by Matt Clarke

On January 21, 2011, a U.S. District Court held that state prisoners in Arkansas have no First Amendment right to less expensive phone rates, a decision that was subsequently affirmed by the Eighth Circuit Court of Appeals.

Arkansas state prisoners Winston Holloway and Joseph Breault filed a civil rights action in federal court pursuant to 42 U.S.C. § 1983, alleging that excessive contractual kickbacks resulted in high telephone rates for prisoners in the Arkansas Department of Corrections (ADC), which infringed on their First Amendment rights.

The magistrate judge assigned to the case issued a report recommending that a First Amendment violation be found and that the ADC’s phone service provider, Global Tel*Link (GLT), be enjoined from paying any “commission” kickbacks to the ADC. The district judge rejected that part of the report and dismissed the suit on the defendants’ motion for summary judgment.

The ADC established telephone services for prisoners in 2006 by contracting with GTL. Under the contract, GTL pays for all costs of equipment, installation and phone service, and gives the ADC a 45% “commission” on the income the company receives from prisoner phone calls. The phone rates include a $3.00 surcharge plus $0.12/minute for local and intrastate calls, and a $3.95 surcharge plus $0.45/minute for interstate calls.

The calls can be collect or prepaid; however, persons who prepay for calls are charged an additional fee of up to 19% for prepayment. This means that a ten-minute interstate collect call costs $8.45, while a similar prepaid call costs around $10.06.

Approximately $2 million worth of “commissions” are paid to the ADC each year from the GTL phone contract, and such funds are used for the operation of the state’s prison system.

The district court rejected the defendants’ assertion of primary jurisdiction and filed rate doctrines. The magistrate judge found that any restriction on prisoners’ communication implicates their First Amendment rights; the district court judge rejected that reasoning, however. Reviewing the holdings of other circuits, the court noted that the Sixth and Ninth Circuits had found that prisons have an affirmative First Amendment obligation to provide prisoners with telephone services while the First and Seventh Circuits held they did not have such an obligation.

None of the other circuits had engaged in an in-depth analysis of the First Amendment’s application to prison telephones. In attempting to conduct such an analysis, the district court admitted that the test for First Amendment violations established by the U.S. Supreme Court in Turner v. Safley didn’t work well in the context of prison phone rates.

The court wrote that, “[t]o the extent that contracts between prison systems and telephone companies impose higher costs on prisoners and their families and friends than other persons,” the “issue would be governed by the equal protection clause, not the First Amendment.” The district court specifically adopted the reasoning of the New York Court of Appeals in Walton v. New York State Department of Correctional Services, 921 N.E.2d 145 (N.Y. 2009) [PLN, Aug. 2010, p.18], holding that while prisoners enjoy a First Amendment right to communicate with people on the outside, that right can be satisfied by mail and visitation, thus the additional expense of commissions on prison phone rates do not imperil the right of prisoners to communicate with others.

The district court noted that the plaintiffs continued to make phone calls, just less frequently than they would have with lower rates. Therefore, the excessive rates caused by the kickbacks from GTL were “not a constitutionally significant curtailment of the free speech and association guarantee, particularly given the limited nature of that right in the prison setting.” Summary judgment was entered in the defendants’ favor and the complaint was dismissed with prejudice. See: Holloway v. Magness, U.S.D.C. (E.D. Ark.), Case No. 5:07-cv-00088-JLH-BD; 2011 WL 204891.

On appeal, the Eighth Circuit affirmed the district court in a February 2, 2012 opinion. The appellate court, in a de novo review, observed that “Numerous lawsuits have challenged the practice, asserting claims under the Telecommunications Act of 1996, state and federal antitrust laws, state consumer protection and unfair trade practices acts, state constitutional provisions, the First Amendment, and the takings, due process, and equal protection clauses of the federal Constitution.” However, “No court has held any contract between a telephone company and a prison system unlawful under any of these theories.”

The Court of Appeals found that despite the plaintiffs’ arguments to the contrary, “Just as ADC had no First Amendment obligation to provide any telephone service, it had no obligation to provide that service at a particular cost to users.”

The Eighth Circuit’s analysis of the Turner standards focused on the fact that “inmates retain many alternative means of communicating with family members and friends in the outside world,” including correspondence and visitation. Consequently, and because the other First Amendment arguments presented in the case were not persuasive, the district court’s grant of summary judgment to the defendants was affirmed. See: Holloway v. Magness, 666 F.3d 1076 (8th Cir. 2012).

This ruling is the latest in a long line of cases challenging prison phone rates, which have been overwhelmingly unsuccessful. [See: PLN, April 2011, p.1].

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