DP News

From: CCADP

Subject: NEWS: Aileen Wournos, florida

Please visit the CCADPs webpage for Aileen Wournos, Florida prisoner who has an execution date Oct 9 (she has given up her appeals).

http://www.ccadp.org/aileenwuornos.htm

The page includes video clips from Court TV of aileen's court testimony and interviews with Aileen, FADPs press release on the signing of the warrant, a press release from 2001 by supporters of Aileen, court briefs and documents from the Supreme Court Site,recent news articles,and An MP3 from a San Diego band called "For Aileen" the band said : ""For Aileen", is about, “a woman by the name of Aileen Wournos who is dubbed, 'America’s first Female serial killer.' (She) is on death row for murdering four men. She was a prostitute who had a horrendous home life and childhood, and turned to prostitution to support her. All of the men she killed had raped her, beaten her, and abused her in some way. All of the press she has received has been poor, for every one website that supports her there are several others that discount her as a liar and a pitiless whore. For her part in life (prostitution) somehow made her less human so they say she made it all up just so she could kill men. It’s f*cking tragic.” Brandon (Tower) said."

Please send us any further articles or info on Aileen and her case.

IS THERE A PETITION FOR HER ????? Can someone make one? Florida's sentencing / DP system is still being decided over Ring and no executions, including volunteers, should occur now.

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Date: Sat, 07 Sep 2002 16:39:18 -0400

From: CCADP

Subject: DISC: Is there a lawyer who can mail something to a CA prisoner?

Is there a lawyer who'd be willing to mail a legal document to a CA prisoner as legal mail? The prisoner has said it would be best if this legal document is sent in as legal mail to ensure it gets to him.

Is there a lawyer on the list who can print and mail it to him? Please let me know at ccadp@rogers.com

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Date: Sat, 07 Sep 2002 16:49:22 -0400

From: CCADP

Subject: NEWS: Arizona - Filed Last week in CCADP v Stewart

UPDATE : This week we filed a motion for preliminary injunction :

In our lawsuit against the State of Arizona (CCADP, CUADP, SPR against Terry Stewart) for punishing prisoners who appear on our sites and thus attempting to censor and control the content ofsites like ours and impede our advocacy work for prisoners; we have filed a motion for preliminary injunction attempting to stop them from enforcing their law while the constitutionality of the law is decided.

THE MOTION IS BELOW :

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

CANADIAN COALITION AGAINST THE DEATH PENALTY, et al

MOTION FOR PRELIMINARY

Plaintiffs,

INJUNCTION v

No. CV02-1344 PHX EHC

TERRY L. STEWART, Defendant.

Pursuant to Fed. R. Civ. P. 65(a), plaintiffs move this Court for a preliminary injunction enjoining defendant Terry L. Stewart, his agents, servants, employees, attorneys, and all others in active concert or participation with him, from enforcing Arizona House Bill 2376 (codified at Ariz. Rev. Stat. §§ 31-235(C), (D); 31-242; and 41-1604(A)(9)) pending a final determination of the constitutionality of that statute by the Court.

The reasons for this motion are set forth in the accompanying memorandum.

RESPECTFULLY SUBMITTED this day of September, 2002.

David C. Fathi, Ann Beeson, Alice L. Bendheim, Pamela K. Sutherland,

Attorneys for Plaintiffs

by

Alice L. Bendheim

MEMORANDUM OF LAW

INTRODUCTION

In 2000, the Arizona Legislature passed House Bill 2376 ("HB 2376") in response to complaints that advocacy organizations were posting on their web sites material about, and in some cases written by, Arizona prisoners. This legislation singles out organizations like the plaintiffs, which conduct their advocacy through an internet website, for a ban on communication with Arizona prisoners that does not apply to any other entity. Specifically, HB 2376 prohibits correspondence between prisoners and advocacy organizations that maintain internet websites;

mandates punishment of a prisoner if an advocacy organization mentions that prisoner on its website, or if any person accesses that website at the prisoner's request; mandates interception of mail from prisoners attempting to correspond with such organizations, or with any person who accesses that organization's website; makes it a crime for a prisoner to have "access to the internet," a term that is not defined.

The manifest purpose and effect of HB 2376 is to suppress speech because it is politically unpopular. Accordingly, the legislation runs afoul of the First and Fourteenth Amendments. Because plaintiffs are overwhelmingly likely to prevail in this case and because the other requirements for preliminary injunctive relief are met, the Court should grant a preliminary injunction barring enforcement of HB 2376 pending a final determination of the statute's constitutionality.

