Censorship of Mail: the Prisoner's Right To Communicate By Mail With the Outside World

• Author: Matthew Muraskin
• Published date: 01 April 1968
• Date: 01 April 1968
• DOI: http://doi.org/10.1177/003288556804800105
• Subject Matter: Articles

CENSORSHIP OF MAIL: THE PRISONER’S RIGHT
TO COMMUNICATE BY MAIL WITH
THE OUTSIDE WORLD
MATTHEW MURASKIN *
A PERSON INCARCERATED AFTER A JUDGMENT OF CONVICTION IS
necessarily deprived of many personal liberties. But he is not, merely
because the prison doors have closed behind him, unalterably aban-
doned or totally cut off from contact with the outside world. Aside
from personal visits, perhaps the most important privilege a prisoner
has is his ability to communicate in writing with those outside the prison.
Despite a general reluctance on the part of the courts to interfere
with internal prison administration, it may nevertheless be said that an
inmate’s ability to communicate is a right which the courts will generally
protect.
In Ex Parte Hull, 312 U. S. 546 (1941), the U. S. Supreme Court
set forth the initial right and held invalid a regulation made by the
warden of a state prison. The regulation provided that all legal docu-
ments, before being sent to a court, had to be submitted to an office
in the prison for a determination that they were properly drawn. This
was held to be an abridgment of a prisoner’s right to apply to a federal
court for a writ of habeas corpus. In so holding, the Court indicated
that the determination of whether a writ was proper in form and/or
substance was for the court alone to determine and not a matter to
be decided by a prison official.
From this decision has flowed the generally accepted principle
that &dquo;... restrictions will not be allowed to operate to deny a prisoner
access to the ... courts for the presentation of alleged legal wrongs.&dquo;
Lee v. Tahash, 352 F. 2d 970 (8th Cir. 1965); see, also, Matter of
Brabson v. Wilkins, 19 NY 2d 433 (1967).
As for the preparation of the writs, the Courts have generally
refused to interfere with prison regulations forbidding inmates to pre-
pare them for their fellow prisoners. (See Johnson v. Avery, 382 F.
2d 353 (6th Cir. 1967) But note should be taken that the Supreme
Court has granted certiorari in Johnson (390 U. S. 943 1968), and
that in a recent Florida case the federal district court struck down a
state prison regulation prohibiting inmates from preparing writs for
their fellow prisoners on the grounds that this denied the less articulate
access to federal and state courts. Coonts v. Wainwright 282 F. Supp.
893 DC Fla. 1968). The Court did, however, indicate that such regu-
* Chief, Appeals Bureau, Legal Aid Society of Nassau County, New York.
33

---

lation would be valid if the state provided counsel to all those persons
who required such assistance, and as an aside, the Court found no
merit in the prison official’s justification for the regulation, i.e. that
they were preventing the illegal practice of law, by stating this was not
the responsibility of the prison.
In practical effect, written communications from prisoner to court
and from court to prisoner may be delayed no longer than required by
the necessities of sorting and should be delivered without censorship
of any kind. Coleman v. Peyton, 362 F. 2d 905 (4 Cir. 1966). As
to possible abuses, it was indicated in Coleman that no court had to
silently suffer a perversion of its offices, and could report abuses to
the prison or other law enforcement bodies. See also, Hynes v. Dickson,
232 F. Supp. 796 (D. C. Calif. 1907).
Despite the broad language of Lee v. Tahash, supra, a different
rule prevails with regard to prisoners filing civil actions which do not
relate to their personal liberty, Kirby v. Thomas, 336 F. 2d 462 (6 Cir.
1964 ) ; Tabor v. Hardwick, 224 F. 2d 526 ( S Cir. 1955 ) .
Citing Price v. Johnston, 334 U. S. 266, 288, (1948), that &dquo;Law-
ful incarceration brings about the necessary withdrawal or limitation
of many privileges and rights [which are] justified by the considerations
underlying our prison system&dquo; the Court in Tabor concluded (at page
529) that if prisoners had an unrestricted right to file civil actions:
penitentiary wardens and the Courts might be swamped with an
endless number of unnecessary and even spurious lawsuits filed
by inmates in...