[00:00:03] Speaker 00: Good morning, Your Honors, and may it please the court, Brendan Duffy, on behalf of Appellant Neil Grenning. [00:00:08] Speaker 00: I'd like to reserve three minutes for rebuttal. [00:00:11] Speaker 00: Your Honors, this case arises from prison officials censoring Mr. Grenning's attempt to publish a short story in a prison writing class. [00:00:18] Speaker 00: The story was approved by his instructors and recommended for publication. [00:00:23] Speaker 00: But officials blocked it from leaving the prison because it might lead to negative publicity, and later threatened to remove him from the program if he tried to submit it himself. [00:00:32] Speaker 00: The district court rejected Mr. Greening's First Amendment claims at summary judgment, but it did so based on three key errors. [00:00:38] Speaker 00: First, the court applied the wrong legal standard. [00:00:40] Speaker 00: Outgoing prisoner speech is governed by Martinez, not Turner. [00:00:44] Speaker 00: This court said in Barrett v. Belloq that applying the wrong legal standard to outgoing speech is itself reversible error. [00:00:50] Speaker 00: Second, Superintendent Key's written threat to remove Mr. Greening from the program for attempting to publish his story is textbook retaliation under this court's decision in Broadheim. [00:01:00] Speaker 00: And finally, the district court's errors go far beyond the merits. [00:01:04] Speaker 00: It granted summary judgment despite genuine disputes of material fact, failed to consider Mr. Greening's timely opposition brief, and denied discovery that would have revealed whether any policy actually authorized this censorship. [00:01:16] Speaker 00: In short, this court should reverse and enter judgment for Mr. Greening on his First Amendment claims or at minimum vacate and remand for application of the correct legal standard. [00:01:24] Speaker 03: So, counsel, you mentioned that the reason it was rejected was because of the reputational harm to the prison. [00:01:28] Speaker 03: It doesn't seem like the prison is defending that justification on appeal, and they're suggesting it's more of a rehabilitation purpose. [00:01:38] Speaker 03: What are we to do with that? [00:01:39] Speaker 00: I don't think you can do that under Martinez. [00:01:42] Speaker 00: Martinez is heightened scrutiny. [00:01:44] Speaker 00: As this court knows, when we are doing heightened scrutiny, we look at what the defendants in this case provide in the record. [00:01:50] Speaker 00: There's only two reasons that the government provided in the record. [00:01:54] Speaker 00: This is ER 104. [00:01:55] Speaker 00: Miss Weiss said she was attempting to enforce third party publication criteria. [00:01:59] Speaker 00: And ER 113, this is Superintendent Key saying he was worried about negative publicity. [00:02:04] Speaker 00: Those are the only two reasons provided in the record [00:02:07] Speaker 00: On appeal now, they say it was rehabilitation, but there's absolutely nothing in the record to support that, and this is not rational basis review. [00:02:15] Speaker 00: This is outgoing speech, and under Martinez, you don't get to invent post hoc reasons during litigation. [00:02:21] Speaker 03: Well, is it an objective inquiry or a subjective inquiry? [00:02:24] Speaker 00: Your Honor, I think it's subjective. [00:02:27] Speaker 00: I think we have to look in the record. [00:02:29] Speaker 00: I mean, Your Honor, because Martinez involves tailoring, this is the same as the court does in other constitutional analyses. [00:02:37] Speaker 00: This is like in United States First, Virginia, where Justice Ginsburg said, you can't invent post hoc rationalizations during for things like heightened scrutiny in rational basis. [00:02:45] Speaker 00: Yes, we allow. [00:02:46] Speaker 00: And if this court thinks it's Turner, they could look to rehabilitation as a reason. [00:02:51] Speaker 00: But I think if this is Mark, we're in Mark, if we're and I don't think there's any dispute that this is outgoing speech. [00:02:56] Speaker 00: So I think Martinez applies and I think if Martinez does apply. [00:02:59] Speaker 00: I think we have to look to the record. [00:03:01] Speaker 00: And even if this court is in Turnerland, this court's decision in Swift v. Lewis, I think, suggests that the actual basis still matters. [00:03:11] Speaker 00: Because one, it might suggest pretext. [00:03:13] Speaker 00: Or two, it simply might suggest that there was no legitimate reason to begin with. [00:03:18] Speaker 01: Let me ask you, going under Martinez, [00:03:24] Speaker 01: In Martinez, it talks about any regulation or practice that restricts inmate correspondence has to be necessary to protect one or more of the legitimate government interests. [00:03:35] Speaker 01: And then they talk about those identified above that were specific to Martinez. [00:03:42] Speaker 01: In your view, what is the purported government interest [00:03:47] Speaker 01: that the prison offers here, other than reputation, which we've now discussed. [00:03:52] Speaker 00: So Your Honor, I think that proves the point. [00:03:53] Speaker 00: I think the only interest we have in the record is at ER 104 and ER 113, neither of which they defend on appeal. [00:04:00] Speaker 00: And I think that helps us for qualified immunity as well, because no reasonable officer would have thought these are legitimate reasons. [00:04:06] Speaker 00: In fact, they don't even attempt to defend those