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Newspapers OK’d for Cook County Jail

Wednesday, July 08, 2015
Chicago Daily Law Bulletin
by John Flynn Rooney

A Cook County Jail policy banning inmates from receiving newspapers violates the First Amendment, a federal judge has ruled.

In a opinion issued Monday, U.S. District Judge Matthew F. Kennelly granted summary judgment to former jail inmate Gregory Koger in his lawsuit against Sheriff Thomas J. Dart and the county.

The county banned newspapers in 1984 because they’re flammable, inmates can use them to clog toilets and they can be transformed into papier-mache weapons. The news can also cause internal violence in the 9,000-inmate jail, the sheriff’s office said, because inmates could learn about the nature of other inmates’ charges or outside gang activity.

Kennelly’s ruling is consistent with prior U.S. Supreme Court and 7th U.S. Circuit Court of Appeals decisions, said Donald M. Craven, owner of Donald M. Craven P.C. in Springfield and general counsel for the Illinois Press Association.

“The absolute prohibition on newspapers was over broad,” said Craven, who wasn’t involved in the case.

Kennelly’s decision “is consistent with other First Amendment principles, which is to say restrictions on First Amendment rights must be narrowly tailored to meet the compelling state interest,” he said.

Koger, 36, is a devoted communist and follows communist principles, including the belief that private property should be prohibited, said his attorney, Mark G. Weinberg.

Koger was arrested in 2009 while videotaping the remarks of a speaker whose scheduled meeting with the Ethical Humanist Society in Evanston was canceled.

He was sentenced to 300 days in jail for misdemeanor criminal trespass, simple battery and resisting arrest.

Koger served the last part of his sentence at the Cook County Jail for three months ending in October 2013.

While incarcerated, he was sent letters, books, magazines and a copy of the Chicago Tribune. The Tribune was refused based on the jail’s absolute ban on newspapers.

In August 2013, Koger filed a grievance demanding that the jail rescind its policy banning newspapers. The grievance went unanswered.

On Oct. 4, 2013, 20 days before his release, Koger’s attorneys filed a civil rights lawsuit in federal court here seeking an injunction, declaratory relief and nominal damages. Koger alleged that the newspaper ban violated the First Amendment rights of inmates to read, receive information and stay informed through newspapers.

Both sides filed motions for summary judgment.

The defendants argued that Koger’s request for an injunction was moot, and Kennelly agreed since Koger was no longer a jail inmate.

But Kennelly found that Koger could proceed with his declaratory judgment action and nominal damages claim.

Koger identified four alternatives to the absolute newspaper ban: limiting the number of newspapers permitted in each inmate’s cell; prohibiting local newspapers, which are more likely to contain information about other inmates and local gang activity; requiring newspapers to be sent directly from the publisher or permitting newspapers only in the jail’s libraries and day rooms.

Kennelly wrote that the absolute ban on newspapers was “an exaggerated and therefore unreasonable response” to the jail’s security concerns.

“Defendants have failed to raise a genuine dispute of fact regarding whether the jail’s newspaper ban is reasonably related to institutional security,” Kennelly wrote in his 20-page opinion. “The court therefore finds that the jail’s policy banning newspapers is unconstitutional.”

Kennelly awarded Koger $1 in nominal damages. He also directed the parties to confer about an appropriate form of judgment and submit one or separate proposals by Monday.

Weinberg called Kennelly’s decision significant “because it’s a small blow to our society’s indifference to conditions in jails and prisons.”

Cook County Assistant State’s Attorney Brenden R. Bryant was the lead attorney for the sheriff and county.

The sheriff’s office issued a statement saying historically newspapers “were used to set fires in cells and used to hide contraband, shanks and other weapons. They also posed security risks as inmates learned details about criminal activity on the streets, which put other inmates at risk for retaliation.

“We respect the court’s ruling and are making arrangements to provide our detainee population with access to newspapers in a controlled and safe manner.”

Weinberg said he will await the sheriff’s recommendation and then reply.

Koger was also represented by Adele D. Nicholas.

The case is Gregory Koger v. Thomas J. Dart, etc., et al, No. 13 C 7150.

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