                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 11-1455
                                   ___________

Winston Holloway,                    *
                                     *
      Plaintiff - Appellant,         *
                                     *
      v.                             *
                                     * Appeal from the United States
Benny Magness, Chairman, ADC         * District Court for the
Board; Ray Hobbs, Director, Arkansas * Eastern District of Arkansas.
Department of Correction; Rex Gaylon *
Lay, Warden, Cummins Unit, ADC;      *
Global Tel*Link,                     *
                                     *
      Defendants - Appellees.        *
                                ___________

                             Submitted: September 20, 2011
                                Filed: February 2, 2012
                                 ___________

Before LOKEN, BEAM, and MURPHY, Circuit Judges.
                           ___________

LOKEN, Circuit Judge.

      Under a contract with the Arkansas Department of Correction (ADC), Global
Tel*Link (GTL) provides telephone service to ADC inmates and pays ADC 45% of
GTL’s gross revenues. Inmate Winston Holloway commenced this 42 U.S.C. § 1983
action against GTL and ADC officials alleging, as relevant here, that the elevated
phone charges he must pay by reason of the contract violate his First Amendment free
speech rights because he would call family members outside the prison more
frequently if calls were less expensive.1 He seeks to enjoin ADC from receiving, and
GTL from paying, the 45% “commissions.” Declining to adopt a magistrate judge’s
contrary recommendation, the district court2 granted summary judgment dismissing
this First Amendment claim. Holloway v. Magness, 2011 WL 204891 (E.D. Ark. Jan.
21, 2011). Holloway appeals. Reviewing the First Amendment issues and the grant
of summary judgment de novo, we affirm. See Patel v. U.S. Bureau of Prisons, 515
F.3d 807, 812 (8th Cir. 2008) (standard of review).

       ADC inmates may not receive telephone calls from family members or friends
and may not make calls using prepaid phone cards or cellular phones. Instead, they
are allowed to make collect calls using funds deposited into their prepaid call
accounts. The contract at issue provides that GTL is the exclusive provider of this
phone service, charging inmates for each collect call on a surcharge and per minute
basis. The contract also authorizes GTL to collect a fee equal to 19% of all funds
deposited into the prepaid accounts. GTL pays 45% of its gross revenues under the
contract to ADC. The commission payments to ADC have totaled more than $2
million per year. As GTL pays all costs associated with providing telephone service
to inmates, ADC uses these commission revenues for other prison expenses, such as
prison security and facility maintenance.

      As the district court explained in detail, Arkansas is one of many States that
have granted private companies exclusive rights to provide telephone service to
inmates in exchange for a percentage of the revenues generated by that service.


      1
       This claim does not involve inmate telephone calls to and from attorneys and
other First-Amendment-protected communications that may be necessary to ensure
an inmate’s reasonable access to the courts.
      2
       The Honorable J. Leon Holmes, Chief Judge of the United States District
Court for the Eastern District of Arkansas.


                                        -2-
These contracts have been criticized by the Federal Communications Commission and
by others because they allegedly create, for both parties, an unrestrained incentive to
increase the cost of telephone service to inmates. Numerous lawsuits have challenged
the practice, asserting claims under the Telecommunications Act of 1996, state and
federal antitrust laws, state consumer protection and unfair trade practices acts, state
constitutional provisions, the First Amendment, and the takings, due process, and
equal protection clauses of the federal Constitution. No court has held any contract
between a telephone company and a prison system unlawful under any of these
theories. See Holloway, 2011 WL 204891, at *4-5. At least three appellate courts
have rejected the First Amendment claim Holloway asserts in this case. Arsberry v.
Illinois, 244 F.3d 558 (7th Cir.) (50% commission), cert. denied, 534 U.S. 1062
(2001); Johnson v. California, 207 F.3d 650 (9th Cir. 2000); Walton v. N.Y. State
Dep't of Corr. Servs., 921 N.E.2d 145 (N.Y. 2009) (57.5% commission).

       Holloway’s challenge is based upon three propositions: (1) Inmates have a
First Amendment right to communicate with persons outside the prison. (2) Because
ADC has chosen to provide telephone service to inmates, any limitation on the use
of that service is subject to First Amendment scrutiny. (3) Because ADC incurs no
cost in providing telephone service under the contract, the 45% commission is an
arbitrary revenue-raising measure that is not reasonably related to legitimate
penological interests and therefore infringes his First Amendment rights under either
the balancing test of Turner v. Safley, 482 U.S. 78 (1987), or a more heightened
standard of scrutiny that should be applied to this issue.

      Support for the first proposition may be found in the dicta of many reported
decisions. See, e.g., Procunier v. Martinez, 416 U.S. 396 (1974); Thornburgh v.
Abbott, 490 U.S. 401 (1981); Benzel v. Grammer, 869 F.2d 1105, 1108 (8th Cir.) (“in
some instances prison inmates may have a right to use the telephone for
communication with relatives and friends”), cert. denied, 493 U.S. 895 (1989); Watts



                                          -3-
v. Brewer, 588 F.2d 646, 649-50 (8th Cir. 1978). But it is a perilous over-
generalization. The nineteenth century saw the rise of prison systems that “placed
maximum emphasis on preventing the prisoners from communicating with anyone
else.” Overton v. Bazzetta, 539 U.S. 126, 143 (2003) (Thomas, J., concurring)
(quotation omitted). Whether a prison system that totally isolated inmates from the
outside world, with express statutory authority to do so, would pass constitutional
muster today has never been litigated. Fortunately, modern prison administrators
believe that properly controlled inmate contacts with persons outside the prison walls
such as family members serve important interests, including improved prison security
and inmate rehabilitation, as well as the inmates’ First Amendment interests. Thus,
the reported cases deal with challenges to a variety of restrictions and limitations on
inmate contacts that are otherwise encouraged. In other words, the extent of inmates’
First Amendment right to communicate with the outside world is a fact-intensive
universe. See, e.g., Roy v. Stanley, 110 Fed. App'x 139, 141 (1st Cir. 2004)
(unpublished) (“Prisoners have no per se constitutional right to use a telephone.”);
Valdez v. Rosenbaum, 302 F.3d 1039, 1048 (9th Cir. 2002), cert. denied, 538 U.S.
1047 (2003).

