Prisoners Self Help Legal Clinic
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    NO FREEDOM OF SPEECH BEHIND THE WALLS*
  *The analysis in the pamphlet is based in large part upon an article by Ronald Kuby and William Kunstler.
	"On any given day in America, more than a million and a half people, in prisons and jails spend their days subjected to the most rigorous censorship, denied the fundamental rights protected every where else by the freedom of speech guarantees of the First Amendment.11  They are denied reading material deemed objectionable, punished for possessing "radical" views, and rewarded for renouncing them.  The nation's wardens have shown the solicitude for free expression and the marketplace of ideas that one might expect from those whose life's work is caging their fellows.  And prisoners have been utterly abandoned by the federal courts, whether the winds of the United States Supreme Court blow left or right."2  
	The doctrinal foundation that has permitted prison officials around the country to crush free expression is not a product of the Reagan-bush appointees to the Supreme Court.  Indeed the foundations were laid in the early 1970s by a Court that was still one of the most "liberal," in terms of civil rights, of any in the history of American jurisprudence. In Procunier v. Martinez, 416 U.S. 396 (1974), the Court faced a variety of content-based restrictions on outgoing prisoner mail.  Beginning its analysis with what was to become a familiar paean to the tasks and toils of prison administrators, the Court noted that those who run prisons faced "Herculean obstacles".  Id. at 404, overruled by Thornburgh v. Abbott, 490 U.S. 401 (1989).  Courts are "ill equipped" to deal with these problems, which require expertise "peculiarly within the province of the legislative and executive" officials. 
	With virtually no discussion of the over-arching value of free speech guarantees in American history, the Court in Martinez stated that a regulation limiting free expression would be upheld if it was directed to one or more "substantial" governmental interests and was "no greater than is necessary or essential to the protection of the particular governmental interest involved." 
	The idea that this created a "least restrictive means test" of the type that would apply to anyone else's rights was scotched a few paragraphs later, when, in an often-quoted passage, the Court noted:
	"This does not mean, of course, that prison administrators may be required to show with certainty that adverse consequences would flow from the failure to censor a particular letter.  Some latitude in anticipating the probable consequences of allowing certain speech in a prison environment is essential to the proper discharge of an administrator's duty."
	Nowhere, did the Court in Martinez explain why the standard set forth in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), requiring proof of some actual harm flowing from the exercise of free speech, should not apply in prisons. 
	The Court in Martinez cited order and discipline, maintenance of security against escape and unauthorized entry, and rehabilitation as interests that would justify limitations on a prisoner's freedom of speech.  416 U.S. at 412.  Nevertheless the Court did strike down the regulation at issue, largely because of the difficulty it had understanding how outgoing prisoner mail could lead to problems inside the prison. 
	Less than two months later, in Pell v. Procunier, 417 U.S. 817 (1974), the Court up-held a blanket ban by the State of California on face-to-face interviews by reporters with prisoners.  The Court in Pell held that "[l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system."  Id. at 822 (quoting Price v. Johnson, 334 U.S. 266, 285 (1948)).  
	However, "a prison inmate returns those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penal objectives of the correctional system."  Id.  Restrictions on prisoners would be judged "in light of ... legitimate penal objectives."  In two months, "substantial" and "important governmental" interests had fallen to mere "legitimate" ones.  And one of those legitimate goals was security and "related administrative problems."
	Retreating still further from the suggestion that its decision in Martinez required elevated scrutiny whenever the First Amendment is implicated, the Court in Pell held that deference would be the touchstone, as security problems in prisons were peculiarly within the province and professional expertise of corrections officials, and, in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters. 
	Thus, the Court decreed that mere administrative problems related to security could be the basis to deny free speech, and that such denials required the deference of the courts.  According to the Pell Court, all reporters may be barred from face-to-face meetings with prisoners by the warden's assertion of security concerns that were so "obvious" that they did no even require explication.  But attorneys and clergy, as well as friends and families of prisoners, entered the prisons for face-to-face meetings on a regular basis.  The Court in Pell did not even question why the same security precautions used for those visitors could not be used for the press.  Nor did the Court consider the fact that excluding the news media, while permitting other visitors, suggested that prison officials had an agenda more directed to the suppression of expression than the suppression of disorder. 
	After Pell, the Court had no difficulty upholding regulations that prohibited meetings of a prisoners' union, solicitation of other prisoners to join the union and distribution of union literature by prisoners.  In Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119 (1977), the Court deferred to the determination of prison officials that a gathering of prisoners for a union meeting created hosts of fearsome security threats.  That those same threats mysteriously evaporated when those same prisoners went to meetings of the Jaycee, Boy Scouts, and Alcoholics Anonymous did not trouble the Court.  433 U.S. 119, 122-23.  
	Finally, in Bell v. Wolfish, 441 45520 (1979) the Court held that pre-trial detainees were entitled to no better treatment than convicted prisoners. Wolfish upheld a rule prohibiting hardback books from entering the institution,  unless they were mailed by a publisher, book club, or book store.  The prison argued that contraband could be secreted within the hard covers, and screening the books fluoroscopically, although not impossible, would consume  "substantial and inordinate amount of available staff time."  Because the rule was a "rational" response to a security issue, the Court again deferred to prison officials.  Bell v. Wolfish, 441 U.S. 549. 

