Free Speech Rights of Prisoners

The First Amendment safeguards our rights to free speech, among other liberties. However, these rights under the First Amendment are not without limitations. Rather, First Amendment protections limit the government’s ability to restrict these freedoms.

The First Amendment to the U.S. Constitution reads:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

The U.S. Supreme Court has established several permissible restrictions on speech and expression. It has also developed legal frameworks for deciding whether government restrictions on speech are constitutional.

Not surprisingly, prisoners' rights and privileges are more limited than those of non-prisoners. Accordingly, the government is more inclined to restrict prisoners’ speech and access to information.

How Does the First Amendment Apply to Communication Within Prisons?

In Procunier v. Martinez, the Supreme Court reviewed a California Department of Corrections restriction regulating mail. The regulation allowed prison officials to censor incoming and outgoing prisoner mail. The officials could hold back mail they found to “unduly complain.” They could also confiscate mail they deemed inflammatory, defamatory, or otherwise inappropriate. Based on the rights of the prisoner’s correspondent (but not the inmate) the Court determined the regulation was invalid.

The Procunier Court explained that the restriction didn’t serve “an important or substantial governmental interest unrelated to the suppression of free expression.” For prisons, these interests include:

• Maintaining order and discipline in prisons

• Prison security and protection against escape and unlawful entry

• Rehabilitation of inmates

The Court also provided criteria that prison mail restrictions must satisfy to be upheld:

• They must serve an important state interest unrelated to the suppression of speech or expression.

• They must advance the substantial interests of order, security, and prisoner rehabilitation.

• They can’t be used simply for the purpose of censoring expression or opinions.

• They can’t be any greater than is necessary to safeguard the relevant state interest.

The Court struck down the regulations because they were overbroad and lacked procedural safeguards. They also invited prison officials to apply their own opinions and prejudices as standards for censorship.

Fifteen years later, in Thornburgh v. Abbott, the justices refined this standard. The Court ruled that the Procunier criteria applied only to outgoing correspondence. It explained that regulation of prisoners’ incoming correspondence demanded more deference to the state to preserve prison security.

Do Prisoners Have Free Speech Rights Under the First Amendment?

In Pell v. Procunier, the Court reviewed a prison regulation restricting face-to-face press interviews with certain inmates. Prisoners and journalists contended the regulation violated their First Amendment rights.

The Pell Court established that a prisoner is entitled to First Amendment rights that aren’t “inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system.” The restriction on interviews affected the prisoners’ First Amendment rights. Thus, the Court weighed it against these objectives.

The Court upheld the restriction because many alternative means of communication were available, such as mail and visitors.

Justices Douglas, Brennan, and Marshall dissented. They found the restriction overbroad. They also contended the Court didn’t adequately consider “the public’s right to know.”

How Are Prisoners’ First Amendment Rights Balanced with Prison Security Concerns?

Three years later, the Court reviewed prison restrictions on union activity in Jones v. North Carolina Prisoners’ Union. The restrictions banned several union activities, including:

• Union meetings

• Prisoner-to-prisoner solicitation to join the union

• Incoming bulk mailings about the union

The Court ultimately upheld the correctional facility regulations. The justices found that the reasonable fears of prison officers justified the restrictions. Specifically, they feared that the type of organizational activity encouraged by the union would impede prison order and discipline. The Court further explained that the expert judgment of prison administrators should generally be afforded great deference.

Likewise, in Turner v. Safley, the Court held that regulations impacting only the prisoners’ rights to free speech demand more deference to the state. So, it established a reasonableness standard to test restrictions on an inmate’s First Amendment right to free speech.

Specifically, the Turner Court determined that such restrictions must be “reasonably related to legitimate penological interests.” It also established four factors relevant to making this determination:

1. Whether there is a valid, rational connection between the prison restriction and the state interest presented to justify it

2. Whether alternate ways for prisoners to exercise their constitutional rights remain available

3. The impact accommodations will have on correctional officers, other prisoners, and prison resources

4. Whether ready alternatives to the restriction that advance the legitimate state interest are available

Since then, courts have upheld several sweeping prison bans on correspondence, books, and other materials as reasonably related to the broad interests of security and rehabilitation.