reasons on appeal, which I think helps our case. [00:04:10] Speaker 00: Now, what they do say on appeal is that it's rehabilitation. [00:04:15] Speaker 00: Again, I think we don't get to that inquiry, but even if we start looking at rehabilitation, I think that still fails for a number of reasons. [00:04:24] Speaker 04: Let me ask you this. [00:04:26] Speaker 04: As I understand it, the prison concedes that if he were to send it to some other publication other than inroads, he could do so. [00:04:36] Speaker 04: Is that right? [00:04:36] Speaker 00: So I don't think that matters for a number of reasons. [00:04:40] Speaker 00: And but I don't to answer the direct question. [00:04:42] Speaker 00: I don't think that's clear in the record. [00:04:44] Speaker 00: So one, I don't think it matters. [00:04:45] Speaker 00: I think it fails the first half of Martinez to on lesser restrictive alternatives, which your question goes to. [00:04:51] Speaker 04: Well, no, that's not what my question goes to. [00:04:52] Speaker 04: My question goes to, well, if he can send it other places, why can't he send it inroads? [00:04:57] Speaker 00: because they barred him from doing so. [00:05:00] Speaker 04: You didn't understand the rest of my question. [00:05:03] Speaker 04: If he consented other publications, what's their justification for not allowing him to send it to the inroads? [00:05:09] Speaker 00: Oh, exactly, your honor. [00:05:10] Speaker 00: I mean, that was one of the points we made in our briefing. [00:05:12] Speaker 00: I totally agree. [00:05:13] Speaker 00: The fact that them saying rehabilitation, it's unclear how rehabilitation could be triggered sending to inroads, but not any not to the New Yorker. [00:05:21] Speaker 04: And it's unclear how any of the other justifications would withstand negative publicity as well. [00:05:26] Speaker 00: I mean, I think this is I think your point, the point I was trying to make on top of that point, your honor, which is I think you read one keys, Superintendent Keys letter. [00:05:35] Speaker 00: as a blanket ban, it's unclear why negative publicity wouldn't apply to any magazine. [00:05:40] Speaker 00: And again, then you plainly fail the second prong of Martinez. [00:05:44] Speaker 00: And I think any reasonable officer would know, again, when we get to the qualified immunity analysis, that you can't have a blanket ban on speech when Martinez requires the restriction to be no greater than necessary. [00:05:57] Speaker 03: Go ahead, Judge McEwen. [00:05:58] Speaker 01: Yeah. [00:06:01] Speaker 01: I don't know if inroads actually is distributed to the prison. [00:06:05] Speaker 01: In other words, if it's sent back, but would you agree that even if we take your point that they couldn't censor the outgoing mail and it could be published by inroads, that if the inroads publication came back to the prison, that they then would be able to impose certain restrictions? [00:06:29] Speaker 00: I agree, your honor. [00:06:30] Speaker 00: I do think that's a different inquiry. [00:06:31] Speaker 00: I think then Turner would apply. [00:06:32] Speaker 00: This doesn't involve the third party interest, First Amendment interest that Martinez discusses. [00:06:38] Speaker 00: So if there was a restriction on, let's say Mr. Groening did get his work published in inroads and the prison did not want it to come back into its prison and be circulated, that restriction would be [00:06:50] Speaker 00: analyze under Turner. [00:06:51] Speaker 04: Now frankly, I think that would fail under Turner as well because... Isn't it true that if it is published in En-ROADS, he's entitled to get a couple of copies himself? [00:07:00] Speaker 04: So that is to say it would come back into the prison? [00:07:03] Speaker 00: Yes, Your Honor, but that's not the policy restriction that we're claiming violates the Constitution. [00:07:07] Speaker 04: Well, I'm just talking as a factual matter. [00:07:08] Speaker 04: It will come back into the prison. [00:07:10] Speaker 00: Yes, Your Honor, I believe there's actually a question of sometimes they get the copies and sometimes they don't. [00:07:15] Speaker 00: I think there's a record question there. [00:07:16] Speaker 00: But again, the defendants can see on page two of their brief that this content would actually not violate any internal [00:07:25] Speaker 00: prison rules as well, which I think goes to the fact that there is not a legitimate interest involved when it wouldn't violate the prison's own internal policies. [00:07:34] Speaker 03: So, Council, to me, it seems like you're ignoring the fact that this is all part of a prison program, rehabilitation program. [00:07:39] Speaker 03: It's a writing program designed to help them get reintegrated into society. [00:07:44] Speaker 03: And so, I mean, for a number of reasons, that makes this distinguishable for Martinez and, you know, [00:07:52] Speaker 03: Primarily, number one, you're saying that it's not in the record that it's a rehabilitative purpose that they restricted it, but saying that it doesn't comply with the writing guidelines of the magazine is a rehabilitative purpose. [00:08:06] Speaker 03: If they're trying to train prisoners how to comply with instructions and things of that nature by saying it doesn't comply and rejecting it for that reason, that is a rehabilitative purpose. [00:08:18] Speaker 00: So a couple of responses, Your Honor. [00:08:20] Speaker 00: So number one, again, just because it's part