      The second proposition is doubtless true, but it does not address the issue
before us. It is a corollary of the more general First Amendment principle that, if the
government chooses to create a public forum for speech, whether a general or a
limited public forum, it may not unreasonably restrict the public’s use of that forum.
But that principle does not include a mandate to create any particular type of public
forum, such as providing inmates with telephone service, nor does it address the terms
upon which government as proprietor may recover the costs of creating the forum,
including a reasonable return on its investment. Cf. Arsberry, 244 F.3d at 564-65.

       These general observations bring the fallacy in Holloway’s third proposition
into sharper focus. Just as ADC had no First Amendment obligation to provide any



                                          -4-
telephone service, it had no obligation to provide that service at a particular cost to
users. The issue as framed by Holloway focuses on ADC’s 45% “commission” as a
discrete component of his phone costs. It is discrete in an accounting sense, probably
due to the complexities of telephone company regulation. But it is wrong to say that
the commissions are a free revenue stream to ADC. These revenues are a portion of
the total cost of the telephone service ADC chose to provide. To illustrate this
important distinction, suppose ADC had built and managed the phone system itself
and charged exactly what inmates now pay GTL for each call. The impact on the
inmates’ First Amendment rights would be exactly the same, which means that
Holloway is in effect arguing that the First Amendment prohibited ADC from making
this much “profit” from a service it chose to provide to facilitate inmate speech. The
implications of this theory are unprecedented and without support in the reported
cases. The Constitution does not prohibit charging prisoners for essential prison
services, at least in the absence of a showing that the result is a severe deprivation of
a fundamental right. See Christiansen v. Clarke, 147 F.3d 655, 657 (8th Cir.) (room
and board), cert. denied, 525 U.S. 1023 (1998); Hershberger v. Scaletta, 33 F.3d 955,
957 (8th Cir. 1994) (postage for non-legal mail).

       The answer is no different if we look at the contract commissions as a
“restriction” on speech, rather than what they are, part of the total cost of facilitating
speech. Because the Constitution “permits greater restriction of [First Amendment]
rights in a prison than it would allow elsewhere,” restrictive prison regulations are
normally reviewed under the four-factor Turner test to determine whether they are
“reasonably related to legitimate penological interests.” Beard v. Banks, 548 U.S.
521, 528 (2006), quoting Turner, 482 U.S. at 87. The district court properly
conducted a Turner review but correctly noted, “It is not at all clear that the Turner
framework applies.” Holloway, 2011 WL 204891, at *8.




                                           -5-
        The first Turner factor -- whether there is a reasonable relationship between the
prison regulation and a legitimate penological interest -- does not readily fit when the
First Amendment challenge involves, not a restriction on inmate speech, but rather
the amount charged for a service that facilitates inmate speech. Obviously, there is
a “valid, rational connection” between the legitimate government interest in providing
telephone service, and determining what to charge for that service. Turner, 482 U.S.
at 89. Likewise, the third and fourth Turner factors -- the impact of a restriction on
guards and inmates and the presence or absence of alternative restrictions -- have
little or no bearing on what inmates are charged for telephone service.

       The second Turner factor -- whether alternative means of speaking remain open
to inmates -- is relevant to this dispute. But the issue is not whether higher phone
charges discourage speech, but rather “whether inmates have alternative means of
exercising the constitutional right they seek to assert.” Overton, 539 U.S. at 135.
Alternatives to the type or amount of speech at issue “need not be ideal . . . they need
only be available.” Id.; see Jones v. North Carolina Prisoners’ Labor Union, 433 U.S.
119, 130-31 (1977) (losing the cost advantages of bulk mail “does not fundamentally
implicate free speech values”). Here, the record makes clear that ADC inmates retain
many alternative means of communicating with family members and friends in the
outside world -- personal visits and mail as well as use of the GTL telephone service.
Holloway admitted that he speaks on the telephone with friends and family
approximately two times per month. Nor does the record permit an inference that
ADC’s purpose in negotiating the contract was to restrict inmate speech.3 Holloway
simply failed to allege and prove facts showing a significant infringement of his right
to communicate with the outside world. Indeed, he failed to show that the alleged
restriction is unconstitutional under the heightened scrutiny standard he urges us to


      3
     During the competitive bid process, ADC rejected GTL’s proposal of a 55%
commission to ADC because it imposed higher per-call charges for inmates.


                                          -6-
adopt -- “whether the [contract] imposes a burden upon speech that is
disproportionate in light of the other interests the government seeks to achieve.”
Ysursa v. Pocatello Educ. Ass’n, 555 U.S. 353, 367 (2009) (Breyer, J., concurring in
part and dissenting in part).4

      For these reasons, we affirm the judgment of the district court. We decline to
consider GTL’s alternative argument -- rejected by the district court -- that the
primary jurisdiction and filed rate doctrines bar Holloway's First Amendment claim.
                       ______________________________




      4
       When acting outside the prison context, the government as proprietor is not
subjected to heightened scrutiny in setting the charge for services it provides, but it
“does not enjoy absolute freedom from First Amendment constraints.” Atlanta
Journal & Constitution v. City of Atlanta Dep't of Aviation, 322 F.3d 1298, 1308
(11th Cir. 2003) (en banc) (quotation omitted).


                                          -7-
