United States Court of Appeals

For the Eighth Circuit

___________________________

No. 19-2096

___________________________

Human Rights Defense Center

 Plaintiff - Appellant

v.

Baxter County Arkansas

 Defendant - Appellee

------------------------------

Americans for Prosperity; Arch City Defenders; Center for Appellate Litigation;

Clark-Fox Family Foundation; Free Minds Book Club & Writing Workshop; Just

Detention International; Michigan State University College of Law’s Civil Rights

Clinic; R Street Institute; Roderick and Solange MacArthur Justice Center;

Rutherford Institute; Uptown People’s Law Center

lllllllllllllllllllll Amici on Behalf of Appellant

 ____________

Appeal from United States District Court 

for the Western District of Arkansas - Harrison

 ____________

Submitted: June 17, 2020

Filed: June 8, 2021

[Published] 

____________
Before LOKEN and GRASZ, Circuit Judges, and PITLYK,1

 District Judge. 

____________

PER CURIAM. 

This case, which pits First Amendment free-speech rights of a publisher against

important correctional-security interests, presents a vestigial dilemma from the predigital communication era. Technology may soon assign the issue to relic status. 

But, in the meantime, our task is to answer the question of whether a publisher’s

constitutional rights have been infringed upon by a prison policy limiting most

communication with inmates to postcards—in a facility with no electronic kiosk or

similar device capable of communicating the publisher’s materials. 

In January 2012, the Sheriff of Baxter County, Arkansas, initiated a new policy

regulating incoming mail to inmates and detainees at the Baxter County Jail and

Detention Center (“Jail”). The policy provided “[w]ith the exception of privileged

mail or legal mail, the only type of mail the jail staff are permitted to accept for the

inmate is post cards. Other mail will be marked for return to sender.” 

Between August 2016 and May 2017, the Human Rights Defense Center

(“HRDC”), a non-profit organization, mailed several unsolicited batches of materials

to multiple Jail inmates. The materials included, among other items, copies of two

HRDC publications, Prison Legal News and The Habeas Citebook: Ineffective

Assistance of Counsel (“The Habeas Citebook”), together with subscription order

forms. Most of the mailings were returned to HRDC marked “Refused,” “Return to

Sender Insufficient Address,” or “Return to sender, postcards only.” HRDC then

sued Baxter County under 42 U.S.C. § 1983, alleging that (1) the Jail’s postcard-only

policy violates HRDC’s First Amendment right to communicate with Jail inmates,

1The Honorable Sarah E. Pitlyk, United States District Judge for the Eastern

District of Missouri, sitting by designation. 

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and (2) the Jail’s rejection of HRDC’s mailings violated HRDC’s Fourteenth

Amendment procedural due process rights to notice and an opportunity to appeal the

Jail’s decisions.

The district court initially granted partial summary judgment in favor of

HRDC, concluding that the Jail’s rejection of HRDC mailings on August 5, 2016,

was a “technical” violation of HRDC’s due process rights to notice of the reason for

the rejection and an opportunity to be heard. After a bench trial, the district court

held the postcard-only policy was reasonably related to legitimate penological goals

and did not violate HRDC’s First Amendment rights. See Turner v. Safley, 482 U.S.

78 (1987); Simpson v. Cnty. of Cape Girardeau, 879 F.3d 273 (8th Cir. 2018). The

district court awarded HRDC four dollars in nominal due process damages for its four

discrete August 2016 mailings. HRDC appeals both rulings. We affirm the due

process ruling, vacate the First Amendment ruling, and remand for further

proceedings. 

I. Background

HRDC’s non-profit mission “is to educate prisoners and the public about the

destructive nature of racism, sexism, and the economic and social costs of prisons to

society.” HRDC accomplishes this mission through litigation, advocacy, and

publishing/distributing magazines and books to prisoners nationwide.

Prison Legal News is a 72-page monthly magazine containing news about

prison facilities and conditions, prisoners’ rights, and court opinions. The Habeas

Citebook is a 200-page self-help book detailing federal and state cases dealing with

ineffective assistance of counsel issues. To communicate its message and to solicit

new subscribers, HRDC sends unsolicited batches of “outreach” materials to inmates,

including samples of books and magazines, letters, prior court cases, and subscription

information.

