19-c-1 First Amendment Protections

• Library: A Jailhouse Lawyer's Manual (2020 Edition)

19-C-1. First Amendment Protections

Some courts have held that legal mail is entitled to a higher degree of First Amendment protection than other mail and that "prison policies or practices which interfere with legal mail on a regular basis ... must be supported by a legitimate penological interest other than mere general security concerns which permit interference with regular mail." ⁸⁵ Even when this analysis is not applied, courts generally give legal mail more consideration than non-legal mail in evaluating restrictions.⁸⁶

(a) Incoming Legal Correspondence

Correspondence from your attorney is incoming mail, and so restrictions on it are evaluated under the Turner standard. ⁸⁷ Restrictions on privileged incoming mail do not violate the First Amendment if the restrictions are reasonably related to a legitimate need to manage the prison or carry out your penalty. In Wolff v. McDonnell, ⁸⁸ the U.S. Supreme Court held that a state can require your lawyer to clearly mark her letters as coming from an attorney, and can require that her address be written on the envelope if the letters are to receive special treatment, ⁸⁹ and, finally, can require your lawyer to identify herself to prison officials before correspondence with the prisoner begins. ⁹⁰ For example, in 2009, the Ninth Circuit of the U.S. Court of Appeals denied a prisoner's constitutional claims because the return address on his legal mail did not indicate that it came from an attorney, a valid prerequisite under California law for legal mail to receive special treatment.⁹¹Wolff seems to imply that prison officials cannot read or censor correspondence with your attorney if there is no suspicion that the correspondence is illegal, but this is not entirely clear.⁹²According to Wolff, a requirement that letters from an attorney to a prisoner be opened by prison officials only in the presence of the prisoner may be more than what the Constitution demands.⁹³ Since Wolff, however, many courts have ruled that the prisoner must be present if the prison is opening his letters, or that the prisoner at least be given the opportunity to request such a safeguard. ⁹⁴

(b) Outgoing Legal Correspondence

Prisons cannot restrict correspondence sent to attorneys unless the restriction furthers an important or substantial governmental interest.⁹⁵ Some courts have found that outgoing legal correspondence does not present the same security threat as non-legal correspondence, and so there is minimal government interest in restricting it.⁹⁶ Letters to some government agencies, elected officials, and legal assistance and civil liberties groups enjoy the same protection as mail addressed to your attorney. ⁹⁷ Also, the government has a duty to...