right to proceed and read newspapers and i think that in that is the idea that there is a right to subscribe to a newspaper and to receive a subject of course through reasonable restrictions so i would certainly agree that that is a much closer case than this one but i think at a minimum there is a good argument that if mr miller were not allowed to subscribe to a newspaper of his choosing subject to reasonable restrictions that that would not satisfy the first amendment right also on that point between why and why was it appropriate for the district court to pass upon the constitutionality of a newspaper ban as as we're talking about now and as you open your argument with when mr miller's complaint was was much narrower than that was focused on the failure to receive a subscription to the chicago daily law bulletin well i think that that obviously was what mr miller requested but i believe in his amended complaint mr miller did state that he was taking issue with the broader policy of not allowing prisoners to have subscriptions entering the prison so i do think that that public as opposed to a newspaper i believe that the newspaper was it's a legal newspaper so it's certainly not a general interest newspaper but informative certainly it appears to be a newspaper it is printed on newspaper print is interested in dating possible legal advice i think close to finding out what's going on in the world generally well i think that mr miller was i think it's slightly broader than that i think that mr miller was interested in learning about the law he wanted to learn about cases about doctrines about how our law works in hopes that that information would have helped him in dealing with his criminal proceeding and i think that the reason he wanted a legal publication is he because he thought inferring from the record that that receiving that kind of information on a regular basis would allow him to develop the kind of knowledge that would be helpful right right i think i actually i think that what you just said is completely about it may be it may be that he has a decent clean but it didn't and i don't know why the complaint that he brought required the district court to pass upon the constitutionality of a newspaper ban newspaper of general circulation that's not why i assumed he sued because he wasn't getting a copy at least as i read the materials of the chicago daily log bulletin when the prisons policy i did its terms allowed  inmates to receive a subscription to prison legal news so i don't know why that wasn't a question that was you know that was resolved in the district court well i think certainly ultimately the district court  addressed something that in your honour's me was was not actually the policy issue that potentially would be reversible error and that would be a reason to send the case back to the district court however i do think that even in this case  are banned however defendants in this case have acknowledged that the way it was interpreted in practice during the relevant time period was that mr miller or any inmate could not receive a newspaper because i mean let me ask you this question a different way how what is the proper way to formulate the prodding to qualified immunity question i think that if you had to draft it how would you write it i think that the second prong under qualified immunity is whether the right at issue was clearly established what's the right issue i think that the certainly and we would argue are we concerned that the right issue is as this court to and or which is a right to read and receive newspapers obviously i understand that you're going to believe that mr miller may have been contending that he had a narrower of right in this case but ultimately that is the right that the district court articulated period just two thousand and twelve the tally of magazines that prisoners were allowed to review during the relevant time period prisoners could not have had a subscription to a magazine either i believe the prison has since changed their policy it's slightly broader now but that is as it was during the current time period well because of the change in the law or because of that a movement in the law i believe that may be correct and in addition i believe part of the reason that the policy was changed was as part of a settlement of a lawsuit that was brought grabbing legal news alleging right prison legal news not not being distributed you know now if i could i'd like to turn to a couple of newspapers not a tory magazine article folks and in that case this court acknowledged the difference normally is due to present administrators and it also knowledge the prisoner rights should be balanced with  turner this court stated that prisoners have a first amendment right to read and receive newspapers and periodicals and those cases were om decided over thirty years ago but in the intervening time this court has never suggested that they both illinois state regulations and also federal regulations allow prisoners to subscribe to newspapers and and there are also as we cited in the briefing dozens of cases where i think i would say certainly over a dozen cases that have reviewed newspaper bans and have concluded that they are not valid so there is no controversy in the case here virtually all of the cases going the singer and the final point i would like  regional publication would that be mr birnbaum thing in acceptable answer to the first night in question and word i think that there is a good argument that that would not be sufficient again because there is your position that subscription sued twenty five newspapers no your honor i think we would certainly agree that there can be reasonable restrictions on the right to silence and i'm trying to force frame up here i think that's what would constitute in your view a reasonable restriction without violating the first amendment well the person could potentially allow the prisoner to subscribe to one mixtape or or allow the prison the prisoner to keep one used paper in a cell or require that the newspapers opposite is true that the plant this is it's a more complicated case like any jail research case it's a nuanced case in the plaintiffs are hoping there were newspaper leads them please the court to gloss over those complexities and i'll start sheer i would direct the court to mr miller's deposition pages six through fifty nine he talks about he want not to keep up with the news or to participate in the marketplace of ideas but for help fight his case one could almost question whether this was not some sort of access to the courts case but what's very important is mr miller as you know have you seen prison legal news and he's even asked what's in it and he goes to describe what's