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Baxter County is located in north central Arkansas. The Jail houses 116-141

pretrial detainees, convicted misdemeanants, and felons awaiting transportation to the

Arkansas Department of Corrections. Very few Jail inmates are there longer than a

matter of months.

In December 2011, the Sheriff announced a new postcard-only mail policy. 

The Sheriff issued a press release explaining the rationale for the new policy: “First,

it is being undertaken as a security precaution as a proactive measure to decrease the

amount of contraband coming into the Detention Center. Second, it is being

undertaken as a cost savings measure to the county, which has to supply postage for

indigent inmates.” At trial, the Sheriff reiterated the security and cost-saving

rationales. He testified that the postcard-only policy was also designed to conserve

resources because it made inspecting and processing the mail more efficient, allowing

limited Jail staff more time to carry out other duties. Under this policy, HRDC’s

mailings were returned to HRDC instead of being distributed to inmates.

II. The First Amendment Claim

The Supreme Court has made it clear that persons who are incarcerated do not

forfeit First Amendment protection of their rights to freedom of speech and religion

at the prison gate. Bell v. Wolfish, 441 U.S. 520, 545 (1979). Nor do prison walls

“bar free citizens from exercising their own constitutional rights by reaching out to

those on the ‘inside.’” Thornburgh v. Abbott, 490 U.S. 401, 407 (1989). “[T]here is

no question that publishers who wish to communicate with those who, through

subscription, willingly seek their point of view have a legitimate First Amendment

interest in access to prisoners.” Id. at 408. However, “maintaining institutional

security and preserving internal order and discipline are essential goals that may

require limitation or retraction of the retained constitutional rights of both convicted

prisoners and pretrial detainees.” Bell, 441 U.S. at 547.

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To determine whether a jail or prison policy infringes on the First Amendment

rights of inmates, as well as those seeking to communicate with them, “the relevant

inquiry is whether the [policy is] ‘reasonably related to legitimate penological

interests.’” Thornburgh, 490 U.S. at 409 (quoting Turner, 482 U.S. at 89). To help

answer that question, the Supreme Court has identified factors relevant to this

inquiry: (1) “whether the [policy] has a ‘valid rational connection’ to a legitimate

governmental interest”; (2) “whether alternative means are open to [those desiring to

communicate with] inmates to exercise the asserted right”; (3) “what impact an

accommodation of the right would have on guards and inmates and prison resources”;

and (4) “whether there are ‘ready alternatives’ to the [policy].” Overton v. Bazzetta,

539 U.S. 126, 132 (2003) (quoting Turner, 482 U.S. at 89–91). These so-called

Turner factors present factual and legal questions for which “the district court must

necessarily find the facts that either support or undermine the constitutionality of a

particular [policy], [but] the ultimate conclusion as to constitutionality is a question

of law.” Hill v. Blackwell, 774 F.2d 338, 343 (8th Cir. 1985). Courts are to give

“substantial deference to the professional judgment of prison administrators, who

bear a significant responsibility for defining the legitimate goals of a corrections

system and for determining the most appropriate means to accomplish them.” 

Overton, 539 U.S. at 132.

After a bench trial, the district court upheld the postcard-only policy

concluding “that all of the Turner factors favor the County.” We review de novo the

court’s application of the Turner factors to its factual findings. Iron Eyes v. Henry,

907 F.2d 810, 813 (8th Cir. 1990). The burden of persuasion is not on the County to

prove the validity of its policy, but on HRDC to disprove it. Overton, 539 U.S. at

132; see Beard v. Banks, 548 U.S. 521, 529 (2006).

As the district court recognized, the second Turner factor—whether alternative

means are open to exercise the asserted right—presents a different issue when the

outsider seeking to communicate with inmates is a publisher like HRDC, rather than

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a member of an inmate’s immediate family, as was the case in Simpson.

2

 The district

court found that this factor favored the County because there are several alternative

ways in which HRDC can communicate with Jail inmates—postcards, in-person

visitation, and donating materials to the Jail’s law library. The district court

acknowledged, however, the alternative means available to HRDC, a distant

publisher, are less practical than the alternatives available to the inmate’s nearby

mother in Simpson.

