A. Your First Amendment Right to Freedom of Speech and Association
Library | The Jailhouse Lawyer's Handbook (CCR) (2021 Ed.) |
A. Your First Amendment Right to Freedom of Speech and Association
The Turner Rule: Under the First Amendment, a prison regulation that stops you from speaking, expressing yourself, or interacting with other people must be reasonably related to a legitimate government interest. The court will consider whether the regulation leaves open other ways for you to express yourself, how the regulation impacts other prisoners and prison resources, and whether there are easy alternatives to the regulation that would not restrict your rights as much. |
The First Amendment protects everybody's right to freedom of speech and association. Freedom of speech and association includes the right to read books and magazines, the right to call or write to your family and friends, the right to criticize the government or state officials, and much more. However, in prison those rights are restricted because of the prison's need for security and administrative ease. Because of this, it is often very hard for a prisoner to win a First Amendment case.
Most prison First Amendment issues are governed by a legal standard developed in a case called Turner v. Safley, 482 U.S. 78 (1987). In Turner, prisoners in Missouri brought a class action lawsuit challenging a regulation that limited the ability of people in prison to marry or write letters to each other. The Supreme Court used the case to establish a four-part test for First Amendment claims. Under this test, a court decides whether prison policy or practice is constitutional by asking four questions:
THE TURNER TEST |
√ QUESTION 1: Is the regulation reasonably related to a legitimate, neutral government interest? "Reasonably related" means that the rule is at least somewhat likely to do whatever it is intended to do. A rule banning a book on bomb-making is reasonably related to the prison's goal of security. However, a rule banning all novels is not. "Neutral government interest" means that the prison's goal must not be related to dislike of a particular idea or group. Increasing prison security is a neutral and legitimate goal. Encouraging prisoners to practice a certain religion, to stop criticizing the prison administration, or to wear their hair a certain way are not neutral or legitimate goals. The prison can't pick and choose certain books or ideas or people unless it has a "neutral" reason, like security, for doing so. √ QUESTION 2: Does the regulation leave open another way for you to exercise your constitutional rights? This means the prison can't have a rule that keeps you from expressing yourself altogether. For example, prison officials can stop the media from conducting face-to-face interviews with people in prison as long as prisoners have other ways (like mail) to communicate with the media. Pell v. Procunier 417 U.S. 817 (1974). √ QUESTION 3: How does the regulation impact other prisoners, prison guards or officials, and prison resources? This question allows the court to consider how much it would cost in terms of money and staff time to change the regulation or practice in question. For example, one court held that it is constitutional to prevent prisoners from calling anyone whose number is not on their list of ten permitted numbers because it would take prison staff a long time to do the necessary background checks on additional numbers. Pope v. Hightower, 101 F.3d 1382 (11th Cir. 1996). This question is not always just about money. It also requires the court to take into consideration whether changing the regulation would pose a risk to other prisoners or staff or create a "ripple effect" causing other problems in the prison. Fraise v. Terhune, 283. F.3d 506, 520 (3d Cir. 2002). √ QUESTION. 4: Are there obvious, easy alternatives to the regulation that would not restrict your right to free expression? This part of the test allows a person in prison to suggest an easy way for the prison to achieve their goal without restricting prisoners' rights. Not every suggestion will work. For example, one court held that it is constitutional to ban letters between two people in two different facilities after one of the two sent a threatening letter to the other's Superintendent. The court ruled that monitoring this type of correspondence is not an obvious or easy alternative to banning it. U.S. v. Felipe, 148 F.3d 101 (2d Cir. 1998). |
You will want to keep these four questions in mind as you read the following sections on the First Amendment.
