Police blotter: Prison inmate wants personal ad replies

In this week's installment, an inmate claims a First Amendment right to be mailed printouts of e-mail replies to a Web personal ad.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
5 min read
"Police blotter" is a weekly News.com report on the intersection of technology and the law.

What: A Wisconsin prison inmate says he has the First Amendment right to receive printouts of e-mail replies to his online personal ad.

When: The 7th Circuit Court of Appeals rules on November 1.

Outcome: The appeals court says the inmate's lawsuit against the warden of the Green Bay Correctional Institution can proceed.

What happened, according to court documents:

Jevon Jackson is an inmate in Wisconsin's Green Bay Correctional Institution, a maximum-security facility.

He's 29 years old, according to an inmate locator service, and has a personal ad page that describes him as "laid back" but also "very ambitious." The ad says that Jackson is incarcerated for armed robbery, weapons possession and homicide, and is scheduled for release in 2011. He's also been involved in prison writing projects and has published poetry online.

In 2005, Jackson posted a personal ad on Inmate Connections, which charges between $31 and $57 a year to create and maintain a Web page. The company will print out and forward an e-mail response to the personal ad--called a "hook-up"--to a prisoner through the U.S. mail.

But the Green Bay Correctional Institution refused to deliver Jackson one of his e-mail printouts, citing state regulations explicitly forbidding it. Jackson then invoked the First Amendment in a federal civil rights lawsuit he filed himself against Warden William Pollard and Matthew Frank, the secretary of the Wisconsin Department of Corrections.

Jevon Jackson

A federal district judge ruled that the non-delivery of the Inmate Connections printout was permissible. That decision was based largely on an affidavit from Daniel Westfield, the Department of Corrections security chief.

Westfield claimed that the regulations existed to, first, protect the public from inmates who will "victimize a person that may be susceptible to manipulation from an inmate with criminal intentions." Second, he said, they promoted "efficient management and preserving scarce resources" that would be depleted by the delivery of a possibly large volume of Internet materials or e-mail responding to inmates' Web pages.

As a side note, Wisconsin state regulations permit handwritten responses to Web personal ads, and computer printouts of letters that are not generated in response to personal ads. What's prohibited are printouts of incoming e-mail that are generated by sites like Inmate Connections.

Jackson appealed his loss to the 7th Circuit, where he was met with a warmer welcome. A three-judge panel said that there was enough of a legitimate First Amendment dispute to let this case proceed, threw out the lower court's ruling, and remanded the case for further proceedings.

Excerpts from the opinion by the 7th U.S. Circuit Court of Appeals with case citations omitted:

He also argues that there is a genuine factual dispute over whether the regulations prohibiting inmates from receiving e-mail responses to their personal Web sites are rationally related to the penological interests of protecting the public and preserving prison resources. We review the district court's grant of summary judgment de novo, and examine whether the moving parties--that is, Pollard and Frank--demonstrate that "there is no genuine issue as to any material fact" that they are entitled "to judgment as a matter of law."

The district court, however, erred by granting summary judgment to Pollard and Frank on Jackson's First Amendment claim regarding the non-delivery of the Inmate Connections letter. Inmates retain a First Amendment right to receive information through the mail, but it is a right that can be restricted by prison regulations that are "reasonably related to legitimate penological interests." Although the ultimate burden of persuasion with regard to the unreasonableness of a regulation resides with the inmate, the defendant administrators must "put forward" the legitimate governmental interest alleged to justify the regulation, and "'demonstrate' that the policy drafters could rationally have seen a connection between the policy and (that interest)."

Protecting the general public is a legitimate penological interest, and we afford great deference to prison administrators' "expertise" when they proffer such justifications for prison regulations. But a regulation cannot stand if "the logical connection between the regulation and asserted goal is so remote as to render the policy arbitrary or irrational."

Under these standards, Jackson has raised a genuine issue of material fact as to whether the regulation prohibiting delivery of printed e-mail responses to personal Web pages rationally advances the goal of protecting the public. It is undisputed that DOC regulations allow inmates to: (1) have personal Web pages; (2) receive handwritten correspondence in response to their personal Web pages; receive Internet materials and e-mail unrelated to personal Web pages so long as they are printed on 8 1/2- by 11-inch paper; and (4) communicate with the general public through other pen pal organizations. As Jackson points out, this evidence shows that inmates can potentially manipulate the public: (1) through their personal Web pages; (2) by soliciting and receiving non-electronic responses to those Web pages; (3) by responding to other e-mail deliveries unrelated to personal Web pages; and by otherwise contacting the public through existing pen pal organizations...

Also in genuine dispute is Westfield's conclusory assertion that the regulations preserve prison mail room resources by ensuring a low volume of mail. At least one federal circuit court has rejected this justification on the ground that prohibitions on receiving Internet and e-mail printouts are, by themselves, an "arbitrary way to achieve a reduction in mail volume." Jackson's experience reveals the arbitrariness underlying the regulation at issue here--he received three handwritten responses to his Inmates Connection profile but just one (undelivered) e-mail response. Westfield's unexplained conclusion that allowing hard-copies of e-mail responses to Internet profiles might increase mail volume, while allowing handwritten responses would not, fails to eliminate the factual dispute created by Jackson's personal experience. Under these circumstances, there is a triable issue as to whether banning e-mail responses preserves prison mail room resources in a non-arbitrary manner.

We accordingly...VACATE and REMAND the court's grant of summary judgment as to Jackson's claim regarding the non-delivery of the Inmate Connections letter.