees. Defendant has presentedevidence that there are over seven hundred pieces ofincoming mail per day at the Jail. This requires a totalof sixty people to process the mail and a total oftwenty-four personnel hours per day. Under plaintiffs’calculation, distribution through bulk mail wouldincrease incoming mail by at least two hundred fiftypieces per week.6 Defendant presents evidence thatthis increase in unsolicited bulk mail would causeadditional administration, staffing, and security issuesfor the jail. (Decl. of Capt. Scott Jones in Supp. of Mot.for Summ. J. (“Jones Decl.”), filed Apr. 14, 2009, ¶ 50.)Moreover, plaintiffs concede that distribution of CJAis a concern because it introduces written materials forwhich inmates do not have an ownership interest.

5 Defendant also contends that its regulations ensure compliancewith California law relating to prohibitions on attorneys’ and baillicensees’ solicitation of business within correctional or penalfacilities. Because defendant’s other asserted interests are relatedand, as set forth infra, dispositive, the court does not reach themerits of this contention.

6 This calculation does not include any increase from otherpublications from different sources that may occur if defendant’spolicy is changed to allow this sort of distribution.

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Plaintiff also concedes that magazines are associatedwith the creation of a weapon. (PUF ¶¶ 86, 88.)

Accordingly, the court finds that the undisputedfacts demonstrate that defendant’s regulationconcerning bulk mail and drop-off distribution islogically connected to and advances the profferedlegitimate penological concerns. Specifically,defendant’s refusal to accept and distribute unsolicitedbulk mail enables the Jail to conserve prison resourcesby limiting the amount of incoming mail thatcorrectional staff must process. Further, by limitingthe amount of unsolicited mail, defendant is ensuringthat there are less written materials that inmates mayeasily use or dispose of in ways that are disruptive tothe staff or other inmates. Finally, the regulationlimits the materials out of which inmates may fashionweapons.

The court also finds that defendant’s regulation isneutral in its application. It is undisputed that thecurrent policy does not take into account the content ofany unsolicited publications. (DUF ¶ 16.)

Plaintiffs argue that the Ninth Circuit’s decision inPrison Legal News v. Lehman, 397 F.3d 692 (9th Cir.2005), relating to the constitutionality of regulationsrelating to the receipt of publications sent via bulkmail, supports their argument that the regulations atissue are not rationally related to legitimate interestsand thus, unconstitutional. However, the facts beforethe court in Lehman are distinguishable from the factsbefore the court in this case. In Lehman, the plaintiffschallenged the defendant Washington Department ofCorrections’ regulation prohibiting the receipt of non-subscription bulk mail and catalogs by inmates. Id. at

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696. In finding that the regulation was not rationallyrelated to a legitimate penological interest, theLehman court emphasized that, in the case before it,every piece of mail sent by the plaintiffs was a resultof a request by the recipient. Id. at 700-01 (“[I]t is therequest on the part of the receiver and compliance onthe part of the sender, and not the payment of money,that is relevant to the First Amendment analysis.”). Assuch, “the sender’s interest in communicating theideas in the publication correspond[ed] to therecipient’s interest in reading what the sender has tosay.” Id. at 701 (internal quotations and citationsomitted). Conversely, in this case, plaintiffs do notseek to send CJA to inmates who have previouslyrequested to receive the publication. Indeed, plaintiffshave failed to disclose the name of any inmate in theSacramento County Jail who has requested a copy ofCJA. (DUF ¶ 58.) Thus, the convergence of thepublisher’s interest in sending and the inmate’sexpress desire to receive, the existence of which theNinth Circuit held was both “important” and“relevant” in this inquiry, is notably absent here. SeeLehman, 397 F.3d at 700-01.