1. Access to Reading Materials
√ The Basics: Prison Officials can keep you from getting or reading books that they think are dangerous or pornographic. They can also make you get all books straight from the publisher. |
The First Amendment protects your right to get reading material like books and magazines. This doesn't mean that you can have any book you want. Your right is limited by the prison's interest in maintaining order and security, and promoting rehabilitation. Until 1989, the Supreme Court required prisons to prove that banning material was necessary to meet government interests in prison order, security, and rehabilitation. This standard was from a case called Procunier v. Martinez, 416 U.S. 396 (1974), and it gave people in prison fairly strong protection of their right to get books. However, since then the Supreme Court has become much more conservative and has given prisons greater power to restrict your First Amendment rights. Now a prison can keep you from having magazines and books as long as it meets the Turner test, explained above. This change happened in an important Supreme Court case called Thornburgh v. Abbott, 490 U.S. 401 (1989). If you feel that your right to have reading materials is being violated, you should probably start your research by reading Thornburgh v. Abbott.
Why Read Cases? |
Sometimes in this Handbook we suggest that you read court cases. While we have tried to summarize the law for you, the cases we suggest will give you much more detailed information and will help you figure out whether you have a good legal claim. Chapter Seven explains how to find cases in the law library based on their "citation." You can also ask the library clerk for help finding a case. Chapter Seven gives helpful tips on how to get the most out of reading a case. Finally, Chapter Seven contains an explanation of the court systems and how cases are used as grounds for court decisions. Be sure to read it if you are going to do any legal research. Remember that federal courts in one state do not always follow decisions by federal courts in other states. |
While the Turner standard is less favorable to prisoners, it still provides some protection. Prison officials need to justify their policies in some way. If they can't, the regulation may be struck down. Prisons can't just ban books and magazines randomly.
Courts also require prisons to follow fair procedures to ban a publication. A prison cannot maintain a list of excluded publications or decide that no materials from a particular organization will be allowed in. It must decide about each book or magazine on a case-by-case basis. This is true even if a prison official already knows that the book or magazine comes from an organization they don't approve of. Williams v. Brimeyer, 116 F.3d 351 (8th Cir. 1997). Some type of notice from the prison is usually required as well. For example, some prisons require the warden to tell you when they reject a book or magazine sent to you, and to give the publisher or sender a copy of the rejection letter. Courts may require that the prison have a procedure so that you, or the publisher or sender, can appeal the decision.
Prison officials cannot censor material just because it contains religious, philosophical, political, social, or unpopular content. They can only censor material if they believe it may cause disorder or violence, or hurt a prisoner's rehabilitation. In Greybuffalo v. Kingston, 581 F. Supp. 2d 1034 (W.D. Wisc. 2007) for example, a man in the Wisconsin Dept. of Corrections was punished for having a quote about freedom from a Native American chief in his cell, with the initials A.I.M. "A.I.M." stands for the "American Indian Movement," which is a civil rights movement dating back to the 1960s. The court ruled that it was unreasonable to think the material created any threat to prison security and found that the prison had violated Greybuffalo's First Amendment rights. However, cases like this are rare because the Turner standard gives prison wardens broad discretion. Most courts will believe a prison official who says that a book or magazine creates a threat to prison security. It is important to remember that sometimes decisions are inconsistent among different courts.
Courts have allowed prisons to ban reading materials that advocate racial superiority and violence against people of another race or religion. Stefanow v. McFadden, 103 F.3d 1466 (9th Cir. 1996); Chriceol v. Phillips, 169 F.3d 313 (5th Cir. 1999). One court allowed special inspection of a prisoner's mail after he received a book with a suspicious title, even though the book was just an economics textbook. Duamutef v. Holllins, 297 F.3d 108 (2d Cir. 2002). Another court decided that a prison could ban people from receiving the Physician's Desk Reference in the mail because it contains information about drugs, even though the same book was available in the prison library. Munson v. Gaetz, 673 F.3d 630 (7th Cir. 2012).
Prison officials are normally allowed to ban an entire offending publication, as opposed to just removing the sections in question. Shabazz v. Parsons, 127 F. 3d 1246 (10th Cir. 1997). However, this is not always the case. In 2011, Louisiana prisons were not allowed to ban a Nation of Islam newspaper when objectionable pages could be deleted. Leonard v. Louisiana, 449 Fed. Appx. 386 (5th Cir. 2011).
Prisons must also abide by the Fourteenth Amendment, which guarantees equal protection of the laws to all...
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