[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 15

- 14220

________________________ D.C. Docket No. 4:12

- cv - 00239

- MW

- CAS

PRISON LEGAL NEWS, A project of the Human Rights Defense Center, a Not

- for

- Profit Washington Charitable Corporation, Plaintiff

- Appellee Cross Appellant, v ersus SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Defendant

- Appellant Cross Appellee.

________________________ Appeal s from the United States District Court for the Northern District of Florida

________________________ (May 17, 2018) Case: 15-14220 Date Filed: 05/17/2018 Page: 1 of 482 Before ED CARNES, Chief Judge, DUBINA, Circuit Judge, and CONWAY, * District Judge. ED CARNES, Chief Judge: From time to time we have all followed the advice of Oscar Wilde and gotten rid of temptation by yielding to it. 1 Yielding to the temptation to commit an act that the law forbids can lead to bad consequences, including imprisonment. Prison officials have the duty to reduce the temptation for prisoners to commit more crimes and to curtail their access to the means of c ommitting them. The Constitution does place some limits on the measures that corrections officials may use to carry out that duty, which is what this case is about.
Th e Florida Department of Corrections has rules aimed at preventing fraud schemes and othe r criminal activity originating from behind bars, but inmates continually attempt to circumvent measures in place to enforce those rules

. The Department , for its part, continually strives to limit sources of temptation and the

means that inmates can use t o commit crimes . One way it does that is by preventing inmates from receiving publications with prominent or prevalent advertisements for prohibited services , such as three

- way calling and pen pal solicitation , that threaten other inmates and the public

. In the Department’s

* Honorable Anne C. Conway, United States District Judge for the Middle District of Florida, sitting by designation. 1 Oscar Wilde, The Picture of Dorian Gray 19 (Joseph Bristow ed., Oxford Univ. Press 2006) (1890). Case: 15-14220 Date Filed: 05/17/2018 Page: 2 of 483 experience, those ads not only tempt inmates to violate the rules and commit crimes , but also enable them to do so

. One publication the Department impounds based on its ad content is plaintiff Prison Legal News (PLN) ’ s monthly magazi ne, Prison Legal News . PLN contends that the Department’s impoundment s of its magazine violate the First and Fourteenth Amendments. After a bench trial, the district court ruled that the impoundment s do not violate the First Amendment but the failure to give proper notice of them does violate the Fourteenth Amendment. We agree.
I. FACTS AND PROCEDURAL HISTORY
A. Facts 1. The Florida Department of Corrections Florida law requires the Department of Corrections to “protect the public through the incarceration and supervision of offenders,” to protect offenders “from victimization within the institution,” and to reha bilitate offenders. Fla.
Stat. § 20.315(1) , (1) (d) . The Department strives to balance those mandates of public safety, pris on security, and rehabilitation

. That is no small task. It employs 16,700 officers to oversee 100,000 inmates in 123 facilities throughout Florida.
T hose officers enforce a mul titude of rules to ensure prison security and public safety. See, e.g. , Fla. Admin. Code rr. 33

- 602.101, .201, . 203 (rules governing inmate care, property, and control of contraband).

Case: 15-14220 Date Filed: 05/17/2018 Page: 3 of 484 T o promote its rehabilitation mandate, the Department grants inmates phone, pen pal, and correspondence privileges so that they can stay in touch with family and friends. Id. r. 33

- 210.101(9) (allowing inmates to correspond with pen pals); id. r. 33

- 602.201 app. 1 (authorizing inmates to keep up to 40 stamps for
correspon dence ) ; id. r. 33

- 602.205(1) (g ranting telephone privileges). Those and similar privileges pose problems in Florida prisons and elsewhere . Inmates have the time, talent, and tendency to use their phone, pen pal, and correspondence privileges to conduct c riminal activity, thwarting efforts to p rotect inmates and the public. The record is heavy with evidence of th at unfo rtunate reality. James Upchurch, the Department’s Assistant Secretary for Institutions and
Re

- entry, testified that “[g]iven uncontrolled and unverifiable telephone access, inmates have been found to use such opportunities to harass the general public, [D]epartment employees, their victims [ , ] a nd to search for new victims.” He cited the example of incarcerated Me xican mafia members in California who used a network of prison phones to sell drugs and conduct other illegal activity

. Prison Legal News itself has reported on instances of inmates abus ing their phone privileges. See News in Brief: Florida , Prison Legal News, Nov. 2011, at 50 (reporting how an inmate discovered that the county jail’s phone system provided double refunds each time a call did not go through , prompting the inmate to make calls and then hang up until he had made the $1,250 he n eeded for bail); Mark

Case: 15-14220 Date Filed: 05/17/2018 Page: 4 of 485 Wilson, Reach Out and Defraud Someone: Oregon Jail Prisoners Commit Phone
Scams , Prison Legal News, Nov. 2010, at 24

– 25 (reporting on inmates’ use of prison phones to conduct identity theft scams , one of which resulted in the indictm ent of an inmate on 35 counts of identity theft); News in Brief: Florida , Prison Legal News, Sept. 2010 , at 50 (reporting how a county inmate used the prison phones to call in bomb threats ). 2 Like phone privileges, p en pal privileges may open doors to cr iminal activity. Inmates abuse pen pal privileges by soliciting kind

- hearted but gullible people and then defrauding them. Pen pal scams are so common that the United
States Postal Service warns customers that pen pal ads have “ proliferated in recent
yea rs ” and that “many ads placed by prisoners are part of a sophisticated mail fraud scheme that misuses postal money orders to bilk consumers out of their hard earned savings.” 3

2 PLN submitted into evidence every issue of Prison Legal News from 2002 through 2014

. 3 Prison Pen Pal Money Order Scam , U.S. Postal Inspection Service, http://www.postalinspectors.uspis.gov/investigations/mailfraud/fraudschemes/othertypes/penpalf raud.aspx [ https://web.archive.org/web/20170204190103/postalinspectors.uspis.gov/ investigations/mailfraud/fraudschemes/othertypes/penpalfraud.aspx ] ; see also Woo ds v. Comm’r of the Ind. Dep’t of Corr. , 652 F.3d 745, 747 (7th Cir. 2011) (recounting that 350 inmates had placed ads soliciting pen pals on websites, that “the majority of these inmates had

. . . misrepresented themselves to the public in their postings on the sites,” and that several pen pals felt deceived after “sending money to prisoners who had lied about their release dates and offenses of conviction”); United States v. Brown , 7 F.3d 1155, 1158 (5th Cir. 1993) (stating that a Mississippi inmate scamm ed thousands of dollars out of a 65

- year - old Florida retiree he met through a “lonely hearts pen

- pal club”). [In keeping with Eleventh Circuit Internal Operating Procedure 10, “Citation to Internet Materials in an Opinion,” under Federal Rule of

Case: 15-14220 Date Filed: 05/17/2018 Page: 5 of 486 Inmates also abuse c orrespondence privileges. For instance, one Florida inmate sent threatening letters to a federal magistrate judge, one of which informed the judge that someone would “stick a curling iron up [the judge’s] twat and plug that sucker in,” while another stated that the inmate was coming to kill her. See Unite d States v. Adamson , No. 4:00cr52, 2007 WL 2121923, at *1 (N.D. Fla. July 23, 2007) (unpublished)

. Another way inmates abuse correspondence privileges is by using their stamps as a currency in the underground prison economy to buy drugs, sexual favors, an d anything else they can bargain for. See United States v. Becker , 196 F. App’x 762, 763 & n.1 (11th Cir. 2006) (unpublished) ( noting how one inmate ran a prison gambling operation where inmates paid him with stamps and another inmate used stamps to pay f or heroin ); United States v. Martin , 178 F. App’x 910, 911 (11th Cir. 2006) (unpublished) ( stating how an inmate used letters with hidden compartments to smuggle heroin into the prison, which he then gave to another inmate in exchange for stamps ). The problems associated with stamps increase when inmates can send their stamps to “cash

- for

- stamp s ” companies that will exchange the stamps for cash at a percentage of the stamps’ face value

. Inmates can use the cash to purchase goods and services outsi de prison walls , which facilitates contraband smuggling and the corruption of prison guards

.

Appellate Procedure 36, a copy of the internet materials cited in this opinion is available at this Court’s Clerk’s Office.]