Furthermore, two other district courts confrontedwith nearly identical issues are in accordance with thecourt’s conclusion. In both Hrdlicka v. Cogbill, No.C 04-3020, 2006 WL 2560790 (N.D. Cal. Sept. 1, 2006),and Crime, Justice & America, Inc. v. Reniff, No.2:08-cv-343, 2009 WL 735184 (E.D. Cal. Mar. 18,2009), plaintiffs Hrdlicka and Crime, Justice &America, Inc. brought suit challenging nearly identicalregulations regarding distribution of unsolicitedpublications at jails in Sonoma County and at theButte County Jail. The defendants in Hrdlicka andReniff proffered penological interests identical to those

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proffered by defendant in this case. After reviewingthe submissions of the parties and the relevant caselaw, the district courts concluded that the challengedprohibitions relating to unsolicited publications wererationally related to and advanced legitimatepenological interests. Further, both courts alsoconcluded that the Ninth Circuit’s holding in Lehmanwas inapplicable because no request for the publicationhad been made to plaintiffs.

Therefore, the court concludes that the first Turnerfactor weighs in favor of defendant.

B. Alternative Means of Exercising the Right

In analyzing the second Turner factor, the courtmust examine whether “‘other avenues’ remainavailable for the exercise of the asserted rights.”Turner, 482 U.S. at 90 (quoting Jones, 433 U.S. at131). Where such alternative means are available,“courts should be particularly conscious of the‘measure of judicial deference owed to correctionsofficials . . . in gauging the validity of the regulation.’”Id. (quoting Pell v. Procunier, 417 U.S. 817, 827(1974)).

Defendant contends that inmates have always hadthe ability to request and receive CJA. Defendant alsopresents evidence that plaintiffs have been informedmultiple times that CJA could be mailed directly toinmates without objection. Thus, defendant arguesthat other avenues remain available for inmates toreceive plaintiffs’ publication.

The court agrees. Defendant presents evidence thathe has never refused to distribute CJA to an inmate

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that has requested it. (DUF ¶ 59.) While complyingwith defendant’s regulation may reduce the circulationrate of CJA, a subscription or request based systemwould effectively allow plaintiffs to exercise their FirstAmendment right to communicate with inmates at theSacramento County Jail. See Jones, 433 U.S. at 130-31(holding that the loss of cost advantage in bulk mailingdid not fundamentally implicate free speech valuesand thus, the regulations imposed were reasonable);Hrdlicka, 2006 WL 2560790, at *14 (noting thattraditional advertising techniques and relying onword-of-mouth to promote inmate subscribers to whomplaintiffs may directly mail issues of CJA was asufficient alternative means of exercising their FirstAmendment right).7

Therefore, the court concludes that the secondTurner factor weighs in favor of defendant. C. Impact on the Allocation of Prison Resources

In analyzing the third Turner factor, the courtmust examine the impact that accommodation of theasserted constitutional right would have on guardsand other inmates as well as on the allocation of prisonresources generally. Turner, 482 U.S. at 90. TheSupreme Court has acknowledged that in the contextof a correctional institution, “few changes will have noramifications on the liberty of others or on the use ofthe prison’s limited resources for preserving

7 While plaintiffs argue that defendant would be unable todistinguish between solicited and unsolicited copies, thisargument is irrelevant to the determination of whether a readyalternative exists. See Reniff, 2009 WL 735184, at *2.

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institutional order.” Id. Where such ramifications willhave a significant effect on fellow inmates or prisonstaff, “courts should be particularly deferential to theinformed discretion of corrections officials.” Id.

As mentioned above, defendants present evidencethat the increase in mail created by plaintiffs’proposed distribution of an unsolicited publicationwould likewise increase administration, staffing, andsecurity issues within the Jail. Defendant asserts thatto accept publications or magazines from one publisherwould set an unworkable precedent, obligating the Jailto accept any other publications that appeared on thedoorstep. (DUF ¶ 17); see Reniff, 2009 WL 735184, at*3 (holding that the third Turner factor weighed infavor of defendants where distribution of CJA wouldset a precedent regarding the distribution of otherunsolicited newsletters or publications). In addition tothe increased administrative burden in allocating staffto sort through the additional mail, defendants alsopresent evidence that placing greater burdens on themail processing staff increases the likelihood thaterror will occur and contraband will be missed; thiswould affect the safety and security of the Jail as awhole. (DUF ¶ 21); cf. Prison Legal New v. Cook, 238F.3d 1145, 1151 (holding that 15 to 30 pieces of mailderived from personal subscriptions to a particularpublication in addition to the 5000 to 8000 pieces offirst class mail processed daily was minimal,particularly where there was evidence that theDepartment was able to process improperly addressedbulk mail sent by the state).

