Cert. Petition Preview: Censoring Prisoners’ Outgoing Mail

By Adam Chandler
on Sep 22, 2007 at 1:13 pm

This is the third post previewing petitions for certiorari to be considered at the Justices’ Long Conference on Monday, September 24. Each was also listed in the Petitions to Watch post here. The preview of Gilles v. Blanchard (06-1617) is here, and the preview of Catholic Charities v. Dinallo (06-1550) is here.

This post will examine Koutnik v. Brown, et al. (06-1171), a case involving the censorship of a prisoner’s outgoing mail. The petition, brief in opposition (BIO), and reply for Koutnik are respectively available here, here, and here.

The petition presents two questions: first, what the correct First Amendment standard of review is when applied to censorship of prisoner mail; and second, whether censorship by prison officials on general rehabilitative grounds violates the First Amendment.

Joseph D. Koutnik, as an inmate at the Wisconsin Secure Program Facility, attempted to send a letter and some drawings from prison in December 2002. The mail was addressed to Northern Sun Merchandising, a retail catalog selling items like T-shirts and posters featuring political messages. In his cover letter, Koutnik noted that prison reform messages were not well-represented among Northern Sun’s products, so he urged the company to use some of his ideas. As the petition describes it, “[o]ne of Mr. Koutnik’s drawings was a cartoon swastika filled with prison bars, with the captions, ‘Department of Corruptions’ and ‘Keeping Kids in Kages.’” The respondents emphasize that the caption to the swastika included three “prominent, stylized” Ks, a reference to the Ku Klux Klan. The BIO also points out that Koutnik’s letter expressed a wish for Northern Sun to market prison reform-themed products to inmates.

Prison officers confiscated and destroyed Koutnik’s mail and notified him as such. The BIO explains that seizing Koutnik’s mail was “related to the penological goal of rehabilitation” because the prison needed to encourage Koutnik to “live crime-free upon release[,] … to develop the ability to solve conflicts without resorting to violence[, and] to recognize that successful integration into society requires respecting the rights of others.”

Koutnik brought a pro se suit alleging breaches of his First and Fourteenth Amendment rights. He claimed that the swastika drawing was a political statement comparing the prison system to Nazi concentration camps. He also denied that he was promoting white supremacist views, and that “as a person of Slavic descent, he abhors Nazis,” according to the petition. The BIO counters that Koutnik is a member of the Simon City Royals, a “usually white” gang. The District Court for the Western District of Wisconsin granted summary judgment in favor of the prison officials, and in August 2006, the Court of Appeals for the Seventh Circuit affirmed. Koutnik then obtained pro bono representation to petition for rehearing and now for certiorari.

Though the District Court found that Koutnik was not affiliated with the Ku Klux Klan or Nazi groups, the Seventh Circuit deferred to the prison’s determination that a swastika is a “gang-related symbol.” As such, the Seventh Circuit deemed the suppression of Koutnik’s mail permissible because of the rehabilitative interests of the prison.

The Supreme Court first spoke on prisoner mail in Procunier v. Martinez (1974), in which it held that the act of censoring prisoner mail must further an important state interest and the regulation must be “no greater than is necessary or essential to the protection” of that interest. Then in Turner v. Safley (1987), the Court decided on the more deferential rational-basis level of review for regulating prisoner-to-prisoner correspondence. And finally, in Thornburgh v. Abbott (1989), the Court said the Turner standard should apply to incoming mail (overturning Martinez in part) while the Martinez standard should apply to outgoing mail.

According to the petition, commentary within the Thornburgh opinion on how the Martinez standard should be interpreted has led to a 2-3-2 circuit split on whether Thornburgh reversed, restated, or preserved Martinez. The BIO concedes that a split exists, though it says that properly characterized, the split is 6-2. Further, it says that the two standards on which the circuits are split are “largely superficial” upon “a close reading,” and that the two tests are “extremely similar in application.” (The petitioner’s reply says this argument “ignores the substantial difference between ‘rational basis’ review and ‘intermediate scrutiny.’”)

The petition goes on to challenge whether the censorship would further the rehabilitative interests of the prison. It cites several excerpts from the Court’s opinion in Martinez to argue that “censorship of outgoing prisoner mail is generally unnecessary to further inmate rehabilitation, regardless of the content of the mailing itself.” The petition alleges a circuit split among the Third, D.C., and now Seventh Circuits on whether general rehabilitative grounds are sufficient to justify prison officials censoring prisoners’ speech based on content. The BIO argues that this case is not the case to decide such a split and further highlights the threat to prison security if prisoners are allowed to market “white supremacist symbols and language” from within the prison walls.

Orders, including grants, from the Long Conference are expected on Tuesday.