Free-speech rights shouldn’t stop at the prison gate

Thursday, January 15, 1998

— Prison walls do not form a barrier separating prison inmates from the Constitution.
U.S. Supreme Court in Turner v. Safley (1987)

Ohio state correctional officers forbid inmates from speaking at the time of their executions. Congress passes a law banning sexually explicit magazines in federal prisons. Florida’s Department of Corrections severely limits the number of stamps given to indigent prisoners. Mumia Abu Jamal, one of America’s most famous death-row inmates, sues National Public Radio for refusing to broadcast his program Live From Death Row. Several states ban prisoner radio access. California Gov. Pete Wilson vetoes legislation that would have loosened restrictions on inmate interviews.

These examples illustrate the numerous First Amendment claims and issues involving prisoners. Even the U.S. Supreme Court will wade into these waters this term. In Crawford-El v. Britton, an inmate contends a correctional officer retaliated against his exercise of First Amendment rights—including speaking to reporters about poor prison conditions—by failing to promptly deliver his legal papers to him.

One possible explanation for the numerous First Amendment claims that arise out of the prison context is that inmates’ constitutional rights are inextricably intertwined with the constitutional rights of others. The U.S. Supreme Court stated in Thornborough v. Abbott (1989) that prison walls do not “bar free citizens from exercising their own constitutional rights by reaching out to those on the inside.”

Journalists have legitimate interests in accessing inmates through interviews to reveal matters of public interest, such as prison conditions. Lawyers and legal assistants need access to prisoners to petition the courts for redress of grievances. Publishers of magazines have First Amendment free-press rights to have their publications distributed without censorship.

Prisoners themselves do not lose all First Amendment protections when they are behind bars. However, their constitutional rights are diminished, because courts recognize the difficult job that prison officials have in maintaining order and security at penal institutions.

The standard that courts apply when balancing the free-speech rights of inmates versus the institutional concerns of prison authorities was articulated by the Supreme Court in a 1987 case, Turner v. Safley. This “reasonableness” standard provides that “when a prison regulation [or action by a prison official] impinges on inmates’ constitutional rights, the regulation [or action] is valid if it is reasonably related to legitimate penological interests.”

In a later case, the Supreme Court explained the factors that judges must consider in evaluating the “reasonableness” standard. First, there must be a “valid, rational connection” between the regulation and the “legitimate” and “neutral” government interest. The regulations must be “rationally related” to the government interest.

Courts will also determine reasonableness by determining whether there are “alternative means” for prisoners to exercise their First Amendment rights, whether accommodating those rights will impact other inmates and prison guards, and whether there are “obvious, easy alternative” ways for prison officials to accomplish their objectives.

In a dissenting opinion, Justice John Paul Stevens chastised the majority for the “feeble protection” that the “reasonableness” standard would leave for prisoners and those attempting to communicate with them. Some experts agree with this candid assessment.

Jenni Gainsborough, public policy administrator for the National Prison Project, says that “the standard in Turner is not protective enough of prisoners’ First Amendment and other constitutional rights, because the standard is open to interpretation by the courts which have become increasingly more restrictive with respect to prisoners’ rights.”

Her colleague at the Prison Project, attorney Majorie Rifkin agrees that “the standard is quite deferential,” but says “that is the standard with which we have to work.”

Even under this deferential standard, Rifkin managed to convince a federal district court judge in Amatel v. Reno to strike down “the Ensign Amendment,” which prohibited the Federal Bureau of Prisons from using federal funds to “distribute or make available” to prisoners magazines with explicit sexual content, such as Playboy.

Last August Judge Stanley Sporkin found that the hastily passed law clearly violated the “neutrality” prong of the Turner analysis. In fact, the judge blasted government officials for failing to consider the “Constitutional concerns raised by such legislation.” The government has appealed the case.

In many other cases, however, prison officials successfully argue “safety” and “order.” These justifications have a talismanic effect on courts, often causing them to dismiss prisoner First Amendment claims. Civil-rights practitioner David Rudovsky, a co-author of The Rights of Prisoners, confirms that “a lot of deference is given to prison security rationales and the standard is very liberal and flexible for prison administrators.”

Rudovsky concludes that there is “a trend of limiting the First Amendment rights of inmates.” Sometime this term the high court might continue or slow down this disturbing trend.

Perhaps the court should hearken back to the words of Justice Thurgood Marshall who stated in a prison censorship case that “when the prison gate slams behind an inmate, he does not lose his human quality.”

The inmate should not lose the right of free speech either.