Therefore, in light of the undisputed evidence, thecourt concludes that the third Turner factor weighs infavor of defendant.

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D. Easy or Obvious Alternatives

Finally, in analyzing the fourth Turner factor, thecourt must examine whether there are readyalternatives to the regulation at issue. Turner, 482U.S. at 90. “[T]he existence of obvious, easyalternatives may be evidence that the regulation is notreasonable, but is an ‘exaggerated response’ to prisonconcerns.” Id. However, the Supreme Court has madeclear that this factor does not impose a “leastrestrictive alternative test.”

Plaintiffs argue that defendant’s regulations are anexaggerated response because other alternatives allaysome of the concerns and interests proffered bydefendant. Specifically, plaintiffs point to defendant’sregulations limiting the amount of possessions inmatesmay have in their cells. (See PUF ¶ 74.) Plaintiffs alsoassert that defendants could prohibit or limit aninmates’ ability to leave any written materials incommon areas.

The court finds plaintiffs’ arguments unpersuasive.Plaintiffs’ asserted alternatives fail to take intoaccount the administrative burdens imposed upon theJail and its staff due to an increase in unsolicited mail.Indeed, their proposed new prohibition would likelyrequire more staffing in order to ensure that inmatesdid not leave unsolicited publications in commonareas. Furthermore, plaintiffs fail to address the jailsafety issues raised by defendant, such as the potentialincrease in contraband due to inadequate screening oran inmate’s ability to fashion weapons or otherwiseimproperly use materials over which they have noownership or personal interest.

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Therefore, the court concludes that the fourthTurner factor weighs in favor of defendant.

CONCLUSION

In sum, the court holds that defendant’sregulations regarding the mail policy as it applies tounsolicited publications such as CJA are reasonablyrelated to legitimate penological interests. There arevalid, rational connections between the policies inplace and defendant’s interests in maintaining mailquality control, ensuring jail security, and allocatingjail resources. There are also ready alternatives forplaintiffs to exercise their First Amendment right;defendant’s regulations allow for the distribution ofCJA to inmates when it is properly addressed andmailed to those who voluntarily request it. Further,accommodating plaintiffs’ request would impact theallocation prison resources through the increasedburden on staff as well as the potential increase insafety issues. Finally, there is no readily apparentalternative to the current regulations that bear inmind the legitimate penological interests proffered bydefendant. Accordingly, the court concludes thatdefendant’s challenged regulations are permissibleunder Turner.

For the foregoing reasons, defendant’s motion forsummary judgment is GRANTED. The Clerk of Courtis directed to close this case.

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IT IS SO ORDERED. DATED: August 3, 2009

/s/ Frank C. Damrell FRANK C. DAMRELL, JR. UNITED STATES DISTRICT JUDGE

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APPENDIX C

FOR PUBLICATION

UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT

[Filed September 1, 2011]

No. 09-15768D.C. No. 2:08-cv-00343-GEB-EFB



v. ))

PERRY L. RENIFF, in his official )capacity of Sheriff of the )County of Butte, California, )


No. 09-16956D.C. No. 2:08-cv-00394-FCD-EFB



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v. ))

JOHN MCGINNESS, Sacramento )County Sheriff, )


ORDER

Filed September 1, 2011

Before: Stephen Reinhardt, William A. Fletcher andN. Randy Smith, Circuit Judges.

Order;Concurrence by Judge Reinhardtand Judge William A. Fletcher;Dissent by Judge O’Scannlain

ORDER

Judge Reinhardt and Judge W. Fletcher have votedto deny the Appellees’ petitions for rehearing andpetitions for rehearing en banc, filed on February 15,2011 and February 23, 2011. Judge N.R. Smith votedto grant both.

