Ann Beeson
ACLU Technology & Liberty Program
125 Broad Street, 18th Floor
New York, NY 10004
(212) 549-2601
(212) 549-2651 (fax)
Admission pro hac vice pending

Alice L. Bendheim #003376
Alice L. Bendheim, P.C.
3626 E. Coolidge Street
Phoenix, AZ 85018
602-241-9555

Pamela K. Sutherland #019606
Arizona Civil Liberties Foundation
77 E. Columbus, #205
Phoenix, AZ 85012
602-650-1854

UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA

PRELIMINARY STATEMENT

1. This action is brought pursuant to 42 U.S.C. § 1983 and the First and Fourteenth Amendments to the United States Constitution. Plaintiffs are advocacy organizations who seek to enjoin the enforcement of Arizona's House Bill 2376, which criminalizes communication between plaintiffs and Arizona state prisoners, and punishes prisoners if information about them appears on plaintiffs' websites. Plaintiffs allege that this legislation, on its face and as applied, violates their rights guaranteed by the First and Fourteenth Amendments.

JURISDICTION

2. This Court has subject matter jurisdiction of this action pursuant to 28 U.S.C. § 1331 because this action arises under the Constitution and laws of the United States, and pursuant to 28 U.S.C. § 1343(a)(3) because this action seeks to redress the deprivation, under color of state law, of plaintiffs' civil rights.
3. This Court has jurisdiction to grant declaratory relief pursuant to 28 U.S.C. §§ 2201 and 2202, and Fed. R. Civ. P. 57.
4. This Court has personal jurisdiction over defendant Stewart.

VENUE

5. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(b) because defendant Stewart resides in this district, and because a substantial part of the events and omissions giving rise to plaintiffs' claims occurred in this district.

PARTIES

6. Plaintiff Stop Prisoner Rape (SPR) is a corporation organized under the laws of the State of New York. SPR is a non-profit human rights organization that seeks to end sexual violence against men, women, and youth in all forms of detention. Founded over twenty years ago by survivors of prisoner rape, SPR has worked to shed light on the dangers of sexual abuse in prison and helped survivors to access resources and connect with one another.
7. Plaintiff Citizens United for Alternatives to the Death Penalty (CUADP) is a corporation organized under the laws of the State of Michigan. CUADP works to end the death penalty in the United States through aggressive campaigns of public education, and the promotion of tactical grassroots activism.
8. Plaintiff Canadian Coalition Against the Death Penalty (CCADP) is an unincorporated association. Although it is based in Toronto, Canada, it has numerous members in the United States, and its website is hosted in the United States. CCADP is a non-profit human rights organization composed of activists, professionals, crime victims and their families, persons working within the justice system opposed to capital punishment, persons opposed to capital punishment on religious and moral grounds, and other concerned citizens opposed to capital punishment.
9. Defendant Terry L. Stewart is the Director of the Arizona Department of Corrections (ADOC). As such, he is the legal custodian of all prisoners sentenced by the courts of Arizona for felony offenses, and is responsible for housing these prisoners in compliance with constitutional mandates. Pursuant to Ariz. Rev. Stat. § 41-1604(A)(9), he is required to "adopt rules ... to limit inmate access to the internet through the use of a computer, computer system, network, computer service provider or remote computing service." At all times relevant hereto, he has acted under color of state law. Defendant Stewart is sued in his official capacity.