of a volunteer program does not mean that it doesn't have to adhere to Martinez. [00:08:28] Speaker 00: That's just an unconstitutional condition, right? [00:08:30] Speaker 03: Well, it's not a pure free speech argument. [00:08:34] Speaker 03: It is a part of a structured program that the prison is allowed to administer as it wants. [00:08:38] Speaker 00: I agree, Your Honor. [00:08:40] Speaker 00: I think that goes more to the interest prong of Martinez. [00:08:42] Speaker 00: There's a question of [00:08:43] Speaker 00: Is this outgoing speech? [00:08:45] Speaker 00: And again, everyone agrees that it is. [00:08:47] Speaker 00: The defendants concede in their brief that there is no control once it leaves the prison. [00:08:52] Speaker 00: The district court said this is ER 13. [00:08:54] Speaker 00: In fact, the defendants apply Martinez in page 46 and 47 of their brief. [00:09:00] Speaker 00: So I don't think there's any argument that we are applying Martinez here. [00:09:04] Speaker 00: And so then once we're applying Martinez, [00:09:07] Speaker 00: The standard is substantial interest, no greater than necessary to serve that interest. [00:09:12] Speaker 00: And the policy here, which again, it's still unclear what the actual policy is. [00:09:17] Speaker 00: It appears on appeal for the first time they're claiming that it is Ms. [00:09:20] Speaker 00: Weiss's unbridled discretion to block anything leaving the volunteer program. [00:09:26] Speaker 03: Well, I mean, it seems plausible that a prison administrator can decide when something meets the prison program's guidelines. [00:09:35] Speaker 03: I mean, are we supposed to administer that? [00:09:38] Speaker 00: I mean, under Martinez, if it is speech leaving the prison, it is heightened scrutiny. [00:09:44] Speaker 03: That's why I don't think this is Martinez. [00:09:45] Speaker 03: I mean, a prison can administer a program, right? [00:09:50] Speaker 03: Say that the magazine is about elephants, right? [00:09:54] Speaker 03: And you're supposed to write about elephants. [00:09:56] Speaker 03: And if he wrote about aardvarks, couldn't the prison program say, this is noncompliant with the program, and so therefore I'm not sending it out? [00:10:05] Speaker 00: No, Your Honor, I don't think, if it is about, we would have to look at, the first question is, is this Martinez? [00:10:13] Speaker 00: Is this speech leaving the prison? [00:10:14] Speaker 03: Well, just answer my question. [00:10:15] Speaker 03: I don't think so, I'm not sure what the... So you're saying that if the prison program magazine is about elephants, that the prison has, he has a First Amendment right to send an article about aardvarks to a magazine about elephants. [00:10:29] Speaker 00: Yes, Your Honor. [00:10:32] Speaker 00: I'm not sure what the government interests would be. [00:10:34] Speaker 03: Then it's just totally defeating the rehabilitative purpose of the program. [00:10:38] Speaker 03: If the program is about writing, complying, and reintegrating into society, if he's not following the rules, then he's not... [00:10:45] Speaker 03: you know, fulfilling the purpose of the program. [00:10:47] Speaker 00: But I think that's getting the inquiry mixed up. [00:10:49] Speaker 00: The first question is whether it's Martinez. [00:10:50] Speaker 00: So if we're talking about Martinez, then we have to analyze it under this court's long-standing precedent on that case, which is substantial interest and no greater than necessary. [00:11:00] Speaker 00: So I think, yes, there might be a situation where the interest goes down because it was a part of a volunteer program, which I think is getting to your point. [00:11:09] Speaker 00: And I agree that the interest might be changed. [00:11:13] Speaker 00: because it was in a program but that doesn't mean it's not outgoing speech and that the important part that martinez made clear was it's triggering first amendment interest of a third party that is that is the important first amendment interest they actually said [00:11:26] Speaker 00: Yes, of course, the prisoner has First Amendment interests, but the interest that we are concerned about, the reason it's triggering heightened scrutiny is actually because of the third party interest that the outgoing speech is being sent to. [00:11:39] Speaker 00: Whose interest are you? [00:11:41] Speaker 00: The magazine's interest? [00:11:43] Speaker 00: Again, it would be any person that you are sending speech to. [00:11:49] Speaker 00: So in this case, it might be Claire Wilson, the editor of Inroads. [00:11:52] Speaker 00: You're trying to vindicate Inroads magazine's First Amendment interest? [00:11:55] Speaker 00: That is part of it. [00:11:56] Speaker 00: It's both. [00:11:59] Speaker 00: It is both. [00:12:01] Speaker 00: I think the Martinez is very clear about that. [00:12:03] Speaker 03: Well, first of all, if that's true, then the prison didn't stop Inroads. [00:12:06] Speaker 03: I mean, it has no authority over Inroads magazine. [00:12:10] Speaker 00: Yes, your honor. [00:12:11] Speaker 00: The question is, can they screen? [00:12:14] Speaker 00: And they didn't. [00:12:16] Speaker 04: Can I interject a question? [00:12:18] Speaker 01: Because your time is running out. [00:12:21] Speaker 04: Yeah, your time is running out. [00:12:22] Speaker 04: I'd like to ask a question. [00:12:23] Speaker 04: My colleague suggested that this would be inappropriate in the magazine because of its sexual