THE STATUTORY SCHEME

HB 2376 provides as follows:

C. An inmate shall not send mail to or receive mail from a communication service provider or remote computing service. The department shall impose appropriate sanctions, including reducing or denying earned release credits, against an inmate if either of the following applies:

1. The inmate corresponds or attempts to correspond with a communication service provider or remote computing service.

2. Any person accesses the provider's or service's internet web site at the inmate's request.

D. On receipt of notice that an inmate has violated subsection ... C of this section, the department shall review all of the inmate's outgoing mail to ensure that no further correspondence is sent to ... the communication service provider or remote computing service or any person who accesses the provider's or service's internet web site. Ariz. Rev. Stat. §§ 31-235(C), (D).

A. Except as authorized by the department, an inmate shall not have access to the internet through the use of a computer, computer system, network, communication service provider or remote computing service.

B. An inmate who violates this section is guilty of a class 1 misdemeanor.

Ariz. Rev. Stat. 31-242(A), (B).

A. The director [of the Arizona Department of Corrections (ADOC)] shall:

* * *

9. Adopt rules pursuant to chapter 6 of this title to limit inmate access to the internet through the use of a computer, computer system, network, computer service provider or remote computing service.

Ariz. Rev. Stat. 41-1604(A)(9).

3. "Communication service provider" means any person engaged in providing a service that allows its users to send or receive oral, wire or electronic communications or computer services.

* * *

12. "Remote computing service" means providing to the public any computer storage or processing services by means of an electronic communication system.

Ariz. Rev. Stat. 13-3001(3), (12). STATEMENT OF FACTS There can be no dispute that the purpose of HB 2376 is to silence advocacy groups that engage in political speech about Arizona prisoners and in some cases publish the writings of such prisoners. According to ADOC Chief of Staff Gary Phelps, "the law started when the wife and daughter of the victim of a homicide came across a picture of her father's killer [on the internet] and he was talking about how he was such a great lover of cats. … They were very upset." Bryan Robinson, "Prisoners of Advocacy," abcnews.com, July 30, 2002 (declaration of David C. Fathi, Exh. 5). See also Hartman, Prison Walls and Firewalls: HB 2376 -- Arizona Denies Inmates Access to the Internet, 32 Ariz. St. L. J. 1423, 1426 (2000) (quoting Rep. McGrath, cosponsor of HB 2376, on the "anguish" felt by crime victims who see prisoner web pages on the internet). According to ADOC Director Terry Stewart, "[t]his statute is intended to prohibit direct or indirect access to websites through the internet, particularly for the purposes of communication." Director's Instruction #156, Inmate Internet Access, March 6, 2001 (Fathi dec., Exh. 6), at 1 (emphasis added). Following enactment of HB 2376, Arizona prisoners began receiving the following notice:

It has come to this units [sic] attention that you are in violation of the enclosed notice regarding internet access on WEB SITE [name of website]. To avoid possible criminal charges and/or disciplinary sanctions administered by the Arizona Dept. of Corrections, you are being instructed to have your name and all information pertaining to yourself removed from this site within three (3) weeks. This unit will again visit the concerned web sites on [date]. If your name/information etc. has not been removed from the concerned Web Site(s) or is located on any other Web Site on the internet system, disciplinary actions WILL BE administered and possible criminal charges may result.

See Fathi dec., Exh. 4 (italic emphasis added; other emphasis in original). Interestingly, a prisoner attempting to comply with this notice by writing to the operator of the website in question would run afoul of Ariz. Rev. Stat. 31-235(C)(1), which provides for punishment of a prisoner who "corresponds or attempts to correspond" with an internet service provider. Prisoners have been punished, and continue to be punished, because they are mentioned on internet websites maintained by free persons in the community. Robert Glen Jones, Jr. was punished after receiving from ADOC officials a blank notice that did not specify the websites from which he was to remove himself. Mr. Jones was punished despite the fact that he wrote to the operators of all the websites where he knew himself to be mentioned, and asked to be removed. Declaration of Robert Glen Jones, Jr., ¶¶ 6-10. Kenneth Laird has now received two disciplinary reports for being mentioned on the internet. See generally declaration of Kenneth Laird. Other prisoners have been threatened with punishment, and with criminal prosecution because they are mentioned on anti-death penalty or other websites. See Fathi dec., Exh. 4.

