Thanks to computers and the Internet, we can now correspond with others digitally through email, and for due process purposes it makes both doctrinal and practical sense to treat outgoing email the same as physical letters. See, e.g., Tory v. Davis, 2020 WL 2840163, at *4 (W.D. Va. June 1, 2020) ("[A]n inmate has a due process right to receive notice when his email communication has been censored."). Just as the Fourth Amendment protects against searches by technology unknown in the 18th century, see Kyllo v. United States, 533 U.S. 27, 34-38, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001), the First Amendment protects correspondence transmitted by means developed in the 20th or 21st centuries.

In the context of mail handling under a Turner challenge, this means that the court “must conduct an independent review of the evidence to determine whether [the prison's] decision to apply the regulation and withhold [the mail] was an exaggerated response to prison concerns and therefore unconstitutional as applied.” Tory v. Davis, No. 7:18cv00393, 2020 WL 2840163, at *3 (W.D. Va. June 1, 2020) (citing Kaden v. Slykhuis, 651 F.3d 966, 969 (8th Cir. 2011)).

See Coward v. Clarke, No. 7:20-cv-00702, 2022 WL 971987, at *3 (W.D. Va. Mar. 20, 2022) (Urbanski, C.J.) (concluding that the plaintiff adequately stated a due process claim where he “alleged that neither prison officials nor Jpay notified him that [a] photograph attached to his incoming email had been rejected and returned to sender”); Tory v. Davis, No. 7:18-cv-00393, 2020 WL 2840163, at *4 (W.D. Va. June 1, 2020) (Kiser, J.) (concluding that “an inmate has a due process right to receive notice when his email communication has been censored” and that the plaintiff plausibly alleged that prison officials deprived him of due process by failing to notify him that images sent by email had been rejected)

In Martinez, the Supreme Court upheld a procedure requiring that a decision to “withhold delivery of a particular letter must be accompanied by minimal procedural safeguards”-the inmate must be notified that his mail has been rejected, he must be given “a reasonable opportunity to protest that decision, ” and any appeal of the decision must be referred to someone other than the person who initially rejected the mail. Martinez, 416 U.S. at 417, 418-19; see also Tory v. Davis, No. 7:18CV00393, 2020 WL 2840163, at *4 (W.D. Va. June 1, 2020) (applying Martinez procedural protections to due process claims regarding rejected semi-nude photographs attached to inmate email)

must be referred to someone other than the person who initially rejected the mail. 416 U.S. at 417, 418-19; see also Tory v. Davis, No. 7:18CV00393, 2020 WL 2840163, at *4 (W.D. Va. June 1, 2020) (applying Martinez procedural protections to due process claims regarding inmate emails).