A judge of the court called for a vote on thepetitions for rehearing en banc. A vote was taken, anda majority of the active judges of the court failed tovote for en banc rehearing. Fed. R. App. P. 35(f).

The petitions for rehearing and the petitions forrehearing en banc are DENIED.

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___________________________________________________

REINHARDT and W. FLETCHER, Circuit Judges,concurring in the denial of rehearing en banc:

The question presented in this case isstraightforward: Does the four-factor test of Turner v.Safley, 482 U.S. 78 (1987), apply to distribution of amagazine to county jail inmates who have notrequested it? A majority of the three-judge panelconcluded that Turner does apply. An en banc callfailed to receive a majority vote of the active judges ofour court.

The Turner test evaluates the reasonableness of aprison regulation impinging on a constitutional right.We have applied Turner in a number of cases toevaluate the reasonableness of regulations banning thedistribution of mail. In Crofton v. Roe, 170 F.3d 957(9th Cir. 1990), we applied Turner to evaluate aregulation prohibiting an inmate from receiving a giftbook from his stepfather. In Prison Legal News v.Cook, 238 F.3d 1145 (9th Cir. 2001), we applied Turnerto evaluate a regulation banning distribution ofbulk-rate mail to which prisoners had subscribed. InMorrison v. Hall, 261 F.3d 896 (9th Cir. 2001), weapplied Turner to evaluate a regulation banningdistribution of “pre-paid, for-profit, subscriptionpublications.” In Prison Legal News v. Lehman, 397F.3d 692 (9th Cir. 2005), we applied Turner to evaluatea regulation banning distribution of requested but“non-subscription bulk mail.”

We concluded that the Turner test applies, as well,to evaluate the reasonableness of regulations banningdistribution of an unsolicited magazine, Crime, Justice

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& America (“CJA”). CJA is of unquestioned value tocounty jail inmates. Because inmates are typically incounty jail for relatively short periods, and because thevalue of CJA to inmates is greatest when they firstarrive in the jail, it is unrealistic to insist, as acondition for applying the Turner test, that inmateshave already subscribed to CJA.

We wrote in our opinion, “The fact that in this casethe publication was unsolicited may, of course, betaken into account in applying the Turner test. But thefact that the publication was unsolicited does not makethe Turner test inapplicable.” Hrdlicka v. Reniff, 631F.3d 1044, 1051 (9th Cir. 2011). ___________________________________________________

O’SCANNLAIN, Circuit Judge, joined by GOULD,TALLMAN, BYBEE, CALLAHAN, BEA, IKUTA andN.R. SMITH Circuit Judges, dissenting from thedenial of rehearing en banc:

The court today holds that the First Amendmentmandates that county jails distribute unsolicited junkmail to their inmates, or face a burdensome lawsuitfrom the junk mail publisher, citing Turner v. Safley,482 U.S. 78 (1987).1 Given that Turner decided onlythe standard of review to apply when a prisonregulation impinges upon inmates’ First Amendmentrights, id. at 89, the majority’s interpretation is an

1 The majority speaks only of the rights of publishers. But because“newsmen have no constitutional right of access to prisons or theirinmates beyond that afforded the general public,” any rule thatapplies to the publishers would apply equally to anyone else. Pellv. Procunier, 417 U.S. 817, 834 (1974); see also Houchins v. KQED,Inc., 438 U.S. 1, 11-12 (1978).

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extraordinary leap since all agree that no inmaterights are at stake in this case. Regrettably, themajority’s opinion is completely untethered fromSupreme Court precedent and in considerable tensionwith our own case law. It further complicates thealready “inordinately difficult undertaking” of prisonadministration. Id. at 85. I respectfully dissent,therefore, from the failure of our court to rehear thiscase en banc.

