Whether the Due Process Clause of the Fourteenth Amendment requires prison officials to provide notice and an opportunity to challenge the censorship of prisoner emails before such communications are intercepted

No question identified. : 2. Absent an extension, a petition for a writ of certiorari would be due on November 15, 2023. This application is being filed more than 10 days in advance of that date, and no prior application has been made in this case. 3. This case concerns an important qualified immunity issue: Whether censorship of prisoner emails, without any notice that the emails are being censored, nor any opportunity to challenge the decision before a neutral decisionmaker, obviously violates the Due Process Clause of the Fourteenth Amendment under this Court’s decision in Procunier v. Martinez, 416 U.S. 396, 418 (1974), which clearly established that censoring outgoing physical mail without notice and an opportunity to challenge the decision before a neutral decisionmaker violates the Due Process Clause of the Fourteenth Amendment. Review of that question offers the Court the opportunity both to safeguard critically important First Amendment interests and to clarify the contours of qualified immunity doctrine. 4. In Procunier v. Martinez, this Court held that “[t]he interest of prisoners and their correspondents in uncensored communication by letter, grounded as it is in the First Amendment, is plainly a ‘liberty’ interest within the meaning of the Fourteenth Amendment even though qualified of necessity by the circumstance of imprisonment. As such, it is protected from arbitrary governmental invasion.” 416 U.S. 396, 418 (1974), overruled on other grounds by Thornburgh v. Abbott, 490 U.S. 401, 413-414 (1989). Prison officials must therefore provide “minimum procedural safeguards” before censoring a prisoner’s mail. Id. Those safeguards are: (1) the inmate must receive notice of the rejection of a letter written by or addressed to him; (2) the author of the letter must be given “reasonable opportunity to protest that decision,” and (3) “complaints [must] be referred to a prison official other than the person who originally disapproved the correspondence.” Jd. at 418-19. These safeguards are critical to protecting prisoners’ First Amendment rights; “without notice of rejection, censorship of protected speech can escape detection by inmates and therefore go unchallenged.” Martin v. Kelley, 803 F.2d 236, 243 (6th Cir. 1986); Perry v. Sec’y, Fla. Dep’t of Corr., 664 F.3d 1359, 1367 (11th Cir. 2011). 5. This case originates in the Georgia Department of Corrections (GDC). The GDC partnered with a private company, JPay, to provide electronic mail services to incarcerated individuals. Slip. op. at 3. One of the GDC’s Standard Operating Procedures, SOP 204.10, governs the use of JPay Kiosks and GOAL devices. Slip. op. at 3. That SOP, among other things, prohibited inmates from “request[ing] emails to be forwarded, sent, or mailed to others” and from “send[ing] information ... about another offender.” Slip. op. at 3. The SOP also provided that any communications that violated SOP 204.10 would “be intercepted without explanation and no refund [would] be provided to the sender.” Slip. op. at 3. 6. Applicant Ralph Harrison Benning is a prisoner in GDC custody serving a life sentence in Georgia. Slip. op. at 4. In September and October of 2017, Mr. Benning attempted to send three emails to his sister, Elizabeth Knott—one on September 24, 2017, and two on October 9, 2017. Slip. op. at 4. Those emails were intercepted by the GDC and never delivered to Ms. Knott due to violations of SOP 204.10. Slip. op. at 4. The three emails were about gang problems and fraud and corruption in the GDC. Slip. op. at 4. 7. As relevant here, respondent Margaret Patterson, a GDC analyst, intercepted the September 24 email because Mr. Benning had asked Ms. Knott to forward it to third parties. Slip. op. at 4. Respondent Jennifer Edgar, another GDC analyst, intercepted the October 9 emails for the same reason. Slip. op. at 4. Neither Ms. Patterson nor Ms. Edgar notified Mr. Benning that his emails had been intercepted and withheld. Slip. op. at 4. Nor did they