Ninth Circuit Reinstates First Amendment Challenge to Prohibitions of Publications for Inmates

Michael Stephan

A recent Ninth Circuit ruling is good news for free speech advocates and jail inmates who want to read a publication called Crime, Justice & America (CJA).  The publication explores criminal justice issues relevant to inmates, such as ”the steps between a felony arrest and conviction.”

In Hrdlicka v. Reniff, released in late January, the Ninth Circuit reversed a district court’s grant of summary judgment in favor of two California county jails who had refused to distribute unsolicited copies of CJA to inmates. CJA had filed a § 1983 action for injunctive relief against the counties, alleging that the jails’ distribution policies violated the First Amendment. In response, the jails offered many reasons for their refusals to distribute unsolicited copies of CJA, including concerns that the publication could be used to start fires or hide contraband.

The Ninth Circuit held that genuine issues of material fact existed in the cases and that summary judgment for the counties was improper. The Ninth Circuit first observed that “publishers and inmates have a First Amendment interest in communicating with each other.”  Next, it applied a four-factor test outlined in Turner v. Safley, 482 U.S. 78 (1987), to evaluate the reasonableness of the jails’ limitations on freedom of speech.  The appellate court declared, “[W]e cannot determine as a matter of law that [the counties] have justified banning the unsolicited distribution of CJA to county jail inmates under the four-factor Turner test.”

However, this case is not over yet and it remains to be seen whether the jails’ policies ultimately satisfy Turner.  The analysis in the Ninth Circuit’s opinion, however, seems to suggest that they won’t.

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