Prisoners' Rights of Speech

Prisoners' Rights of Speech The U.S. Supreme Court has decided a number of cases involving the free‐speech rights of prison inmates to communicate with those on the outside. In Procunier v. Martinez (1974), the Court held that the attenuated First Amendment rights of inmates, coupled with the full free‐speech rights of those outside prison who wished to communicate with them, restricted the sort of mail censorship prison authorities could impose. The Court ruled that censorship would be sustained if it furthered “an important or substantial governmental interest unrelated to the suppression of expression” (p. 413). The Court also held that the regulation must involve an infringement of First Amendment rights “no greater than is necessary or essential to the protection of the particular governmental interest involved” (p. 413). In light of these standards, the California regulations at issue in Procunier—which were aimed at suppressing inmate complaints, inflammatory political and other opinions, and obscene materials—were overly broad and thus unconstitutional.

More recently, the Court ruled in Turner v. Safley (1987) that Missouri prison regulations that prohibited correspondence between inmates at different state prisons were valid. In this case the Court used a lesser standard for review: whether the regulations were “reasonably related to legitimate penological interests” (p. 89).

In Bell v. Wolfish (1979), the Court upheld a regulation at the Metropolitan Correction Center in New York City that forbade inmates from receiving hardbound books from sources other than publishers, book clubs, and bookstores. The Court found this rule to be a rational response to the prison security threat posed by hardbound books, which may be used more easily than paperbacks and magazines for smuggling money, drugs, or weapons into prisons.

Thornburg v. Abbott (1989) sustained Federal Bureau of Prisons regulations allowing inmates to subscribe to or receive periodicals or books without prior approval but also permitting wardens to reject incoming items deemed detrimental to institutional security, order, or discipline on the basis of a nonexhaustive list of criteria contained in the regulations. Procedural safeguards were established in the regulations, but any item excluded was excluded entirely (the “all‐or‐nothing” rule). These regulations were upheld as being reasonably related to legitimate penological interests; the all‐or‐nothing rule was not found to be unduly harsh and the bureau did not have to adopt a less restrictive alternative.

In Jones v. North Carolina Prisoners Labor Union (1977), the Court sustained actions by prison officials that “prohibited inmates from soliciting other inmates to join … the North Carolina Prisoners' Labor Union …, barred all meetings of the Union, and refused to deliver packets of union publications that had been mailed in bulk to several inmates for redistribution among other prisoners” (p. 121). The Court held that the regulations on which these actions were based were reasonable and therefore constitutional.

In Pell v. Procunier (1974) the Court upheld a state regulation prohibiting personal interviews between media personnel and individual, named inmates. The Court held that because they had alternative ways of communicating with the media, inmates had no right to face‐to‐face interviews. The Court held further that the regulation did not abridge the rights of the media because it did not place reporters and other media personnel under greater restrictions than those imposed on the general public. This holding was extended to federal prisons by Saxbe v. Washington Post (1974).

The principle of Pell v. Procunier was reaffirmed by Houchins v. KQED (1978), in which both the public and the press were initially excluded entirely from a prison involved in controversy over conditions in its maximum‐security area (the prison later allowed limited public tours of its facility except for the maximum‐security area). Thus, despite the First Amendment rights of people on the outside to communicate with inmates (Procunier v. Martinez), all that prison officials seem to need to do to exclude the media from contact with inmates is to prohibit contact between inmates and the general public. Under the new standard enunciated by the Court in Turner and Thornburg, regulations restricting prisoners' contact with the general public need only be reasonably related to a legitimate penological interest.

Procunier has been substantially eroded as a precedent, but not because of changes in membership on the Court. After Procunier, Justices Warren Burger, William H. Rehnquist, Byron White, and Potter Stewart (as well as Burger's successor, Antonin Scalia, and Stewart's replacement, Sandra Day O'Connor) never again voted favorably on a prisoners' free‐speech claim, with the exception of minor portions of cases that basically rejected such claims. Justices Lewis Powell and Harry Blackmun provided the swing votes resulting in prisoners losing all their Supreme Court free‐speech cases since Procunier.

See also Speech and the Press.

Bibliography

Emily Calhoun , The First Amendment Rights of Prisoners, in Prisoners' Rights Sourcebook: Theory Litigation Practice, vol. 2 (1980), pp. 43–65.
Ila Jeanne Sensenich , Compendium of the Law on Prisoners' Rights (1979).

Daryl R. Fair