reference. [00:12:30] Speaker 04: My understanding is that the magazine Inroads actually does publish things with sexual references and that this would not necessarily be inconsistent with that. [00:12:40] Speaker 04: Is that correct? [00:12:40] Speaker 00: Yes, your honor. [00:12:42] Speaker 00: I think the argument that, again, I don't think we even need to reach that because I don't think that's the reason was in the record. [00:12:48] Speaker 00: But if we reach the question of was this a children's magazine and what kind of stories were published, I think this is the exact opposite of a children's magazine. [00:12:56] Speaker 00: There was stories about rape. [00:12:58] Speaker 00: There's a parental advisory notification. [00:12:59] Speaker 01: So it appears that this is what it even would it even matter, though, because the right is really the prisoner for the outgoing male. [00:13:07] Speaker 01: And inroads could decide yes or no will publish. [00:13:10] Speaker 00: Yeah, sure. [00:13:11] Speaker 00: Yes, your honor. [00:13:12] Speaker 00: The question is, is at the time of screening, and again, I think the policy is on the books, getting back to Judge Bumente's point, it's the question of what is the prison blocking from leaving? [00:13:21] Speaker 00: What happens later is not part of the inquiry. [00:13:24] Speaker 00: So I just want to make that point clear. [00:13:25] Speaker 00: I'll reserve the remainder of my time for a little bit. [00:13:27] Speaker 00: Just before we get to either more questions. [00:13:28] Speaker 03: We'll give you more time if you need. [00:13:29] Speaker 03: Go ahead. [00:13:30] Speaker 01: I just have one question, and I know you'll get a little bit extra time. [00:13:34] Speaker 01: What is the clearly established right vis-a-vis the qualified immunity question? [00:13:40] Speaker 00: Uh, your honor, so I think it's Martinez and I think for all the all the reasons that I said, uh, and I can, I can talk a bit more about it again. [00:13:47] Speaker 00: I want to make one just procedural point on that. [00:13:49] Speaker 00: That again, only goes to, uh, the damages claim for, uh, the censorship issue. [00:13:55] Speaker 00: We, even if we lose on qualified immunity, we still have injunctive and declaratory relief and they don't make a qualified immunity argument as to, uh, retaliation. [00:14:03] Speaker 03: Any more questions? [00:14:04] Speaker 03: Okay. [00:14:05] Speaker 03: Thank you. [00:14:20] Speaker 02: Good morning. [00:14:21] Speaker 02: May it please the court. [00:14:22] Speaker 02: Assistant Attorney General Michelle Young on behalf of the defendants here. [00:14:25] Speaker 02: This case is not about censorship and retaliation. [00:14:29] Speaker 02: It's about safety and rehabilitation. [00:14:32] Speaker 02: The Department of Corrections does not prevent inmates from complaining about or reporting anyone or anything to people or entities outside the prison. [00:14:42] Speaker 02: But when the department permits a voluntary rehabilitative program to be held inside its prison, it has the authority to impose regulations needed to keep people safe, the institution secure, and participants progressing toward rehabilitation. [00:14:57] Speaker 04: Assuming that rehabilitation and safety are justifications that had been advanced at a time when we can now consider them, how does this make this prison unsafe? [00:15:11] Speaker 02: There are two different issues here. [00:15:13] Speaker 02: The first is the screening of Mr. Grunning's short story in the sexual content. [00:15:18] Speaker 02: That goes to the rehabilitative purposes. [00:15:21] Speaker 04: I asked how does it make it unsafe? [00:15:23] Speaker 02: The safety issue goes to his contacting Claire Wilson, who was a student volunteer, and there is a serious, important government interest in preventing [00:15:34] Speaker 02: volunteers and inmates from developing improper relationships. [00:15:39] Speaker 04: Wait a minute. [00:15:40] Speaker 04: Where'd that come from? [00:15:41] Speaker 04: I think we're talking about two sentences in a story. [00:15:45] Speaker 02: No, this is... [00:15:48] Speaker 02: Mr. Grenning, Superintendent Key's letter to Mr. Grenning was in response to Mr. Grenning violating the policy and writing directly to a student volunteer. [00:15:59] Speaker 02: That was prohibited. [00:16:00] Speaker 02: It had nothing to do with the contract. [00:16:01] Speaker 04: That is to say, when you say writing to the volunteer, when he sent the story to inroads, what you're referring to, did he do it in person or did he just send it? [00:16:09] Speaker 02: He sent it through the mail. [00:16:11] Speaker 04: That's correct. [00:16:12] Speaker 04: So it wasn't as though he had physical contact with this person. [00:16:14] Speaker 04: He just sent it through the mail. [00:16:16] Speaker 02: Right. [00:16:16] Speaker 02: Okay. [00:16:16] Speaker 02: That's prohibited. [00:16:18] Speaker 04: And why is that then a safety proposition that he sends something through the mail? [00:16:23] Speaker 02: So the safety proposition is that he's developing, he potentially could be developing an improper relationship with with Ms. [00:16:29] Speaker 02: Wilson. [00:16:30] Speaker 02: The volunteer policy. [00:16:31] Speaker 02: And was there anything? [00:16:32] Speaker 02: Where does it say that? [00:16:33] Speaker 02: Where in the record do we look on that? [00:16:35] Speaker 01: Uh, about, I'm sorry, what part of that