Plaintiffs Canadian Coalition Against the Death Penalty (CCADP), Citizens United for Alternatives to the Death Penalty (CUADP), and Stop Prisoner Rape (SPR) are advocacy organizations that maintain internet websites as an integral part of their advocacy and public education work. See generally declarations of Dave Parkinson, Lara Stemple, and Abraham J. Bonowitz. CCADP and CUADP maintain web pages devoted to individual Arizona prisoners; SPR posts on its website writings from prisoners, including Arizona prisoners, who have been victims of sexual abuse while incarcerated. Parkinson dec., ¶¶ 5-14; Bonowitz dec., ¶¶ 10-13; Stemple dec., ¶¶ 7-8, 13-15. Plaintiffs have been harmed, and continue to be harmed, by defendant Stewart's enforcement of HB 2376. All three plaintiffs rely heavily on first-hand accounts from prisoners, which they post on their websites as part of their advocacy and public education work. See Parkinson dec., ¶ 20; Bonowitz dec., ¶ 16; Stemple dec., ¶ 19. HB 2376 on its face bars prisoners from corresponding with plaintiffs, and actually mandates the seizure of mail from prisoners addressed to plaintiffs. See Ariz. Rev. Stat. § 31-235(C), (D). Similarly, all three plaintiffs sometimes send information to prisoners. See Parkinson dec., ¶¶ 25-26; Bonowitz dec., ¶¶ 18-19; Stemple dec., ¶¶ 22-23. HB 2376 forbids this also. See Ariz. Rev. Stat. § 31-235(C),

(D). Since the enactment of HB 2376, several prisoners have written to CCADP and CUADP asking that information about them be removed from the organization's website, citing the statute. See Parkinson dec., ¶ 17; Bonowitz dec., ¶ 15; Jones dec., ¶ 6. Because HB 2376 mandates the punishment of a prisoner if any person accesses a website "at the inmate's request," Ariz. Rev. Stat. § 31-235(C)(2), and there is no way plaintiffs can know when someone is accessing their websites at a prisoner's request, plaintiffs must either shut down their websites, or subject the prisoners they are trying to assist to the risk of punishment. See Parkinson dec., ¶¶ 27-28; Bonowitz dec., ¶ 17; Stemple dec., ¶ 24. Similarly, since it is ADOC's practice to punish a prisoner if he is mentioned on a website, regardless of the prisoner's involvement or non-involvement in requesting that mention (see Jones dec., ¶ 10), plaintiffs must either delete all information regarding Arizona prisoners from their websites, or subject those prisoners to the risk of punishment. As a result of HB 2376, plaintiffs are now reluctant to post on their websites any information about Arizona prisoners, regardless of the source of that information. See Parkinson dec., ¶ 30; Bonowitz dec., ¶ 22; Stemple dec., ¶ 26. Plaintiffs have twice asked defendant Stewart to suspend enforcement of HB 2376 pending this Court's determination of its constitutionality. Defendant Stewart has refused. See Fathi dec., ¶¶ 3-4, Exh. 1-3. Because defendant Stewart's continuing enforcement of HB 2376 constitutes an ongoing violation of plaintiffs' First Amendment rights, plaintiffs seek a preliminary injunction enjoining enforcement of HB 2376. ARGUMENT A preliminary injunction is a device for "preventing the irreparable loss of rights before judgment." Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984) (citation omitted). Under Ninth Circuit law, a preliminary injunction is warranted when plaintiffs show "either (1) a combination of probable success on the merits and the possibility of irreparable harm, or (2) that serious questions are raised and the balance of hardships tips sharply in the moving party's favor." Rodeo Collection, Ltd. v. West Seventh, 812 F.2d 1215, 1217 (9th Cir. 1987). These are not two distinct tests, but rather "represent two points on a sliding scale in which the required degree of irreparable harm increases as the probability of success decreases." Diamontiney v. Borg, 918 F.2d 793, 795 (9th Cir. 1990) (quotations and citations omitted). In addition, the "advancement of the public interest" is one of the "traditional equitable criteria for granting preliminary injunctive relief" considered by the Ninth Circuit. Mayweathers v. Newland, 258 F.3d 930, 938 (9th Cir. 2001) (citation omitted). In regard to all criteria for a preliminary injunction, "[t]he district court is not required to make any binding findings of fact; it need only find probabilities that the necessary facts can be proved." Sierra On-Line, Inc., 739 F.2d at 1423. As demonstrated herein, plaintiffs amply meet the standard for preliminary injunctive relief, as they are overwhelmingly likely to succeed on the merits, they are suffering irreparable injury, and a preliminary injunction is in the public interest.