Case: 15-14220 Date Filed: 05/17/2018 Page: 6 of 487 Recognizing that when inmates abuse their privileges it threatens other inmates and the public , the Department has sought to prevent that abuse

. First, it has prohibit ed three

- way calling, which includes any type of call tr ansferring. Fla. Admin. Code r. 33

- 602.205(2)(a). T hree

- way calling allows inmates to circumvent the regulations the Department has in place to stop them from using prison phones
to harass the public, arrange contraband smuggling, and conduct other criminal activity. Th e Department’s regulations restrict inmates to calling no more than te n people on a pre

- approved list and requir e each outgoing call to begin with an automated message infor ming the recipient that the call is coming from a Department prison

. Id. r. 33

- 602.205(2)(a), (g). The Department also monitor s and record s some inmate calls. Id. r. 33

- 602.205(1). Second, the Department does not allow inmates to “solicit or otherwise commercially advertise for money, goods, or services,” which includes “advertising for pen

- pals” and “pla c[ing] ads solicitin g pen - pals” on social media and inmate pen pal websites

. Id. r. 33

- 210.101(9). Third, inmates cannot use “postage stamps as curre ncy to pay for products or services.” Id. r. 33

- 210.101(22). Fourth, inmates cannot conduct a business while confined , which includes “any activity in which the inmate engages with the objective of generating revenue or profit while incarcerated.” Id. r . 33

- 602.207(1)

– (2). That rule exists

Case: 15-14220 Date Filed: 05/17/2018 Page: 7 of 488 because inmate businesses increase the risk of fraud and burden Department staff with monitoring more mail and phone activity

. Id. r. 33

- 602.207(2).
Just as some inmates abuse the ir privileges, some also evade or break the rules re stricting their privileges. For example, the Department’s telephone security vendor can detect three

- way call attempts by the clicking noise that occurs when a call is transferred , but inmates will blow into the receiver when transferrin g a call
to mask that clicking noise. There are nearly 700,000 three

- way call attempts each year in Department prisons, leading officials to believe that inmates would not make so many attemp t s if some were not succeeding. D isciplinary reports confi rm th at some attempts do succeed. D espite the rule prohibiting pen pal solicitation,

some inmates manage to post profiles on pen pal solicitation we bsites

. Inmates also succeed in exchanging stamps for cash

–– one cash

- for

- stamp s company deposited over $50,000 into inmates ’ accounts over several years. And as for the prohibition against conducting a business , one inmate, a jailhouse lawyer known as “H&R Block,” lived up to his nickname by running a tax filing business where he

wo uld file tax returns on behalf of other inmates. See News in Brief: Florida , Prison Legal News, Apr. 2010, at 50 . Of course, those tax returns were false, and the inmate faced up to 90 years in prison for his scheme. Id.
2. The Department’s Admissible Reading Material Rule Case: 15-14220 Date Filed: 05/17/2018 Page: 8 of 489 Because some inmates abuse their privileges and break the rules put in place to stop that abuse, the Department takes additional steps to help increase prison security and public safety. As Department official Upchurch testified , pr otecting the public “goes further than just

. . . keeping the inmates inside the fence and not allowing them to be out committing the crimes that they commit.” Prison security challenges evolve

. Upchurch cited the availability of contraband cell phones, which give inmates unregulated i nternet access and have been used in other states to orchestrate prison riots and arrange assaults on prison staff. PLN’s expert acknowledge d that Department officials must be proactive in addres sing security problems. As Upchurch testified, “act[ing] after the fact [in the prison busi ness] risk[s] someone’s life.” One of the ways the Department tries to stay a step ahead of inmates is to

screen all incoming publications for content that might enable them to break prison rules. See Fl a. Admin

. Code r. 33

- 501.401(3). Under the Department’s
A dmissible Reading Material Rule, inmates can “ r eceive and possess publications

. . . unless the publication is found to be detrimental to the security, order or disciplinary or rehabilitative interests of any institution of the [D]epartment

. . . or when it is determined that the publication might facilitate criminal activity.” Id. For example , to bolster the Department ’s ban on inmates possessing firearms or other dangerous we apons, id. r. 33

- 602.203(2), the rule

Case: 15-14220 Date Filed: 05/17/2018 Page: 9 of 4810 prohibits inmates from receiving publications that “describe[ ] procedures for the construction of or use of weapons,” id. r. 33

- 501.401(3)(a). The Admissible Reading Material Rule applies that same logic to ads for prohibited services. A publication is impounded if it contain s ads for th ree - way calling services , pen pal solicitation services , cash

- for

- stamp s exchange services ,

or for conducting a business , but only “where the adver tisement is the focus of, rather than being incidental to, the publication [,] or the advertising is prominent or prevalent throughout the publication. ” Id. r. 33

- 501.401(3)( l ). T he Department can also impound any publication that “otherwise presents a threat to the security, order or rehabilitative objectives of the correctional system or the safety of any person.” Id. r. 33

- 501.401(3)(m). Once m ailroom staff impound an issue of a magazine for violation of t he rules, it is withheld from i nmate s until the Department’s Literature Review Committee make s a final decision about whether the issue does violate the Admissible Reading Material Rule

. Id. r r . 33

- 501.401 (5), (8) , (14)(a)

. 4 Mailroom staff cannot impound all issues of an entire publication in

4 The Admissible Reading Material Rule defines “impoundment” as the action taken by mailroom staff “to withhold an inmate’s incoming public ation

. . . pending review of its admissibility by the Literature Review Committee.” Fla. Admin. Code r. 33

- 501.401(2)(b). When the Committee upholds an impoundment, that is a “rejection” and the issue is considered contraband. Id. r. 33

- 501.401(2)(j). The difference between an impoundment and rejection is immaterial here, so we use the term “impound” to refer to the Department’s decision to withhold a particular issue from an inmate subscriber.

Case: 15-14220 Date Filed: 05/17/2018 Page: 10 of 4811 advance ; instead, they must separately review and decide whether each issue of a publication violates the Admissible Reading Material Rule. Id. r. 33

- 501.401(5). 5
3. Prison Legal News and t he First Impoundment s of It Prison Legal News is a monthly magazine founded in 1990 that reports on legal developments in the criminal justice system and other topics that affect inmates

. A bout 70% of the magazine’s 7,000 nationwide subscribers are inmates

. It has subscribers in all 50 state prison systems and the Federal Bureau of Priso ns. Only a bout 70 , or one percent of the 7,000 subscribers , are Florida inmates. Prison Legal News began carrying advertiseme nts in 1996 to cover its publication c osts. Not surprisingly, th e ads are placed by companies whose target audience is prisoners. Two examples are l aw firms specializing in prisoner litigation and schools offering inmate correspondence courses

. Nothing wrong with that. In 2003 the Department began impounding some Prison Legal News issues based on ad content. The problem ads included ones for pen pal solicitation, cash

for

- stamp s exchange services , and three

- way calling services. The a ds for pen pal solicitation offered inmates the opportunity to post on the company’s website a profile with a photo and address, and the public could search for that profile by the inmate’s age, race, and other features. The cash

- for

- stamp s ads gave inmates the

5 For example, if the Department decides that the Januar y issue of Prison Legal News violates the Admissible Reading Material Rule, then it impounds that issue. Fla. Admin

. Code r. 33

- 501.401(8). But when the February issue arrives, mailroom staff must review that latest issue to determine whether it complies with the rule. Id. r. 33

- 501.401(5).

Case: 15-14220 Date Filed: 05/17/2018 Page: 11 of 4812 opportunity to exchange stamps for cash at a percent age of the stamps’ face value. The three

- way calling ads offered discount phone services on collect calls from inmates. The Department determined that those phone services fell under its broad definitio n of “three way calling” because the companies forwarded or transferred the inmates’ collect calls to the call recipient’s home phone, cell phone, or blocked home phone number. 6 The Department determined that all three types of ads violated Rule (3)( l ) , b ut it was especially concerned with the ads fo r three

- way calling because it believed that its telephone security vendor could not trace inmate calls made through the discount phone services

. P LN sued the Department in 2004 to stop the impoundment s . After the Department’s telephone vendor gave assurances that it could block three

- way call attempts, the Department agreed in 2005 not to impound Prison Legal News as long as all the problematic ads were incident al to the overall publication. Because the Department began allowing inmate subscribers to receive Prison Legal News

we rejected PLN’s argument that an injunction was necessary to stop the

6 PLN asserts that Prison Legal News has never run ads for three

- way calling , but its brief and one of its trial exhibits contradict that assertion. It acknowledges that its magazine contains ads for discount phon e services that allow subscribers to avoid long distance charges by assigning the inmate a local number to call, and then transferring that call to the final call recipient (so if a Miami inmate wants to call his mother in Kansas, the Miami inmate can call a Miami number and the call i s then transferred to Kansas). That type of call service falls under the Department’s definition of three

- way calling. See Fla. Admin. Code r. 33

- 602.205(2)(a) (“Inmates shall not make three

- way telephone calls nor make calls to numbers on the list which are then transferred to other telephone numbers.”). And PLN’s trial exhibit shows that almost every issue of Prison Legal News from January 2002 to December 20 14 included a d s for the prohibited services. One of the columns in that exhibit is labeled “3

- Way Calls.”

Case: 15-14220 Date Filed: 05/17/2018 Page: 12 of 4813 impoundments , and we affirmed the district court’s grant of judgment as a matter of law to the Department

. S ee Prison Legal News v. McDonough , 200 F. App’x 873, 87 6

– 7 8 (11th Cir. 2006) (unpublished)

. 4. The Department’s Renewed Impoundment s of Prison Legal News

That peace was short

- lived. S everal changes after 2005 undermined the
truce and led to the current conflict

. For one thing, the number and size of rule

defying ads increased after 2005 , resulting in the ir bec oming les s incidental and more prominent. 7 As the ads became more prominent, Department officials noticed an increase in the number of inmates se nding stamps to cash

- for

- stamp s companies. They also became concerned about a phone technology called Voice
over Internet Prot ocol, which mak e s it harder to detect three

- way call attempts by transferring calls over the i nternet with no noise

. That technology had not been an issue in 2005 , but in the following years it became more widespread and more of a problem

.