are about the policy or about, so superintendent, the implications of the policy that judge Fletcher was discussing about what you just said, there would be a potential improper relationship. [00:16:51] Speaker 01: Where is that articulated? [00:16:52] Speaker 02: Okay. [00:16:54] Speaker 02: So that is in the volunteer policy, which is, uh, in the record, um, [00:17:02] Speaker 02: And I'll hold on just a second. [00:17:04] Speaker 02: I'll get you that reference. [00:17:04] Speaker 02: And then it's also in the volunteer handbook, which is also in the record. [00:17:09] Speaker 02: This is in Superintendent Key's letter, ER 113, which specifically talks about that it was that this letter is in response to Greening and Superintendent Key is very concerned about the fact that Mr. Greening had written directly to a volunteer. [00:17:25] Speaker 02: which is prohibited. [00:17:26] Speaker 03: I did see that in the record. [00:17:27] Speaker 03: The one thing, though, it was on the volunteer side. [00:17:30] Speaker 03: There was nothing in the record that shows that prisoners are prevented from contacting volunteers. [00:17:37] Speaker 03: Is there any? [00:17:38] Speaker 02: We don't have that in the record. [00:17:41] Speaker 02: I think there is a policy, but it wasn't in the record because that wasn't an argument that was made below. [00:17:45] Speaker 04: And you want to put it in the record and make the argument now? [00:17:49] Speaker 02: No, we're basing it on the policy that is in the record. [00:17:52] Speaker 02: We're basing it on the volunteer handbook. [00:17:55] Speaker 02: We're basing it on the syllabus, which tells inmate participants that they are not allowed, that they cannot contact the volunteers. [00:18:03] Speaker 02: If they have any questions, they need to be asked in class, that they're not to be asking them outside. [00:18:10] Speaker 04: What we do have in the records, they're not supposed to contact volunteers. [00:18:13] Speaker 02: We have that in the context of this class. [00:18:16] Speaker 04: Can you point me to the language that's in the record? [00:18:20] Speaker 02: It's in the syllabus. [00:18:21] Speaker 04: No, I'm asking you. [00:18:22] Speaker 04: Where is the language? [00:18:23] Speaker 04: I'd like to read it. [00:18:25] Speaker 02: So the language is in the syllabus. [00:18:26] Speaker 04: I know. [00:18:26] Speaker 04: What is the language? [00:18:28] Speaker 02: What record reference? [00:18:30] Speaker 03: He's asking for like an ER site. [00:18:31] Speaker 02: The ER is ER 101 through 103, and the reference says, if you have any questions, be sure to ask them in class. [00:18:38] Speaker 02: We can't answer any questions outside of the class context. [00:18:42] Speaker 01: Well, that's really not this case. [00:18:44] Speaker 01: And I mean, I go back to Ms. [00:18:46] Speaker 01: Wise's paper, this little yellow piece of paper. [00:18:51] Speaker 01: And initially, she says, due to the sexual content, this writing submission is inappropriate for publication in inroads that violates [00:19:01] Speaker 01: That includes distribution to miners, right? [00:19:04] Speaker 02: So we've got we've got two issues. [00:19:06] Speaker 02: We've got. [00:19:07] Speaker 01: Let me ask my question if I might. [00:19:10] Speaker 01: So going back to that first issue, and I understand there's that issue plus the other that you've pointed out, but going back to that issue. [00:19:19] Speaker 01: In effect, Ms. [00:19:21] Speaker 01: Wise is deciding in advance that this is not appropriate for publication inroads, which is not really her role, but she's kind of acknowledging that this is outgoing mail to inroads. [00:19:33] Speaker 01: So it seems to me that she's really directly invoking Martinez and then putting herself in the position of being an editor at inroads, isn't she? [00:19:44] Speaker 02: So we have the record is is barely clear. [00:19:49] Speaker 02: It's implicit, but it's clear that every that inroads that Claire Wilson and inroads were on the same page with respect to the standard here. [00:19:58] Speaker 02: So we have. [00:19:58] Speaker 02: ER 123. [00:20:00] Speaker 01: No, but that's not the point. [00:20:01] Speaker 01: We don't even know if it met the standard or not. [00:20:04] Speaker 01: It's not the prison's decision on the outgoing mail. [00:20:07] Speaker 01: It's inroads. [00:20:08] Speaker 01: And it may or may not be published, right? [00:20:10] Speaker 02: Right. [00:20:10] Speaker 02: So the screening requirement, there was a standard that was imposed in this class, in the context of a class. [00:20:17] Speaker 02: This is not a prison-wide policy. [00:20:19] Speaker 02: It's in the context of a single class. [00:20:21] Speaker 02: And in this class, [00:20:23] Speaker 02: The standard was no sexual content. [00:20:25] Speaker 03: And we know that from the publication. [00:20:30] Speaker 02: Because inmates, we're trying to make them better neighbors when they get out. [00:20:35] Speaker 02: They need to understand boundaries. [00:20:37] Speaker 02: They need to understand compliance with procedures and with standards. [00:20:41] Speaker 02: And in this case, Mr. Grinning did not comply with that. [00:20:45] Speaker 03: So so you're suggesting because it's in a prison program there's heightened standards because they're trying to train heightened like mores or rules for society. [00:20:55] Speaker 02: Right. [00:20:56] Speaker 02: So right. [00:20:57] Speaker 