The Supreme Court has made it clear that while alternative means of

communication do not have to be “ideal,” they do have to be “available.” Overton,

539 U.S. at 135; see also Pell v. Procunier, 417 U.S. 817 (1974). If the alternative

means are illusory, impractical, or otherwise unavailable, this would weigh in favor

of HRDC under the second Turner factor. A key consideration in this case is that,

even if HRDC could be required to use only postcards to solicit inmate subscribers,

the postcard-only policy appears to prohibit Jail inmates from receiving any of

HRDC’s publications, as subscribers or otherwise. Thus, HRDC asserts, the policy

is a de facto total ban on publishers communicating with inmates. The Supreme

Court has twice warned that “a de facto permanent ban” on inmate access to

communication with outsiders would present a serious constitutional issue. Beard,

548 U.S. at 535; Overton, 539 U.S. at 134. Our prior cases reflect that concern. See

Murphy v. Mo. Dep’t of Corr., 814 F.2d 1252, 1257 (8th Cir. 1987) (holding a mail

policy which totally banned communication from an organization violated the free

speech and free exercise of religion rights of the inmates). Unfortunately, the district

court’s findings and conclusions did not address this issue.

2

In Simpson, we expressly recognized our holding was “narrow” due to the

“fact-intensive” nature of the Turner analysis “requiring careful examination of the

policies and institutions at issue in each case.” 879 F.3d at 282.

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Here, HRDC is asserting its First Amendment right as a publisher to access

inmates. By contrast, the Supreme Court’s concern in Beard was the impact of a de

facto permanent ban on the First Amendment rights of certain “specially dangerous

and recalcitrant inmates” to access publications. Applying Turner, the Court in Beard

reversed the grant of summary judgment invalidating a limited total ban. 548 U.S.

at 533–36 (restriction denying “level 2” inmates all access to newspapers or

magazines for at least ninety days). The Court has not considered the extent to which

a ban on access to inmates may violate the separate First Amendment rights of

outsiders, including publishers. Those rights are not wholly derivative of the rights

of inmates.3

Viewed in this light, an important question is whether HRDC proved its

assertion that the postcard-only policy results in “a de facto total ban” on Jail inmates

accessing HRDC’s materials. The district court made no finding of fact on this issue,

and the record on appeal provides little help because neither party at trial focused on

the issue.4

 As written, the postcard-only policy looks like a total ban—it instructs Jail

3The rights of outsiders to communicate “are correlative to the rights of

prisoners and must be analyzed under the same standard. But [it] is wrong to

conclude that outsiders’ rights are therefore strictly dependent on a prior request from

an inmate.” Prison Legal News v. Livingston, 683 F.3d 201, 214, 218 (5th Cir. 2012)

(upholding the ban on five books because the policy left “open ample alternative

avenues for [the publisher] to express its views to Texas inmates”).

4The dissent believes donation to the Jail’s “small law library” is an “obvious

viable alternative,” and asserts the policy does not facially “preclude inmates from

accessing communal copies of HRDC’s publications permitted by the Sheriff.” But

we do not see donation to the so-called “law library,” which consists of six or seven

worn books in a milk crate, Trial Tr. Vol. 2 at 205:12–13, 223:25–224:6, ECF No.

128, as such an obvious solution. For one, the record is unclear whether HRDC’s

materials would be permitted by the Sheriff. The unrebutted testimony at trial was

that no publisher can send books into the Jail, Trial Tr. Vol. 1 at 121:5–8, ECF No.

127; that no magazines of any type are allowed in the Jail, id. at 124:21–23; and that

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staff not to deliver books and magazines to inmates. There was also trial testimony

that inmates may not order or receive such publications. And there is evidence that

the Jail has no electronic reading kiosk and that it stopped maintaining a book cart for

the inmates to use.

In order to conduct the required Turner analysis, it is necessary for us to have

a finding on what, if any, alternative means are available to HRDC to exercise its

“First Amendment interest in access to prisoners.” Thornburgh, 490 U.S. at 408.5

the Jail does not accept books, Trial Tr. Vol. 2, at 210:5–17, 211:8–10, ECF No. 128. 

