Supreme Court to weigh case pitting prison security vs. inmate speech

Thursday, September 28, 2000

The need for prison security collides with the First Amendment rights
of inmates in a case the Supreme Court has agreed to rule on next year.

Justices on Sept. 26 granted review in the case of
Shaw v. Murphy, which stems from the
refusal by Montana prison officials to let inmate Kevin Murphy give legal
advice to a fellow inmate.

Murphy wrote a letter to fellow inmate Pat Tracy counseling him on how
to handle charges of assaulting a prison guard. The letter was intercepted by
another guard, Robert Shaw, who charged Murphy with insolence and interference
with a due-process hearing. Murphy challenged the charges, claiming his First
Amendment free-speech rights had been violated. A district court judge upheld
prison censorship of correspondence between inmates, but the
U.S. Circuit Court of Appeals reversed, ruling that legal advice is
entitled to special First Amendment protection and that Murphy had a First
Amendment right to offer help to the fellow inmate.

“The letter itself constitutes speech that, outside of the prison
context, would doubtless enjoy the protection of the First Amendment,” wrote
Judge Betty Fletcher for the appeals panel. “The fact that the speech occurs
inside the prison walls means that prison authorities may, in appropriate
circumstances, regulate the speech, but does not take it out side the reach of
the First Amendment altogether.”

Censorship of prisoners’ mail can be justified only if there is a
penological purpose behind it, the court said. “The interest advanced by
Defendants here is the general interest in security and order.”

Fletcher continued, “It appears that the ‘logical nexus’ here between
the governmental interest and the application of the rules to law clerk
correspondence is weak.”

In his brief before the Supreme Court, Montana Attorney General Joseph
Mazurek argues that the 9th Circuit ruling conflicts sharply with decisions by
the 5th, 6th, 8th, 10th and 11th Circuits. “The Ninth Circuit stands alone with
its conclusion that prison inmates enjoy a First Amendment right to render
legal assistance to fellow inmates,” writes Mazurek. “There is good reason for
its isolation.”

Mazurek also argues that certain First Amendment rights are
“necessarily curtailed” in prisons.

But lawyers for inmate Murphy tell the court that even in prisons,
inmate-to-inmate communications may not be censored because of their

The court has struggled often to reach the right balance between
prison safety concerns and constitutional rights. In the case
Turner v. Safley, the court said
“prison walls do not form a barrier separating prison inmates from the
protections of the Constitution.” But in that same 1987 decision, the court
upheld prison regulations limiting communications between inmates.

Arguments in Shaw v. Murphy will be heard in January, with a decision from the court not expected before

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