I. PLAINTIFFS ARE OVERWHELMINGLY LIKELY TO SUCCEED ON THE MERITS.

There can be no doubt that plaintiffs' education and advocacy on the death penalty, prison conditions, and prison sexual abuse lies at the core of First Amendment values. See Connick v. Myers, 461 U.S. 138, 145 (1983) ("speech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection") (quotation marks and citations omitted); Pell v. Procunier, 417 U.S. 817, 831 n. 7 (1974) ("the conditions in this Nation's prisons are a matter that is both newsworthy and of the greatest public importance"); California First Amendment Coalition v. Woodford, ____ F.3d ____, 2002 WL 1772658 (9th Cir., Aug. 2, 2002), at *6 ("An informed public debate is critical in determining whether execution by lethal injunction comports with the evolving standards of decency which mark the progress of a maturing society") (internal quotation marks, citation omitted). The Supreme Court has held that the internet warrants the highest level of First Amendment protection. Reno v. American Civil Liberties Union, 521 U.S. 844, 870 (1997). Moreover, "[p]rison walls do not form a barrier separating prison inmates from the protections of the Constitution," Turner v. Safley, 482 U.S. 78, 84 (1987), "nor do they bar free citizens from exercising their own constitutional rights by reaching out to those on the ‘inside.'" Thornburgh v. Abbott, 490 U.S. 401, 407 (1989). Restrictions on communication between prisoners and free persons implicate the First Amendment rights of both parties. Id.; Prison Legal News v. Cook, 238 F.3d 1145, 1149 (9th Cir. 2001). Accordingly, plaintiffs have standing to challenge HB 2376's restrictions on their ability to communicate with prisoners. Whitmire v. Arizona, ____ F.3d ____, 2002 WL 1832015 (9th Cir., Aug. 12, 2002), at *1 n. 2; Prison Legal News, 238 F.3d at 1149.

A. HB 2376 is subject to, and fails, strict scrutiny.

The main effect of HB 2376 is to restrict speech between non-prisoners. It is undisputed that the central purpose of the legislation is to prevent free persons from viewing websites operated by other free persons - in other words, to regulate expressive activity that occurs entirely outside prison walls, and in many cases outside the state of Arizona. The law accomplishes this purpose in at least two ways. First, by providing that "an inmate shall not have access to the internet," Ariz. Rev. Stat. 31-242, the law burdens the speech of internet service providers who post material about Arizona prisoners on their websites. As discussed above, prisoners have been punished and continue to be punished when their names are mentioned in material posted on the internet, even where the prisoner in question had no involvement in writing or posting the material. The law essentially forces internet service providers to cease posting material about Arizona prisoners or subject the prisoners whom they are trying to help to a risk of prosecution. Second, HB 2376 burdens the speech of internet service providers who allow open access to their websites, because prisoners may be punished if "[a]ny person accesses the . . . web site at the inmate's request." See Ariz. Rev. Stat. 31-235(C)(2). Thus the law on its face purports to regulate the circumstances under which free persons can access internet websites. The law therefore burdens the speech of non-prisoners. The law's restrictions on speech are content-based. The Supreme Court has repeatedly emphasized that "the content neutrality of a rule must be assessed based on whether it is justified without reference to the content of the regulated speech." International Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 706 (1992) (Kennedy, J., concurring) (emphasis in original; internal quotation marks omitted); see also Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984). Here, the legislative purpose of HB 2376 is to protect crime victims from the "anguish" of encountering information about prisoners on the internet. See Statement of Facts, supra. It is aimed at silencing speech that may be offensive to some listeners. Thus the law is clearly a content-based restriction on speech. Indeed, the law is a content-based restriction of the most egregious sort, because it is directed not simply at a particular category of material, but at a particular political viewpoint. The Arizona Department of Corrections maintains its own website, see http://www.adc.state.az.us, on which it posts its own version of the facts underlying the offenses for which Arizona prisoners were sentenced to death. See Complaint, ¶ 17; Answer, at 2. Yet when plaintiffs post on their websites a different version of these facts - for example, offering evidence that the prisoner is factually innocent - the prisoner is subject to discipline and possible prosecution. Compare Fathi dec., Exh. 8 (discussion of Timothy Ring on ADOC website, asserting his guilt of murder) with Fathi dec., Exh. 9 (Timothy Ring page from CCADP website, asserting his innocence). As a content- and viewpoint-based restriction on the speech of non-prisoners, HB 2376 is subject to strict scrutiny. See, e.g., Turner Broad. Sys. v. FCC, 512 U.S. 622, 641 (1994) ("subject only to narrow and well-understood exceptions, [the First Amendment] does not countenance governmental control over the content of messages expressed by private individuals"). A restriction on speech will survive strict scrutiny only if it is narrowly tailored to protect a compelling state interest and advances that interest in a manner that is the least restrictive of protected speech. See Sable Comm. of Calif. v. FCC, 492 U.S. 115, 126 (1989). Viewpoint-based restrictions on speech are presumptively invalid. See R.A.V. v. St. Paul, 505 U.S. 377, 391 (1992); see also Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829 (1995) ("Viewpoint discrimination is ... an egregious form of content discrimination. The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction"). HB 2376 cannot survive strict scrutiny. The legislative purpose of protecting crime victims from the "anguish" of encountering information about prisoners on the internet does not constitute a legitimate, let alone a compelling, governmental interest. "[W]here obscenity is not involved, we have consistently held that the fact that protected speech may be offensive to some does not justify its suppression." Carey v. Population Servs. Int'l, 431 U.S. 678, 701 (1977). See also Texas v. Johnson, 491 U.S. 397, 414(1989) ("[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable"). When, as here, "the designed benefit of a content-based speech restriction is to shield the sensibilities of listeners, the general rule is that the right of expression prevails, even where no less restrictive alternative exists." U.S. v. Playboy Entertainment Group, 529 U.S. 803, 813 (2000). Even if the Court were to find that HB 2376 furthered a compelling state interest, under strict scrutiny, a law "may not be sustained if it provides only ineffective or remote support for the government's purpose." Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n., 447 U.S. 557, 564 (1980). The government bears the burden of showing that its scheme will in fact alleviate the alleged "harms in a direct and material way." Turner Broad., 512 U.S. at 664. "[A] law cannot be regarded as . . . justifying a restriction upon truthful speech, when it leaves appreciable damage to [the government's] supposedly vital interest unprohibited." Florida Star v. B.J.F., 491 U.S. 524, 541-42 (1989) (Scalia, J., concurring). As demonstrated below, even under the relatively deferential Turner standard, HB 2376 fails to rationally advance any legitimate governmental interest. A fortiori, then, it falls far short of surviving strict scrutiny. The fact that HB 2376 also burdens the speech of prisoners (and not merely that of non-prisoners) does not mean that strict scrutiny is inapplicable. While prison policies that restrict prisoners' constitutional rights are usually evaluated under the "reasonable relationship" test of Turner v. Safley, 482 U.S. 78, 87 (1987), that lesser standard has no application where the challenged law is concerned primarily with restricting the speech of non-prisoners. Thus in Woodford, a case which involved a challenge to limits on witnessing executions, the Ninth Circuit noted that "[t]he Supreme Court has never applied Turner in a case such as this one, where the regulation promulgated by prison officials is centrally concerned with restricting the rights of outsiders rather than prisoners." Woodford, 2002 WL 1772658, at *8. Woodford involved a challenge to limits on witnessing executions that occurred inside the prison and therefore raised issues of prison security. The conduct that HB 2376 seeks to regulate, by contrast, occurs entirely outside prison walls and does not raise security concerns of any sort. The case against the Turner standard, therefore, is even stronger here than in Woodford. The fact that the burden on speech takes the form of punishment for prisoners cannot transform HB 2376 into a "prison regulation" within the meaning of Turner; the inescapable fact is that the burdened speech is not primarily that of prisoners, but that of free individuals.

