CHICAGO (CN) — A federal inmate who wants full electronic access to the nation's Federal Register while incarcerated went before the Seventh Circuit on Tuesday, arguing that the U.S. Bureau of Prisons was violating his First Amendment rights by barring that access.
The Federal Register, a daily journal of the U.S. government, details proposed rules, committee meetings, executive orders and other public developments. The government makes a full PDF of the latest issue available for download every day, but federal inmates' access is more strictly curtailed: Only PDFs of final rules, proposed rules, interim rules and certain notices get posted to an "electronic bulletin board" at federal prisons' law libraries — and only when the relevant documents pertain to the Prison Bureau.
The inmate, a man named Robert Decker, has asked the appellate court for another chance at a lawsuit he filed from southwest Indiana's Terre Haute federal prison in January 2020. Decker accused the Bureau of Prisons, Justice Department and U.S. Attorney General's Office of making it more difficult for federal inmates like himself to pursue legal action by not allowing full Register access.
"Mr. Decker has a First Amendment right to read and comment on administrative rule making," Decker's court-appointed attorney H. Hunter Bruton argued before a three-judge panel on Tuesday.
"Defendants are infringing that right by denying Mr. Decker access to the full Federal Register."
It would take prison staff only "three clicks" to download the full Federal Register for prisoners' benefit, Bruton argued.
"Defendants do not deny they could download PDFs of the full Federal Register with only three clicks, for free," he said. "The only question is whether defendants can refuse to make those three clicks, and they cannot."
Justice Department attorney Caroline Tan argued otherwise. She said Decker's lack of access to the full Register didn't rise to the level of a constitutional violation; instead, she claimed, it was just one of many ways that incarceration necessarily — and legally — curtails First Amendment activity.
"The very nature of incarceration imposes limitations on the ability to engage in quintessential First Amendment activities, like going to a town hall or attending a protest," Tan said. "Those incidental consequences of incarceration have never been understood to violate the First Amendment."
Tan also raised the specter of inmates using a sympathetic ruling in this case as precedent to demand further access to public information, "such as proposed bills in Congress so that he can submit comments to his congressman."
"There's simply no limiting principle to Mr. Decker's theory," she added.
The idea of federal inmates having increased access to news and public documents seemed to spook the appellate panel, particularly U.S. Circuit Judges Michael Scudder Jr. and Amy St. Eve. The respective Donald Trump and George W. Bush appointees both expressed concern for what else inmates may demand under the First Amendment.
Scudder wondered if prisoners would seek expanded access to different state registers; St. Eve proposed a hypothetical where inmates demand news sources like The New York Times.
"I have some concerns of, OK, if he's entitled to this, why couldn't an inmate come in and say they're entitled to a whole host of things?" St. Eve told Bruton.
That wasn't Decker's intention, Bruton assured both circuit judges, noting his client limits his claims to access to the Federal Register.
Conversely, both judges expressed skepticism of the government's claim — raised by Tan and in appellate filings — that posting the Federal Register for inmates would be an impractical burden on prisons' staffing resources. Judge Scudder criticized, as Decker did in his appellate brief, how this argument turned a four-page affidavit from the Bureau of Prisons with little material evidence behind it.
"This affidavit is thin. Very thin," Scudder said. "And it is subject to all the criticism that Mr. Decker, with the help of Mr. Bruton, has leveled against it."
Tan countered that even if downloading the Register only took prison staff an extra ten minutes every day, it would cumulatively total over 40 hours of work per year.
"That's an entire work week," she said.
The appellate court, rounded out by Donald Trump appointee U.S. Circuit Judge Thomas Kirsch II, took the case and attorneys' arguments under advisement but did not say when they would issue a ruling.
U.S. District Judge J. Phil Gilbert tossed Decker's claims in April 2020, calling them "frivolous and meritless" because while inmates may not have access to the full Federal Register every day, federal prisons do maintain current electronic copies of the U.S. Code of Federal Regulations.
"Plaintiff may use the electronic law library and its electronic bulletin board to review proposed BOP regulations published in the Federal Register, and he may send comments regarding the same," wrote Gilbert, a George H.W. Bush-appointed judge in the District of Southern Illinois, which had jurisdiction over Decker's case due to prior actions he filed while incarcerated at Illinois' Marion federal penitentiary.
In his 2020 pro se complaint, Decker explained the impetus for the suit.
"This case is about the fact that the Bureau of Prisons does not supply the Federal Registry to any prison/inmate throughout the entire United States of America," he wrote. "How is one supposed to know what laws are enacted throughout the entire [United States?] ... The prison population is being placed into the dark by not supplying the Federal Registry."
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