7 Although the p ercentage of the magazine containing ads prohibited by Rule (3)( l ) increased only from an average of 9.21% in 2005 to 9.8 0 % in 200 9, those naked percentages don’t tell the whole story because the number of full

- pag e and half

- page ads increased. The magazine also grew from 48 pages in 2005 to 64 pages in 2014, which allow ed PLN to include more problematic ads without changing the pro portion of the magazine devoted to s uch ads. More importantly, the record does not stop at 2009. PLN ’s own exhibit show s that the percentage of problematic ads increased from 9.80% in 2009 to 15.07% in 2014 , the last year of the impoundments that are covered in the record

. That is an increase of more than 50% in the percentage of problematic ads in th e most recent five

- year period for which there is data

.

Case: 15-14220 Date Filed: 05/17/2018 Page: 13 of 4814 New types of ads offering “prisoner concierge” and “people locator” services also began to appear in Prison Legal News after 2005

. Prisoner concierge companies offer inmates a variety of administ rative and financial services. One such company , Prisoner Assistant , ran ad s offering inmates “ access to hundreds of professional services that have never before been available to prisoners,” including money orders, online fund transfers, internet purchases and research , website development, cell phone contracts , and Green Dot cards ( prepaid debit c ards that

can be reloaded and used to send money)

. That company even provides inmates with an “Executive Assistant to manage [the inmate’s] file and provide personal attention to [the inmate’s] request s ,” and c laimed in its ad that “[i] f it can be done,

w e will try to do it

. ” According to the Department, prisoner concierge companies threaten prison security and public safety by , among other things, making it easier for inmates to create an alternate identity that conceals their inmate st atus from people on the outside , enabling them to violate prison rules and commit crimes

. P eople locator companies are just that. O ne such company placed ads claiming that it can find “just about anyone” including “hard to find people [and] unli sted numbers and address[ es].” That company has a database of 1.2 billion records and provide s inmates with a person’s date of birth, email address, any unlisted telephone number s, and social security number. With reason, t he Department fears that inmates will use people locator services to perpetrate scams

Case: 15-14220 Date Filed: 05/17/2018 Page: 14 of 4815 or allow inmates to find and harm judges, jurors, witnesses, or anyone else the inmate may want to harass or harm

. All of those developments between 2005 and 2009

— the increasing number and size of the r ule

- defying ads, the growth of i nternet

- based phone technology, and the appearance of prisoner concierge and people locator ads

— led the Department to begin impounding Prison Legal News again in September 2009. 8 The Department decided that the ads for three

- way calling serv ices , pen pal solicitation services , and cash

- for

- stamp s exchange services violated Rule (3)( l ). It also determined that the ads for prisoner concierge and people locator services violated Rule (3)(m), the provision prohibiting any publication that “presents a threat to the security, order or rehabilitative objectives of the correctional system or the safety of any person.” Id. r. 33

- 501.401(3)(m). The Department impounds

8 The Department amended Rule (3)( l ) in June 2009. The earlier version provided that a publication would not be impounded as long as the ads were “merely incidental to, rather than being t he focus of, the publication.” The amendment provided that a magazine could also be impounded if the rule

- defying ad was “prominent or prevale nt through out the publication.” PLN contended at trial that the Department amended the rule to keep Prison Legal News out of Florida prisons, but the district court rejected that contention as conjecture and found that the Department amended Rule (3)( l ) to make it clearer and to addr ess its new security concerns. PLN makes only a cursory attempt to raise that contention here, offering no supporting authority, whi ch means that it is abandoned. See Sapuppo v. Allstate Floridian Ins. Co. , 739 F.3d 678, 681 (11th Cir. 2014) (“We have long held that an appellant abandons a claim when he

. . . raises it in a perfunctory manner without supporting arguments and authority.”) . Its assertion that the “prominent or prevalent” language is too vague is not properly before us be cause the district court denied PLN’s motion to amend its complaint to include a void

- for

- vagueness claim, and PLN did not appeal that ruling. See Singleton v. Wulff , 428 U.S. 106, 120, 96 S. Ct. 2868, 2877 (1976) (“It is the general rule, of course, that a federal appellate court does not consider an issue not passed upon below.”).

Case: 15-14220 Date Filed: 05/17/2018 Page: 15 of 4816 other publications that violate those rules, but it is the only corrections department in the country t hat impounds Prison Legal News based on its ad content.
5. The Department’s Failure to Provide Notice to PLN At the time of trial in January 2015 , t he Department ha d impounded every issue of Prison Legal News since September 200 9 , a total of 64 issues (the magazine has 12 issues per year)

. The Admissible Reading Material Rule requires the Department to send to all publishers a notice form listing the “specific reasons” for an impoundment. Fla. Admin. Code r. 33

- 501.401(8)(b). Despite that rule, the Department did not send PLN a notice form for 26 out of the 62 monthly issues it impounded between November 2009 and December 2014, which means that PLN did not receive a noti ce form for 42% of the issues impounde d during that time
span . That number rises to 87% when defective notice forms that did not list the reasons for the impoundment are considered

. When PLN did receive a notice form for an impounded issue , it appealed the impoundment decision to the Depart ment ’s Literature Review Committee , which makes the final decision whether an issue violates the Admissible Reading Material Rule. See i d. r r . 33

- 501.401(14)(a), ( 15 )(a)

. Those appeals were unsuccessful , so PLN sued the Department in November 2011 to stop the impoundment s . B. Procedural History

Case: 15-14220 Date Filed: 05/17/2018 Page: 16 of 4817 PLN brought two claims under 42 U.S.C. § 1983 against the Department Secretary in her official capacity

. First, it claimed that Rules (3)( l ) and (3)(m), as applied to Prison Legal News , violate the First Amendment . Second, it claimed that the Department’s failure to provide PLN with proper notice for each impounded monthly issue violated its right to procedural due process under the Fourteenth Amendment

. PLN sought declaratory and injunctive r elief against the Department. After a bench trial, the district court ruled against PLN on the First Amendment claim and for it on the Fourteenth Amendment claim. The court entered an injunction requiring the Department to provide PLN with notice each time it impounded a monthly issue of the magazine and the reason for the impoundment

. The Department appeals the court’s judgment that it violated PLN’s due process rights

. PLN cross - appeals the court’s judgment that the impoundment s of Priso n Legal News do not violate the First Amendment

. 9
II. STANDARDS OF REVIEW

9 PLN also publishes a book called the Prisoner’s Guerilla Handbook and sends information packets about its publications to inmates. The Department impounded those publicatio ns, and PLN claimed in its amended complaint that impounding them also violated its First and Fourteenth Amendment rights. (PLN claimed that the impoundment of all of its publications violated its constitutional rights; its amended complaint did not conta in separate claims for each publication). Although PLN’s brief refers to its “publications,” it mentions the handbook and information packets by name only once in its 82

- page initial brief. As a result, PLN has abandoned any separate challenge to those p ublications. See Sapuppo , 739 F.3d at 681

.

Case: 15-14220 Date Filed: 05/17/2018 Page: 17 of 4818 After a bench trial, we review de novo the district court’s legal conclusions and we review its fact findings for clear error. Proudfoot Consulting Co. v. Gordon , 576 F.3d 1223, 1230 (11th Cir. 2009). “We review the decision to grant an injunction and the scope of the injunction for abuse of discretion.” Angel Flight of Ga., Inc. v. Angel Flight Am., Inc. , 522 F.3d 1200, 1208 (11th Cir. 2008).
III. DISCUSSION
A

. First Amendment Claim PLN contends that the Department’s impoundment s of Prison Legal News violate its First Amendment right of access to its inmate subscribers . The parties agree that the deferential standard established by the Supreme Court in Turner v. Safley , 482 U .S. 78, 107 S. Ct. 2254 (1987), governs PLN’s First Amendment challenge to the impoundment s . PLN has receive d a helping hand from sixteen law professors acting as amici curiae who claim an “interest in seeing that First Amendment doctrine develops in a way that promotes rather than cens ors free speech.” Br. of Amici Curiae at 1. The amici contend that we should give prison management decisions decreased deference under the Turner standard in light of the Supreme Court’s recent First Amendment decisions, mostly in other contexts

. On the First Amendment issue we begin by explaining the Turner standard , which require s deference to prison officials’ decisions . We then address the

Case: 15-14220 Date Filed: 05/17/2018 Page: 18 of 4819 amici’s argument for diminished deference. A nd then we will discuss the application of the First Amendment to the impoundments.
1. The Turner Standard “Prison walls do not form a barrier separating prison inmates from the
pro tections of the Constitution.” Turner , 482 U.S. at 84, 107 S. Ct. at 2259

. Inmates retain some constitutional rights in prison, id. , and publishers like PLN have a First Amendment right of access to their inmate subscribers, Thornburgh v. Abbott , 490 U.S. 401, 408, 109 S. Ct. 1874, 1879 (1989).
But th at right is limited