B. Even if HB 2376 is not subject to strict scrutiny, its restrictions on prisoners' outgoing correspondence violate the First Amendment.

HB 2376 restricts prisoners' outgoing correspondence. In particular, it prohibits prisoners from writing to website operators such as plaintiffs; provides for their punishment if they do so; provides for the interception of mail from prisoners attempting to write to website operators, or to "any person who accesses the … web site;" and makes it a crime for prisoners to have "access to the internet." See Ariz. Rev. Stat. 31-235(C)(1), (D); 31-242. The Supreme Court has recognized that "[t]he implications of outgoing correspondence for prison security are of a categorically lesser magnitude than the implications of incoming materials." Thornburgh, 490 U.S. at 413. Accordingly, "regulations censoring outgoing prisoner mail must be justified by a showing (1) that the regulation furthers an important or substantial governmental interest unrelated to the suppression of expression and (2) that the limitation of First Amendment freedoms must be no greater than is necessary or essential to the protection of the particular governmental interest involved." Woodford, 2002 WL 1772658 at *8 (emphasis added; citations omitted). HB 2376 founders on the first prong of this test. As demonstrated above, the entire point of HB 2376 is the suppression of expression. Even if the Court were to find that HB 2376 serves "an important or substantial governmental interest unrelated to the suppression of expression," the statute sweeps far more broadly than is "necessary or essential" to serve any such interest. See § I.C.1.b., infra.

C. Even under the relatively deferential Turner test, HB 2376 violates the First Amendment.

Under Turner v. Safley, the inquiry is whether the regulation "is reasonably related to legitimate penological objectives, or whether it represents an exaggerated response to those concerns." Turner, 482 U.S. at 87 (internal quotation marks omitted). The test has four elements:

(1) whether there is a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it; (2) whether there are alternative means of exercising the right that remain open to prison inmates; (3) what impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally and (4) whether there exist ready alternatives ... that fully accommodate[] the prisoner's rights at de minimis cost to valid penological interests.

Woodford, 2002 WL 1772658, at *7 (internal quotation marks omitted). The Turner test "is not toothless." Thornburgh, 490 U.S. at 414. Indeed, under this standard the Ninth Circuit has repeatedly struck down prison policies that restrict the ability of free persons to communicate with prisoners. See, e.g., Morrison v. Hall, 261 F.3d 896, 898 (9th Cir. 2001) (requirement that pre-paid, for- profit, subscription publications be sent to prisoners by first or second class postage violated First Amendment); Prison Legal News v. Cook, 238 F.3d 1145, 1153 (9th Cir. 2001) (ban on receipt of subscription non-profit organization mail violated First Amendment); Crofton v. Roe, 170 F.3d 957, 961 (9th Cir. 1999) (finding "no justification for a blanket ban on the receipt of all gift publications"). HB 2376 similarly fails the Turner test.