	These cases established the framework for the free speech right of the millions of Americans to pass through the American penal system in the 1980s and 1990s. 

A. CONTENT BASED RESTRICTIONS: PRIOR RESTRAINTS ON INCOMING MATERIALS 
	 As the Supreme Court has noted, "[P]rior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights." Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 559 (1976).  Justifying a prior restraint requires "proof that publication must inevitably, directly, and immediately cause the occurrence of an event kindred to imperiling the safety of a transport already at sea."  New York Times Co. v. United States, 403 U.S. 713, 726-27 (1971) (Brennan J., concurring).  However, often a determination by a prison warden, no matter how ignorant, that receipt of a particular book will affect the security of the institution is sufficient for the publication to be banned. 
	In Espinoza v. Wilson,814 F.2d 1093 (6th Cir. 1987), officials at a Kentucky state prison prohibited persons from receiving gay rights publications, even an issue-oriented, national publication like the Advocate.  The prison "officials determined that anything that could be construed as "condoning homosexuality" would be barred.  Id. at 1095. The warden asserted that such materials were a threat to the security of the institution, claiming that prisoners might be physically assaulted for possessing such materials.  Furthermore, he contended that tolerating the expression of opinion tolerant of homosexual lifestyle could lead to more homosexuality, which he perceived to be a danger in prison.  The United States Court of Appeals for the Sixth Circuit found the first contention wholly unsupported by the record, but agreed that the second justification fell "within the wide discretion" accorded the warden."   Id. at 1098-99.  
	Similarly, in Wagner v. Thomas, 608 F. Supp. 1095 (ND. Tex. 1985), the United States District Court for the District of Texas upheld a regulation promulgated by the Dallas county jail prohibiting publications that depict "nudity, pander to sexual interest, advocate racial prejudice or present a security threat to the jail."  Id. at 1097.  Individuals seeking to obtain reading materials were required to consult the "jail commander" before subscribing.  The jail commander claimed that the rule was justified because materials that depict nudes might cause prisoners to fight over the magazines, although there was no indication that this had happened in that jail.  Nonetheless, once again jail officials were entitled to great deference. 
	Nor are publications expressing political speech given any greater protection.  In Vodicka v. Phelps, 624 F.2d 569 (5th Cir. 1980), a prison reform organization published a newsletter called Inside, and regularly mailed it to prisoners at a Mississippi state prison.  One edition reported that a prisoner’s work stoppage had taken place five weeks earlier.  The warden refused to allow the publication into the prison, based both on the content of the article and the philosophy of the group that published it.  Although the article neither advocated future work-stoppages nor claimed that the past one had been justified, the warden stated that the "tone of the article" sounded as if the group had approved of the stoppage.  Id. at 573. 
	As to the nature of the group, the warden stated that the article was censored because the group existed to:

"Encourage convicts, ex-offenders and friends and families of prisoners to come together to make themselves heard and to demand that changes be made by our elected officials and prison administrators.  [It] seeks to empower those who have never had a voice in the system."

	The warden determined this created a "potential for trouble.  That potential must be avoided."
	Incredibly, the Fifth Circuit agreed, finding that under  Pell and Martinez, the prison's determination of likely adverse consequences was enough to justify the exclusion of the article.  And the Vodicka Court deferred to the prison authorities even though news stories substantially similar to the one in  Inside had already entered the institution from mainstream newspapers which covered the work stoppage.
	In the same vein, the United States Court of Appeals for the Fourth Circuit, in  Pittman v. Hutto,594 F.2d 407 (4th Cir. 1979), upheld the prison administrations's suppression of one issue of an award-winning prison newspaper, because prison officials determined that some of the articles were not "factually correct," "out of line with good taste," and not "fair to the administration."  Id. at 409.  Relying on Jones, the Fourth Circuit tossed away two hundred years of First Amendment doctrine regarding the search for truth in a democracy, and upheld the ban. 
B. PUNISHMENT FOR THE EXPRESSION OF UNPOPULAR VIEWS
	