STATEMENT OF FACTS

10. The internet is an international network of interconnected computers that enables more than 400 million users to communicate with one another, and to access vast amounts of information from around the world. It is comparable, from the reader's viewpoint, to a vast library including millions of readily available and indexed publications.
11. The internet is an increasingly important method of publication and distribution for the government, the media, and organizations of all sorts. Entities that publish information via websites on the internet include government agencies, educational institutions, media outlets, advocacy groups, and individuals. State and Federal government policies encourage the internet distribution of government publications. The ADOC maintains a website at www.adc.state.az.us. 12. In particular, the internet has revolutionized social and political advocacy. In the past, advocacy groups had to pay for postage and stationery to send information to their members and supporters, and these costs imposed limits on the number of persons these groups could reach with their message. Now, such groups can make information available to an unlimited number of persons at no marginal cost simply by posting it on the organization's internet website. Therefore, many advocacy groups, including plaintiffs SPR, CUADP, and CCADP, maintain websites as an integral part of their educational and advocacy mission.
13. Stop Prisoner Rape maintains a website at www.spr.org. In the "Connect" section of its website, SPR posts writings sent by prisoners regarding their experience with sexual assault or abuse while incarcerated. Although, in order to protect their privacy, the authors of these writings are not identified by name on SPR's website, SPR alleges on information and belief that it has posted writings from Arizona prisoners in the past, and alleges that it intends to post writings from Arizona prisoners in the future.
14. Citizens United for Alternatives to the Death Penalty maintains a website at www.cuadp.org. In the "Wrongful Convictions" section of its website, CUADP posts information on prisoners who may be innocent of the crimes for which they have been convicted. This section currently contains information on three Arizona prisoners: Debbie Jean Milke, Roger W. Murray, and Scott N. Nordstrom. The postings include information on the prisoner's criminal case, the address of his or her attorney, and the names of other advocacy groups supporting the prisoner.
15. The Canadian Coalition Against the Death Penalty maintains a website at www.ccadp.org. In the "Death Row Prisoner Webpages" section of its website, CCADP currently posts information on 45 Arizona prisoners: Rudi Apelt, Michael Apelt, Donald Beaty, Scott Clabourne, Michael Correll, David Detrich, Ernest Valencia Gonzales, Mike Hedlund, William Herrera, Christopher Huerstel, Danny Lee Jones, Robert Glen Jones Jr., George Kayer, Kenneth Laird, George Lopez, Eric Mann, Claude Maturana, James McKinney, Jasper McMurtrey, Efren Medina, Angel Medrano, Andre Minnitt, Robert Moorman, Robert Murray, Roger Murray III, Scott Nordstrom, Keith Phillips, Robert Poyson, Kajornsak Prasertphong, David Ramirez, Charles Reinhardt, Tim Ring, Pete Rogovich, Richard Rossi, Jose Amaya Ruiz, Sean Running Eagle, John Sansing, Ronald Schackart, Eldon Schurz, Kyle Sharp, Bernard Smith, Martin Raul Soto-Fong, Clinton Spencer, Ramon Martinez Villareal, and Thomas Paul West. Postings include information on the prisoners' criminal case, including newspaper articles and links to briefs and other legal documents; the prisoner's poetry and art; requests for correspondents; and appeals for legal and political assistance.
16. For example, Richard Rossi's posting on the CCADP website includes information about his book, Seventeen Years on Death Row, which includes a preface authored by former French Justice Minister Robert Badinter. Jose Amaya Ruiz's page includes an Amnesty International Urgent Appeal urging Arizona officials to halt Mr. Ruiz's impending execution. Timothy Ring's posting includes extensive information about Ring v. Arizona, No. 01-488, in which Mr. Ring successfully challenged Arizona's death penalty statute in the United States Supreme Court.
17. The Arizona Department of Corrections itself maintains a website at www.adc.state.az.us. This website includes detailed information on individual ADOC prisoners, including photographs, date of birth, physical description, commitment offense, and prison disciplinary history. For death row prisoners, the website also includes the ADOC's version of the underlying facts of the offense for which the prisoner was sentenced to death.

THE STATUTORY SCHEME

18. 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. Indeed, DO 909.03 provides that mail being sent by a prisoner to the "[p]ublisher or editor of a newspaper, news magazine or periodical of general distribution, national or international news service or to the station manager of any radio or television station" may be inspected for contraband, but may not be read or censored by prison staff. DO 909.03, section 1.2.3.
19. In 2000, the Arizona Legislature enacted, and the Governor signed, House Bill 2376. This legislation singles out organizations like 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. 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 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).