. See Lawson v. Singletary , 85 F.3d 502, 509 (11th Cir. 1996) (noting the “more limited nature of

. . . First Amendment rights” in the penal context). “Running a prison is an inordinately difficult undertaking that requires expertise, planning , and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government.” Turner , 482 U.S. at 84

– 85, 107 S. Ct. at 2259. Those branches are responsible for prison administration, which means that “separation of powers concerns counsel a policy of judicial restraint” and deference to prison officials ’ management decisions

. Id. a t 85, 107 S. Ct. at 2259

. And “[w]here a state penal system is involved, federal courts have

. . . additional reason to accord deference to the appropriate prison authorities.” Id. To balance judicial deference with “the need to protect constitutional rights,” the Turner Court held that a prison regulation

Case: 15-14220 Date Filed: 05/17/2018 Page: 19 of 4820 affecting constitutional rights is valid as long as “it is reasonably related to legitimate penological interests.” Id. at 85, 89, 107 S. Ct. at 2259, 22 61. The Department and PLN agree that the Turner standard controls here

. The Department must show “more than a formalistic logical connection between [ the impoundment s of Prison Legal News ] and a penological objective .” Beard v. Banks , 548 U.S. 521, 535, 126 S. Ct. 2572, 2581 (2006) (plurality opinion)

. But that does not mean that this Court sits as a super - warden to second

guess the decisions of the real wardens

. See Turner , 482 U.S. at 89 , 107 S. Ct. at 2262 (rejecting the view that courts should be the “primary arbiters of what constitutes the best solution t o every administrative problem ”) . Instead, under
Turner we owe “wide

- ranging” and “substantial” deference to the decisions of prison administrators bec ause of the “complexity of prison management, the fact that responsibility therefor is necessarily vested in prison officials, and the fact that courts are ill

- equipped to deal with such problems.” Al

- Amin v. Smith , 511 F.3d 1317, 1328 (11th Cir. 2008) (q uotation marks omitted) ; see also Pope v. Hightower , 101 F.3d 1382, 1384 n.2 (11th Cir. 1996) (“Federal courts must scrupulously respect the limits on their role by not thrusting themselves into prison administration; prison administrators must be permitte d to exercise wide discretion within the bounds of constitutional requirements.”)

. The Supreme Court has reaffirmed that point time and time again. See, e.g. , Overton v. Bazzetta , 539 U.S.

Case: 15-14220 Date Filed: 05/17/2018 Page: 20 of 4821 126, 132, 123 S. Ct. 2162, 2167 (2003) (“We must accord 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.”) ; Shaw v. Murph y , 532 U.S. 223, 229, 121 S. Ct. 1475, 1479 (2001) (“[W] e generally have deferred to the judgments of prison officials in upholding [prison] regulations against constitutional challenge.”) ; Thornburgh , 490 U.S. at 4 08, 109 S. Ct. at 18 79 (“ [T] his Court has afforded considerable deference to the determinations of prison administrators who, in the interest of security, regulate the relations between prisoners and the outside wo rld.”)

. 2. The Amici’s Diminished Deference Argument In spite of all of those Suprem e Court decisions requiring us to grant substantial deference to the decisions of prison officials , the amici argue that we should not. Claiming clairvoyance , the y predict the Supreme Court will overrule its precedent s, and they urge us to go ahead and effectively do that ourselves

. See Br. of Amici Curiae at 2 ( “ M odern First Amendment jurisprudence trends toward more protections for speech rights, a direction that should inform this Court’s analysis.” )

. The amici discern a trend from several recent Su preme Court decisions, nearly all o f which have nothing to do with Turner or challenges to prison regulations, to argue that increased protection of free speech requires

Case: 15-14220 Date Filed: 05/17/2018 Page: 21 of 4822 decreased deference under Turner

. See, e.g. , United States v. Alvarez , 567 U.S. 709, 713

– 15, 729

– 30, 132 S. Ct. 2537, 2542

– 43 , 2551 (2012) (holding that the Stolen Valor Act violated the First Amendment) ; Brown v. Entm’t Merchs. Ass’n , 564 U.S. 786, 805, 131 S. Ct. 2729, 2741

– 42 (2011) (striking down on First Amendment grounds a statute th at prohibited the sale of violent video games to minors) ; Citizens United v. Fed. Election Comm’n , 558 U.S. 310, 365 , 130 S. Ct. 876, 913 (2010) ( holding that the government “may not suppress political speech on the basis of the speaker’s corporate identit y” ). In any event, o ur duty is to follow Supreme Court decision s , not to use them to map trends and plot trajectories

. The only Court that can properly cut back on Supreme Court decisions is the Supreme Court itself

. See Hohn v. United States , 524 U.S. 236, 252

– 53, 118 S. Ct. 1969, 1978 (1998) (“Our decisions remain binding precedent until we see fit to reconsider them, regardless of whether subsequent cases have raised doubts about their continuing vitality.”) ; State Oil Co. v. Khan , 522 U.S. 3, 20, 11 8 S. Ct. 275,
284 (1997) (“[I] t is this Court ’ s prerogative alone to overrule one of its precedents. ”); Rodriguez de Quija s v. Shearson/Am. Express, Inc. , 490 U.S. 477, 484, 109 S. Ct . 1917, 1921

– 22 (1989) ( “If a precedent of this Court has direct applica tion in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls,

Case: 15-14220 Date Filed: 05/17/2018 Page: 22 of 4823 leaving to this Court the prerogative of overruling its own decisions.”); Evans v. Sec’y, Fla. Dep ’t of Corr. , 699 F.3d 1249, 1263 (11th Cir. 2012) ( “The Court has told us, over and over again, to follow any of its decisions that directly applies in a case, even if the reasoning of that decision appears to have been rejected in later decisions.” ). Even if it were otherwise, only one of the post

- Turner decisions that amici cite even mentions Turner , and that decision actually confirms that we owe deference to the decisions of wardens and other prison officials. See Beard , 548 U.S. at 524

– 25, 535 , 12 6 S. Ct. at 2575

– 76, 2581

– 82 (plurality opinion) (rejecting a First Amendment challenge to a prison rule and stating that the court of appeals erred by offering “no apparent deference to the deputy prison superinte ndent’s professional judgment”); 10 see also Davila v. Gladden , 777 F.3d 1198, 1212

– 13

10 Justice Thomas, joined by Justice Scalia, concurred in the judgment and agreed with the plurality that “[j]udicial scrutiny of prison regulations is an endeavor fraught with peril.” Beard , 548 U.S. at 536, 126 S. Ct. at 2582 (Thomas, J., concurring). The amici attempt to distinguish Beard , which involved a challenge to a prison policy designed to motivate better behavior by barring certain inmates from receiving publications. Id. at 524

– 25, 126 S. Ct. at 2575

– 76 (plurality opinion) . They argue that the Beard case was exceptional because it involved maximum security inmates and that the prison’s regulations were motivated by its rehabilitative goals. Neither of those distinctions matter. What matters is that the Beard Court did not water down Turner

. Id. at 528

– 33, 126 S. Ct. at 2577

– 80 (plurality opinion) . The amici’s argument that the prison policy at issue in Beard still allowed inmates to receive legal correspondence, id. a t 526, 126 S. Ct. at 2576 (plurality opinion) , and that Prison Legal News is a form of legal correspondence fails on its essential premise because it is not. We agree with the definition in the Florida Administrative Code that legal mail is “mail to and f rom” courts, attorneys, public defenders, legal aid organizations, agency cl erks, and government attorneys. Fla. Admin. Code r. 33.210.102(1)

– (2).

Case: 15-14220 Date Filed: 05/17/2018 Page: 23 of 4824 (11th Cir. 2015) (addressing the Turner standard without any hint that it should be applied with decreased deference in light of recent Supreme Court decisions ). The Beard decision confirms that whatever the Supreme Court has done in other First Amendment cases, it h as not adopted a damn

- the

- deference, full

- speed

ahead approach to First Amendment rights within prison walls

. As a result, we categorically reject the amici’s argument that we should lea p - frog ahe ad of the Supreme Court in this area

. We follow Supreme Court decisions, here as elsewhere, instea d of plotting ways around them. 11 With the proper level of deference in mind, we will turn now to applying the
Turner standard to determine whether the impoundment s of Prison Legal News under its Rules (3)( l ) and (3)(m) violate the First Amendment.
3. Application of t he Turner Standard The Turner standard requires the Department to show that its impoundment s of Prison Legal News are content neutral, Thornb urgh , 490 U.S. at 415 , 109 S. Ct. at 1882, and “r easonably related to legi timate penological interests ,” Turner , 482 U.S. at 89 , 107 S. Ct. at 2261. The impoundment s are content neutral because they

are based “solely on

. . . [the magazine’s] potential implications for prison security.” Thornburgh , 490 U.S. at 415

– 16, 109 S. Ct. at 18 83. And PLN does not

11 While we categorically reject the contention and supporting arguments of the amici , we do not mean to be unfair. The professors’ brief does have good grammar, sound syntax, and correct citation form.