1. HB 2376 is not rationally related to a legitimate penological objective.

a. HB 2376 is not supported by a legitimate penological objective. There must be a rational relationship between a prison regulation and the legitimate and neutral "governmental interest put forward to justify it." Turner, 482 U.S. at 89. As demonstrated above, the legislative purpose behind HB 2376 -- the suppression of speech because it might upset crime victims -- is not a legitimate, or even a permissible, governmental objective. See also Thornburgh, 490 U.S. at 415 (the regulation "must further an important or substantial governmental interest unrelated to the suppression of expression") (citation omitted). Since the filing of this litigation, ADOC has suggested that the purpose of HB 2376 is to protect "vulnerable" women from manipulative prisoners. See Julia Scheeres, "State Pen Mightier Than Speech?" Wired News, July 18, 2002 (Fathi dec., Exh. 7) (quoting ADOC Chief of Staff Gary Phelps as saying the law is intended "to protect people from their own stupidity"). However, the Supreme Court has held that such "excessive paternalism" toward women is not a legitimate governmental objective. Turner, 482 U.S. at 99. Finally, defendant Stewart speculates that HB 2376 might have been motivated by "the concerns of several legislators that inmates were taking advantage of unsuspecting people through web sites." See Fathi dec., Exh. 2. Even assuming that preventing some people from "taking advantage of" others is a legitimate governmental objective, it is not a penological objective. See Woodford, 2002 WL 1772658, at *8 n.4 (a regulation "not reasonably related to a legitimate penological interest…will fail to satisfy even the most deferential analysis under Turner") (emphasis added). In Walker v. Sumner, 917 F.2d 382, 387 (9th Cir. 1990), the Ninth Circuit held that "general protestations of concern for the welfare of the citizens of Nevada and the prison community" did not suffice to justify forced HIV testing of prisoners. See also Goodwin v. Turner, 908 F.2d 1395, 1399 n. 7 (8th Cir. 1990) (noting that "interests advanced by [prison officials] are not legitimate penological interests because they involve the advancement of concerns such as decreased burden on welfare rolls that have nothing to do with prison administration") (emphasis in original).

b. Even if HB 2376 were supported by a legitimate penological objective, it is not rationally related to any such objective.

Even if preventing prisoners from "taking advantage of" others were a legitimate penological objective, however, HB 2376 is not rationally related to that objective. Rather, the legislation is spectacularly overinclusive, fatally underinclusive, and entirely superfluous. HB 2376 is not limited to communications that attempt to defraud – indeed, it is not limited in any way. It bars all communication between plaintiffs and Arizona prisoners, and even bars communications between plaintiffs and third parties in the free world. Thus, a prisoner wishing to send CCADP a copy of a court ruling in his criminal proceedings, or wishing to write to SPR to report that he has been sexually assaulted in prison, is categorically barred from doing so. If CUADP wishes to send a prisoner a list of attorneys who may be able to assist him, that too is prohibited. If a prisoner asks his attorney to view CCADP's website to see if the prisoner is mentioned on the site, that is prohibited by the statute, and the prisoner's mail is then inspected "to ensure that no further correspondence is sent to" the attorney. Ariz. Rev. Stat. 31-235(C), (D). Because blanket bans on speech such as HB 2376 are by definition likely to be overinclusive, they have consistently been found to be unconstitutional. See, e.g., Crofton, supra; Pepperling v. Crist, 678 F.2d 787, 791 (9th Cir. 1982) ("blanket prohibition against receipt of the publications by any prisoner carries a heavy presumption of unconstitutionality"). Conversely, HB 2376 leaves whole avenues of potential fraud entirely untouched. A prisoner wishing to commit fraud can do so with equal ease by placing an advertisement in a newspaper or magazine, or by placing an advertisement on an internet website, yet HB 2376 bans only the latter. Indeed, ADOC Department Order ("DO") 909.01 provides that "[i]nmates may send or receive an unlimited number of letters from individuals of their choice," with exceptions not relevant here. DO 909.01, section 1.3. ADOC even protects the confidentiality of mail prisoners send to newspapers, magazines, and radio and television stations, providing that such mail may be inspected for contraband, but not read. DO 909.03, section 1.2.3. Such irrational distinctions compel the conclusion that HB 2376 is not rationally related to the goal of preventing fraud. See Woodford, at *11 (no rational relationship when the regulation "contains loopholes that undermine its rationality and the credibility of defendants' concerns"); Morrison, 261 F.3d at 902 (no rational relationship between ban on bulk mail and goal of excluding contraband when "defendants have failed to present any evidence that the risk of contraband in first or second class mail is any lower than the risk of contraband in mail that is sent bulk rate, third, or fourth class"). Finally, if the goal is the prevention of fraud, HB 2376 is superfluous. ADOC regulations already prohibit prisoner mail sent "with the intent to plot, scheme or conspire to defraud, or in any way to illegally solicit assistance." DO 909.01, § 1.3.7. And, of course, Arizona statutes already criminalize fraud. See generally Ariz. Rev. Stat. Title 13, Chapter 23. In assessing whether a prison regulation is rationally related to a legitimate governmental objective, the threshold inquiry is whether there is a "common-sense connection" between the prison regulations and a legitimate penological objective. In this case, the extremely poor fit between HB 2376 and the goal of preventing fraud precludes the finding of such a connection. See Whitmire v. Arizona, ____ F.3d ____, 2002 WL 1832015 (9th Cir., Aug. 12, 2002), at *1 (no "common-sense connection" between prison's policy banning same-sex embracing during visits and concern about homosexual "labeling" of prisoners). Thus, the statute fails without further inquiry. In sum, HB 2376 fails the first prong of the Turner test. It is not supported by any legitimate penological objective; even assuming that the prevention of fraud were such an objective, the regulation is underinclusive, overinclusive, and entirely superfluous. The Ninth Circuit has recognized that "[t]he rational relationship factor of the Turner standard is a sine qua non," Prison Legal News, 238 F.3d at 1151, and failure on this prong of the test ensures a finding of unconstitutionality. Id. Even if the rational relationship factor were not dispositive, however, the remaining three Turner factors similarly compel a finding of unconstitutionality.