ENFORCEMENT OF THE STATUTE TO SUPPRESS DISFAVORED SPEECH

20. Even before the enactment of HB 2376, Arizona prisoners had no direct access to the internet, since they have no access to computers that are linked with the outside world. However, HB 2376 goes much further by banning from the global internet all communications about Arizona prisoners by third parties. In addition, defendant Stewart has zealously enforced HB 2376 to prevent any communication between prisoners and advocacy groups such as CCADP, CUADP, and SPR. On March 6, 2001, Defendant Stewart promulgated Director's Instruction #156, titled "Inmate Internet Access." A copy of this document is attached hereto as Appendix 1, and incorporated herein by reference. In this document, defendant Stewart instructs the wardens under his supervision to "ensure appropriate disciplinary action is taken against an inmate who is in violation of this statute." Id. at 2.
21. Beginning in approximately April 2002, Arizona prisoners began receiving notices from prison administrators providing as follows:
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.

A copy of one such notice, directing the prisoner to have information about himself removed from the anti-death penalty website Voices from Inside (http://www.voices from inside.de), is attached hereto as Appendix 2 and incorporated herein by reference.
22. These notices place the prisoner in a position in which he cannot avoid punishment. On the one hand, he is subject to discipline if he "corresponds or attempts to correspond with a communication service provider or remote computing service." Ariz. Rev. Stat.§ 31-235(C)(1). On the other hand, the notice informs him that he will be disciplined and may be criminally prosecuted if he does not "have [his] name and all information pertaining to [him]self removed from this site within three (3) weeks."

LEGAL CLAIMS

23. The purpose and effect of HB 2376 is to suppress the flow of information from prisoners to the outside world, and to chill the advocacy of plaintiffs and other anti-death penalty and prisoner rights organizations. According to the Arizona State Senate Fact Sheet for HB 2376, the purpose of the legislation is to "[p]rohibit[] prison inmates from posting or retrieving Internet information either personally or through a third party." Similarly, defendant Stewart states in Director's Instruction #156, "[t]his statute is intended to prohibit direct or indirect access to websites through the internet, particularly for the purposes of communication." Appendix 1, at 1. The legislative history of HB 2376 reveals that it was enacted not in response to concerns for prison order or security, but because some persons were annoyed by websites that maintained a prisoner's innocence, challenged the fairness of the prisoner's trial, or solicited legal and political support for the prisoner. A bare desire to suppress such speech because it is unpopular is not a legitimate governmental objective.
24. HB 2376, on its face and as applied, constitutes impermissible content discrimination. There is simply no rational basis for prohibiting all correspondence between Arizona prisoners and any entity that operates an internet website, and no rational basis for punishing an Arizona prisoner simply because his name appears on such a website. Defendant Stewart contends that HB 2376 prevents prisoners from "taking advantage of unsuspecting people," but if this is the rationale, the legislation is both overinclusive and underinclusive. 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, section 1.3.7. Moreover, in terms of preventing prisoners from committing fraud, there is no reason to distinguish a letter sent to an internet website from a letter sent to a newspaper, magazine, radio or television station, or an individual.
25. HB 2376, on its face and as applied, constitutes impermissible viewpoint discrimination. While the Arizona Department of Corrections website relates the ADOC's version of the facts underlying a prisoner's offense, if plaintiffs post on their website a different version of these facts -- for example, offering evidence that the prisoner is factually innocent -- the prisoner is subject to prison discipline and criminal prosecution. Similarly, information about Arizona prisoners is posted on the websites of pro-death penalty groups such as Pro-Death Penalty.com (www.prodeathpenalty.com), and organizations that advocate harsher punishment of prisoners, such as the National Organization of Parents of Murdered Children (www.pomc.org). On information and belief, defendant Stewart has made no effort to have information on Arizona prisoners removed from these websites. This constitutes viewpoint discrimination in violation of the First and Fourteenth Amendments.
26. Plaintiffs are directly injured by HB 2376. Although plaintiffs rely on correspondence with prisoners for the information they post on their websites, the statute provides on its face that plaintiffs may not correspond with Arizona prisoners. Ariz. Rev. Stat. 31-235(C). Moreover, prisoners are forbidden, on pain of prison discipline and criminal prosecution, from corresponding with plaintiffs. Ariz. Rev. Stat. § 31-235(C), 31-242. The statute also provides that prison authorities will intercept and prevent the delivery of mail from Arizona prisoners to plaintiffs. Ariz. Rev. Stat. § 31-235(D). Finally, as enforced by defendant Stewart, the very presence of information about an Arizona prisoner on plaintiffs' websites subjects that prisoner to criminal prosecution. See Appendix 2.
27. In addition, HB 2376 prevents communication between plaintiffs and free persons who have not been convicted of any crime. The legislation provides that a prisoner shall be punished if "[a]ny person accesses the provider's or service's internet web site at the inmate's request." Ariz. Rev. Stat. § 31-235(C)(2). Thus, a prisoner's spouse, parents, children, friends, and loved ones must avoid accessing plaintiffs' websites, lest ADOC unilaterally determine that such access occurred "at the inmate's request"and punish the prisoner.
28. HB 2376 has already interfered with plaintiffs' advocacy and with their ability to communicate with Arizona prisoners. In approximately May and June 2002, CUADP was contacted by two Arizona prisoners who requested that all information about them be removed from CUADP's website because of HB 2376. Similarly, at least four Arizona prisoners have contacted CCADP and asked to be removed from its website because of HB 2376.
29. The content of plaintiffs' websites is political speech, entitled to the highest protection under the Constitution of the United States. The content of these websites violates no law except the ban on prisoners having "access to the internet" contained in HB 2376. The ban on prisoners having "access to the internet" is impermissibly vague, in that it does not give notice to persons of reasonable intelligence of what conduct is prohibited. The ban is also substantially overbroad, in that it prohibits "access to the internet" under any circumstances, and for any purpose, "except as authorized by [ADOC]." This vagueness and overbreadth invites arbitrary and discriminatory enforcement. In fact, the ban on prisoners having "access to the internet" is enforced not according to any objective standards, but according to the personal prejudices of individual ADOC officials. For these reasons, HB 2376 is impermissibly vague and substantially overbroad in violation of the First and Fourteenth Amendments to the United States Constitution.
30. Defendant Stewart has refused requests to suspend enforcement of HB 2376. Plaintiffs are suffering irreparable harm from the ongoing violation of their constitutional rights, and will continue to suffer such harm unless the enforcement of HB 2376 is enjoined by this Court.