in it and then you ask just prison legal news contain the same basic kind of information that you are looking to get out of a wobble that he agrees with that as based and i have a hard time seeing how that would be constitutional i would also say that that's that's not what we've got here for one reason you have numerous news magazines you also have television news standard under the turner and the cases applying the first amendment it's not as much as one can get on the outside and i get the court's concern i think there would be a very legitimate police what i understand to be the court's concern i don't understand is how howie is square depriving i understand the point you made about an alternative you know it's an alternative but you could have a situation here where someone in the wayne has a personal subscription to prison legal news and and tell us mr miller this is out this is outstanding you ought to get a subscription to something like this he said lo and behold i have one to the chicago daily log bulletin but they won't drop it off what what sense does that world make well that world makes a lot of sense if you understand the difference between the way monthly newsmagazine and any sort including prison legal news comes out often it calms versus a daily newspaper that comes every day and contains a lot more paper don't really the plaintiffs make a lot of arguments in this case about you know the security concerns of the jail comes every day but it's one seat that might be equivalent to coming once a month but fifty sheets there's an old quotation from the polling and i think talking about the army but he says quantity has a quality all its own and in this case  not the only but a significant part of what wed the jail administrator and his professional judgment i do not allow newspapers is the sheer quantity of paper from a daily newspaper i do want to address one issue on the qualified immunity i need to make a clarification to the court about a case that ice right so in my qualified immunity argument i point to two different  opinions in the central district of illinois at the time and as to the one that up holds the band i make a statement on page thirty nine of the brief that that ban was part of the jail that banned all his papers and magazines and everything that didn't come from the ip can public library the nature of that policy doesn't come from the opinion that i cite it comes from an earlier opinion in the case which is actually this court's opinion and it's one thirty seven newspapers that's defining the right more or less as to what the plaintiff wants is defining it too narrowly and i would emphasize that the u s supreme court has never said that inmates have a right to read newspapers and certainly not a moment is obviously returner i'm sorry for which the plaintiffs argued about here is a few weeks at a few months or so after turning but it's never mentions turner and also the language that it uses is dicta so there is the question of of clearly established it's not clearly established you have a few on published court of appeals cases you have a few district court cases here and there really the plaintiff's best case life so far is the district court koger versus dark from twenty fifteen that is by far their best case because it does go through the turner factor as it does address a newspaperman however i would underscore that even their very best case by far because the ban it issued when kincaid brought up the seems to be an attempt to draw some sort of distinction truth pictorial magazines and non pictorial magazines truth be told virtually all magazines have pictures so virtually all magazines would have been banned under  that's certainly a reasonable person could infer that there's absolutely there's a common sense argument that dungeons and dragons doesn't have the same first amendment weight as a newspaper he asks but there are still i would make two responses to that the first is those cases not just in terms of what's at issue but in the reasoning there and the evidence that's except in the deference to the one damn specialist who said this could cause a problem even though you had a bunch of  mates saying we don't think it's a problem we don't been in jail a long time we'll never heard of it causing a problem the other point i would make your honor in response is that even know certainly there's a common sense argument that while d n d doesn't matter that's not  opinion the opinion never says that and i would submit that a reasonable jail administrator could just take a senior at face value and not draw a distinction based on dungeons and dragons and given that that would only strengthen my argument for constitutional there are cases that deal with policies that that's correct i would point out to the court however most of those cases such as the man cases a point to  that contrary to the policy he's claiming that to his procedural due process claim he doesn't have one because he has a remedy in the illinois state court so could he if he had a remedy for two hundred seventy excuse me yet think seventy nine is very strong illinois tort claim and two that i would respond to your honor that mr miller in his his response to the grievances we finds out about this two things are interesting one the remaining wobble tends to come after he finds true on the security concerns well for those reasons i would ask for the security concerns forgive me bad it's to me that close magazine bibles  your honors i just have a few points in response to opposing counsel's argument first i believe there was some suggestion that some of the cases mr miller cited in his briefs are distinguishable because those cases also magazines made the ban even rational some around me ask you to react to a concern that i have with approaching the qualified immunity question that way suppose that you're your body of clearly established law in m hypothetical comes from to disagree courts one in hawaii and one in alaska and the legal point in question when you when you take stock of the cases the way that it  decisions eleven of them go you're on your way and only one of them goes mr mathews way is back is that body of law clearly established law for somebody running the jail in kankakee county  the circuit i can see i only have a few more seconds but just a few more points on the prison legal news issue there is some questioning the record about whether the prison legal news was recently at that level mr miller stated in his deposition that he never saw it before two thousand and fourteen there also was some attempt to distinguish the daily versus monthly newspapers but that concern can be mitigated through some of the mechanisms that i believe i described previously