FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAY HRDLICKA, an individual;
CRIME, JUSTICE & AMERICA, INC., a
California corporation,
Plaintiffs-Appellants, No. 09-15768
v. D.C. No.
2:08-cv-00343-
PERRY L. RENIFF, in his official GEB-EFB
capacity of Sheriff of the County
of Butte, California,
Defendant-Appellee.
RAY HRDLICKA, an individual;
CRIME, JUSTICE & AMERICA, INC., a No. 09-16956
California corporation,
Plaintiffs-Appellants, D.C. No.
v. 2:08-cv-00394-
FCD-EFB
JOHN MCGINNESS, Sacramento
County Sheriff, ORDER
Defendant-Appellee.
Filed September 1, 2011
Before: Stephen Reinhardt, William A. Fletcher and
N. Randy Smith, Circuit Judges.
Order;
Concurrence by Judge Reinhardt
and Judge William A. Fletcher;
Dissent by Judge O’Scannlain
16629
16630 HRDLICKA v. RENIFF
ORDER
Judge Reinhardt and Judge W. Fletcher have voted to deny
the Appellees’ petitions for rehearing and petitions for rehear-
ing en banc, filed on February 15, 2011 and February 23,
2011. Judge N.R. Smith voted to grant both.
A judge of the court called for a vote on the petitions for
rehearing en banc. A vote was taken, and a majority of the
active judges of the court failed to vote for en banc rehearing.
Fed. R. App. P. 35(f).
The petitions for rehearing and the petitions for rehearing
en banc are DENIED.
REINHARDT and W. FLETCHER, Circuit Judges, concur-
ring in the denial of rehearing en banc:
The question presented in this case is straightforward: Does
the four-factor test of Turner v. Safley, 482 U.S. 78 (1987),
apply to distribution of a magazine to county jail inmates who
have not requested it? A majority of the three-judge panel
concluded that Turner does apply. An en banc call failed to
receive a majority vote of the active judges of our court.
The Turner test evaluates the reasonableness of a prison
regulation impinging on a constitutional right. We have
applied Turner in a number of cases to evaluate the reason-
ableness of regulations banning the distribution of mail. In
Crofton v. Roe, 170 F.3d 957 (9th Cir. 1990), we applied Tur-
ner to evaluate a regulation prohibiting an inmate from
receiving a gift book from his stepfather. In Prison Legal
News v. Cook, 238 F.3d 1145 (9th Cir. 2001), we applied Tur-
ner to evaluate a regulation banning distribution of bulk-rate
mail to which prisoners had subscribed. In Morrison v. Hall,
261 F.3d 896 (9th Cir. 2001), we applied Turner to evaluate
HRDLICKA v. RENIFF 16631
a regulation banning distribution of “pre-paid, for-profit, sub-
scription publications.” In Prison Legal News v. Lehman, 397
F.3d 692 (9th Cir. 2005), we applied Turner to evaluate a reg-
ulation banning distribution of requested but “non-
subscription bulk mail.”
We concluded that the Turner test applies, as well, to eval-
uate the reasonableness of regulations banning distribution of
an unsolicited magazine, Crime, Justice & America (“CJA”).
CJA is of unquestioned value to county jail inmates. Because
inmates are typically in county jail for relatively short periods,
and because the value of CJA to inmates is greatest when they
first arrive in the jail, it is unrealistic to insist, as a condition
for applying the Turner test, that inmates have already sub-
scribed to CJA.
We wrote in our opinion, “The fact that in this case the
publication was unsolicited may, of course, be taken into
account in applying the Turner test. But the fact that the pub-
lication was unsolicited does not make the Turner test inappli-
cable.” Hrdlicka v. Reniff, 631 F.3d 1044, 1051 (9th Cir.
2011).
O’SCANNLAIN, Circuit Judge, joined by GOULD,
TALLMAN, BYBEE, CALLAHAN, BEA, IKUTA and
N.R. SMITH Circuit Judges, dissenting from the denial of
rehearing en banc:
The court today holds that the First Amendment mandates
that county jails distribute unsolicited junk mail to their
inmates, or face a burdensome lawsuit from the junk mail
publisher, citing Turner v. Safley, 482 U.S. 78 (1987).1 Given
1
The majority speaks only of the rights of publishers. But because
“newsmen have no constitutional right of access to prisons or their
inmates beyond that afforded the general public,” any rule that applies to
the publishers would apply equally to anyone else. Pell v. Procunier, 417
U.S. 817, 834 (1974); see also Houchins v. KQED, Inc., 438 U.S. 1, 11-12
(1978).
