ACLU Settles Lawsuit Challenging Censorship Policies in Colorado Prisons

Affiliate: ACLU of Colorado
November 30, 2004 12:00 am

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DENVER–The American Civil Liberties Union of Colorado announced today that it has settled its lawsuit challenging the state’s broad censorship of books, newspapers, magazines, and political commentary available to prisoners.

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

The lawsuit, which was filed by the ACLU on behalf of a publisher’s association, eight publishers and seven prisoners, charged that the Department of Correction’s criteria for screening books and periodicals were overly broad, subjective, and unconstitutionally vague. The lawsuit also challenged the procedures employed by the department to determine whether an incoming book or magazine would be withheld from a prisoner.

“The DOC’s flawed criteria and procedures produced an arbitrary, erratic, inconsistent and irrational regime of censorship that repeatedly violated the constitutional rights of publishers as well as prisoners,” said ACLU of Colorado Legal Director Mark Silverstein.

In its legal complaint, the ACLU said the list of reading material unjustifiably banned political commentary from both the left and right; religious periodicals and music magazines; critiques of the criminal justice system; publications that advocate for prisoners’ rights; a report issued by the European parliament; David Mamet’s play, The Spanish Prisoner; Laura Esquivel’s novel, Like Water for Chocolate; and a book criticizing hate groups by Morris Dees, Director of the Southern Poverty Law Center.

The ACLU also charged that music magazines catering to an African American audience, such as Vibe and The Source, were particularly likely to be censored as “gang-related” and censored by prison officials.

According to the ACLU, the settlement will produce substantial improvements to the standards and practices used in censoring publications.

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

Under the settlement, the Department of Corrections is required to replace Administrative Regulation 300-26 – which spells out procedures and standards for censorship – with a new version negotiated by the publishers, the prisoners and state officials. Federal district court Judge Phillip Figa approved the revised regulation in August and the Department of Corrections formally adopted the new version of AR 300-26 last month. State officials are not allowed to make any substantial changes to the new regulation without the consent of the ACLU for a two-year period and individual facilities are not allowed to adopt censorship procedures that are broader in scope than AR 300-26.

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

“Individuals who have violated the law still have a First Amendment right to read and obtain access to ideas and information,” said Gwen Young, an ACLU volunteer attorney who served as co-counsel in the case. “Publishers also have a First Amendment right to reach their audience, including prisoners, and the DOC must apply fair procedures before it decides that a particular magazine or book poses a danger.”

In addition to the regulation changes and the new training and monitoring requirements, the settlement also:

  • Streamlines the procedure for review of censorship decisions by establishing a single Central Reading Committee that will hear appeals of censorship decisions made at all correctional facilities;
  • Simplifies the procedures for prisoners who wish to challenge censorship in court through a one-step appeal to the Central Reading Committee;
  • Requires officials to notify publishers of a censorship decision and provides an opportunity for them to appeal those decisions;
  • Requires the Department of Corrections to identify specifically each publication it withholds and to provide a meaningful description of the reasons for withholding, including identifying the portions it believes are objectionable and how those portions violate the specific criteria for censorship listed in the new regulation;
  • Provides that if four or fewer pages of a publication are deemed objectionable, then it will be delivered to the prisoner with those pages removed, instead of withholding the entire publication;
  • Specifies time limits for each step of the censorship process, from receipt by the mailroom to the ultimate decision by the warden, and appeal from there;
  • Requires that each member of a prison’s Reading Committee conduct an independent review of each publication submitted for decision;
  • Requires wardens or their immediate subordinates to review independently the portions of any publication that a Reading Committee concludes is a basis for censorship, and requires them to sign off on any decision to withhold reading material;
  • Provides that the Department of Corrections must preserve all censored publications during the entire appeals process, so that they are available to the persons hearing the appeal, and for several years afterwards if a challenge to the censorship is filed in court;
  • Ensures that the settlement agreement applies to private prisons in Colorado that house Colorado prisoners.

The Settlement Agreement, the new Administrative Regulation, and additional documents related to this case are available on the ACLU of Colorado website at:

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