CAUSES OF ACTION

31. Ariz Rev. Stat. § 31-235(C), (D) on its face violates plaintiffs' rights under the First and Fourteenth Amendments to the United States Constitution.
32. Ariz. Rev. Stat.§§ 31-242 and 41-1604(A)(9) violate plaintiffs' rights under the First and Fourteenth Amendments to the United States Constitution to the extent they are applied to prohibit anything other than direct prisoner access to the internet.
Prayer for Relief
Wherefore, plaintiffs respectfully request that the Court:

1. Issue a judgment declaring that Ariz. Rev. Stat. § 31-235(C), (D) is unconstitutional on its face;
2. Issue a judgment declaring that Ariz. Rev. Stat.§§ 31-242 and 41-1604(A)(9) are unconstitutional as applied to prohibit anything other than direct prisoner access to the internet;
3. Permanently enjoin defendant Stewart, his subordinates, agents, employees, and all others acting in concert with him, from enforcing Ariz. Rev. Stat. § 31-235(C), (D), and from enforcing Ariz. Rev. Stat. §§ 31-242 and 41-1604(A)(9) except as applied to direct prisoner access to the internet;
4. Grant plaintiffs their reasonable attorney fees and costs pursuant to 42 U.S.C. § 1988 and other applicable law; and
5. Grant such other relief as the Court considers just and proper.
RESPECTFULLY SUBMITTED this ____ day of July, 2002.

David C. Fathi
Ann Beeson
Alice L. Bendheim
Pamela K. Sutherland
Attorneys for Plaintiffs

by
Alice L. Bendheim
3626 E. Coolidge Street
Phoenix, AZ 85018
(602) 241-9555