	In the free world, retaliation for the expression of unpopular views would....  But prison officials have not hesitated to use their position of total control over every aspect of a prisoner's life to punish an inmate for expressing unpopular views.  And the federal courts show unbecoming credulity when administrators dutifully insist their goals were proper.
	In Caruth v. Pinkney, 683 F.2d 1044 (7th Cir. 1982), a black prisoner, working as a law clerk at an Illinois state facility, was told that some guards and white inmates were soliciting membership in the Ku Klux Klan.  Caruth obtained a copy of a KKK application as proof.  He surreptitiously photocopied it and sent it to corrections officials and to the news media.  Prison officials, after an investigation, charged Caruth with improper use of the prison copier. placed him in solitary confinement for thirty days, and dismissed him from the position of law clerk.  The United States Court of Appeals for the Seventh Circuit upheld the punishment, holding that the regulation was a reasonable time, place, and manner restriction, and that the punishment was not a pretext for letting the public know about KKK activity. 
	But the prize goes to the United States District Court for the Northern District of California in  Martin v. Rison, 12741 F. Supp. 1406 1990).  Dannie Martin, a federal prisoner, wrote a feature for the  San Francisco Chronicle entitled "The Gulag Mentality," sharply criticizing prison officials.  Immediately after the publication of the piece, he was placed in solitary confinement, and then transferred to another institution.  Prison officials alleged that Martin had violated rules that prohibited conducting a business while confined, and acting as a reporter or publishing under a by-line.  
	The district court held that "engaging in writing activities is not a constitutionally protected right ... Such activities are delegated by Congress to the discretion of the Bureau of Prisons."  As long as the restrictions are rationally related to promoting prison security, they will be upheld.  Id. at 1410.  The district court had no difficulty coming up with fistful of possible harms that the regulation was geared to prevent, all of them speculative and unsupported by any evidence.  Id. at 1414-15.  
	For instance, prison officials observed an increase in tensions, and noticed an unusually large number of prisoners in clusters.  The district court somewhat sheepishly noted that these manifestations may well have been responses, not to the article, but to the action of prison authorities in placing Martin in solitary confinement.
	Prison officials also are free to punish prisoners for showing "disrespect." In Scarpa v. Ponte, the prisoner wrote a letter to a guard which was "arguably mocking, taunting, and disrespectful."  Scarpa, 638 F. Supp. 1019 (D. Mass. 1986)(footnote omitted).  That provided a suitable basis for imposing discipline, as long as the officials themselves were acting with a good faith belief that the punishment was necessary to maintain order.  Similarly, in Gibbs v. King, F.2d 1040 (5th Cir. 1986), the United States Court of Appeals for the Fifth Circuit upheld a prison regulation prohibiting a prisoner from making or writing "derogatory or degrading remarks about an employee," finding that the "clear purposes" of the rule were to "prevent the escalation of tension" and to allow guards to work without "verbal challenges to their authority."  The United States Court of Appeals for the Third Circuit went one step further in Hadden v. Howard, 713 F.2d 1003 (3d Cir. 1983), permitting internal prison discipline for "insolence," "disrespect," and "lying to an employee," even when such conduct took place in the form of an official grievance filed by a prisoner. Id.  at 1006 (citing PA. CODE § 95.102a(b)(25),(31)).