I

Ray Hrdlicka publishes a quarterly magazine calledCrime, Justice & America (“CJA”) that includes anumber of items which may be of interest to jailinmates. Indeed, between 2002 and the publication ofthe majority’s opinion, CJA went through fourteeneditions totaling over one million copies. Which is quiteimpressive, until one realizes that rather than relyingon subscriptions, CJA has simply blanketed jailhouseswith hundreds of free copies every week.2

CJA’s business model is fairly simple. It luresadvertisers—usually bail bondsmen and lawyers—with the promise of a captive audience of thousands ofinmates in immediate need of their services. It thenensures that it will fulfill that promise by pressuringjail administrators to choose either leaving stacks ofCJA in common areas or allowing individual copies of

2 Though CJA is a quarterly magazine, it is distributed on aweekly basis so that even with the rapid turnover in county jailscopies will be available to current inmates. See Distribution ofCrime Justice & America Magazine, Crime Justice & America,(Feb. 27, 2011) http://crimejusticeand-america.com/distribution-of-crime-justice-america-magazine.

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CJA to be mailed directly to inmates off of an inmateroster. Either way, every seven days enough copiesarrive at the targeted jails to ensure that at least oneout of every ten inmates gets one. Hrdlicka is therebyable to externalize the cost of increasing his readershipon the prison system.

Pursuant to content neutral department policies,officials at the Sacramento County and Butte CountyJails refused to facilitate Hrdlicka’s distributionscheme while allowing Hrdlicka to send CJA to anyprisoner who requested it. But in an effort to minimizethe risk of smuggled contraband as well as the amountof excess paper inmates could use to do things likestart fires or clog toilets, these jail administratorsrefused to disseminate extra copies to those inmateswho had not asked for them.

Hrdlicka filed a suit under 42 U.S.C. § 1983claiming a constitutional right to pursue his businessmodel. And now this court obliges by discovering sucha right in the First Amendment.

II

Challenges to jail or prison regulations limitingoutside contact with prisoners undoubtedly involve thebalancing of constitutional imperatives. Turner, 482U.S. at 84. The majority focuses almost entirely uponthose implicated by the First Amendment. But alsoamong them is that running a jail “requires expertise,planning, and the commitment of resources, all ofwhich are peculiarly within the province of thelegislative and executive branches of government.” Id.at 84-85. Therefore the separation of powers“counsel[s] a policy of judicial restraint,” particularly

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“[w]here a state penal system is involved.” Id.; see alsoBeard v. Banks, 548 U.S. 521, 528 (2006).

Fundamental to maintaining this balance betweena prisoner’s right to contact with the outside world andthe State’s ability to run a functional prison system isthe ability to recognize when First Amendmentinterests are implicated. And regardless of what themajority may have found in the pages of CJA, nothingin the United States Reports or the Federal Reportergives an outsider a First Amendment interest, letalone a freestanding right, to unsolicited contact withinmates.

The Supreme Court has certainly never found suchan interest. See Jones v. N.C. Prisoner’s Labor Union,Inc., 433 U.S. 119, 121 (1977) (brushing aside a unionchallenge to a restriction against bulk mail to inmates,as “barely implicat[ing]” First Amendment rights); Pellv. Procunier, 417 U.S. 817, 822 (1974) (allowing aprohibition on face-to-face interviews with inmatesbased on “the familiar proposition that lawfulincarceration brings about the necessary withdrawalor limitation of many privileges and rights” (internalquotation marks omitted)).

Indeed, the only time the Court has everacknowledged a publisher’s “interest in access toprisoners” is when those prisoners “throughsubscription, willingly seek their point of view.”Thornburgh v. Abbott, 490 U.S. 401, 408 (1989). Onlythen—when jail regulations limit a detainee’s access tothe outside world—has the Court considered the FirstAmendment interests of the person with whom thedetainee wished to correspond. And, even then, theCourt made clear that it was announcing a rule for

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when the “rights of prisoners and outsiders” are atissue. Id. at 410 n.9. Cf. Shaw v. Murphy, 532 U.S.223, 229-30 (2001) (stating that Turner “adopted aunitary, deferential standard for reviewing prisoners’constitutional claims” (emphasis added)).

