A California Superior Court recently rejected an attempt to dispose of a lawsuit challenging San Mateo County’s policy of destroying and digitizing physical mail sent to people incarcerated in its jails. The ruling is a major victory for free speech in California, where nearly 200,000 incarcerated people rely on physical mail to stay connected to their loved ones on the outside.

Since 2021, San Mateo County has prohibited friends, family, and other community members from sending physical mail to individuals incarcerated in its jails. Under the policy, all non-legal mail—including letters, pictures, birthday cards, and children’s drawings—must be sent to Smart Communications, a private surveillance company that scans copies of the correspondence, destroys the originals, and retains the digitized versions for at least seven years. Last March, five people incarcerated in San Mateo County jails, two of their family members, and A.B.O. Comix—a collective of artists that corresponds with LGBTQ people in prisons and jails—filed a lawsuit arguing that the policy violates various provisions of the California Constitution. (I am one of the attorneys representing the plaintiffs in the lawsuit.) Among those provisions is California’s constitutional protection for free speech—Article I, Section 2—which, the state’s courts have said, provides even “broader and greater” protections for expressive and associational activity than its federal counterpart.

In September, San Mateo County moved for judgment on the pleadings, arguing that the plaintiffs failed to state a claim under Article I, Section 2 and asking the court to rule for defendants based on the pleadings alone. In its motion, the county claimed that it eliminated physical mail in its jails to limit the entry of fentanyl and other drugs. The crux of the county’s argument is that its jail policies are entitiled to heightened deference, and the court should take the county at its word—without evidence—that fentanyl enters jail through the mail, justifying its ban on physical mail to incarcerated people.

But judicial deference isn’t a blank check for jails to violate the right to free speech and association. On the contrary, courts are required to examine the facts carefully to determine whether there is a close fit between the regulation and the supposed interests it would serve. That requires courts to ask many questions that generally cannot be resolved at the pleading stage—before jail administrators have fully explained the basis for their policy, and before plaintiffs have had an opportunity to scrutinize that explanation through discovery.

Here, important questions remain about San Mateo County’s decision to make the drastic move of eliminating physical mail. What prompted the county’s alleged concerns about fentanyl exposures through mail, and how exactly does banning physical mail address that concern? Why can’t the county continue to utilize drug-sniffing dogs and detection devices to prevent access to opioids? How is the lack of physical mail impeding religious practice and educational opportunities? Are people incarcerated in the county’s jails actually able to access the scanned versions of their mail meaningfully through the tablets and kiosks provided by Smart Communications? Physical mail has long been the primary medium of communication between incarcerated people and those most invested in their rehabilitation—their partners, children, religious advisors, educators, and mental health counselors. Jail administrators should not be able to eliminate it arbitrarily.

The implications of allowing our plaintiffs’ lawsuit to proceed past the pleading stage—a decision that will compel the county to answer these important questions—extend far beyond San Mateo County. In the past few years, bans on physical mail for incarcerated people have become a cruel and exploitative trend, with prisons and jails in at least 27 states implementing policies that resemble the one we’ve challenged in San Mateo. Despite jail administrators’ frequent assertions that eliminating physical mail is necessary to prevent drug use and overdoses, mail digitization has demonstrated minimal to no benefit. Rather, states that have adopted MailGuard and similar programs have actually seen increases in drug test positivity rates and overdoses. As the first major challenge to the digitization of personal mail in U.S. jails, A.B.O. Comix v. San Mateo County could pave the way for lawsuits in other jurisdictions engaged in similar practices.

Fortunately, the San Mateo Superior Court agreed that further factual development is necessary to determine whether the county’s current mail policy is an “exaggerated” (and therefore unconstitutional) response to its claimed rationale that physical mail facilitates fentanyl exposures. And while there is much to be criticized about the court’s ruling on plaintiffs’ free speech claim more broadly, its ultimate conclusion that the case should proceed to discovery is an important victory for incarcerated people, for the loved ones who correspond with them, and for human dignity, which demands that the constitutional rights of everyone—including people behind bars—be respected.