Chapter 5 First Amendment: Freedom of Speech
| Jurisdiction | United States |
Chapter 5 First Amendment: Freedom of Speech
The First Amendment states that the government shall make no law "abridging the freedom of speech, or the press." Freedom of speech is considered a fundamental right in America, and the right has been interpreted to encompass more than just spoken and written words, but also to include symbolic acts and gestures. A detailed analysis of how the courts have interpreted and applied the First Amendment to the non-incarcerated is well beyond the scope of this text. Nevertheless, it is important to provide a brief overview so as to better understand precisely what rights the incarcerated have when it comes to freedom of speech.
An initial reading of the First Amendment may lead one to think that the First Amendment prohibits the government from making any law that restricts or curtails speech in any way. In fact, this has proven not to be the case. Under certain circumstances, judicial precedent has been set so that the government may sometimes limit this right, according to when or where the "speech" is performed. These limitations can be either content-based—that is, they depend on what is being said, the message—or non-content-based, connected not to what is said, but rather to when or where it is said.
In order for the government to limit an individual's speech based on the content of the speech itself, the restriction must pass the same strict scrutiny test required by all laws pertaining to constitutional rights: the restriction must be necessary to serve a "compelling interest" and be the "least restrictive means to further the articulated interest." (Sable Communications of California, Inc. v. Federal Communications Commission, 1989) In other words, in order for government to limit one's right to express a message, the restriction must serve an extremely important objective being served (compelling interest), and it must not be too broad or burdensome—that is, in the case of freedom of speech, it cannot restrict other speech that does not implicate government interest. The most common example of an acceptable content-based restriction is the prohibition against falsely yelling "fire" in a crowded theater. The compelling interest is to prevent a stampede that could cause serious injuries. It is the least restrictive means because it is narrowly tailored to prohibit only the false yelling of "fire" and does not unnecessarily prevent people from yelling other things. Furthermore, there was most likely no political message behind yelling "fire." Instead, the person who uttered this phrase was most likely intending to cause some degree of chaos or harm. It is important to note that while most content-based speech must pass the strict scrutiny test in order to be enforceable, certain content-based speech (e.g., commercial speech, nude dancing) need only pass intermediate scrutiny. This is allowed because there is no inherent political message behind the speech. The framers of the Constitution wanted to make sure that political ideas were not limited and their gist was brought forward with the establishment of judicial scrutiny during the end of the 1930s.
As previously stated, non-content-based restrictions are those that seek to limit not the speaker's message, but the time, place, or manner of in which it is delivered. To be considered constitutional, non-content-based restrictions need not pass strict scrutiny, but rather must pass the lower standard of "intermediate scrutiny." This means that the Supreme Court will not uphold a non-content-based restriction if it does not meet a "significant" or "substantial" or "important" interest of the government. Further, the restriction must be narrowly tailored but not necessarily the least restrictive means. An example of a valid non-content-based restriction is a common city ordinance, in many U.S. cities, that prohibits adult theaters from being located within 1,000 feet of "any residential zone, single- or multiple-family dwelling, church, park, or school." The ordinance was held to be constitutional in that it was in furtherance of a substantial government interest and content-neutral since the ordinance was for the purpose of limiting the secondary effects of crime and noise associated with adult theaters (Renton v. Playtime Theaters, 1986).
As you may have guessed, if there is strict scrutiny and intermediate scrutiny, then there must be a lower level of scrutiny. The lowest (weakest) level of scrutiny is known as the "rationally-related test." Generally, speech is considered to be a fundamental right and as such receives heightened levels of protection. However, certain speech is considered "unprotected speech," which means that one does not have a fundamental right to engage in this form of speech. Obscenity, child pornography, and fighting words are a few common examples of unprotected speech. These categories of speech are considered unprotected because "such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality" (Chaplinsky v. New Hampshire). The government may enact legislation designed to prohibit unprotected speech (e.g., expressions considered obscene or speech constituting fighting words) so long as the law serves a legitimate governmental interest and the law is rationally related to the achievement of that interest.
We now know that free citizens have a constitutionally protected right to freedom of speech and that speech has been interpreted to include not only the spoken word but also writings, pictures, expressive conduct, and symbolic acts and gestures. We also know that if the government would like to infringe on that right, it must possess either a compelling interest (in the case of content-based communication) or a substantial interest (regarding non-content-based communication) in the objective being served, or, in the case of speech categorized as unprotected, demonstrate that the law is rationally related to a desired objective. But what about incarcerated individuals? As previously noted, prisoners are not without constitutional protections. The 1974 case of Wolf v. McDonnell established this clearly when the Supreme Court ruled that prisoners' First Amendment rights are not violated by inspection of their mail for contraband, so long as the mail is not read and the inspection is done in the prisoner's presence so that he can be assured that the privacy of his communications is not breached. But is the free speech provision of the First Amendment one of them? If so, is it the same level of protection as free citizens receive? If the incarcerated have less protection, then how do we assess what is and is not a violation of an inmate's free speech rights? Another question that should be asked is, Should convicted offenders' right to free speech be limited as part of their punishment and as a means of incapacitation?
Communication between Inmates and Non-Inmates
a. Family and Friends
In the early 1970s, a rule in the California Department of Corrections stated, "The sending and receiving of mail is a privilege, not a right, and any violation of the rules governing mail privileges either by you or by your correspondents may cause suspension of the mail privileges" (Hardwick, 1985: 275). This rule was known as Director's Rule 2401. An inmate could be determined to have violated a mail privilege by violating Director's Rules 1201 and 1205. Rule 1201 provided that inmates are not to "agitate, unduly complain, magnify grievances, or behave in any way which might lead to violence." Rule 1205 provided that contraband includes "any writings or voice recordings expressing inflammatory political, racial, religious, or other views or beliefs when not in the immediate possession of the originator, or when the originator's possession is used to subvert prison discipline by display or circulation." Rule 1205 also includes writings not defined as contraband but "in the judgment of the warden or superintendent tend to subvert prison order or discipline." Lastly, rule 2402 (B) provided that inmates "may not send or receive letters that pertain to criminal activity; are lewd, obscene, or defamatory; contain foreign matter, or are otherwise inappropriate." In sum, an inmate's mail privileges could be suspended if, in the eyes of prison officials, either the inmate or one corresponding with the...
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