02: So the Department of Corrections doesn't have any interest in making their inmates better creative writers. [00:21:02] Speaker 04: You just said that there was a. [00:21:04] Speaker 04: policy that there's no sexual content for any of the writings, irrespective of whether it's sent out. [00:21:10] Speaker 04: Where do you find that? [00:21:11] Speaker 02: Just in the context of this class and we know that. [00:21:14] Speaker 04: So what's the basis for that statement that you just made? [00:21:17] Speaker 02: The basis of the statement is that we've got the publication agreement, which is year 106. [00:21:22] Speaker 04: We've got Claire's... I'm not talking about publication for the moment. [00:21:25] Speaker 04: I'm asking because I heard you say, maybe I misheard you, but I heard you say it was inappropriate to write anything in this class that had sexual content. [00:21:34] Speaker 04: Is that what you said? [00:21:35] Speaker 02: They could write it, but they couldn't discuss it, and it was not to go to inroads. [00:21:40] Speaker 04: So they couldn't discuss it in the class? [00:21:42] Speaker 02: Exactly. [00:21:43] Speaker 04: And so where's that policy status? [00:21:44] Speaker 02: That is in ER 120. [00:21:47] Speaker 04: And could you read me the policy? [00:21:48] Speaker 02: One through 122. [00:21:49] Speaker 04: Could you read me the policy? [00:21:51] Speaker 02: policy, it is an email from Ms. [00:21:54] Speaker 02: Weiss to Claire clarifying the standards, the behavioral standards. [00:21:59] Speaker 04: That's in respect to this case. [00:22:04] Speaker 04: You have to be talking about a pre-established policy. [00:22:06] Speaker 04: Is there any pre-established policy? [00:22:08] Speaker 02: It wasn't pre-established with respect to this class. [00:22:12] Speaker 04: And where was it pre-established? [00:22:14] Speaker 02: The email was sent before this litigation. [00:22:18] Speaker 04: And read me the email? [00:22:20] Speaker 02: I'm sorry, what was that? [00:22:20] Speaker 04: Could you read it to me? [00:22:22] Speaker 02: Yes. [00:22:23] Speaker 02: Ms. [00:22:24] Speaker 02: Wise is clarifying that there's to be no, I think she says no violence. [00:22:30] Speaker 04: You're not reading it to me. [00:22:32] Speaker 02: I don't have it memorized. [00:22:33] Speaker 04: Oh, and you don't have it in front of you? [00:22:35] Speaker 02: I don't, I have the site. [00:22:38] Speaker 04: I can find it, okay. [00:22:39] Speaker 02: Okay, thank you, I'm sorry. [00:22:44] Speaker 02: Here we've got a prison class that involves an educational program, voluntary. [00:22:51] Speaker 02: And so the prison situation here, this is not a blanket policy. [00:22:59] Speaker 02: This is not a blanket outgoing mail restriction. [00:23:03] Speaker 02: Grenning could have submitted his story to literally any other publisher in the world. [00:23:08] Speaker 02: He had that opportunity. [00:23:10] Speaker 02: He sent it to one of the few people he was not allowed to [00:23:14] Speaker 02: right to, and it had nothing to do with his story at that point. [00:23:19] Speaker 02: Superintendent Key was very concerned about the fact that he had written to a program volunteer, a student. [00:23:26] Speaker 02: And the prison policy restricts the interaction because of the reason of the potential for development of an inappropriate relationship, which jeopardizes institutional security, volunteer safety. [00:23:45] Speaker 03: So the one problem with that is that that was not articulated by the warden. [00:23:53] Speaker 03: at the time? [00:23:54] Speaker 03: So what are we supposed to do with that? [00:23:56] Speaker 02: Well, he does link his concern directly to Greening's contact of the volunteer. [00:24:04] Speaker 02: So we know that. [00:24:06] Speaker 02: The language, I do have that language. [00:24:08] Speaker 03: I don't recall that. [00:24:09] Speaker 02: Yeah, so I do have that language. [00:24:12] Speaker 02: In that language, [00:24:15] Speaker 02: Superintendent Keyes says, you stated in your letter that you had to send your story directly to the university. [00:24:23] Speaker 02: This causes me concern as you have bypassed our processes. [00:24:27] Speaker 02: Policy does not allow for volunteers to accept any correspondence without prior approval. [00:24:32] Speaker 02: If you send any correspondence directly to a volunteer again without prior approval, you will not be allowed to participate in this volunteer program. [00:24:39] Speaker 03: So he directly cites the safety [00:24:41] Speaker 02: Right. [00:24:42] Speaker 02: He makes that a direct link. [00:24:45] Speaker 03: But the other reason he cites was the reputational harm, and you are not defending that on appeal, correct? [00:24:50] Speaker 02: No. [00:24:50] Speaker 02: And he actually says that's Wise's job. [00:24:54] Speaker 02: He's trying to explain to Grenning what Wise's role is. [00:24:57] Speaker 02: Now, we know that Wise had a lot greater role than that because we have her job description. [00:25:03] Speaker 02: But we also know that Wise did not restrict it based on, she did not reject it based on negative publicity. [00:25:11] Speaker 02: She based it on the sexual content, which is aligned with all these other things that we have coming in and going out from inroads. [00:25:18] Speaker 02: And so Mr. Superintendent Key did make that statement, but it was only in the context of this one class. [00:25:28] Speaker 01: How