And it is unclear what avenue is available to HRDC to get permission from the Sheriff

under the policy. Whatever potential the Jail’s grievance procedure may hold for

prisoners, it is unavailable to a non-inmate publisher like HRDC. This further

highlights the absence of a factual finding by the district court that enables this court

to determine whether the postcard-only policy is a de facto ban on HRDC’s

publications.

5This alternative-means finding should be considered with the other three

Turner factors to determine the reasonableness of the policy. See Thornburgh, 490

U.S. at 414. Because the Turner factors should be considered as part of the overall

weighing of the relevant interests, as opposed to in a piecemeal fashion, we decline

to comment on these other factors at this time.

 

Citing to Beard, 548 U.S. at 532–33, the dissent believes the Turner analysis

can be conducted without additional fact-finding by the district court and it

emphasizes what it apparently sees as the primacy of the first Turner factor. We do

not interpret Beard so broadly. The full text of the discussion in Beard reveals the

Supreme Court was discussing the Turner analysis in the very specific context of the

policy at issue and observing the factors in that particular case were largely

redundant. Id. at 532 (observing, after it had analyzed all the Turner factors, that “the

second, third, and fourth factors, being logically related to the Policy itself, here add

little, one way or another, to the first factor’s basic logical rationale”) (emphasis

added). The calculus was specific to the policy in Beard rather than a general

proposition of law. Id. That is why this court has long recognized that “a Turner

analysis is a fact-intensive inquiry requiring a careful examination of the policies and

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Accordingly, we vacate the dismissal of HRDC’s First Amendment claim and

remand for further proceedings not inconsistent with this opinion. See generally 9C

Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 2577 (3d

ed. 2020); Swanson & Youngdale, Inc. v. Seagrave Corp., 561 F.2d 171, 174 (8th Cir.

1977). 

III. Due Process Claims

HRDC also argues that the district court erred by failing to grant summary

judgment on its claim that the County violated its procedural due process right, as

defined by Procunier v. Martinez, 416 U.S. 396, 418–19 (1974). HRDC contends

that under Procunier, it is entitled to notice of all rejected mailings and a reasonable

opportunity to make a protest to a prison official other than the person who rejected

the mailings. Id. The County argues that HRDC failed to preserve this issue because

it did not include the district court’s summary judgment Opinion and Order in its

Notice of Appeal. See Fed. R. App. P. 3(c)(1)(B); Hawkins v. City of Farmington,

189 F.3d 695, 704–05 (8th Cir. 1999). We do not decide this issue because we

conclude HRDC’s contention is without merit.

After analyzing the relevant caselaw, the district court assessed HRDC’s due

process claims under Mathews v. Eldridge, 424 U.S. 319 (1976), rather than the more

stringent standards of Procunier, a censorship case. The district court reasoned this

was proper because “altogether different considerations come into play when a

publication is rejected not because it was censored based on its content or the status

of the sender but rather because it was a mass mailing rejected pursuant to the routine

enforcement of a rule with general applicability.” We agree with that analysis. The

institutions at issue in each case.” Simpson, 879 F.3d at 282. Where the plaintiff is

a publisher, rather than an inmate, we cannot give mere lip service to interests beyond

the first Turner factor that the Supreme Court has expressly acknowledged are

protected by the First Amendment. Thornburgh, 490 U.S. at 408.

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Court in Procunier expressly stated that “[d]ifferent considerations may come into

play in the case of mass mailings.” 416 U.S. at 408 n.11. In later cases, the Court has

characterized Procunier “as a case concerning ‘written communication by inmates’

to noninmate recipients.” Thornburgh, 490 U.S. at 411 n.10 (quoting Pell, 417 U.S.

at 826). More recently, the Eleventh Circuit concluded: “Since mass mailings require

a lower standard for due process guidelines, we evaluate what process is due under

the test set forth in Mathews v. Eldridge[].” Perry v. Sec’y, Fla. Dep’t of Corr., 664

F.3d 1359, 1368 (11th Cir. 2011). 