Until now, we have scrupulously followed theSupreme Court’s direction and recognized thederivative nature of publishers’ First Amendmentinterests in contacting prisoners. See Prison LegalNews v. Lehman (PLN II), 397 F.3d 692, 701 (9th Cir.2005) (describing Jones as upholding “a ban on junkmail” and distinguishing a “scenario in which apublisher has [not] attempted to flood a facility withpublications sent to all inmates, regardless of whetherthey requested the publication”); Morrison v. Hall, 261F.3d 896, 898 (9th Cir. 2001) (“Moreover, prisons canand have adopted policies permitting prisoners toreceive for-profit, commercial publications, while atthe same time, prohibiting prisoners from receivingunsolicited junk mail.”); see also Prison Legal News v.Cook (PLN I), 238 F.3d 1145, 1146 (9th Cir. 2001).

But the majority puts all of this precedent aside,and declares that “[a] First Amendment interest indistributing and receiving information does not dependon a recipient’s prior request for that information.”Hrdlicka v. Reniff, 631 F.3d 1044, 1049 (9th Cir. 2011).

The majority tries to conceal such ipse dixit with apassing citation to two cases standing for theunremarkable proposition that laws criminalizing coreprotected speech in traditional public fora are subjectto strict scrutiny. See Martin v. City of Struthers, 319U.S. 141, 143 (1943) (prohibition against summoningresidents to their front doors for the purposes of

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distributing literature); Klein v. City of San Clemente,584 F.3d 1196, 1204-05 (9th Cir. 2009) (leafletingunoccupied vehicles on city streets). These cases areutterly irrelevant to whether Hrdlicka’s FirstAmendment interests were implicated by the prisonrestrictions at issue in this case at all.

III

Even if the majority were correct that Hrdlicka hada First Amendment interest at stake, it still erred byapplying the factors annunciated in Turner withouttaking context into account. Cf. Thornburgh, 490 U.S.at 414 (stating that the Turner factors were designedto “channel[ ] the reasonableness inquiry”). Forexample, what does it mean to consider “whether thereare alternative avenues that remain open to theinmates to exercise the right” or “the impact thataccommodating the asserted right will have on otherguards and prisoners” when no one contends that aninmate’s rights are at risk? PLN II, 397 F.3d at 699(internal quotation marks omitted). The majorityinexplicably provides special rights to Hrdlickabecause he was attempting to communicate withsomeone who has been incarcerated.

First, a jail cell is quite clearly not a public forum.See Jones, 433 U.S. at 134 (holding that a “prison maybe no more easily converted into a public forum thana military base”); accord Adderley v. Florida, 385 U.S.39, 41 (1966); United States v. Douglass, 579 F.2d 545,549 (9th Cir. 1978).3 As such, under ordinary rules,

3 Indeed, the majority does not even dispute that jails are notpublic fora. See Hrdlicka, 631 F.3d at 1050.

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government officials could have excluded Hrdlicka’sspeech on the basis of its subject matter or even hisidentity “ ‘so long as the distinctions drawn [were]reasonable in light of the purpose served by the forumand [were] viewpoint neutral.’ ” Good News Club v.Milford Cent. Sch., 533 U.S. 98, 131 (2001) (emphasisadded). “The First Amendment does not demandunrestricted access to a nonpublic forum merelybecause use of that forum may be the most efficientmeans of delivering the speaker’s message.” Corneliusv. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788,809 (1985).

Second, rather than criminalizing speech, the banon unsolicited copies of CJA merely served to preservethe public fisc.4 And the Court has made abundantlyclear that the elected branches may set spendingpriorities in ways that negatively and unequallyimpact free speech rights so long as they do notdiscriminate on the basis of viewpoint. See Nat’lEndowment for the Arts v. Finley, 524 U.S. 569, 588(1988) (citing Maher v. Roe, 432 U.S. 464, 475 (1977)(“There is a basic difference between direct stateinterference with a protected activity and stateencouragement of an alternative activity consonantwith legislative policy.”)).

