by Ronald Kuby and William Kunstler

Introduction

On any given day in America, more than a million and a half people[1], in prisons and jails[2] 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.[3] They are denied reading material deemed objectionable by their captors, exposed to retaliation for expressing opinions at odds with those of their jailers, refused access to the news media, punished for possessing "radical" views, and rewarded for renouncing them. The prison authorities, more often than not, are persons of limited intellectual capacity and of authoritarian attitudes whose primary penological goal is to maintain order.

As this country abandons whatever liberal pretensions it once had about achieving an equal society, the population of prisons and jails has grown apace with the poor and the dispossessed. The United States now leads the world in per capita incarceration, having finally overtaken the Soviet Union.[4] Approximately 615,000 persons are confined to state and federal correctional institutions on any given day. [Editors' Note: that figure tops over one million now.] More than one million are confined to county or municipal jails, either awaiting arraignment or trial or serving short sentences for petty offenses.[5]

Only in the area of imprisonment does a person with black skin or Latino heritage have a better chance than does a white person. More than sixty-three percent of the nation's prison population is black and Latino.[6] Nationally, a black youth between the ages of eighteen and twenty-two has a better chance of going to jail than going to college. In Washington, D.C., on any given day in 1991, forty-two percent of the city's African-American men between the ages of eighteen and thirty-five were in jail or prison, on probation or parole, awaiting trial or sentence, or sought on warrants.[7] In Baltimore, fifty-six percent of the city's young black males were under some form of sanction by the criminal justice systems.

The nation's penal system has become the primary means for socializing an entire generation of minority youth. It is to the jailer that we have entrusted the task of inculcating in these youth the cherished notions of democracy and the values of a free society, the foremost of these being freedom of speech. 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.

The Supreme Court's Approach to the Free Speech Rights of Prisoners

The doctrinal infrastructure that has permitted prison officials around the country to crush free expression is not a product of the "gang of five" -- 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,[8] 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 those who run prisons faced "Herculean obstacles" that were "too apparent to warrant explication."[9] 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,[10] 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.[11] 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. Other courts were to be more imaginative.[12]

Less than two months later, in Pell v. Procunier,[13] the Court up-held a blanket ban by the State of California on face-to-face interviews with prisoners.[14] 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."[15]

However, "a prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penal objectives of the correctional system."[16] Restrictions on prisoners would be judged "in light of . . . legitimate penal objectives." In two months, "substantial" and "important" 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.

The decision in Pell was widely regarded as establishing a "reasonable relationship"[17] test, both by its terms and its result. According to the 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 not even require explication. But attorneys and clergy, as well as friends and families of the 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 visits 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.[18]

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.,[19] 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.[20] Unlike a union, those organizations fulfill a "rehabilitative" function, according to the prison administrators. That North Carolina officials might invoke "rehabilitation" or "security" as a subterfuge to prevent the expression of views different from theirs apparently never occurred to the Court.[21]

Finally, in Bell v. Wolfish,[22] the Court held that pre-trial detainees were entitled to no better treatment than convicted mass murderers, and "deference" was enshrined as a value of almost religious magnitude. In the process, the Court in 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."[23] Because the rule was a "rational" response to a security issue, it was upheld.[24]

The Grim Application by the Federal Courts

These cases established the framework for the free speech rights of the millions of Americans to pass through the American penal system in the 1980s and early 1990s--the decade that would see the greatest growth in prison population in history.[25] The lower federal courts, packed with Reagan-Bush clones and aided by a Justice Department eager to have as many people enjoy as few civil liberties as possible, were free to savage the free speech right of prisoners. Indeed, entrusting trained chimps to paste up clichés from Pell, Martinez, Jones, and Wolfish above the word "denied" would achieve roughly the same result as seeking redress from the federal judiciary.

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."[26] 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."[27] However, if you are serving a two-month sentence for marijuana possession or are in jail awaiting trial, too poor to make bail, then 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,[28] 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 if a specific publication advocated or legitimized a homosexual lifestyle in totality, then it would be withheld."[29] The warden put it even more bluntly--anything that could be construed as "condoning homosexuality" would be barred.

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 a 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 well "within the wide discretion" accorded the warden.[30]

Similarly, in Wagner v. Thomas,[31] 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."[32] Individuals seeking to obtain reading materials were required to consult the "jail commander" before subscribing.

There is no indication that the jail commander had any particular expertise in the areas of comparative or modern literature. Indeed, the opposite was the case. He testified that commercially available magazines such as Playboy and Penthouse would be banned, but he was not sure about the National Enquirer or Rolling Stone, because he was "not familiar with [them]." He 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, the Dallas jail commander was entitled to great deference. There is, apparently, no "ignorant peckerwood" exception to the rule of deference.

Nor are publications expressing political speech given any greater protection. In Vodicka v. Phelps,[33] 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 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-stop-pages 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.[34] He was not more specific.

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 that the group focused on "redress and/or change of the entire dilemma of incarceration." 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 court in Vodicka 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, [35] upheld the prison administration's suppression of one issue of an award-winning prison newspaper. Assistant Superintendent Sue Kennedy determined that some of the articles were not "factually correct," "out of line with good taste," and not "fair to the administration."[36] Kennedy was particularly concerned with the truth of the articles. 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.[37]

B. Punishment for the Expression of Unpopular Views

In the demonology of the free speech violations, retaliation for the expression of unpopular views ranks second only to prior restraints. But prison officials have not hesitated to use their position of total control over every aspect of a prisoner's life to punish[38] an inmate for expressing unpopular views. And the federal courts, usually on guard against the natural tendency of the powerful to lash out against the voices of the powerless, show unbecoming credulity when administrators dutifully insist that their goals were proper.