do you square that then with the record [00:25:32] Speaker 01: which documents inroads, publishes on more than one occasion, a number of stories or submissions that have sexual content. [00:25:42] Speaker 02: So the publication agreement says that mature themes in adult language are usually okay, but that explicit content is not. [00:25:51] Speaker 02: And we would say that here we've got explicit content in that it's a description of a sex act, whereas talking about a rape or talking to somebody who's been a victim of a rape is a mature theme. [00:26:03] Speaker 02: not explicit content and inroads felt the university felt strongly enough about this proposition that they made all the authors sign the acknowledgement accepting the fact that explicit content was not appropriate for their for their their population their audience and so [00:26:22] Speaker 01: So isn't that a decision, ultimately, to be made by inroads? [00:26:27] Speaker 01: I mean, the story can go out, and it either does or doesn't meet those criteria. [00:26:32] Speaker 01: Isn't that an inroads determination? [00:26:35] Speaker 02: So this is not wise making the determination. [00:26:39] Speaker 02: This is wise input. [00:26:40] Speaker 02: So the standard set. [00:26:43] Speaker 01: But my question, maybe it's a yes or no question, and then you have an explanation. [00:26:48] Speaker 01: But isn't, ultimately, the decision as to whether or not [00:26:52] Speaker 01: a submission meets the inroads criteria, isn't that a decision to be made by inroads? [00:26:59] Speaker 02: Yes, but with respect to whether or not an inmate is violating the standard, that is a rehabilitative purpose that the Department of Corrections is screening for. [00:27:09] Speaker 02: So it's not about WISE deciding what's going to be in inroads. [00:27:13] Speaker 02: It's about WISE saying, this is the standard that we set. [00:27:16] Speaker 02: We told you no [00:27:18] Speaker 02: explicit content. [00:27:19] Speaker 02: You included it, so it's coming back to you. [00:27:22] Speaker 02: She didn't prevent it from going out at all. [00:27:24] Speaker 02: It still went out. [00:27:25] Speaker 04: What if he had sent it out to some other publication? [00:27:28] Speaker 04: It would have been fine. [00:27:30] Speaker 04: It would have been fine. [00:27:31] Speaker 04: So he could send it any place, any publication except in Rhodes. [00:27:35] Speaker 01: He could send it to Playboy, for example. [00:27:38] Speaker 01: I'm sorry, what was that? [00:27:39] Speaker 02: He could send it to Playboy. [00:27:41] Speaker 02: He could have sent it to Highlights magazine. [00:27:45] Speaker 02: But the issue here is this is a class. [00:27:50] Speaker 02: The department has a rehabilitative interest in the class. [00:27:52] Speaker 02: That's the reason they allow it to be held inside the prison, which is a security risk. [00:27:58] Speaker 02: So they were trying to teach Mr. Groening boundaries and compliance with standards. [00:28:03] Speaker 04: And in talking about the rehabilitative process because it's in the prison, tell me again whether or not it was inappropriate for him to have written this. [00:28:13] Speaker 04: I'm not yet talking about sending it out. [00:28:16] Speaker 04: Was this inappropriate for him to have written this in the class? [00:28:21] Speaker 02: No, I don't think so. [00:28:22] Speaker 04: So this is okay to write. [00:28:25] Speaker 04: The only problem is that he wanted to send it to this magazine. [00:28:29] Speaker 02: And it didn't comply with the program standards. [00:28:33] Speaker 01: But if the program standards are talking about rehabilitation, how can he write it in the first place? [00:28:40] Speaker 01: What gives him the leeway to do that? [00:28:43] Speaker 02: Well, because he has the leeway to write whatever he wants to. [00:28:47] Speaker 02: The question is whether or not it's appropriate for the class, right? [00:28:51] Speaker 02: So if I'm an instructor in a class and I tell my students to write about a certain thing and I tell them to exclude this content, they can write whatever they want to, but I'm not going to accept it for credit. [00:29:01] Speaker 02: And here we've got the screening process. [00:29:04] Speaker 02: Mr. Grinning circumvented that. [00:29:06] Speaker 02: Mr. Grinning included content. [00:29:08] Speaker 02: and so miss wise returned it to him now he sent it out it went to the mail room it was not kelton comes okay uh... your colleague on the other side said that uh... this three rehabilitative purpose was not presented below do you agree with that world the rehabilitative purpose yes yet well and you have to remember that we're dealing with uh... uh... uh... narrow record below because the inmate didn't make a lot of the same arguments that that they're making now policy so uh... to the extent that that the uh... [00:29:38] Speaker 02: I believe that we did make the argument below that there was this rehabilitative purpose and that there was an important interest in establishing boundaries and compliance with regulations. [00:29:47] Speaker 02: And I believe that that was made in our argument below. [00:29:49] Speaker 02: But like I said, we were kind of dealing with [00:29:52] Speaker 02: You know, it's a little bit, it's a little bit iffy because our record below is so narrow and we haven't complained about the fact that they've expanded their arguments. [00:30:00] Speaker 02: We think that that's inherent