Pro bono client wins Ninth Circuit appeal protecting First Amendment rights in outgoing prisoner correspondence

Client(s) Grenning, Neil

Jones Day secured a significant pro bono victory for Neil Grenning in a published Ninth Circuit decision clarifying the First Amendment protections applicable to outgoing prisoner correspondence.

While incarcerated at Airway Heights Corrections Center, Mr. Grenning participated in a university-sponsored writing program and submitted a short story for consideration by a university literary journal. Prison officials prevented the submission from being transmitted and later threatened to remove Mr. Grenning from the program if he communicated directly with the journal without prior approval.

The district court granted summary judgment to the officials, applying the deferential standard ordinarily used to evaluate prison regulations under Turner v. Safley. On appeal, Jones Day argued that the officials' content-based review of Mr. Grenning's outgoing writing was instead governed by Procunier v. Martinez, which requires restrictions on outgoing prisoner correspondence to be closely tied to a substantial governmental interest in security, order, or rehabilitation.

The Ninth Circuit agreed and reversed. The court held that the governing standard turns on the nature of the challenged conduct--content-based interference with an outgoing communication--not on whether the writing was produced through a voluntary prison program or intended for a program-affiliated publication. The court further held that factual disputes precluded summary judgment, reversed the grant of qualified immunity, and reinstated Mr. Grenning's retaliation claim.

The decision provides important guidance on the constitutional protections afforded to incarcerated individuals and the standards courts should apply when evaluating restrictions on their communications. The case will now return to the district court for further proceedings.

Grenning v. Key, No. 23-3018 (9th Cir.)