Prisoners and Freedom of Speech

Imprisonment has historically imposed severe restrictions on freedom of speech. Nineteenth-century doctrine regarded inmates as ‘‘slaves of the state’’ and thus lacking freedom of speech. Well into the twentieth century, courts refused to adjudicate prisoners’ suits under a self-imposed ‘‘hands-off’’ doctrine. Federal courts have since granted prisoners limited freedom of speech under the First Amendment.

Three rulings by the Supreme Court define the constitutionally protected boundaries of prisoners’ freedom of speech. In Procunier v. Martinez, 416 U.S. 3976 (1974), the Court prohibited censorship of nonlegal correspondence sent from prisoners to civilians unless the censorship is ‘‘no greater than necessary’’ and reasonably advances an ‘‘important or substantial government interest.’’ The Martinez Court thus applied a level of judicial review one step below the ‘‘compelling interest’’ test usually used in free speech cases. Moreover, the Court held that censorship triggers the following procedural safeguards: notice to the affected inmates that their correspondence has been censored; an opportunity to object to the censorship; and, finally, third-party review of the protested censorship.

In limiting the reach of the Martinez ruling to nonlegal correspondence sent by prisoners to civilians, Turner v. Safley, 482 U.S. 78 (1987), permitted severe restrictions on all other First Amendment communication involving prisoners. The Turner Court upheld a nearly total ban on inmate-to-inmate correspondence. Turner employed the lowest level of scrutiny—that is, whether the restraint in question ‘‘is reasonably related to legitimate penological interests.’’ The majority opinion mandated a four-step inquiry into the reasonableness of the challenged censorship: (1) whether the regulation limiting free speech rationally advances the governmental interest in rehabilitating offenders or safeguarding the public, staff, and inmates; (2) the availability of an alternative means of exercising freedom of speech; (3) the impact of accommodating the asserted right; and (4) the absence of a ready alternative to the challenged regulation.

Later, in Thornburgh v. Abbot, 490 U.S. 401 (1989), the Supreme Court applied Turner’s reasonableness test to prison rules barring certain publications sent to prisoners from civilians. Once again, the Court found the challenged government censorship constitutionally acceptable.

In applying the Procunier, Turner, and Thornburgh rulings to subsequent litigation, U.S. district and circuit courts have permitted censorship of prisoner speech having sexual, criminal, or disruptive content. On the other hand, lower federal courts have struck down vague criteria for censoring inmate speech and categorical exclusion of newspapers and magazines. Critics argue that judicial scrutiny has nonetheless failed to prevent excessive regulation of prisoners’ speech.

In conclusion, federal courts have given prison staff extensive but not unlimited authority to engage in prior restraint of speech. Prisoners therefore experience a degree of censorship unanticipated by the Framers of the First Amendment.

JAMES E. ROBERTSON

References and Further Reading

• Branham, Lynn S. Cases and Materials on the Law of Sentencing, Corrections, and Prisoners’ Rights, 6th ed. St. Paul, MN: West Group, 2002.
• Feeley, Malcolm M., and Edward L. Rubin. Judicial Policy Making and the Modern State. New York: Cambridge University Press, 1998.
• Jacobs, James B. New Perspectives of Prisons and Imprisonment. Ithaca, NY: Cornell University Press, 1983.
• McKelvey, Blake. American Prisons. Montclair, NJ: Patterson Smith, 1977.
• Mushlin, Michael B. Rights of Prisoners, 3rd ed., vol. 1. St. Paul, MN: West Group, 2002, 587–672.
• Robertson, James E., Catchall Prison Rules and the Courts: A Study of Judicial Review of Prison Justice, St. Louis University Public Law Review 14 (1994): 153–173.
• ———, The Majority Opinion as the Social Construction of Reality: The Supreme Court and Prison Rules, Oklahoma Law Review 53 (Summer 2000): 162–196.
• Smith, Christopher E. Law and Contemporary Corrections. Belmont, CA: Wadsworth, 2000.
• Welch, Michael. Corrections: A Critical Approach. New York: McGraw–Hill, 1996.

Cases and Statutes Cited

• Procunier v. Martinez, 416 U.S. 3976 (1974)
• Thornburgh v. Abbot, 490 U.S. 401 (1989)
• Turner v. Safley, 482 U.S. 78 (1987)

See also Judicial Review; Prior Restraints; Thornburgh v. Abbot, 490 U.S. 401 (1989); Turner v. Safley, 482 U.S. 78 (1987)