Here, HRDC mailed some inmates several batches of “outreach” materials

containing books, magazines, informational packets, and court opinions. Some

process was due HRDC when its mailings were rejected. The County had publicly

announced in December 2011 that only postcard mailings would be accepted. The

record does not reflect whether HRDC did the minimal research needed to learn its

2016 and 2017 outreach mailings did not comply with the published postcard-only

policy. If not, when the first mailings were returned to HRDC marked “Refused” in

August 2016, a simple phone call to the Jail would have confirmed—as a June 2017

phone call by an HRDC employee did confirm—that all mailings other than postcards

would be refused for this same reason. Prior cases suggest that, when one edition of

a publication is impounded because one or more advertisements violate prison

policies, due process may require the prison to notify the publisher with specific

reasons for the impoundment and an opportunity to challenge the decision. But “due

process does not require copy-by-copy notice [if] later denials of identical

publications amount to the routine enforcement of a rule with general applicability.” 

Prison Legal News v. Sec’y, Fla. Dep’t of Corr., 890 F.3d 954, 976 n.20 (11th Cir.

2018) (quoting Prison Legal News v. Livingston, 683 F.3d 201, 223 (5th Cir. 2012)).

HRDC challenged the validity of the postcard-only policy under Turner, not

whether its mailings were wrongly rejected if the policy is valid. No formal appeal

process was needed to bring that challenge to the district court. On this summary

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judgment record, the district court concluded the County committed only a

“technical” due process violation by marking “Refused” on the August 2016 mailings

without explaining why the refusal occurred. The County has not appealed that

ruling.

HRDC also argues that the district court erred in awarding only four dollars in

nominal damages for the County’s due process violations. A plaintiff must prove

actual injury to recover compensatory damages for a procedural due process violation

but may obtain nominal damages without showing an actual injury. Carey v. Piphus,

435 U.S. 247, 263–64, 266 (1978). HRDC argues it proved three types of actual

injury at trial—costs for processing and receiving the rejected mailings, overhead

costs, and damage to its mission and ability to raise funds. We disagree. 

The trial record demonstrates that HRDC would have incurred these costs even

if it had received the process due after the August mailings were rejected. HRDC’s

Executive Director testified at trial that one of its purposes in sending outreach

mailings is to “investigat[e] censorship practices at facilities.” HRDC sends outreach

to a particular facility “[b]ased on what we’re investigating, if they have

unconstitutional mail practices or censorship practices.” Its practice is to send

outreach to a facility being investigated “once or twice, you know, maybe three times,

as we did in this case . . . to figure out what their practices are.” Here, the Director

explained, HRDC sent three batches to the Jail over the course of nearly a year “to

confirm that they, in fact, had not changed their policies.” This testimony strongly

supports the district court’s finding that HRDC failed to prove actual injury flowing

directly from the technical due process violation in August 2016. Therefore, the

district court did not err in awarding HRDC a dollar in nominal damages for each of

the four types of mailings it sent on August 5, 2016. See Fegans v. Norris, 537 F.3d

897, 908 (8th Cir. 2008); Corpus v. Bennett, 430 F.3d 912, 916 (8th Cir. 2005)

(explaining “one dollar is recognized as an appropriate value for nominal damages”).

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IV. Conclusion

We affirm the district court’s judgment on HRDC’s due process claim. We

vacate the district court’s judgment on HRDC’s First Amendment claim, and we

remand for further proceedings consistent with this opinion.

LOKEN, Circuit Judge, concurring in part and dissenting in part.

I concur in Part III of the court’s opinion and its decision to affirm the district

court’s judgment on HRDC’s due process claim. I respectfully dissent from Part II,

which remands for further fact findings on publisher HRDC’s First Amendment claim

that the Baxter County Jail’s postcard only policy is a “de facto permanent ban” of

HRDC’s mailings of books and other printed materials to the Jail’s inmates and

detainees. I would affirm the district court’s judgment in its entirety. 

In response to the need of a small jail to maintain a safe, efficient, and costeffective facility, Baxter County limited non-privileged mail directed to inmates to

postcards. HRDC publishes Prison Legal News and The Habeas Citebook and

solicits subscriptions from inmates. HRDC sued alleging violations of its First

Amendment right “in communicating with incarcerated individuals.” As the majority

recognizes, to resolve the ultimate question -- whether a jail policy is “reasonably

related to legitimate penological interests” -- the Supreme Court considers the four

factors it fashioned in Turner v. Safley, 482 U.S. 78 (1987). See Thornburgh v.