In sum, assuming Hrdlicka has an independentFirst Amendment interest involved in this case, that

4 Recall that every piece of mail that enters a detention facilitymust be inspected, sorted, distributed, monitored and ultimatelydisposed of. Cf. Shaw, 532 U.S. at 231 (allowing jails to considersuch burdens even in letters involving legal advice). Restrictionson junk mail allow jail administrators better to allocate resourcesto other legitimate, and more pressing concerns.

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interest does not extend to commandeering publicfacilities for his personal gain. And it is not infringedby a “viewpoint-neutral exclusion of speakers whowould disrupt [these] nonpublic for[a] and hinder[their] effectiveness for [their] intended purpose.”Cornelius, 473 U.S. at 811. Under such circumstances,the burden was on him to show that the regulationswere not supported by any rational basis. See, e.g.,Regan v. Taxation with Representation, 461 U.S. 540,547-51 (1983).

IV

Instead, the majority places on jail administratorsthe onerous burden of showing “the degree to whichthe[ ] purposes [behind the regulations] are actuallyserved by a refusal to allow” distribution of anyparticular type of unsolicited junk mail. Hrdlicka, 631F.3d at 1051.5 Indeed, Beard v. Banks, 548 U.S. 521(2006), specifically held to the contrary, even underTurner’s standard, a regulation preventing certaininmates from receiving any magazines based upon astatement and a deposition that these restrictionsmotivated better behavior. See also Overton v.Bazzetta, 539 U.S. 126, 132 (2003) (stating that whena prison regulation is being challenged, “[t]he burdenis not on the State to prove its validity, but on theprisoner to disprove it.”).

5 In particular, the majority expects jails to prove “the degree towhich allowing [the] distribution [of any particular piece of mail]in the jails would produce additional clutter in inmates cells orotherwise adversely affect jail security,” Hrdlicka, 631 F.3d at1052 and “to what degree[ ] the jails would be forced to expendadditional resources” to handle the additional correspondence.” Id.at 1054.

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Then, in a wonderful display of why federal judgesshould not be running jails, the majority dismisses outof hand many practical concerns that will arise fromrequiring jails to distribute an unknown quantity ofunsolicited mail.6

The majority also simply ignores the impact itsruling produces beyond these jails and thispublication. As Judge Smith’s dissent correctly pointsout, one consequence of the majority’s decision is to“force[ ] sheriffs either to allow all unrequested mail toreach inmates or to make a case by case determinationof the quality of the publication.” Hrdlicka, 631 F.3d at1057 (N.R. Smith, J., dissenting). Sheriffs should notbe put in this predicament. Instead, courts should give“considerable deference to the determinations of prisonadministrators who, in the interest of security,regulate the relations between prisoners and theoutside world.” Thornburgh, 490 U.S. at 408. Inapplying such deference, we as federal judges mustallow prison officials to “reach[ ] experience-basedconclusion[s]” about which “policies help to furtherlegitimate prison objectives.” Beard, 548 U.S. at 533.

V

The First Amendment does not give publishers anyinterest (to say nothing of a right) to send unsolicitedmail to inmates. Sending such mail may be highly

6 For this among other reasons, I also disagree with the mannerin which the majority applied the four-part test in Turner. SeeShaw, 532 U.S. at 239 (requiring only that the connection betweenthe restriction and the purpose behind not be arbitrary orirrational). But such concerns are secondary to the simple factthat the majority should not have applied Turner at all.

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profitable to the publisher, but “losing [such] costadvantages does not fundamentally implicate freespeech values.” Jones, 433 U.S. at 130-31. By failing torecognize this, the majority ignores the separation ofpowers and unnecessarily injects the federal courtsinto a matter “peculiarly within the province of thelegislative and executive branches of government.”Turner, 428 U.S. at 84-85. And by the full court’sfailure to order rehearing en banc, we have needlesslymuddled our First Amendment jurisprudence. Irespectfully dissent from our regrettable decision notto rehear this case en banc.

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