16632 HRDLICKA v. RENIFF
that Turner decided only the standard of review to apply when
a prison regulation impinges upon inmates’ First Amendment
rights, id. at 89, the majority’s interpretation is an extraordi-
nary leap since all agree that no inmate rights are at stake in
this case. Regrettably, the majority’s opinion is completely
untethered from Supreme Court precedent and in considerable
tension with our own case law. It further complicates the
already “inordinately difficult undertaking” of prison adminis-
tration. Id. at 85. I respectfully dissent, therefore, from the
failure of our court to rehear this case en banc.
I
Ray Hrdlicka publishes a quarterly magazine called Crime,
Justice & America (“CJA”) that includes a number of items
which may be of interest to jail inmates. Indeed, between
2002 and the publication of the majority’s opinion, CJA went
through fourteen editions totaling over one million copies.
Which is quite impressive, until one realizes that rather than
relying on subscriptions, CJA has simply blanketed jailhouses
with hundreds of free copies every week.2
CJA’s business model is fairly simple. It lures advertisers
—usually bail bondsmen and lawyers—with the promise of a
captive audience of thousands of inmates in immediate need
of their services. It then ensures that it will fulfill that promise
by pressuring jail administrators to choose either leaving
stacks of CJA in common areas or allowing individual copies
of CJA to be mailed directly to inmates off of an inmate ros-
ter. Either way, every seven days enough copies arrive at the
targeted jails to ensure that at least one out of every ten
inmates gets one. Hrdlicka is thereby able to externalize the
cost of increasing his readership on the prison system.
2
Though CJA is a quarterly magazine, it is distributed on a weekly basis
so that even with the rapid turnover in county jails copies will be available
to current inmates. See Distribution of Crime Justice & America Maga-
zine, Crime Justice & America, (Feb. 27, 2011) http://crimejusticeand-
america.com/distribution-of-crime-justice-america-magazine.
HRDLICKA v. RENIFF 16633
Pursuant to content neutral department policies, officials at
the Sacramento County and Butte County Jails refused to
facilitate Hrdlicka’s distribution scheme while allowing
Hrdlicka to send CJA to any prisoner who requested it. But
in an effort to minimize the risk of smuggled contraband as
well as the amount of excess paper inmates could use to do
things like start fires or clog toilets, these jail administrators
refused to disseminate extra copies to those inmates who had
not asked for them.
Hrdlicka filed a suit under 42 U.S.C. § 1983 claiming a
constitutional right to pursue his business model. And now
this court obliges by discovering such a right in the First
Amendment.
II
Challenges to jail or prison regulations limiting outside
contact with prisoners undoubtedly involve the balancing of
constitutional imperatives. Turner, 482 U.S. at 84. The major-
ity focuses almost entirely upon those implicated by the First
Amendment. But also among them is that running a jail “re-
quires expertise, planning, and the commitment of resources,
all of which are peculiarly within the province of the legisla-
tive and executive branches of government.” Id. at 84-85.
Therefore the separation of powers “counsel[s] a policy of
judicial restraint,” particularly “[w]here a state penal system
is involved.” Id.; see also Beard v. Banks, 548 U.S. 521, 528
(2006).
Fundamental to maintaining this balance between a prison-
er’s right to contact with the outside world and the State’s
ability to run a functional prison system is the ability to recog-
nize when First Amendment interests are implicated. And
regardless of what the majority may have found in the pages
of CJA, nothing in the United States Reports or the Federal
Reporter gives an outsider a First Amendment interest, let
alone a freestanding right, to unsolicited contact with inmates.
16634 HRDLICKA v. RENIFF
The Supreme Court has certainly never found such an inter-
est. See Jones v. N.C. Prisoner’s Labor Union, Inc., 433 U.S.
119, 121 (1977) (brushing aside a union challenge to a restric-
tion against bulk mail to inmates, as “barely implicat[ing]”
First Amendment rights); Pell v. Procunier, 417 U.S. 817,
822 (1974) (allowing a prohibition on face-to-face interviews
with inmates based on “the familiar proposition that lawful
incarceration brings about the necessary withdrawal or limita-
tion of many privileges and rights” (internal quotation marks
omitted)).
