Ray Hrdlicka v. Perry Reniff

dissenting:

Ray Hrdlicka publishes Crime, Justice & America (“CJA”), a glossy quarterly publication that is distributed for free to prison inmates across the United States. Hrdlicka has chosen a free distribution model of business in which CJA is either given to correctional facilities to be put in common areas on a weekly basis or sent to a list culled from the inmate rolls (which are public record). Apparently, it has been a successful business model. Since its introduction in 2002, over one million copies of CJA have been distributed to inmates across the United States. CJA’s revenue comes from its advertisers, who are primarily bail bonds agents and lawyers. In soliciting advertisers, CJA claims the advertisements will be seen by “hundreds to thousands” of pre-trial inmates.

Hrdlicka now asks this court to assist him in further increasing the circulation of CJA over the objections of two sheriffs who believe that accommodating Hrdlicka’s distribution model would burden the administration of their correctional facilities. While we have previously found that the First Amendment guarantees Hrdlicka *1056 access to prisoners that have requested CJA, there have been no prisoner…

Opinion by Judge WILLIAM A. FLETCHER; Dissent by Judge N.R. SMITH.

OPINION

Plaintiffs, Ray Hrdlicka and his publication Crime, Justice & America (“CJA”), brought two suits claiming that their First Amendment rights are being violated by the mail policies at two county jails in California that refuse to distribute unsolicited copies of CJA to inmates. The district courts in each case granted summary judgment to defendants after applying the four-factor test of Turner v. Safley, 482 U.S. 78 , 107 S.Ct. 2254 , 96 L.Ed.2d 64 (1987).

In these related appeals, we conclude that questions of material fact preclude summary judgment to defendants. On this record, we cannot hold as a matter of law under Turner that defendants have sufficiently justified their refusal to distribute unsolicited copies of CJA to jail inmates. We therefore reverse and remand to the respective district courts.

I. Background

Ray Hrdlicka, a former bail bondsman, began publishing CJA in 2002. CJA addresses criminal justice topics relevant to jail inmates. One recent issue of the publication included, for example, a section describing the steps between a felony arrest and conviction, an article on firearms…

I. Background

Ray Hrdlicka, a former bail bondsman, began publishing CJA in 2002. CJA addresses criminal justice topics relevant HRDLICKA v. RENIFF 1817 to jail inmates. One recent issue of the publication included, for example, a section describing the steps between a felony arrest and conviction, an article on firearms enhancements to sentences, and a page of humor. Approximately three-fourths of each publication contains such content. The remainder con- tains advertisements for bail bond agents and lawyers. CJA attracts advertisers by promising to get their message in front of thousands of jail inmates who are in immediate need of their services. Since 2002, CJA has published 14 editions and over 1 million copies. CJA is currently distributed in jails in more than 60 counties in 13 states, including 32 county jails in California.

The Principal Librarian for the California Department of Corrections has recommended CJA as an acceptable donation to the California Department of Corrections Law Libraries. Fortune Small Business described CJA as a “surprisingly professional-looking 40-page upstart quarterly with articles written by lawyers and other…