2. There are no alternative avenues available for exercise of plaintiffs' First Amendment rights.

There are no alternative avenues for plaintiffs to exercise their First Amendment right to communicate with Arizona prisoners and to communicate with other free persons about Arizona prisoners, even when that right is read "sensibly and expansively." Thornburgh, 490 U.S. at 417. HB 2376 categorically prohibits all correspondence between plaintiffs and Arizona prisoners. As plaintiffs explain, first-hand accounts from prisoners are essential to their education and advocacy on the death penalty and prison rape. See Parkinson dec., ¶ 20; Bonowitz dec., ¶ 16; Stemple dec., ¶ 19. HB 2376 makes these accounts impossible to obtain. HB 2376 also prohibits plaintiffs from sending prisoners information, such as the addresses of attorneys, or resources to help a prisoner survive and recover from prison rape. See Parkinson dec., ¶¶ 25-26; Bonowitz dec., ¶¶ 18-19; Stemple dec., ¶¶ 22-23. Moreover, HB 2376 prohibits even free persons from accessing plaintiffs' websites, if ADOC determines that such access occurs "at the inmate's request." Prisoners are punished if information about them appears on plaintiffs' websites, even if the prisoner has tried to have the information removed. See Jones dec., ¶ 10. Thus, HB 2376 requires plaintiffs either to delete all information about Arizona prisoners from their websites, or risk the punishment and criminal prosecution of the prisoners they are trying to assist. See Parkinson dec., ¶¶ 27-31; Bonowitz dec., ¶¶ 21-22; Stemple dec., ¶¶ 25-27. It is no answer to say that plaintiffs should resort to other forms of communication to replace the websites where their speech is being burdened. As the Supreme Court has stated, such a position is equivalent to arguing that a statute could ban leaflets on certain subjects as long as individuals are free to publish books. . . .[however,] one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place. Reno, 521 U.S. at 880 (quotations and citations omitted). Furthermore, the Ninth Circuit has found that alternative avenues of exercising First Amendment rights do not satisfy the Turner standard when they require publishers to communicate via alternative media. Morrison, 261 F.3d at 904 ("Although radio and television are alternative media by which inmates may receive information about the ‘outside' world, they should not be considered a substitute for reading newspapers and magazines"). Likewise, the Ninth Circuit has held that no ready alternative avenues exist when the proposed alternative imposes an increased cost on the publisher. Prison Legal News, 238 F.3d at 1149 ("paying a higher [postage] rate is not an alternative"); Morrison, 261 F.3d at 904 (rejecting argument that paying a higher postage rate is a feasible alternative). Requiring plaintiffs to express their message without the internet is not a feasible alternative. Other media are both more expensive and less far-reaching than the internet, which is "a vast platform from which to address and hear from a worldwide audience of millions of readers, viewers, researchers, and buyers." Reno, 521 U.S. at 853. The use of the internet is integral to plaintiffs' advocacy and education efforts. "Minds are not changed in streets and parks as they once were. To an increasing degree, the more significant interchanges of ideas and shaping of public consciousness occur in mass and electronic media." Denver Area Educ. Telecomms. Consortium, Inc. v. FCC, 518 U.S. 727, 802-03 (1996) (Kennedy, J., concurring in the judgment).

