×
You have 2 more free articles available this month. Subscribe today.
Challenging Prison Censorship
Longtime readers of PLN will have followed our reports as PLN was censored at various prisons across the country. The role of prison, legal and political publications in prison is very important as it enables prisoners to learn, study and be in a better position to vindicate their civil and political rights. Prison officials have always used censorship of varying degrees to silence the voice of prisoners and of progressive change. As prisoners have challenged the censorship in the courts a body of case law dealing with the subject has been created.
The Supreme Court has ruled that prisoners do not lose all rights upon entering prison but rather retain those rights not inconsistent with incarceration, such as the right of access to the courts, the right to practice religion, the right to free speech, etc. See: Pell v. Procunier , 417 US 817, 94 S.ct 2800 (1974).
In Turner v. Safely , 482 US 78, 107 S.Ct 2254 (1987), the Supreme Court set forth the standards that courts should use in analyzing prison regulations that infringe upon prisoners constitutional rights. The rule being challenged must bear a rational relationship with legitimate penological interests but prison officials have wide latitude in formulating and enforcing prison rules. In Turner the court struck down a Missouri prison rule which banned prisoner marriages to free citizens but upheld a Missouri regulation that prohibited prisoner to prisoner correspondence. It found there was a rational relationship between the mail policy being challenged and the legitimate penological goals claimed by prison officials that the ban was needed to prevent communication between gang members and others within the penal system.
The first Supreme Court case to explicitly review the rights of prisoners in communicating with the outside world and to receive information was Procunier v. Martinez , 416 US 396, 94 S.Ct. 1800 (1974). In this case, prisoners had challenged California DOC mail rules as being overbroad and allowing prison officials to censor inmate mail based on whim and caprice when these letters complained of prison conditions or criticized government policies or employees. The district court struck down the rules as unconstitutional and the Supreme Court agreed. This ruling was based on prisoners sending mail out of the prison but over the years the lower courts applied this standard in judging censorship of prisoners incoming mail as well.
In 1989 in the case of Thornburgh v. Abbot , 490 US ___, 109 S.Ct 1874 (1989), the Supreme Court applied its Turner ruling to the matter of prison mail regulations. In Thornburgh the issue being litigated was the denial of publications to prisoners in the federal prison system by prison officials. The Supreme Court partially overruled its Procunier decision by limiting Procunier to prisoners outgoing mail while applying the more stringent Turner standard to our incoming mail.
In Thornburgh the court upheld the federal Bureau of Prisons (BOP) regulations that allow prison officials to withhold the entire publication if they have reason to believe it may cause disruption in the prison. Under this standard virtually anything prison officials can somehow claim to be disruptive will be deferred to by the reviewing court. The case held that the publisher has a right to send materials to prison readers. It held that a prison mail regulation must be applied in a content neutral manner without regard to the popularity or repulsiveness of the ideas contained therein. (Which seems somewhat contradictory given the fact that censorship, by its very nature, is not content neutral but is taking place because of the literatures content.) This is the leading and controlling case concerning the denial of incoming prisoner mail and publications and needs to be thoroughly read and understood by anyone filing suit on censorship.
Bell v. Wolfish , 441 US 520, 99 S.Ct. 1861 (1979) was a class action suit challenging practices and conditions at the federal Metropolitan Corrections Center (MCC) in New York City. The MCC is a pre-trial facility where prisoners are held pending trial for an average stay of 60 days.
One of the rules challenged in Bell was the BOP's publisher only rule which allows prisoners to receive publications and books only from a bookstore, book club or the publisher. Before the suit reached the Supreme Court the BOP had modified the rule so that prisoners could receive soft cover books, magazines and newspapers from any source and only hardcover books were limited to the publisher only rule. The Supreme Court held that with the rule limited to only hard cover books it did not violate the constitution as it was a reasonable response to prison officials security concerns.