Case: 15-14220 Date Filed: 05/17/2018 Page: 24 of 4825 dispute that the Department’s asserted interests for the impoundment s

— pr ison security and public s afety

— are legitimate. See Perry v. Sec’y, Fla. Dep’t of
Corr. , 664 F.3d 1359, 1366 (11th Cir. 2011) (“[P]rotecting the public and ensuring internal prison security are legitimate penological objectives.”)

. Those interest s are not only legitimate, but paramount. See Thornburgh , 490 U.S. at 415, 109
S. Ct. at 1882 ( “[P]rotecting prison security

. . . is central to all other corrections goals.”) (quotation marks omitted)

. That leaves the issue of whether the Department’s i mpoundment s of Prison Legal News are “reasonably related” to prison security and public safety. Turner , 482 U.S. at 89, 107 S. Ct. at 2261. The Turner Court established four factors to determine the reasonableness of prison regulations : (1) whether there is a “valid, rational connection between the prison regulation and the legitimate governmental int erest put forward to justify it ”; (2) whether the publisher has alternative means to exercise its right of access to its inmate subscribers ; (3) what “i mpact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally”; an d (4) whether PLN “can point to

. . . alternative[s] that fully accommodate[ ] [its] rights at de minimi s cost to valid penological interests.” Id. at 89

– 91, 107 S. Ct. at 2262 (quotation marks omitted).

Case: 15-14220 Date Filed: 05/17/2018 Page: 25 of 4826 PLN contends that the Department’s impoundment s of Prison Legal News under Rules 3( l ) and 3(m) fail all four factors and therefore amount to unconstitutional censorship

. We disagree.

a. The First Turner Factor : The Existence of a Rational Connection The first Turner factor requires the Department to show that there is a “rational connection” between its decision to impound Prison Legal N ews and its interests in prison security and public safety

. Id. at 89, 107 S. Ct. at 2262. The Department’s position is that limiting inmates’ exposure to the ads in Prison Legal
News will reduce the risk that inmates will engage in behavior that endanger s other inmates , guards, and the public

. PLN’s position is that there is no rational

c onnection because there is no evidence that ads in its magazine have ever caused

a security breach. PLN’s argument demands too much.
T he Turner standard does not require the Department to present evidence of

a n actual security breach to satisfy the first factor

. Instead, the Supreme Court recognized that pr ison officials must be able to “ anticipate security problems and

. . . adopt innovative so lutions ” to those problems to manage a prison effectively. Id. (emphasis added). We have rejected the “misconception” that prison officials are “required to adduce specific evidence of a causal link between [a prison policy] and actual incidents of viole nce (or some other actual threat to security).” Lawson , 85 F.3d at 513 n.15. “Requiring proof of such a correlation

Case: 15-14220 Date Filed: 05/17/2018 Page: 26 of 4827 constitutes insufficient deference to the judgment of the prison authorities with respect to security needs.” Id. Other circuits a gree . See, e.g. , Sim pson v. County of Cape Girardeau , 879 F.3d 273, 280 (8th Cir. 2018) (“ Cape Girardeau may seek to prevent harm that has yet to occur and, as a result, is not required to provide evidence of previous incidents of contraband reaching inmates t hrough the mail in order to adopt a postcard

- only incoming mail regulation. ”); Murchison v. Rogers , 779 F.3d 882, 890 (8th Cir. 2015) (stating that Turner “does not require actual proof that a legitimate interest will be furthered by the challenged policy” and that “evidence short of an actual incident satisfies” the first factor) (quotation marks omitted); Singer v. Raemisch , 593 F.3d 529, 536 (7th Cir. 2010) (“The question is not whether [a game banned by the prison] has led to gang behavior in the past; the prison off i cials concede that it has not. The question is whether the prison officials are rational in their belief that, if left unchecked, [the game] could lead to gang behavior among inmates and undermine prison security in the future.”); Cal. Firs t Amend. Coal. v. Woodford , 299 F.3d 868, 882 (9th Cir. 2002) (stating that prison officials “must at a minimum supply some evidence that

. . . potential problems are real, not imagined,” but affirming that “prison officials may pass regulations in anticipation of security problems”).
In Perry , a case involving a First Amendment challenge to a Department regulation prohibiting pen pal solicitation, we did not require that prison officials

Case: 15-14220 Date Filed: 05/17/2018 Page: 27 of 4828 produce evidence of a past incident to satisfy the first Turn er factor. See Perry , 664 F.3d at 1362 , 1366 . We held that the Department had established a rational connection between that regulation and its security and safety interests through the testimony of James Upchurch, id. at 1366, the same prison official t he Department relied on in the present case. He testified in Perry that “when inmates only receive pen pals through personal associates and not pen pal companies

. . . the possibility of the inmate defrauding the pen pal is greatly reduced.” Id. (emphasi s added). We did not demand any evidence that inmates’ solicitation of pen pals had previously caused a security breach. Id. There is plenty of evidence that preventing inmates from viewing prominent

or prevalent ads for prohibited services will red uce the possibility that they will use th os e services

. 12 The ads not only make the prohibited services available to

12 PLN asserts that the Department is judicially estopped from arguing that the problematic ads present a security threat because the Department allegedly took the position in the earlier litigation that the same type s of ads do not present such a threat. See Robinson v. Tyson Foods, Inc. , 595 F.3d 1269, 1273 (11th Cir. 2010) (“[J]udicial estoppel is designed to prevent a party from asserting a claim in a legal proceeding that is [clearly] inconsistent with a claim taken by the party in a previous preceding.”) (quotation marks omitted). Not so. PLN’s current position is not clearly inconsistent with its earlier position because the Department never represented that the a ds present no security threat. Instead, it s position was that the problematic ads were not a security threat as long as they remained incidental in t erms of their size and number. See McDonough , 200 F. App’x at 878 (stating that we did not expect the Department to “resume the practice of impounding publications based on incidental advertisements ”) (emphasis added). But after 2005 the ads became more prominent (the size and number of the ads increased), ads for prisoner concierge and people locator services appeared, and phone technology changed. In view of th ose changes, the Department’s decision to renew impoundment was not an attempt to “play[ ] fast and loose with [this Court] to suit the exigencies of self interest.” In re Coastal Plains, Inc. , 179 F.3d 197, 205 (5th Cir. 1999) (quotation marks omitted) . As a result, the district court did not abuse its discretion in rejecting

Case: 15-14220 Date Filed: 05/17/2018 Page: 28 of 4829 inmates but also appear along with articles about inmate phone scams, the role of Green Dot cards in prison gang extortion schemes, and the nationwide problem with smuggling contraband like drugs and cell phones into prisons. An inmate reading Prison Legal News not only read s articles about inmates putting the prohibited services to dangerous use, but also sees ads that enable him to obtain
t hose same prohibited services

. A s PLN’s expert acknowledged , “[j]ust because there [are] rule [s] [prohibiting use of those services] is no guarantee that every body will abide by the rule [s] .” See Hudson v. Palmer , 468 U.S. 517, 526, 104 S. Ct. 3194, 3200 (1984) (“Inmates have necessarily shown a lapse in ability to control and conform their behavior to the legitimate standards of society by the normal impulses of self

- restraint; they have shown an inability to reg ulate their conduct in a way that reflects either a respect for law or an appreciation of the rights of others.”). Given that common

- sense proposition, it’s no surprise t hat Upchurch , the Department’s expert, agreed with the district court’s statement tha t the ads “create the possibility, [ the ] real possibility” of inmates doing a n end run around prison rules. He explained how that possibility exists for each type of ad at issue in

PLN ’s judicial estoppel argument. And because judicial estoppel does no t apply here, we need not decide the extent to which it can be applied against a state if at all. See Heckler v. Cmty. Health Servs. of Crawford Cty., Inc. , 467 U.S. 51, 60

– 61, 104 S. Ct. 2218, 2224 (1984) (noting the uncertainty on that point).

Case: 15-14220 Date Filed: 05/17/2018 Page: 29 of 4830 this case : (1) three

- way calling ads , (2) pen pal solicitation ads , (3) c ash

- for

stamp s exchange ads , and (4) prisoner concierge and people locator ads

. 13
i. Three

- Way Calling Ads The Department is concerned with ads for three

- way calling because that service undermines its ability to determine a call recipient’s identity and location

. For instance, the December 2009 issue of Prison Legal News featured an ad from a company that allowed inmates to make a call to a local number, which c ould then be forward ed to up to three different numbers

. Those types of three

- way calling

ser vices, combined with the growth of i nternet

- based phone technology, make it easier for inmates to call people outside their approved list

. Although two phone companies that advertise in Prison Legal News provide the Department’s telephone vendor with the final call recipient’s number and address, other companies that advertise in the magazine have not done so

. Given that Department inmates make 700,000 three

- way call attempts each year

— and some of those attempt s succeed

— the Department’s effort to reduce that number by curtailing inmates’ exposure to ads for that service is rational

. See Prison Legal News v. Livingston , 683 F.3d

13 Rule ( 3)( l ) allows the Department to impound publications that contain prominent or prevalent ads for “[c]onducting a business or profession while incarcerated.” Fla. Admin. Code r. 33

- 501.401(3)( l ). PLN asserts that the district court failed to analyze the ra tional connection between an ad for that kind of service and the Dep artment’s penological interests , but neither party discusses those particular ads in its briefs. In any event, Upchurch testified that all the ads create the possibility that inmates will circumvent prison rules, which is enough to es tablish a rational connection. See Perry , 664 F.3d at 1366.