Abbott, 490 U.S. 401, 407-14 (1989). 

The sticking point for the majority was the second Turner factor -- “whether

alternative means are open to [those desiring to communicate with] inmates to

exercise the asserted right.” Ante p.5. Its analysis of the de facto permanent ban

question reads like we are reviewing a Rule 12(b)(6) dismissal or a Rule 56 summary

judgment. It begins with the observation that “the postcard-only policy appears to

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prohibit Jail inmates from receiving any of HRDC’s publications, as subscribers or

otherwise,” ante p.6, and concludes that appearances are enough to require a remand

for additional fact finding. But in this case, the district court denied cross motions

for summary judgment and conducted a bench trial in which HRDC had the burden

to prove the policy’s invalidity, see Overton v. Bazzetta, 539 U.S. 126, 132 (2003),

including the second Turner factor, see Holloway v. Magness, 666 F.3d 1076, 1080-

81 (8th Cir.), cert. denied, 568 U.S. 836 (2012). The facts proved at trial govern

whether HRDC proved its as-applied claim of a de facto permanent ban, not what the

policy appears on its face to prohibit. 

Moreover, in my view the majority’s observation misreads the policy. The

Baxter County Detention Facility’s Mail Regulations in effect in 2012, after the

postcard-only policy was adopted, provide in relevant part: 

1. For purposes of this policy, the following definitions shall apply:

A. “Privileged Mail” . . . .

B. “General Mail”: Any correspondence . . . not covered

under the definition of “privileged mail.” General mail

may also include any publications, magazines, newspapers,

periodicals, journals and pamphlets received by inmates

from their originating source, providing such are permitted

by the Sheriff.

2. Guidelines for the Processing of Incoming Mail:

A. All incoming mail to the jail will be received at the

sheriff’s department and will be forwarded to the jail

administrator . . . for delivery to the jail. . . . With the

exception of privileged mail or legal mail, the only type of

mail the jail staff are permitted to accept for the inmate is

post cards. Other mail will be marked for return to sender.

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(Emphasis added.) By its plain terms, the postcard-only policy in Section 2.A applies

to incoming mail addressed directly to an inmate for delivery to that inmate, whereas

Section 1.B authorizes the Sheriff to permit receipt of General Mail not addressed to

inmates, including publications HRDC claims were subject to a “de facto permanent

ban.” In other words, on its face the policy does not preclude inmates from accessing

communal copies of HRDC’s publications if permitted by the Sheriff. 

The trial highlighted this reality. In defense of the policy’s reasonableness,

Baxter County presented evidence that the Jail has a formal grievance process, and

there was testimony that no inmate has filed a grievance challenging the policy, or

requested an informal exception under Section 1.B of the policy, or attempted to

subscribe to an HRDC publication. HRDC did not join one or more Jail inmates as

co-plaintiffs or call an inmate witness who could have challenged this evidence, as

it has done in other postcard-only challenges.6

 See, e.g., Prison Legal News v.

Lehman, 397 F.3d 692 (9th Cir. 2005); Prison Legal News v. Cook, 238 F.3d 1145

(9th Cir. 2001). As the majority notes, HRDC elicited testimony by the Sheriff that

books and magazines may not be sent to the jail. But the context was mailings

addressed to the inmate and intended for his personal use and possession. HRDC’s

attorneys -- a litigation team of lawyers from Seattle, Washington, Lake Worth,

Florida, and Little Rock, Arkansas, who have litigated this issue all over the country

-- carefully avoided asking the Sheriff whether his authority to permit receipt of

books and other publisher materials as General Mail not addressed to specific inmates

would include permission to accept donated copies of HRDC’s Prison Legal News

and The Habeas Citebook to be made available to inmates generally on the Jail’s

book cart or in its law library. (There was testimony the Jail maintained a book cart

6This apparent lack of inmate interest in HRDC publications is not surprising. 

An inmate or detainee expecting to stay at the Jail for two or three months is not

likely to be interested in a year-long subscription to Prison Legal News, or in

spending $50 for a book teaching how to obtain habeas relief. 