Indeed, the only time the Court has ever acknowledged a
publisher’s “interest in access to prisoners” is when those
prisoners “through subscription, willingly seek their point of
view.” Thornburgh v. Abbott, 490 U.S. 401, 408 (1989). Only
then—when jail regulations limit a detainee’s access to the
outside world—has the Court considered the First Amend-
ment interests of the person with whom the detainee wished
to correspond. And, even then, the Court made clear that it
was announcing a rule for when the “rights of prisoners and
outsiders” are at issue. Id. at 410 n.9. Cf. Shaw v. Murphy,
532 U.S. 223, 229-30 (2001) (stating that Turner “adopted a
unitary, deferential standard for reviewing prisoners’ consti-
tutional claims” (emphasis added)).
Until now, we have scrupulously followed the Supreme
Court’s direction and recognized the derivative nature of pub-
lishers’ First Amendment interests in contacting prisoners.
See Prison Legal News v. Lehman (PLN II), 397 F.3d 692,
701 (9th Cir. 2005) (describing Jones as upholding “a ban on
junk mail” and distinguishing a “scenario in which a publisher
has [not] attempted to flood a facility with publications sent
to all inmates, regardless of whether they requested the publi-
cation”); Morrison v. Hall, 261 F.3d 896, 898 (9th Cir. 2001)
(“Moreover, prisons can and have adopted policies permitting
prisoners to receive for-profit, commercial publications, while
at the same time, prohibiting prisoners from receiving unso-
HRDLICKA v. RENIFF 16635
licited junk mail.”); see also Prison Legal News v. Cook (PLN
I), 238 F.3d 1145, 1146 (9th Cir. 2001).
But the majority puts all of this precedent aside, and
declares that “[a] First Amendment interest in distributing and
receiving information does not depend on a recipient’s prior
request for that information.” Hrdlicka v. Reniff, 631 F.3d
1044, 1049 (9th Cir. 2011).
The majority tries to conceal such ipse dixit with a passing
citation to two cases standing for the unremarkable proposi-
tion that laws criminalizing core protected speech in tradi-
tional public fora are subject to strict scrutiny. See Martin v.
City of Struthers, 319 U.S. 141, 143 (1943) (prohibition
against summoning residents to their front doors for the pur-
poses of distributing literature); Klein v. City of San Clemente,
584 F.3d 1196, 1204-05 (9th Cir. 2009) (leafleting unoccu-
pied vehicles on city streets). These cases are utterly irrele-
vant to whether Hrdlicka’s First Amendment interests were
implicated by the prison restrictions at issue in this case at all.
III
Even if the majority were correct that Hrdlicka had a First
Amendment interest at stake, it still erred by applying the fac-
tors annunciated in Turner without taking context into
account. Cf. Thornburgh, 490 U.S. at 414 (stating that the
Turner factors were designed to “channel[ ] the reasonable-
ness inquiry”). For example, what does it mean to consider
“whether there are alternative avenues that remain open to the
inmates to exercise the right” or “the impact that accommo-
dating the asserted right will have on other guards and prison-
ers” when no one contends that an inmate’s rights are at risk?
PLN II, 397 F.3d at 699 (internal quotation marks omitted).
The majority inexplicably provides special rights to Hrdlicka
because he was attempting to communicate with someone
who has been incarcerated.
16636 HRDLICKA v. RENIFF
First, a jail cell is quite clearly not a public forum. See
Jones, 433 U.S. at 134 (holding that a “prison may be no
more easily converted into a public forum than a military
base”); accord Adderley v. Florida, 385 U.S. 39, 41 (1966);
United States v. Douglass, 579 F.2d 545, 549 (9th Cir. 1978).3
As such, under ordinary rules, government officials could
have excluded Hrdlicka’s speech on the basis of its subject
matter or even his identity “ ‘so long as the distinctions drawn
[were] reasonable in light of the purpose served by the forum
and [were] viewpoint neutral.’ ” Good News Club v. Milford
Cent. Sch., 533 U.S. 98, 131 (2001) (emphasis added). “The
First Amendment does not demand unrestricted access to a
nonpublic forum merely because use of that forum may be the
most efficient means of delivering the speaker’s message.”
Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S.
788, 809 (1985).
Second, rather than criminalizing speech, the ban on unso-
licited copies of CJA merely served to preserve the public fisc.4
And the Court has made abundantly clear that the elected
branches may set spending priorities in ways that negatively
and unequally impact free speech rights so long as they do not
discriminate on the basis of viewpoint. See Nat’l Endowment
for the Arts v. Finley, 524 U.S. 569, 588 (1988) (citing Maher
v. Roe, 432 U.S. 464, 475 (1977) (“There is a basic difference
between direct state interference with a protected activity and
state encouragement of an alternative activity consonant with
legislative policy.”)).