Case: 15-14220 Date Filed: 05/17/2018 Page: 30 of 4831 201, 218 (5th Cir. 2 012) (holding that it was reasonable for prison officials to conclude that removing a book “describing racial t ensions in the prison context

— as opposed to racial tensions more generally

— ” would make prison violence less likely). PLN argues that the Department’s fears about three

- way calling ads are overblown. I t points out that the Department allows inmates to call cell phones, even though cell phones present just as much of a security threat as three

- way calling because the Department cannot identify a cell ph one call recipient’s location. (Identifying a call recipient’s location helps the Department detect and stop criminal activi ty conducted over the phones). According to PLN, that alleged loophole undermines the rational connection. See Woodford , 299 F.3d at 881 (noting that a prison policy involved in tha t case contained “loopholes that undermine [d] its rationality”). But the Department explained why it allows inmates to call cell phones despite the security problems they present. Given the decline in landline use, prohibiting inmates from calling cell p hones would curtail their ability to keep in touch with family and friends , which can be critical for rehabilitation. The Department also has several rules addressing the unique security problems that cell phones create: the cell phone must be contracted through a company licensed with the Federal Communications Commission; calls to pre

- paid or pay

- as - you - go phones are prohibited; and the cell phone owner must

Case: 15-14220 Date Filed: 05/17/2018 Page: 31 of 4832 provide a physical billing address. See Fla. Admin. Code r. 33

- 602.205(2)(a). Because the Depa rtment has good reason for not banning all calls to cell phones, while also l imit ing three

- way calls, PLN’s argument that the restriction on ads for three

- way calls has no rational connection to security and safety interests is unpersuasive. ii. Pen Pal Solicitation Ads Upchurch’s testimony shows why the Department’s concerns with pen pal solicitation ads are rationally connected to its security and safety interests . He described how those services give inmates opportunities to prey on the public by al lowing them t o write peop le they have no connection with , which heightens the risk of fraud. I n his experience, giving inmates the opportunity to solicit pen pals resulted in the exploitation of kind

- hearted but gullible people

. Inmates have been known to borrow or buy from each other pen pal letters that have proven effective in scamming victims

. Upchurch explained that such scams are hard to investigate because victim s are often embarrassed and prosecutors prefer to focus on criminals on the streets, not those already in prison

. And despite the Department’s rule prohibiting pen pal solicitation , inmates succeed in posting online profiles with the same companies that advertise in Prison Legal News

. Given that evidence, the Department’s belief that red ucing inmates’ exposure to the ads will help ensure compliance with the prohibition on pen pal solicitation is rational

.

Case: 15-14220 Date Filed: 05/17/2018 Page: 32 of 4833 iii. Cash

- for

- Stamp s Ads Turning to cash

- for

- stamp s ads, Upchurch testified that the large number and size of those ads in Prison Legal News makes inmates “aware of the opportunity [to break prison rules] where they otherwise might not be.” That is enough to establish a rational connection between the ads and the Department’s penological interests. See McCorkle v. Johnson , 881 F.2d 993, 995

– 96 (11th Cir. 1989) (upholding a prison’s ban on a satanic bible based on prison officials’ testimony that allowing access to it would “only encourage” violent behavior because of the book’s teachings about revenge and disobedience ). Upchurch also testified that the large number of cash

- for

- stamp s ads in each issue of Prison Legal News shows that the companies are making money off their ads , which evidences that the ads are causing inmates to use those service s . 14 T he record supports his suspi cion, because it shows that over a period of several years a cash

- for

- stamp s exchange company deposited more than $50,000 into the accounts of Florida inmates. iv. Prisoner Concierge and People Locator Ads

14 PLN argues that if the Department is worried about the security problems stamps present, then it should just prohibit inmates from keeping stamps altogether instead of allowing them to k eep up to 40 stamps at a time. But the Department explained that it allows inmates to keep some stamps so that they can mail letters to family and friends, and switching to a stamp

less system would be co stly and i mpractical. The Department does inspect all outgoing mail, but stamps are easily hidden and the Department processes 5 0,000 pieces of mail each day. Allowing inmates to have stamps for the legitimate purpose of sending mail to family and frien ds, while b anning ads that tempt them to use stamps for illegitimate purposes, is rational.

Case: 15-14220 Date Filed: 05/17/2018 Page: 33 of 4834 Finally, Upchurch testified about why ads for prison er concierge and people locator services threaten prison security and public sa fety. The problem with prisone r concierge companies is that their services allow inmates to conceal their true identities from the public

. Upchurch recounted how some prisoner concierge companies offer photo editing services, which an inmate could use to transform an official prison photo depicting him in a prison uniform into a fake vacation photo depicting him in a bathing suit at the beach

. The inmate could then us e that fake photo to misrepresent himself to the public , which facilitates fraud

. In that and other ways, those ads undermine the Department’s ability to control inmates’ contact with the public. The case against ads for people locator services is even more obvious. As Upchurch put it, inmates could use people locator services to “locate judges, lawyers, prosecutors, former witnesses, families of victims,” or anyone else “they

wou ld have an axe to grind with.” He cited the example of a Department inma te who threatened a judge, as well as the example of a prison gang member who after he was released murdered the chief of the Colorado Department of Co rrections

. As the district court aptly noted, “it doesn’t require a JD, or a federal judgeship” to see why people locator services pose a threat.

v. The “Focus of” or “ Prominent or Prevalent ” Requirement Case: 15-14220 Date Filed: 05/17/2018 Page: 34 of 4835 It is true that Rule (3)( l ) prohibits only those publications where the rule

defying ads ar e either the “focus of” the publication or are “prominent or prevalent ” throughout it. Fla. Admin. Code r. 33

- 501.401(3)( l ). PLN asserts that if the ads are as dangerous as the Department makes them out to be, then the Department should impound a publication with even one suspect ad , which it could do

. See Thornburgh , 490 U.S. at 404

– 05 & n.5, 418

– 19, 109 S. Ct. at 1877 & n.5, 1884

– 85 (upholding the facial validity of a prison regulation that allowed a warden to reject a publication based on a single prohibited feature). Upchurch testified that the Department adopted the “prominent or prevalent” standard to “moderate[ ]” the “ focus of ” requirement in Rule 3( l ) and provide “some leeway”
to Prison Legal News and other publications with questionab le ads. 15 It did so even though that more moderate approach amounted to “giv [ing] in on some security concerns

. ” PLN has not convinced us that moderation in pursuit of safety is a constitutional vice. We do not condemn t he Department for permitting more expression than it was required to. 16
vi. Summary of the First Turner Factor

15 Except, for example, publications containing even a single depiction of, or description about, how to manufacture drugs or construct a weapon. See Fla. Admin. Code r. 33

- 501.401(3)(a), (c). 16 PLN, inconsistently, also argues that the Department cannot prohibit a large amount of protected speech based on a few suspect ads. But the Thornburgh Court upheld the facial validity of regulations doing just that. See 490 U.S. at 404

– 05 & n.5, 418

– 19, 109 S. Ct. at 1877 & n.5, 1884

– 85.

Case: 15-14220 Date Filed: 05/17/2018 Page: 35 of 4836 T he record shows that the Department’s decision to limit inmates’ exposure
to the ads is not “so remote” from the Department’s security and safety interests

“ as to render the

. . . [impoundment s ] arbitrary or irrational.” Pope , 101 F.3d at 1385 . It’s not remote at all. There is a rational connection between its impoundment s of Prison Legal News based on the magazine’s ad content and prison security and public safety inte rests. b. The Second Turner Factor : Alternative Means The second Turner factor is “whether there are alternative means” available
to PLN to exercise its right of access to its inmate subscribers

. See Turner , 482
U.S. at 90, 107 S. Ct. at 2262

. PLN contends that th is factor weighs in its favor because the district court found that PLN could not afford to publish its magazine without advertising revenue , and publishing a separate Florida

- only version without the rule

- defying ads would be cost prohibit ive. With those options off the table, PLN a rgues, the impoundment s amount to a blanket ban on its magazine because it has no other way to send Prison Legal News to inmate subscribers in Florida

. It is a close call, but we reject PLN’s argument that no alternative means exist here . T he Supreme Court has made clear that prisons do not have to provide
exact, one

- for

- one substitutes to provide alternative means

. See id. at 92, 107 S. Ct. at 2263 (holding that a prison regulation satisfied this factor b ecause it did not

Case: 15-14220 Date Filed: 05/17/2018 Page: 36 of 4837 “deprive prisoners of all means of expression,” and instead barred “communication only with a limited class of other people with whom prison officials have particular cause to be concerned ”). Even if PLN cannot deliver Prison Legal News to its inmate subscribers in Florida , this factor is satisfied as long as there is some other way to exercise its right of access to inmates. See Thornburgh , 490 U.S. at 417