3. The impact on prison staff, other prisoners and prison resources is minimal or nonexistent.

ADOC regulations already allow prisoners to "send or receive an unlimited number of letters from individuals of their choice." DO 909.01, section 1.3. Thus, the marginal effect of allowing plaintiffs to correspond with prisoners – as they were until the enactment of HB 2376 in 2000 – would be minimal. Clearly, removing HB 2376's restriction on free persons accessing plaintiffs' websites would have no effect whatsoever on prison resources. This conclusion is buttressed by the fact that ADOC officials never tried to enact such restrictions themselves. Finally, Thornburgh teaches that the "impact" contemplated by the Turner standard is principally related to security: the impact of accommodating plaintiffs' First Amendment rights is significant only when "the right in question can be exercised only at the cost of significantly less liberty and safety for…guards and other prisoners alike." Thornburgh, 490 U.S. at 418 (quotations and citations omitted). Because there is no claim that HB 2376 advances prison security in any way, this factor too militates in favor of a finding of unconstitutionality.

4. HB 2376 represents an exaggerated response to prison concerns. "[T]he existence of obvious, easy alternatives may be evidence that the regulation is not reasonable, but is an ‘exaggerated response' to prison concerns." Turner, 482 U.S. at 90. Here an obvious, easy alternative to HB 2376 exists: enforcement of already existing criminal laws and prison regulations against fraud. See § I.C.1.b., supra. The existence of this alternative, which comes at "de minimis cost to valid penological interests [can be] consider[ed] as evidence that the regulation does not satisfy the reasonable relationship standard." Turner, 482 U.S. at 91. Moreover, "[w]hile not necessarily controlling, the policies followed at other well-run institutions [are] relevant to a determination of the need for a particular type of restriction." Procunier v. Martinez, 416 U.S. 396, 414 n. 14 (1974), overruled in part on other grounds, Thornburgh v. Abbott, 490 U.S. 401 (1989). Arizona is the only state in the nation to have enacted a statute like HB 2376. Fathi dec., ¶ 2. In short, HB 2376 "sweeps much more broadly than can be explained by [the government's] penological objectives," Turner, 482 U.S. at 98, and represents an exaggerated response to the unsubstantiated concerns put forward to justify it. HB 2376 fails to satisfy any of the four factors of the Turner standard. Thus, it violates plaintiffs' First Amendment rights D. HB 2376 is substantially overbroad in violation of the First Amendment. Under the substantial overbreadth doctrine, a statute is "unconstitutional on its face if it prohibits a substantial amount of protected expression." Ashcroft v. Free Speech Coalition, ____ U.S. ____, 122 S.Ct. 1389, 1399 (2002); see also Broadrick v. Oklahoma, 413 U.S. 601, 612. This is so even though some applications of the statute may be constitutionally unobjectionable. Forsyth County, Ga. v. Nationalist Movement, 505 U.S. 123, 129-30 (1992). HB 2376 is unconstitutionally overbroad. It cannot be disputed that HB 2376 prohibits a substantial amount of protected speech between plaintiffs and Arizona prisoners, and between plaintiffs and other non-prisoners. This overbreadth is compounded by the fact that HB 2376 purports to reach far outside of Arizona, and regulate the circumstances under which free persons throughout the world may access plaintiffs' websites. E. HB 2376 is unconstitutionally vague. HB 2376 is a criminal statute: it is a misdemeanor for a prisoner to have "access to the internet." Ariz. Rev. Stat. 31-242. "It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined." Grayned v. City of Rockford, 408 U.S. 104, 108 (1972); Bullfrog Films, Inc. v. Wick, 847 F.2d 502, 512 (9th Cir. 1988). The standards for impermissible statutory vagueness are particularly strict in the area of free expression. National Ass'n for Advancement of Colored People v. Button, 371 U.S. 415, 432 (1963); United States v. Gilbert, 813 F.2d 1523, 1530 (9th Cir. 1987). "Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity." Button, 371 U.S. at 433. HB 2376's vague ban on "access to the internet" implicates each of the three objections to vague laws that have been articulated by the Supreme Court: HB 2376 has the potential to "trap the innocent" because it fails to give notice of what conduct is prohibited; it "impermissibly delegates basic policy matters …for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application;" and it chills free speech, as "[u]ncertain meanings inevitably lead citizens to steer far wider of the unlawful zone . . . than if the boundaries of the forbidden areas were clearly marked." Grayned, 408 U.S. at 108-09 (internal quotation marks omitted). The term "access to the internet" is impe[hack]