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for non-legal materials but ended it shortly before trial because inmates were tearing

up the books.) 

The Sheriff further testified that risk management attorneys from the

Association of Arkansas Counties review new Baxter County policies and changes

to existing policies and generally “make sure our policies and procedures and

everything we do helps protect the inmates and their rights.” HRDC claimed in this

action it was deprived of its due process right to notice and an opportunity to be

heard. But in the year between when its first mailings were returned marked

“Refused” to its filing of this lawsuit, HRDC never engaged in a discussion with the

Sheriff about changing the policy or appealed the postcard-only policy to Baxter

County decisionmakers. 

In ruling that the second Turner factor did not favor HRDC, the district court

noted:

There was testimony from [HRDC founder and Executive Director] Paul

Wright that an employee of HRDC contacted the County Jail after its

publications began being rejected to inquire about how it could mail its 

materials to the Jail. It was informed that it could not mail its materials

directly to prisoners unless the mailings were on postcards. However,

there was no testimony that HRDC ever inquired about donating its

materials to the Jail. The likely reason, of course, is that at least part of

HRDC’s mission is to increase paid subscriptions to its publications.

In my view, there is an additional likely reason HRDC made no attempt to determine

whether there were ways other than direct mailings that Jail inmates could access

books and printed materials HRDC claims are banned. When HRDC and other

publishers made such inquiries in prior cases, prison and jail officials have adopted

modifications that publisher plaintiffs did not favor but reviewing courts approved

under Turner and Thornburgh in rejecting claims of de facto total ban. The risk of

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triggering such an adverse response is substantial because it is well settled that

“[a]lternatives to the type or amount of speech at issue ‘need not be ideal . . . they

need only be available.’” Holloway, 666 F.3d at 1080 (quotation omitted). 

For example, in Crime Justice & America v. Honea, a publisher challenged a

policy that “prohibits delivery of unsolicited commercial mail to inmates” that was

adopted to combat problems caused by inmates misusing paper. 876 F.3d 966, 970

(9th Cir. 2017). In response, “[o]fficials installed electronic kiosks throughout the

jail during the litigation.” The district court found after a bench trial this was an

adequate alternative that satisfied the second Turner factor. Id. at 976. On appeal,

the publisher argued “kiosks do not guarantee the same level of saturation as

delivering fifty-five hard copies of the magazine to the jail every week.” Id. The

Ninth Circuit affirmed, noting that inmates use paper for a variety of nefarious acts

and are more likely to misuse paper that does not belong to them. Id. at 973. “Where

other avenues remain available for the exercise of the asserted right,” the court

reasoned, “courts should be particularly conscious of the measure of judicial

deference owed to corrections officials . . . in gauging the validity of the regulation.” 

Id. at 976, quoting Turner, 482 U.S. at 90. 

Even more relevant to the issue in this case, in Avery v. Turn Key Health

Clinics, LLC, an inmate sued Benton County, Arkansas, challenging a Detention

Center policy not to accept books that were directed to inmates from individuals. 

Based on the Turner factors, the court upheld the book policy as reasonable,

concluding it “is not a complete ban” because it “provides that books will be accepted

by the jail clerk’s office, but only on a ‘donation basis,’” and then “will be available

to all inmates through the library.” No. 5:18-cv-05075, Mem. Opinion & Order at 22,

2020 WL 714176 at *10-11 (W.D. Ark. Dec. 12, 2020), aff’d on other grounds, No.

20-1608 (8th Cir. Jan. 12, 2021). 

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HRDC, a non-profit organization, could have offered to donate publications for

access by inmates on the Jail’s book cart or in the jail library, but did not do so. 

HRDC could have challenged the Sheriff’s policy to Baxter County administrators,

but did not do so. Executive Director Wright testified HRDC decided that any

attempt to challenge the postcard-only policy administratively would have been futile. 