3
Indeed, the majority does not even dispute that jails are not public fora.
See Hrdlicka, 631 F.3d at 1050.
4
Recall that every piece of mail that enters a detention facility must be
inspected, sorted, distributed, monitored and ultimately disposed of. Cf.
Shaw, 532 U.S. at 231 (allowing jails to consider such burdens even in let-
ters involving legal advice). Restrictions on junk mail allow jail adminis-
trators better to allocate resources to other legitimate, and more pressing
concerns.
HRDLICKA v. RENIFF 16637
In sum, assuming Hrdlicka has an independent First
Amendment interest involved in this case, that interest does
not extend to commandeering public facilities for his personal
gain. And it is not infringed by a “viewpoint-neutral exclusion
of speakers who would disrupt [these] nonpublic for[a] and
hinder [their] effectiveness for [their] intended purpose.” Cor-
nelius, 473 U.S. at 811. Under such circumstances, the burden
was on him to show that the regulations were not supported
by any rational basis. See, e.g., Regan v. Taxation with Repre-
sentation, 461 U.S. 540, 547-51 (1983).
IV
Instead, the majority places on jail administrators the oner-
ous burden of showing “the degree to which the[ ] purposes
[behind the regulations] are actually served by a refusal to
allow” distribution of any particular type of unsolicited junk
mail. Hrdlicka, 631 F.3d at 1051.5 Indeed, Beard v. Banks,
548 U.S. 521 (2006), specifically held to the contrary, even
under Turner’s standard, a regulation preventing certain
inmates from receiving any magazines based upon a statement
and a deposition that these restrictions motivated better
behavior. See also Overton v. Bazzetta, 539 U.S. 126, 132
(2003) (stating that when a prison regulation is being chal-
lenged, “[t]he burden is not on the State to prove its validity,
but on the prisoner to disprove it.”).
Then, in a wonderful display of why federal judges should
not be running jails, the majority dismisses out of hand many
5
In particular, the majority expects jails to prove “the degree to which
allowing [the] distribution [of any particular piece of mail] in the jails
would produce additional clutter in inmates cells or otherwise adversely
affect jail security,” Hrdlicka, 631 F.3d at 1052 and “to what degree[ ] the
jails would be forced to expend additional resources” to handle the addi-
tional correspondence.” Id. at 1054.
16638 HRDLICKA v. RENIFF
practical concerns that will arise from requiring jails to dis-
tribute an unknown quantity of unsolicited mail.6
The majority also simply ignores the impact its ruling pro-
duces beyond these jails and this publication. As Judge
Smith’s dissent correctly points out, one consequence of the
majority’s decision is to “force[ ] sheriffs either to allow all
unrequested mail to reach inmates or to make a case by case
determination of the quality of the publication.” Hrdlicka, 631
F.3d at 1057 (N.R. Smith, J., dissenting). Sheriffs should not
be put in this predicament. Instead, courts should give “con-
siderable deference to the determinations of prison adminis-
trators who, in the interest of security, regulate the relations
between prisoners and the outside world.” Thornburgh, 490
U.S. at 408. In applying such deference, we as federal judges
must allow prison officials to “reach[ ] experience-based con-
clusion[s]” about which “policies help to further legitimate
prison objectives.” Beard, 548 U.S. at 533.
V
The First Amendment does not give publishers any interest
(to say nothing of a right) to send unsolicited mail to inmates.
Sending such mail may be highly profitable to the publisher,
but “losing [such] cost advantages does not fundamentally
implicate free speech values.” Jones, 433 U.S. at 130-31. By
failing to recognize this, the majority ignores the separation
of powers and unnecessarily injects the federal courts into a
matter “peculiarly within the province of the legislative and
executive branches of government.” Turner, 428 U.S. at
84-85. And by the full court’s failure to order rehearing en
6
For this among other reasons, I also disagree with the manner in which
the majority applied the four-part test in Turner. See Shaw, 532 U.S. at
239 (requiring only that the connection between the restriction and the
purpose behind not be arbitrary or irrational). But such concerns are sec-
ondary to the simple fact that the majority should not have applied Turner
at all.
HRDLICKA v. RENIFF 16639
banc, we have needlessly muddled our First Amendment
jurisprudence. I respectfully dissent from our regrettable deci-
sion not to rehear this case en banc.