In Overton v. Bazzetta, the Court evaluated prison regulations restricting inmate visits. The prison policy prohibited visits from minors and former prisoners. It also prohibited all visits for prisoners who had at least two substance-abuse violations. They could only meet with their attorneys or clergy. These particular prisoners could apply for reinstatement of these privileges after two years.

The Court determined the regulations satisfied the Turner test and upheld them, stating:

“If the withdrawal of all visitation privileges were permanent or for a much longer period, or if it were applied in an arbitrary manner to a particular inmate, the case would present different considerations.”

In Beard v. Banks, the Court reviewed a Pennsylvania prison policy prohibiting magazines, newspapers, and photos for a particularly defiant and dangerous group of prisoners. The prison separated these inmates from the regular inmates. The facility explained that the policy aimed to incentivize this group to improve their behavior so they could rejoin the regular prison population.

Applying the Turner test, a plurality of justices determined the policy served a valid state interest and satisfied the four criteria. They also held that the state must do more than establish a valid, rational connection. Instead, the prison needed to establish a “reasonable relation” between depriving the prisoners of these materials and incentivizing their better behavior. The Court determined the state established that reasonable relation.

Two justices concurred, arguing that the courts should discontinue the use of the Turner test. Consequently, the Court, in a 4-2-2 decision, sustained the restriction. Justice Alito, the author of the appellate court's opinion, recused himself from the decision.

Prisoners’ First Amendment Freedom of Religion

The First Amendment also protects prisoners’ rights to freedom of religion. In 2000, Congress passed the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) to reinforce this protection. The RLUIPA established a strict scrutiny standard for prison rules that substantially burden inmates' free exercise of religion. Specifically, the rule or policy must serve a compelling state interest in the least restrictive manner.

In 2015, the Court reviewed Holt v. Hobbs. The Holt Court reviewed a prison policy prohibiting prison inmates from growing beards except for medical reasons. A Muslim inmate wanted to grow a half-inch beard for religious reasons. He challenged the policy on First Amendment grounds. The state cited security concerns about smuggling contraband in beards as a compelling state interest. It also cited prisoner identification challenges.

The Court unanimously determined that the policy violated the RLUIPA. The policy wasn’t the least restrictive means available to address security and identification concerns.

Seven years later, the Court addressed another religious freedom matter involving a prisoner. In Ramirez v. Collier, the Court reviewed a Texas prison policy prohibiting the pastor of a death row inmate from touching and audibly praying over him during execution.

The state offered a few compelling interests for the policy:

• Silence and absence of disruptions were necessary in the execution chamber for prison officials to adequately monitor the process.

• The prohibition of physical contact serves the compelling state interest of ensuring security and preventing unnecessary suffering and emotional trauma.

The Court accepted these as compelling objectives. Yet, it held that several less restrictive alternate measures were available to serve these interests. Ultimately, the Court determined the inmate would have likely prevailed because of the heightened RLUIPA standards.

First Amendment Rights of Former Prisoners

In Packingham v. North Carolina, the Court reviewed a state law that made it a felony for registered sex offenders to use any social networking sites that permit minors to join. This was one of the Court’s first cases addressing the intersection of the internet and the First Amendment.

The Court declared that social networking websites were subject to First Amendment protections. It also determined that the state law violated the First Amendment rights of sex offenders because it was overbroad.

The law did advance the state’s important and legitimate interest in preventing child abuse. Yet, the Court found the law wasn’t narrowly tailored enough to serve that goal. From this analysis, it seems that laws impacting the First Amendment rights of former prisoners still under state supervision are subject to strict scrutiny.  

Supreme Court precedent has long established that the government gets more wiggle room when establishing rules impacting the First Amendment rights of prisoners. Although this evolving body of caselaw may not always be predictable, its use of balancing tests is.

If the First Amendment is at issue, the goals of our correctional system will generally be weighed against the prisoners’ rights. As the Turner Court declared, “prison walls do not form a barrier separating inmates from protections of the Constitution.”