I infer that testimony was disingenuous if not dishonest. HRDC has filed First

Amendment and due process actions around the country challenging postcard-only

and other policies restricting its ability to communicate with prisoners in correction

facilities of all sizes. HRDC knew that, if it engaged in a discussion with Baxter

County about its policy, the County might respond that inmates may access donated

publisher materials on the book cart or in the library, but not in their cells. That was

the accommodation upheld in Avery, 2020 WL 714176 at *10-11. Rather than risk

an unfavorable accommodation that would be afforded judicial deference under

Turner standards, HRDC brought this purported “as applied” action based on how the

bare postcard-only policy may “appear” to the court. In other words, this is, in reality,

a disguised facial attack that has persuaded the majority to conduct an improper de

novo review of a policy they consider flawed. If there is indeed a de facto ban, it is

a self-inflicted wound. 

The factual focus through summary judgment and trial was not the second

Turner factor. The parties focused on the first Turner factor -- whether the challenged

policy has a valid rational connection to a legitimate government interest. Rightly so. 

The first factor is a critical threshold issue. If Baxter County failed to justify its

postcard-only policy under this standard, game over, HRDC prevails. See Simpson

v. Cnty. of Cape Girardeau, 879 F.3d 273, 279 (8th Cir. 2018); Singer v. Raemisch,

593 F.3d 529, 534 (7th Cir. 2010). The majority ignores or overlooks Supreme Court

decisions making clear that the four Turner factors are not a typical multi-factor test. 

HRDC’s First Amendment right to access jail inmates is not “wholly derivative of the

rights of inmates,” ante p.7, but its right must give way to a valid jail or prison policy

that prohibits inmates from receiving the communication in the interest of

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“maintaining institutional security and preserving internal order and discipline.” Bell

v. Wolfish, 441 U.S. 520, 546 (1979); see also Thornburgh, 490 U.S. at 410 n.9

(listing cases implicating both inmate and outsider rights). Thus, when a jail policy

satisfies the first Turner factor, the Supreme Court considers the other three factors

to determine whether the policy is reasonably related to Baxter County’s legitimate

penological interests. If the second, third, and fourth factors are “logically related to

the Policy itself, [they] add little, one way or another, to the first factor’s basic logical

rationale. . . . The real task . . . is not balancing these factors, but rather determining

whether the [County] shows more than simply a logical relation, that is, whether [it]

shows a reasonable relation.” Beard v. Banks, 548 U.S. 521, 532-33 (2006)

(plurality opinion). 

Regarding the second factor, “[t]he absence of any alternative . . . provides

‘some evidence that the regulations [a]re unreasonable,’ but is not ‘conclusive’ of the

reasonableness of the Policy.” Id. at 532 (2006), quoting Overton v. Bazzetta, 539

U.S. 126, 135 (2003); see also Block v. Rutherford, 468 U.S. 576, 588 & n.9 (1984)

(upholding “blanket prohibition on contact visits”). The district court recognized that

the issue of alternative available means is different in this case than in Simpson,

where an inmate’s mother was the plaintiff. But the court concluded that HRDC’s

position was “untenable” because “accepting HRDC’s argument at face-value

requires finding that a mother attempting to communicate with her child in prison

would have fewer First Amendment freedoms than a publisher who sends unsolicited

mailings into a prison in order to (at least in part) sell subscriptions to its magazines.” 

I agree. As the Supreme Court said years ago, the press has “no constitutional right

of access to prisons or their inmates beyond that afforded the general public.” Pell

v. Procunier, 417 U.S. 817, 834 (1974). HRDC is asserting the right to send its

unsolicited materials to every inmate and detainee at the Jail. “Different

considerations may come into play in the case of mass mailings.” Procunier v.

Martinez, 416 U.S. 396, 408 n.11 (1974).

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In this case, the district court identified an obvious viable alternative by which

HRDC could communicate its intended messages to inmates -- “attempt to donate its

materials to the Jail to supplement the County’s small law library.” Given the

availability of this alternative, HRDC failed to carry its burden to prove at trial a de

facto permanent ban that made the Jail’s mail policies either not reasonably related

to legitimate penological objectives or an exaggerated response to such concerns. 

Thus, the district court did not err in finding that the second Turner factor does not

favor HRDC. 

Baxter County defended its policy on the grounds of efficiency, costeffectiveness, and security -- “the most compelling government interest in a prison

setting.” Simpson, 879 F.3d at 279 (citations omitted). The defense prevailed at trial,

despite HRDC’s evidence as to the remaining three Turner factors. I would affirm. 

___________________

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