The issue of whether a blanket publishers only rule is constitutional is still open to litigation. Johnson v. Moore , 948 F.2d 517 (9th Cir. 1991) involved a federal boarder challenging the Washington DOC's publisher only rule. The court granted the defendants qualified immunity in the case but held open the possibility that a suit seeking injunctive relief alone might find the policy unconstitutional when it is applied to all publications by prison officials.
Prison officials routinely use the publisher only rule as a means of censorship and banning publications (it has been applied to PLN in the past) with which they disagree but cannot legitimately censor on the basis of content.
In Procunier the Supreme Court held that any mail censorship must be accompanied by procedural due process protections, these guidelines are usually codified in prison mail policies and state laws dealing with prison administration. Due process requires that the intended recipient and the sender of the mail be notified of the censorship, be told the reason it is taking place, inform them of the right to appeal the censorship to a person not involved in the original censorship decision and to receive a written response upholding or reversing the initial censorship decision. Generally the courts require that administrative remedies be exhausted before suit is filed. This means the recipient and sender should appeal the rejection through the administrative process which allows higher ranking prison officials to review the censorship and gives them an opportunity to resolve the matter. This also goes towards attaching liability of higher ranking officials and showing their personal involvement for litigation purposes.
The case law surrounding prison censorship is still developing in light of Thornburgh . For an idea of how prisoners are faring under the new standards, recent cases to check out include: Griffin v. Lombardi , 946 F.2d 604 (8th Cir. 1991) (prisoner denied original college diploma and transcript). Martucci v. Johnson , 944 F.2d 291 (6th Cir. 1991) (pre trial detainee accused of trying to escape was denied all mail). Martyr v. Bachik , 755 F. Supp 325 (DC OR 1991) (mental patients outgoing mail to courts, counsel, etc., censored). Cox v. Embly , 784 F. Supp 685 (ED MO 1992) (confiscation of sexually explicit materials). Allen v. Higgins , 902 F.2d 682 (8th Cir. 1990) (censorship of military surplus catalog). For a more complete listing of censorship cases you should go through the Wests Federal Digest and also Shepardize the Thornburgh ruling.
Censorship of legal and political materials needs to be vigorously challenged because it is through the efforts of small publications like PLN that prisoners learn of the events and developments that affect them. In the event that PLN is censored by prison officials in any state we will automatically appeal any such rejections and assist in any ensuing litigation.
The Supreme Court has ruled that prisoners do not lose all rights upon entering prison but rather retain those rights not inconsistent with incarceration, such as the right of access to the courts, the right to practice religion, the right to free speech, etc. See: Pell v. Procunier , 417 US 817, 94 S.ct 2800 (1974).
In Turner v. Safely , 482 US 78, 107 S.Ct 2254 (1987), the Supreme Court set forth the standards that courts should use in analyzing prison regulations that infringe upon prisoners constitutional rights. The rule being challenged must bear a rational relationship with legitimate penological interests but prison officials have wide latitude in formulating and enforcing prison rules. In Turner the court struck down a Missouri prison rule which banned prisoner marriages to free citizens but upheld a Missouri regulation that prohibited prisoner to prisoner correspondence. It found there was a rational relationship between the mail policy being challenged and the legitimate penological goals claimed by prison officials that the ban was needed to prevent communication between gang members and others within the penal system.
The first Supreme Court case to explicitly review the rights of prisoners in communicating with the outside world and to receive information was Procunier v. Martinez , 416 US 396, 94 S.Ct. 1800 (1974). In this case, prisoners had challenged California DOC mail rules as being overbroad and allowing prison officials to censor inmate mail based on whim and caprice when these letters complained of prison conditions or criticized government policies or employees. The district court struck down the rules as unconstitutional and the Supreme Court agreed. This ruling was based on prisoners sending mail out of the prison but over the years the lower courts applied this standard in judging censorship of prisoners incoming mail as well.
In 1989 in the case of Thornburgh v. Abbot , 490 US ___, 109 S.Ct 1874 (1989), the Supreme Court applied its Turner ruling to the matter of prison mail regulations. In Thornburgh the issue being litigated was the denial of publications to prisoners in the federal prison system by prison officials. The Supreme Court partially overruled its Procunier decision by limiting Procunier to prisoners outgoing mail while applying the more stringent Turner standard to our incoming mail.