in appointing counsel. [00:30:03] Speaker 01: But could you, would you also just for our benefit, submit a 28 J letter as to where below this rehabilitative standard was put forth? [00:30:15] Speaker 02: It would have been in the motion for summary judgment. [00:30:17] Speaker 01: No, no, I meant if you would submit a 28 J letter and then it gives you a little time to look up the specific record site, that would be useful. [00:30:25] Speaker 02: That would be I would be happy to do that. [00:30:27] Speaker 03: Thank you. [00:30:28] Speaker 03: Thank you, counsel. [00:30:29] Speaker 02: Thank you very much. [00:30:31] Speaker 03: We took you over. [00:30:31] Speaker 03: We'll give you three minutes, please. [00:30:37] Speaker 00: Your honor, just on the rehabilitation point, I will say I think they did generally refer to rehabilitation one of the filings below. [00:30:42] Speaker 00: I was more making the point it was not in the record as to the actual, not a waiver point and more a point that it was not in the record for the justifications given by the prison in advance. [00:30:51] Speaker 00: I'm not, she can still submit the 20-J, but I wanted to clarify. [00:30:54] Speaker 00: Thank you. [00:30:54] Speaker 00: That's helpful. [00:30:55] Speaker 00: That's helpful. [00:30:56] Speaker 00: On the Claire Wilson discussion, I just want to make two points. [00:31:00] Speaker 00: One, I don't think it's clear in the record that she is actually a volunteer. [00:31:03] Speaker 00: I believe in ER 172, Mr. 174. [00:31:09] Speaker 00: Mr. Grenning claims she was not a volunteer, but I think, and so I'm not, she might have, she had some oversight capacity, but I'm not sure if she was an on the ground volunteer. [00:31:17] Speaker 00: At least that was not made clear in the record. [00:31:19] Speaker 00: But two, I think that's an opposite. [00:31:21] Speaker 00: So I think everyone agrees that these prisoners can submit [00:31:25] Speaker 00: Publications to inroads they were provided the publication agreement on ER 106 and it directly provides Claire Wilson as the name and the person for who they're supposed to submit them to so I I'm not sure how that's a violation of any policy. [00:31:39] Speaker 00: Either she was about she was not a volunteer and wouldn't have applied or she was a volunteer and she plainly was exempted from that policy so whatever that is I don't. [00:31:47] Speaker 04: Yeah, she's identified as WITC student director. [00:31:50] Speaker 04: Now, that means she's a director of students or maybe she's a student who's a director. [00:31:54] Speaker 04: I don't know. [00:31:54] Speaker 00: Yes, I agree, Your Honor. [00:31:56] Speaker 00: I'm not sure that's clear in the record. [00:31:58] Speaker 00: And again, on ER 106, they're directed to submit any questions, inquiries, and I believe the publications themselves to her. [00:32:05] Speaker 00: So she would be exempted from that. [00:32:07] Speaker 00: The other point, back to Judge Bumate's question, I just want to make clear. [00:32:12] Speaker 00: I agree that if this was Airway Heights Correctional Facility, [00:32:16] Speaker 00: paper that it would be it would be a different inquiry entirely. [00:32:19] Speaker 00: But again, no one disagrees that this is outgoing speech. [00:32:23] Speaker 00: And so then we have a different there's a different standard that we're applying. [00:32:27] Speaker 03: So I agree with that. [00:32:28] Speaker 03: My my distinction is really that it's part of a program, a rehabilitative program. [00:32:32] Speaker 03: And that gives them a little more leeway in that respect. [00:32:36] Speaker 00: So I agree. [00:32:36] Speaker 00: I just you know, I don't think it can be the case that I think then it just becomes the unconstitutional condition question, which is if you sign up for our this program, [00:32:45] Speaker 00: and you want to send out anything, any speech, we can block you for any reason. [00:32:54] Speaker 00: Yes. [00:32:55] Speaker 00: Well, again, but your honor, these are just sort of somewhat distinct entities. [00:32:59] Speaker 00: And this goes to the Martinez question. [00:33:01] Speaker 00: No one disagrees that this is a third party. [00:33:03] Speaker 00: So we are we are applying Martinez. [00:33:06] Speaker 00: They've conceded that. [00:33:07] Speaker 00: And so I think I think that's true. [00:33:11] Speaker 00: So I think we're mixing around. [00:33:13] Speaker 04: I think they've conceded as a third party. [00:33:15] Speaker 04: I don't think they've conceded. [00:33:16] Speaker 04: It's Martinez. [00:33:18] Speaker 00: Yes, Your Honor. [00:33:19] Speaker 00: Well, I think Martinez answers that question. [00:33:22] Speaker 00: And then lastly, Your Honor, this question of the policy that was being discussed, again, I don't think they've ever pointed to a specific policy. [00:33:30] Speaker 00: I think that is still unclear in the record, and I think that certainly helps, certainly at least in the as applied challenge. [00:33:37] Speaker 00: And then lastly, Your Honor, if this court has any concern, I would point them back to Barrett v. Bellac, where this court remanded at least for the district court to consider Martinez in the first instance, where they had only made Turner arguments below. [00:33:48] Speaker 03: Thank you, counsel. [00:33:49] Speaker 03: Thank you. [00:33:50] Speaker 03: And thank you for your pro bono representation here. [00:33:52] Speaker 03: Both sides did a fine job.