C. VIOLATION OF FREEDOM OF CONSCIENCE

	If punishing someone for expressing certain views is odious to a free society,  inflicting torture until one renounces his or her views is medieval, yet permitted by the federal judiciary.  In Baraldini v. Meese, prisoners challenged the conditions at the federal High Security Unit ("HSU") for Women, at Lexington, Kentucky, as well as the criteria by which they were placed there.  The HSU  was a prison within a prison, located in a specially modified basement.  Little, if any, natural light entered the institution.  The prisoners had no personal contact with each other and virtually no visitors.  They were monitored by cameras twenty-four hours per day, even when they showered.  Every time they left their cells, even for medical care or for a shower, they were handcuffed and shackled.  After a year in the HSU, the women experienced mental deterioration, sensory disturbances, perceptual distortions, and concentration difficulties. Baraldini, 691 F. Supp. 432, 445 (D.D.C. 1988).  
	How were prisoners selected for this treatment?  Bureau of Prisons ("BOP") Director Michael Quinlan acknowledged that  "a prisoner's past or present affiliation, association or membership in an organization which ... attempts to disrupt or overthrow the government of the United States ... is a factor considered" regarding placement. The women were specifically informed by prison staff that the only way they would be able to merit a transfer was if they would "disavow any association with leftist political groups." 
	In finding both the conditions of the prison as well as the criteria used for placement unconstitutional, the United States District of Court for the District of Columbia held "[C]onsigning anyone to a high security unit for past political associations they will never shed unless forced to renounce them is a dangerous mission for this country's prison system to continue."  The United States Court of Appeals for the District of Columbia Circuit reversed, finding that the right of the prisoners to "continue to hold violent, revolutionary  views ... do[es] not require prison administrators to ignore those views ... in assessing the dangers of their escape from custody with outside help."  Renunciation of those views simply meant that the security threat had diminished.  The fact that two of the plaintiffs had no prior escape history, while many other prisoners with prior escape history remained in general population, did not affect the analysis.  
	In  Nickens v. White, 622 F.2d 967 (8th Cir. 1980), prison officials at a medium security institution placed an inmate in solitary confinement and then transferred him to a maximum facility when he refused to take his name off a petition.  The petition, signed by about two hundred prisoners, was directed to a state official and protested prison conditions.  The United States Court of Appeals for the Eighth Circuit upheld both the policy against petitions as well as its peculiar enforcement.  The court found no First Amendment problem in punishing a prisoner for refusing to renounce his prior speech.  Id.  at 971-72. 

D. RESTRICTIONS ON PRISONER-TO-PRISONER CONTACT

	In Jones v. North Carolina Prisoners, the Supreme Court held broadly that whatever rights prisoners retained to associate with each other could be "curtailed whenever the institution's officials, in the exercise of their informed discretion, reasonably conclude that such associations ... possess the likelihood of disruption to prison order or stability, or otherwise interfere with ... legitimate penological objectives."
	Prison officials are free to deny prisoners any right of association with each other by confining them in solitary confinement.  But since, as a practical matter, few prisons are run under such conditions, it is inevitable that prisoners will come into physical proximity, of each other.  Prison officials are given vast authority to regulate the communication among them.
	The Supreme Court in Turner v. Safley, 482 U.S. 78 (1987), upheld a general ban of letters between prisoners in different institutions.  Overturning the lower court's strict scrutiny analysis, the Court in Turner placed its imprimaturs on the reasonable relationship test already in general use.  Id. at 91.  The Court then found that the security justification - preventing transmission of escape plans and planning of assaults - warranted the ban.
	Even when prisoners are allowed to communicate with each other, prison officials are entitled to censor the content of their communications and punish critical speech.
	In Adams v. Gunnell, three prisoners were placed in solitary confinement, and then given disciplinary hearing where they were convicted and sentenced to loss of all "good time" because they had signed and supported an "illegal petition."  The petition alleged that black prisoners were denied some opportunities granted to whites, and requested that "avenues and strategies" be developed to address this problem.  The petition was sent to the warden, a local paper, and the ACLU.  The Fifth Circuit, noting that the warden had cited several constitutionally impermissible reasons for the rule, nonetheless found one of the reasons acceptable - the fear that some inmates might coerce others into signing the petition.  Faced with this invocation of prison security rationale, the Court upheld the restriction, finding that First Amendment rights were "touched, but not seriously infringed."(cite)

E. NO RIGHT TO ACCESS TO THE PRESS

	It should come as no surprise that whenever there is a prison rebellion, one of the key demands is direct access to the news media.  Prisoners and prison officials alike know the importance of a free, investigative press in exposing wrongdoing and arousing the public conscience. In both Pell (cite) and Saxbe,(cite) total bans by the prison on face-to-face interviews were upheld by the Supreme Court.  When prison officials do permit some reporters access to prisoners, they are free to deny access to others.  In  Jersawitz v. Hanberry,783 F.2d 1532 (11th Cir. 1986), a journalist who had produced a public access cable television show wished to interview Father Raymond Bourgeois, an outspoken critic of United States foreign policy, imprisoned for civil disobedience.  Prison regulations permitted the entry of only those reporters who worked for media holding an FCC license.  The United States Court of Appeals for the Eleventh Circuit upheld the ban, finding that the prison's desire to ensure that the reporters who entered the prison were "responsible persons" who were accountable "to recognized media organizations" was legitimate.  Id. at 1534.  