– 18, 109 S. Ct. at 1884 (stating that the second factor was satisfied even though inmates could not attend a particular Muslim religious ceremony because they could “participate in other Muslim religious ceremonies”) (citing O’Lone v. Estate of Shabazz , 482 U.S. 342, 107 S. Ct. 2400 (1987)). Although PLN cannot publish its magazine wit hout ads and cannot afford to publish a Florida

- only version, it can send its other publications to Florida inmates. For example, PLN publishes a handbook called the Prisoners’ Guerrilla Handbook , which describes various edu cational programs for prisoners

. The Department does not impound that handbook. PLN also distributes to inmates a variety of books about daily life in prison, incarceration in the United States, and related topics

. See Livingston , 683 F.3d at 209

– 10

. There is no indication that thos e books are impounded.
PLN ’s argument focuses solely on its ability to send Prison Legal News to Florida inmates, but “adequate alternatives” can exist even “where prisoners [are] cut off from uniqu e and irreplaceable activities.” Id. at 219; see also id. at 209,

Case: 15-14220 Date Filed: 05/17/2018 Page: 37 of 4838 218

– 19 (concluding that the second factor favored the corrections department, which had banned five of PLN’s books in Texas prisons, because the “ alternatives left open to PLN to communicate its intended message to [the inmates were] extensive, ” as it could distribute “countless other books” to inmates) . Sending alternate publications might not be “ideal” for PLN, but Turner does not demand the ideal. See Yang v. Mo. Dep’t of Corr. , 833 F.3d 890, 894

– 95 (8th Cir. 2016) (upholding a prison regu lation that prohibited a Chinese inmate from corresponding in Chinese with his Chinese

- speaking relatives in China , who did not speak English, because the inmate could still correspond in English, receive visitors, and make domestic and international calls )

. T he secon d factor favors the Department or, perhaps more accurately, does not disfavor the Department

.
c. The Third Turner Factor : Impact of Accommodating the Asserted Right The “third consider ation is the impact [that] accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally.” Turner , 482 U.S. at 90, 107 S. Ct. at 2262.
As we’ve explained, the Department impounded every monthly issu e of Prison Legal News during the five

- year period for which there is evidence in the record because the magazine’s ads give inmates the opportunity to use prohibited services , which create s security problems

. It follows that if the Dep artment admits

an issue of the magazine , it would have to allocate more time, money, and

Case: 15-14220 Date Filed: 05/17/2018 Page: 38 of 4839 person nel in an attempt to detect and prevent security problems engendered by the ads in the magazines

. See Simpson , 879 F.3d at 281 (“ Requiring Cape Girardeau to abandon the postcard

- only policy would force the jail to dedicate more time and resources to searching the mail, which would detract from the officers’ other duties related to security and inmate welfare .”); Woods , 652 F.3d at 7 50 (stating that a ban on pen pal websit es passed the third Turner factor because pen pal scams “unduly distract[ed] prison officials from the day

- to

- day affairs they must manage in order to maintain a safe atmosphere for eve ryone in the prison environment”).
PLN’s subscribers could share copie s of the magazine and its ads with non

subscribing inmates or spread information by word

- of

- mouth about the companies offering the prohibited services

. See Thornburgh , 490 U.S. at 412 , 109 S. Ct. at 1881 (stating that periodicals “reasonably may be expect ed to circulate among prisoners, with the concomitant potential for coordinated disruptive conduct”). As Upchurch testified, that “ripple effect” increases the burden on Department staff.
See Turner , 482 U.S. at 90, 107 S. Ct

. at 2262 (“When accommodation of an asserted right will have a significant ripple effect on fellow inmates or on prison staff, courts should be particularly deferential to the informed discretion of corrections officials.”) (quotation marks omitted) . The third factor fav ors the Department. d. The Fourth Turner Factor : Exaggerated Response

Case: 15-14220 Date Filed: 05/17/2018 Page: 39 of 4840 The final Turner factor requires us to consider whether the impoundment s of Prison Legal News are “an exaggerated response to prison concerns.” Id. (quotation marks omitted). The “ existence of obvious, easy alternatives may be evidence that the regulation

. . . is an exaggerated response” to a problem, while the “absence of ready alternatives is evidence of the reasonableness of a prison regulation.” Id. (quotation marks omitted)

. PLN argues that the Department’s decision to impound the magazine is an exaggerated response to its security

concern s because no other corrections department in the nation impounds th is particular magazine based on its ad content

. And it points to severa l supposedly simple alternatives to impoundment that would alleviate the Department’s security

concerns: prohibiting inmates from calling out to cell phones, switching to a stamp

- less system, or attaching a flyer to each issue of Prison Legal News to remind inmates not to use the prohibited services. The Department’s decision to impound Prison Legal News is not an exaggerated response to its security concerns

. Although the “policies followed at other well

- run institutions [are] relevant to a de termination of the need for a particular type of restriction,” such policies are not “necessarily controlling.” Procunier v. Martinez , 416 U.S. 396, 414 n.14, 94 S. Ct. 1800, 1812 n.14 (1974) , overruled on other grounds by Thornburgh , 490 U.S. at 413

– 14 , 109 S. Ct. at 1881

– 82

. “[T]he Supreme Court has made it patently clear that the Constitution

Case: 15-14220 Date Filed: 05/17/2018 Page: 40 of 4841 does not mandate a lowest common denominator security standard whereby a practice permitted at one penal institution must be p ermitted at all institutions.” 17 Pope , 101 F.3d at 1385; see also Crime Justice & Am. , Inc. v. Honea , 876 F.3d 966, 971, 978 & n.6 (9th Cir. 2017) (rejecting the plaintiff’s argument that a ban on its magazine coming into a county’s jail was an exaggerated response to safety

concerns, eve n though the magazine was “widely distributed at other jails,” because the county did not have as much control over the inmates in its jail compared to other counties). There is no one

- size

- fits

- all approach to prison management. As Upchurch testified, e very institution faces different security problems and deals with tho se problems in different ways. For example, some prisons put microwaves in communal inmate living areas, while others would never allow that arrangement out of fear that an inmate would heat up hot water

17 There is no support for PLN’s argument that the Department has the burden of showing something unique about its institutions to justify its impoundment decision s . Cf. Overton , 539 U.S. at 132, 123 S. Ct. at 2168 (“The burden

. . . is not on the State to prove the validity of prison regulations but on [the challenger] to d isprove it.”). PLN cites Holt v. Hobbs , 574 U.S. ___, 135 S. Ct. 853, 859 (2015), where the Supreme Court held t hat Arkansas’ ban on prisoners having 1/2 inch beards substantially burdened a Musli m inmate’s religious exercise. The Supreme Court observed that most states and the federal government permitted inmates to grow beards of that length, and stated that “whe n so many prisons offer an accommodation, a prison must, at a minimum, offer persuasive reasons why it believes that it must take a different course

. . . . ” Id. at 866. The Court analyzed that claim under the Religious Land Use and Institutionalized Per sons Act, which requires the government to show that its regulation is the least restrictive means of furthering a compelling interest. Id. at 863. Turner , by contrast, does not require the Department to use the “least restrictive means” to promote priso n security. Turner , 482 U.S. at 90

– 91, 107 S. Ct. at 2262. And even under RLUIPA, a state need not permit an accommodation just because others do. See Knight v. Thompson , 796 F.3d 1289, 1291, 1293 (11th Cir. 2015) (rejecting the argument that the polici es of 39 other prison systems rendered invalid the challenged prison policy).

Case: 15-14220 Date Filed: 05/17/2018 Page: 41 of 4842 and use it as a weapon. Upchurch explained that what matters to the Department is
not th e policies of corrections departments in other states , but maintaining prison security and public safety

. 18 In his view, the impoundment s of Prison Legal News help accomplish those goals. PLN’s proposed alternatives range from bad to worse. Prohibiting inmates from calling cell phones would make it difficult for them to k eep in touch with family and friends (because of the decline in landline use) , which in turn would undermine efforts to rehabilitate inmates

. Switching to a stamp

- less system would

c ost $70,000 (to change the Department’s banking system), require changing two
state statutes , and force the Department to solve the logistical challen ge of how inmates could send letters from prison canteens

. See Thornburgh , 490 U.S. at 419, 109 S. Ct. at 1885 (stating that courts must consider the administrative inconvenience of proposed alternatives). Last and most definitely least , PLN proposes that the Department follow New York’s lead and simply attach to each issue of Prison Legal News a flyer reminding inmates not to use the prohibited services

. Really? If all New York has

18 One reason that the policies of departments in other states do not matter so much is that circumstances vary from state to state. For example, PLN’s evidence shows that t he A rizona Department of Corrections does not impound Prison Legal News

. PLN’s expert admitted, however, that Arizona’s “physical structures and facilities are more secure than” Florida’s , which tends “to use dormitories for certain categories of prisoners th at many other states would not put in a dormitory.” Because of differences in physical structures and facilities, the Department’s security concerns differ from those of Arizona’s corrections department.

