I'm a little confused about one portion of this morning's opinion by Judge Tallman.
A prison in Montana bars its inmates from receiving unsolicited commercial mail. That's a problem for one particular magazine, which distributes its product for free to inmates. That's the magazine's "target market," surprisingly enough. It's got advertisements for lawyers, bail bondsmen, etc., so that's how the magazine makes its money.
The prison has installed some electronic kiosks where inmates can view various publications. But you can see why that's not a total substitute. As many of us can personally attest, it's different to have reading material in your hand as opposed to reading a PDF on a computer. The former you can take with you physically, page through, read at your leisure, and view on your own time and in your own place; on your couch, in bed, etc. As opposed to having to read a PDF in public place while you just stand there.
One is better. Trust me.
But the prison says that it stops these magazines because there's a problem when there's too much paper in the prison. Prisoners use it to stuff up toilets, block windows, etc. And prisoners tend to do that with unsolicited stuff (like phone books and donated paperbacks) instead of, say, love letters from their families.
Fair enough. Mind you, other prisons seem to work just fine with allowing magazines in. And if the prisoners still have access to phone books and paperbacks, I'm not sure how stopping magazines can really solve this problem. But okay.
Here's the part I don't entirely understand:
If a prisoner wants the magazine, which is free, he can just ask for it. We get free magazines at my house. Do we read those all the time? No. But sometimes we do. It's not a big deal to have them around. You just send in a postcard and you get the subscription essentially forever. Presumably this particular magazine could easily do the same thing; e.g., put subscription requests on the kiosk, and if the prisoner filled it out, boom, he's entitled to a monthly (or whatever) magazine, even under the prison's policy.
As a result, any prisoner who wants useless paper (or even wants useless paper lying around) can easily get it. From himself. From other inmates. No problem. Even the same useless paper that the prison's trying to stop.
Given that reality, what's the huge penal interest in stopping the "unsolicited" stuff?
Judge Tallman says in a footnote:
"Here, Butte
County distinguishes between solicited and unsolicited mail because
unsolicited mail is far more likely to be used to undermine institutional
security than solicited mail. Thus, the regulation is neutral in the Turner
sense."
But is that really right? It's the same magazine. Prisoner X gets it unsolicited for free in the mail, and never reads it, and simply has it to stuff up toilets. Prisoner Y filled out a postcard, so it's solicited, but gets it for free in the mail, never reads it, and simply has it to stuff up toilets. Is it really true that the magazine that Prisoner X has "is far more likely to be used to undermine institutional security" than the magazine that Prisoner Y has?
I'd like to hear what Judge Tallman has to say about this. Maybe someone would think that prisoners aren't likely to want free magazines just to stuff up toilets with, so would never bother to fill out even the postcard. But I don't know. Seems to me they very well might. Or at least there's some guy ten cells down -- the magazine here is sent to every tenth inmate -- who'll have the magazine anyway, so we're going to get the same amount of toilet-stuffing either way.
With the only difference being that we're deliberately burdening the First Amendment right of the publisher to reach its target audience.
Sure, if I was running a prison, I probably wouldn't want my prisoners having anything. Paper, combs, whatever. Prison's an ugly, dangerous place.
But maybe the First Amendment requires a bit more flexibility and accommodation.