In Thornburgh the court upheld the federal Bureau of Prisons (BOP) regulations that allow prison officials to withhold the entire publication if they have reason to believe it may cause disruption in the prison. Under this standard virtually anything prison officials can somehow claim to be disruptive will be deferred to by the reviewing court. The case held that the publisher has a right to send materials to prison readers. It held that a prison mail regulation must be applied in a content neutral manner without regard to the popularity or repulsiveness of the ideas contained therein. (Which seems somewhat contradictory given the fact that censorship, by its very nature, is not content neutral but is taking place because of the literatures content.) This is the leading and controlling case concerning the denial of incoming prisoner mail and publications and needs to be thoroughly read and understood by anyone filing suit on censorship.
Bell v. Wolfish , 441 US 520, 99 S.Ct. 1861 (1979) was a class action suit challenging practices and conditions at the federal Metropolitan Corrections Center (MCC) in New York City. The MCC is a pre-trial facility where prisoners are held pending trial for an average stay of 60 days.
One of the rules challenged in Bell was the BOP's publisher only rule which allows prisoners to receive publications and books only from a bookstore, book club or the publisher. Before the suit reached the Supreme Court the BOP had modified the rule so that prisoners could receive soft cover books, magazines and newspapers from any source and only hardcover books were limited to the publisher only rule. The Supreme Court held that with the rule limited to only hard cover books it did not violate the constitution as it was a reasonable response to prison officials security concerns.
The issue of whether a blanket publishers only rule is constitutional is still open to litigation. Johnson v. Moore , 948 F.2d 517 (9th Cir. 1991) involved a federal boarder challenging the Washington DOC's publisher only rule. The court granted the defendants qualified immunity in the case but held open the possibility that a suit seeking injunctive relief alone might find the policy unconstitutional when it is applied to all publications by prison officials.
Prison officials routinely use the publisher only rule as a means of censorship and banning publications (it has been applied to PLN in the past) with which they disagree but cannot legitimately censor on the basis of content.
In Procunier the Supreme Court held that any mail censorship must be accompanied by procedural due process protections, these guidelines are usually codified in prison mail policies and state laws dealing with prison administration. Due process requires that the intended recipient and the sender of the mail be notified of the censorship, be told the reason it is taking place, inform them of the right to appeal the censorship to a person not involved in the original censorship decision and to receive a written response upholding or reversing the initial censorship decision. Generally the courts require that administrative remedies be exhausted before suit is filed. This means the recipient and sender should appeal the rejection through the administrative process which allows higher ranking prison officials to review the censorship and gives them an opportunity to resolve the matter. This also goes towards attaching liability of higher ranking officials and showing their personal involvement for litigation purposes.
The case law surrounding prison censorship is still developing in light of Thornburgh . For an idea of how prisoners are faring under the new standards, recent cases to check out include: Griffin v. Lombardi , 946 F.2d 604 (8th Cir. 1991) (prisoner denied original college diploma and transcript). Martucci v. Johnson , 944 F.2d 291 (6th Cir. 1991) (pre trial detainee accused of trying to escape was denied all mail). Martyr v. Bachik , 755 F. Supp 325 (DC OR 1991) (mental patients outgoing mail to courts, counsel, etc., censored). Cox v. Embly , 784 F. Supp 685 (ED MO 1992) (confiscation of sexually explicit materials). Allen v. Higgins , 902 F.2d 682 (8th Cir. 1990) (censorship of military surplus catalog). For a more complete listing of censorship cases you should go through the Wests Federal Digest and also Shepardize the Thornburgh ruling.
Censorship of legal and political materials needs to be vigorously challenged because it is through the efforts of small publications like PLN that prisoners learn of the events and developments that affect them. In the event that PLN is censored by prison officials in any state we will automatically appeal any such rejections and assist in any ensuing litigation.
As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.
Already a subscriber? Login