ACLU AND COLORADO DOC SETTLE LAWSUIT CHALLENGING CENSORSHIP PRACTICES

The American Civil Liberties Union of Colorado (ACLU) announced today the settlement of a lawsuit, filed in 2000 on behalf of a publisher’s association, eight publishers and seven prisoners, that challenged the standards and procedures employed by the Colorado Department of Corrections (DOC) for censoring books, newspapers, magazines, and political commentary.

“The DOC has agreed to a significant system-wide reform of its standards and procedures for reviewing incoming reading material,” said Hugh Gottschalk, an ACLU cooperating attorney at Wheeler Trigg Kennedy, who led the litigation team. “We sincerely hope that this agreement, when fully implemented, will substantially improve the DOC’s ability to consistently respect the constitutional rights of publishers and prisoners to exchange information and ideas that pose no threat to prison security.”

The lawsuit alleged that the DOC’s criteria for screening books and periodicals were overly broad, subjective, and unconstitutionally vague. The suit also targeted the procedures employed by the DOC to determine when and whether an incoming book or magazine would be withheld from a prisoner.

When the suit was filed, ACLU Legal Director Mark Silverstein charged that the DOC’s flawed criteria and procedures produced “an arbitrary, erratic, inconsistent and irrational regime of censorship that repeatedly violates the constitutional rights of publishers as well as prisoners.” Material censored by the DOC had included political commentary from both the left and right; religious periodicals and music magazines; critiques of the criminal justice system; publications that advocate for prisoners’ rights; a report issued by the European parliament; David Mamet’s play, The Spanish Prisoner, Laura Esquivel’s novel, Like Water for Chocolate; and a book criticizing hate groups by Morris Dees, Director of the Southern Poverty Law Center.

According to the ACLU, the settlement will produce substantial improvements. “The DOC has agreed to virtually all the procedural safeguards we advocated during settlement negotiations,” Silverstein said. “The DOC has also agreed to narrow substantially the worst of the overbroad criteria for censorship that we challenged.”

The settlement also provides that all DOC employees who participate in the review of incoming books and magazines will receive training –with ACLU input – on the new standards and procedures, and further provides for ACLU attorneys to monitor the DOC’s implementation of the settlement for two years.

The agreement required the DOC to replace Administrative Regulation AR 300-26 – which spells out procedures and standards for censorship – with a new version negotiated by the parties. Federal district court Judge Phillip Figa approved the settlement in August. The DOC formally adopted the new version of AR 300-26 last month.

We are very pleased with this settlement,” Gottschalk said. “With these major reforms in standards and procedures, and after the training program is fully implemented next year, we are optimistic that these longstanding problems of inappropriate and unjustifiable censorship will be considerably reduced, without jeopardizing any of the DOC’s legitimate interests in maintaining order within the prisons.”

“Although prisoners have violated the law, they still have a First Amendment right to read and obtain access to ideas and information,” said Gwen Young, an ACLU volunteer attorney who served as co-counsel in the case. “Publishers have a First Amendment right to reach their audience, including prisoners. Although these rights are not absolute, the Due Process Clause requires that the DOC apply fair procedures before it decides that a particular magazine would pose a danger. These basic principles of constitutional law are the foundation for this settlement, which we hope will minimize violations in the future.”

The former DOC regulation authorized censorship if an article encouraged “hatred or contempt of any persons,” and the ACLU said that Denver’s alternative weekly, Westword, had occasionally been censored unjustifiably on this basis.

The ACLU said that the DOC’s concern about “security threat groups” (STGs), a prison term for street gangs, led to many cases of unjustifiable censorship. The former regulation permitted censorship when DOC officials concluded that a magazine “depicted association” in an STG. “Numerous issues of such music magazines as VIBE and The Source were censored when DOC officials concluded, erroneously, that photographs of rap musicians or other entertainers in ads and news stories showed them making special ‘gang hand signals,’” Silverstein explained. “The new regulation is designed to end that category of censorship, especially after all DOC employees receive training on the new criteria.”

A summary provided by the ACLU states that the settlement agreement, in combination with the new administrative regulation, accomplishes the following:

• Revises AR 300-26 to narrow the formerly overbroad and vague text of four substantive criteria for censorship;
• Requires the DOC to notify publishers of a censorship decision and provides an opportunity for them to appeal those decisions;
• Requires the DOC to identify specifically each publication it withholds and to provide a meaningful description of the reasons for withholding, including identifying specifically the portions it believes are objectionable and how those portions violate the specific criteria for censorship listed in the new regulation;
• Provides that if four or fewer pages of a publication are deemed objectionable, then it will be delivered to the prisoner with those pages removed, instead of withholding the entire publication;
• Specifies time limits for each step of the censorship process, from receipt by the mailroom to the ultimate decision by the Warden, and appeal from there;
• Requires that each member of a prison’s Reading Committee conduct an independent review of each publication submitted for decision;
• Requires Wardens or their immediate subordinates to review independently the portions of any publication that a Reading Committee concludes is a basis for censorship, and requires them to sign off on any decision to withhold reading material;
• Provides that the DOC must preserve all censored publications during the entire appeals process, so that they are available to the persons hearing the appeal, and for several years afterwards if a challenge to the censorship is filed in court;
• Streamlines the procedure for review of censorship decisions by establishing a single DOC-wide Central Reading Committee that will hear appeals of censorship decisions made at all DOC facilities;
• Simplifies the procedures for prisoners who wish to challenge censorship in court, by replacing the 3-step grievance procedure with a one-step appeal to the Central Reading Committee;
• Requires the DOC to design a written training curriculum, with ACLU input, and train all participants in the censorship process and the new criteria and procedures in the new version of AR 300-26;
• Requires the DOC to permit ACLU attorneys to monitor the operation of the new criteria and new procedures for two years;
• Requires ongoing monitoring by the DOC to ensure procedural compliance;
• Establishes that, for a two-year period, the DOC will not make any substantial modifications of the new AR 300-26 without the consent of the Plaintiffs’ ACLU attorneys;
• Prohibits individual DOC facilities from adopting implementing rules that would permit them to censor a broader range or material or adopting procedures that are more relaxed than those in the new version of AR 300-26;
• Ensures that the settlement agreement applies to private prisons in Colorado that house Colorado prisoners.

The settlement agreement, the new Administrative Regulation, and additional documents from the case are available on the ACLU of Colorado website.

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