F. OTHER RESTRICTIONS

	Even a prisoner who has no desire to obtain, distribute, or even discuss anything objectionable is faced with a plethora of prison regulations, which impose formidable restrictions of his/her access to ideas and information.
	In Wolfish, (cite) the Court upheld a rule permitting entry of hardback books only if sent from a publisher, book store, or book club.  In Wagner, the district court approved a similar rule for all books and magazines, citing the same justification - administrative time and effort to leaf through every single page.  Going even further, the Third Circuit, in  Hurd v. Williams, 755 F.2d 306 (3d Cir. 1985), allowed to stand a rule that required all publications to come only from the publisher.
	Neither do prisoners have a constitutional right to privacy in their incoming or outgoing correspondence.  In  Jackson v. Norris, 748 F. Supp. 570 (M.D. Tenn. 1990), incoming mail that was not privileged was read by the jail staff.  In upholding this practice, the United States District Court for the Middle District of Tennessee refused to require the prison to make any particularized showing that the correspondent or the recipient posed a danger.  In Norris, the writer was presidential candidate Reverend Jesse Jackson whose letters were read (for escape plans?) by the staff.  And in Gaines v. Lane, 790 F.2d 1299 (7th Cir. 1986), the Seventh Circuit allowed prison officials to read all outgoing correspondence, noting that the regulation was designed to foil the transmission of escape plans or other, unspecified security threats.  The certainty of harm did not have to be shown.

	There is also no general constitutional right to access to the telephone, at least for calls to persons other than lawyers.  In  Benzel v. Grammar, 869 F.2d 1105 (8th Cir. 1989), the Eighth Circuit upheld a Nebraska regulation that permitted prisoners in the punishment unit to call only three people, two of whom had to be family members, and the third, if not a relative, had to be female. The Eighth Circuit upheld the determination of the prison officials that "male to male" telephone contact served no important rehabilitative value, and posed potential security problems.

G. TWO DECADES OF SUPREME DISHONESTY

	Perhaps the most striking aspect of the history of prison free speech litigation is the general absence of any genuine First Amendment analysis.  There was no acknowledgment in Martinez, Pell, Jones, or Wolfish that free  speech rights hold some special place in American society or that they fulfill some unique role in the democratic process.  To the contrary, the Supreme Court and the lower federal courts have treated such claims, both analytically and rhetorically, in the same way they treated claims that prisoners are entitled to single cells or to conjugal visits.  Two centuries of high-minded judicial language about the primacy of the First Amendment is conspicuously absent from prison opinions.
	It is a truism that the freedom of speech values of the First Amendment have endured and flourished because of their value to all individuals and, by extension, to society as a whole.  But all of the justifications that have been advanced for free speech guarantees over the ages of American law should apply with equal, force, to persons in prisons.  Prisoners do not value freedom of speech any less than free citizens, nor is the right of any less use to them than to non incarcerated people.  Given the limitations upon a prisoner's other means of personal advancement, reading, and writing, often become the central focus of daily life.  Malcolm X noted: "I have often reflected upon the new vistas that reading opened to me.  I knew right there in prison that reading had changed forever the course of my life. Among others, John Bunyan wrote Pilgrim's Progress, Oscar Wilde wrote the  Ballad of Reading Gaol, and Dr. Martin Luther King, Jr., wrote his  Letters from Birmingham Jail while behind bars. 
	The First Amendment's protection of the quest for political and social truth is only discoverable when people are free "to think (cite) as they please and ... speak what they think."  Prisoners have no lesser need for the truth than free citizens, nor is truth ascertained differently behind prison walls outside them. Based on the belief that even truth is  Indeed, if one proceeds from the assumption that persons are in prison because they have erred in some way, then granting them the same tools possessed by the rest of us to search for truth is an unquestionable penological good.
	Free speech rights are also cherished as a vaccination against tyranny and abuse of governmental power.  Underlying this "checking value" is the well founded suspicion that every government has a natural tendency to suppress the unpopular and maintain the status quo.  Within a prison, the hand of government is far heavier and more frequently involved in one's daily affairs than outside the walls. In  Martin,  the prisoner attempted to warn the public about prison conditions; in  Caruth, the prisoner wanted to alert the public that the KKK was recruiting.  The potential for abuse when one has complete control over other people needs little explanation.
	Effective participation in the political process is also dependent upon freedom of speech.  While prisoners, by virtue of their own incarceration, sometimes have no access to the ballot box, voting is but one means of participation.  Writing, speaking, and seeking to influence public sentiment are activities of equal use to prisoner and free person alike.  
	Lastly, freedom of speech has been conceived of as a "safety value." "Punishing people for speech does not discourage the speech; it only drives it underground, and encourages conspiracy.  (Cite)  If this is true outside the walls, there is no reason to assume, as prison officials have, that the opposite rule applies once sentence is pronounced.