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Constitutional Law – First Amendment – prisons

By: WISCONSIN LAW JOURNAL STAFF//September 15, 2011//

Constitutional Law – First Amendment – prisons

By: WISCONSIN LAW JOURNAL STAFF//September 15, 2011//

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Constitutional Law
First Amendment; prisons

It did not violate the First Amendment for prison officials to refuse to distribute a newspaper critical of the prison conditions.

“Amicus counsel insists that even if the DOC censored the newsletter due to its potential to compromise institutional security or prisoner rehabilitation, the prison officials’ decision was an ‘exaggerated response’ to those concerns.

Counsel cites our decision in Lindell v. McCaughtry, 115 Fed. Appx. 872 (7th Cir. 2004) (unpublished order), where a Wisconsin inmate sued after prison officials seized and ‘lost’ his copy of Pagan Revival, an avowedly racist magazine promoting white supremacy. In that case, we upheld the prison’s ban on publications that advocated violence and presented a security threat. Presumably, amicus counsel presents the content of the magazine involved in Lindell as the type of inflammatory material that is properly banned—as opposed to the content of The New Abolitionist, which counsel characterizes as encouraging political, not violent, action by inmates and their family members. We are satisfied that the underlying current of concern running through both this case and Lindell is the same: prisons maintain broad discretion in prohibiting material in prison that potentially endangers institutional security. See Thornburgh, 490 U.S. at 413, 109 S. Ct. at 1881. The question of whether censorship is an appropriate measure to protect security and encourage rehabilitation— or, to the contrary, is an ‘exaggerated response’ to institutional concerns—requires a context-specific determination that cannot be resolved by simply evaluating the level of explicit violence within a given publication. In this case, the Westfield affidavit, though arguably vague in certain respects, does identify several passages in the March 2007 newsletter that may reasonably encourage distrust of prison staff and threaten prison security. Plaintiff’s disagreement with defendant Westfield’s assessment is insufficient to establish that confiscation of the newsletter was not reasonably related to legitimate penological interests.”

Affirmed.

09-4112 & 10-1408 Van den Bosch v. Raemisch

Appeal from the United States District Court for the Western District of Wisconsin, Crabb, J., Pollard, J.

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