Case: 15-14220 Date Filed: 05/17/2018 Page: 42 of 4843 to do to prevent inmate misconduct and crime is gently remind them not to misbehave, one wonders why that state’s prisons have fences and walls. Why not simply post signs re minding inmates not to escape? If New York wants to engage
in a fantasy about convicted criminals behaving like model citizens while ser ving out their sentences , it is free to do so , b ut the Constitution does not require Florida
to join New York in la

- la

- land

. Though it was hardly necessary to state the obvious, Upchurch testified that a reminder flyer on the magazine would no t alleviate security concerns. See id. at 419, 109 S. Ct. at 1884

– 85 (“In our view, when prison officials are able to demonstrate that they have rejected a less restrictive alternative because of reasonably founded fears that it will lead to greater harm, they succee d in demonstrating that the alternative th ey in fact selected was not an ‘exaggerated response’ under Turner .”)

. Like the first three factors, this final factor favors the Department.

e. The Turner Factor s : Conclusion Upchurch summed up the relationship between the impoundment of Prison Legal News and the Department’s prison security and public safety interests by stating that those rules “certainly help [ ] ” a dvance those interests

. And that’s the point. The impoundme nt of Prison Legal News is not a silver bullet guaranteeing that inmates will not break the rules and commit crimes while incarcerated. But the record shows that a “ reasonable relationship ” does exist between the

Case: 15-14220 Date Filed: 05/17/2018 Page: 43 of 4844 Department’s decision to impound the magazine and its prison security and public safety interests. Turner , 482 U.S. at 91 , 107 S. Ct. at 226 2

. That is all Turner requires. Id. at 90

– 91, 107 S. Ct. at 2262. Because all four Turner fact ors favor the Department , we hold that the impoundment s of Prison Legal News under Rules (3)( l ) and (3)(m) do not violate the First Amendment.
B

. Due Process Claim That the Department’s impoundment s of Prison Legal News do n ot violate the First Amendment doesn’t let the Department entirely off the constitutional hook

. The district court ruled that the Department violated PLN’s right to due process by failing to provide it with notice for each impounded issue , and the court

e ntered an injunction requiring the Department to do that

. That was not an abuse of discretion

. PLN must receive notice and an opportunity to be heard each time the Department impounds an issue of the magazine

. See Perry , 664 F.3d at 13 67 ; Montcalm Publ’g Corp. v. Beck , 80 F.3d 105, 106 (4th Cir. 1996) (“We hold that publishers are entitled to notice and an opportunity to be heard when their publications are disapproved for r eceipt by inmate subscribers.”); Jacklovich v. Simmons , 392 F.3d 420, 433 ( 10th Cir. 2004) ( following Montcalm ) ; see also Londoner v. City and Cty. of Denver , 210 U.S. 373, 385, 28 S. Ct. 708, 714 (1908) (“[D]ue process of law requires that

. . . the [party] shall have an

Case: 15-14220 Date Filed: 05/17/2018 Page: 44 of 4845 opportunity to be heard, of which he must have notice

. . . . ”)

. 19 As the district court ruled, the Admissib le Reading Material Rule on its face satisfies those requirements

. When the Department impounds an issue of a publication, the rule requires that it send the publisher a notice form listing the “specific reasons ” for the impoundment of that issue

. Fla. Admin. Code r. 33

- 501.401(8)(b). 20 T he Literature Review Committee review s every impoundment decision, id. r. 33

-

19 We held in the Perry decision that there is a lower due process standard for mass mailings (that is, bulk correspondence). 664 F.3d at 1368. We reject the Department’s argument that magazines sent to subscribers are mass mailings. See Montcalm , 80 F.3d at 109 & n.2 (contra sting magazines sent to individual subscribers with mass mailings, which are sent to “each and every inmate at a given institution”). It is also not enough that publishers may receive notice o f an impoundment from inmates. See Jacklovich , 392 F.3d at 433

– 34 (“[The] publisher’s rights must not be dependent on notifying the inmate[,] who in all likelihood will never see the publication

. . . .”). 20 PLN and the amici argue that the Department must provide PLN with notice for each individual copy of Prison L egal News that the Department impounds, even if the Department has already sent notice that it has impounded a copy of that same issue sent to another inmate

. In other words, if the Department impounds the January 2018 issue of Prison Legal News and withh olds 70 copies of that issue from its inmat e subscribers, then PLN wants notice form s for all 70 copies, not just one notice for the January issue. Due process does not demand that much. Under the administrative rule, o nce one facility impounds a monthly issue, every other facility must impound that same issue on the same grounds until the Literature Review Committee can decide whether th at issue can be admitted into the prisons. Id. rr . 33

- 501.401(8)(c), ( 14 ) (a) , (14)(c)

. Copy

- by

- copy notice is not nec essary for PLN to learn the reason(s) for the impoundment as long as all copies are impounded for the same reason(s). See Livingston , 683 F.3d at 223 (holding that due process does not require copy

- by

- copy notice because later “denials of identical public ations amount to the routine enforcement of a rul e with general applicability”). We also reject PLN’s and the amici’s argument that it is entitled to more due process protections because of the content of its magazine. See Shaw , 532 U.S. at 230, 121 S. Ct. at 1480 (rejecting the argument that courts should “enhance constitutional protection [under Turner ] based on their assessments of the content of the particular communications”).

Case: 15-14220 Date Filed: 05/17/2018 Page: 45 of 4846 501.401(14)(c), and the publisher can independently appeal an impoundment decision to th at committee, id. r. 33

- 501.401(15)(a). 21 Those procedures , if applied, w ould have ensured that for each impounded issue PLN received a notice form listing the reasons for the impoundment . As the Department acknowledges, however, that did not happen for 2 6 out of the 62 monthly issues (42%) impounded between November 2009 and December 2014. That failure rate increases to 87% when we take into account defective notice forms that did not list the reasons for the impoundment

. Despite that remarkable failure rate, the Department argues that the Secretary cannot be enjoined because there is no evidence that the failure to send the forms was a result of a Department policy or custom to deprive PLN of notice. 22 The Department asserts tha t PLN should find the mailroom workers who are responsible for the failure to provide notice and sue them

. No

.

21 PLN argues that when the committee reviews a n impoundment decision it cannot reasonably gauge whether ads are “prominent or prevalent” in the magazine because it receives only a publication’s front cover and a copy of the p ages with problematic content. Fla. Admin. Code r. 33

- 501.401(8)(b). That a rgument fails because publishers must send a copy of the entire impounded issue when the publisher files its own appeal with the committee. Id. r. 33

- 501.401(15)(a)(2). 22 The Department argues that PLN did not receive the required notice because of neg ligent mailroom staff, and that the negligent deprivation of notice cannot give rise to a pro cedural due process violation. Cf. Jones v. Salt Lake County , 503 F.3d 1147, 1162

– 63 (10th Cir. 2007) (concluding that PLN’s due process claim failed where a pris on’s mailroom staff negligently failed to deliver the magazine to inmate subscribers). But the Department deliberately impounded Prison Legal News , which means that it had to provide notice to PLN for each impounded issue.

Case: 15-14220 Date Filed: 05/17/2018 Page: 46 of 4847 PLN doesn’t have to hunt and peck throughout Florida’s correctional system for negligent mailroom workers to sue . The buck stops with the Secretary. See Fla. Stat. § 20.315(3) (“The head of the Department of Corrections is the Secretary of Corrections.

. . . The secretary shall ensure that the programs and services of the department are administered in accordance with state and federal laws, rules, and

r egulations

. . . .”). T his is not a case of one or two notice letters lost in the mail or mailroom . PLN did not receive notice forms for 42% of the impounded issues, and
many forms it received for other issues w ere defective

. PLN’s effort to enjoin th e

o ngoing violation of its right to due process i s appropriate , and it seeks only prospective relief against the Department

. See Friends of Everglades v. S. Fla. Water Mgmt. Dist. , 570 F.3d 1210, 1215 (11th Cir. 2009) (stating that the Ex Parte Young doctri ne permits “lawsuits against state officials as long as the plaintiffs seek only prospective injunctive relief to stop ongoing violations of federal law”). And as the district court pointed out, its injunction “essentially requires complia nce with the [De partment’s] own rule.” The Secretary should not protest too loudly an order to enforce a rule she is statutorily required to enforce

. See Fla. Stat. § 20.315(3).
IV

. C ONCLUSION
T he Department’s concern s with the ads in Prison Legal News are reasonably related to its legitimate interests in prison security and public safety, so

Case: 15-14220 Date Filed: 05/17/2018 Page: 47 of 4848 we defer to its decision and hold that the impoundment s of Prison Legal News under Rules (3)( l ) and 3(m) do not violate the First Amendment. B ut with the power to impound Prison Legal News comes the duty to inform PLN of the

reasons for the impoundment s. The Department did not do that, which is why the district court did not abuse its discretion in entering an injunction to require the Department to adher e to its own notice rules. AFFIRMED. Case: 15-14220 Date Filed: 05/17/2018 Page: 48 of 48