In Caruth v. Pinkney,[39] Alsansa Caruth, 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. Sure.

But the prize goes to the United States District Court for the Northern District of California in Martin v. Rison.[40] 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.[41]

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.[42] 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.[43]

Prison officials received some threats after the article was published, 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. Whether or not the prison's censorship created the very security threat that was being used to justify the censorship in the first place was irrelevant to the district court.[44]

Prison officials also are free to punish prisoner's for showing "disrespect." In Scarpa v. Ponte,[45] the prisoner wrote a letter to a guard which was "arguably mocking, taunting, and disrespectful."[46] 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,[47] 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."[48] The United States Court of Appeals for the Third Circuit went one step further in Hadden v. Howard,[49] 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.[50]

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,[51] 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.[52] Experts, including the former Secretary of Maryland's Public Safety and Correctional Services, testified that such conditions were improper for anyone.[53]

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 Unites States . . . is a factor considered" regarding placement. Another BOP official was more blunt, noting that placement was based on "committed alliance to terrorist-oriented ideals and politically-revolutionary organizations."

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." BOP officials admitted that "if they received reliable outside information that plaintiffs were no longer affiliated with such organizations, they would consider relocating them."

In finding both the conditions of the prison as well as the criteria used for placement unconstitutional, the United States District 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."[54] 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,[55] 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.[56]

D. Restrictions on Prisoner-To-Prisoner Contact

A judiciary that permits the punishment of a prisoner for writing an unflattering news story for a national publication on the ground of "institutional security" has had no trouble permitting prison officials to deny persons within the prison community the right to communicate with each other. In Jones, 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."[57]

Prison officials are free to deny prisoners any right of association with each other by confining them in solitary confinement.[58] But as a practical matter, few prisons are run under such conditions; it is inevitable that prisoners will come into physical proximity, or at least sight, of each other. Prison officials are still given vast authority to regulate the communication among them. In Dooley v. Quick,[59] two prisoners were placed in different modules within the prison, following unproven allegations of homosexual contact between them. This placement ended their physical contact, although they still tried to communicate. They were then punished for attempting to pass a letter and for twice "wig-wagging hand signals ... through a glass window."[60] The United States District Court for the District of Rhode Island upheld the punishment, ruling that "[t]his is at bottom, precisely the sort of administrative decision which is best left to the trained custodial professionalism of correctional managers, rather than to the courts."[61]

The decision in Dooley presaged the Supreme Court's ruling in Turner v. Safley,[62] which 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.[63] 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,[64] three prisoners were placed in solitary confinement, and then given an institutional "trial" where they were convicted and sentenced to loss of all "good time"[65] because they had signed and supported an "illegal petition." The petition, gentle in tone, 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."

E. No Right of 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. They seek it and shun it, respectively, for this same reason. In both Pell and Saxbe, 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,[66] 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 and 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.[67]

F. Other Restrictions

Even a prisoner who has no desire to obtain, distribute, or even discuss anything objectionable faces grave impediments in pursuing his or her own intellectual star, however innocuous. A plethora of prison regulations, designed to facilitate prison administration, impose formidable restrictions of a prisoner's access to ideas and information.

In Wolfish, the Court upheld a rule permitting entry of hardback books only if sent from a publisher, book store, or book club.[68] 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.[69] Going even further, the Third Circuit, in Hurd v. Williams,[70] allowed to stand a rule that required all publications to come only from the publisher.[71]

Neither can prisoners expect any privacy in their incoming or outgoing correspondence. In Jackson v. Norris,[72] 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.[73] And in Gaines v. Lane,[74] 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.[75]

There is also no general constitutional right of access to the telephone, at least for calls to persons other than lawyers. In Benzel v. Grammer,[76] 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. No male non family members could be called. 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.[77]

G. Two Decades of Supreme Dishonesty

For almost two decades, the Supreme Court and the lower federal courts have created an apartheid application of the First Amendment. 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 acknowledgement 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 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 conspicuous for its absence in 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, if not greater 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.

The quest for self-fulfillment, recognized as a central value protected by the freedom of speech guarantees of the First Amendment,[78] does not end when sentence is pronounced. Given the limitations upon a prisoner's other means of personal advancement, reading, speaking, writing, and painting 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. As I see it today, the ability to read awoke inside me some long dormant craving to be mentally alive.... My homemade education gave me, with every additional book that I read, a little bit more sensitivity to the deafness, dumbness, and blindness that was afflicting the black race in America."[79]


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 A Birmingham Jail while behind bars. Alexander Berkman wrote a political manifesto;[80] Caryl Chessman exposed the tyranny of the criminal justice system;[81] and Bobby Sands wrote poetry and songs while incarcerated.[82]

Closely related to personal fulfillment is the First Amendment's protection of the quest for political and social truth, and the concomitant idea that such truth is only discoverable when people are free "to think as they please and .. . speak what they think."[83] Prisoners have no lesser need for truth than free citizens, nor is truth ascertained differently behind prison walls than across the street from them. The prisoners in Pittman no doubt believed the truth of their criticism of penal authorities, as did the plaintiffs in Vodicka. 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.[84] 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. Prisons, after all, are total institutions with every aspect of life regulated by the state. 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. The prisoners in Nickens and Gunnell attempted to petition corrections officials, while the plaintiffs in Baraldini maintained their belief in communism and refused to denounce their comrades.

Lastly, freedom of speech has been conceived of as a "safety valve." "Punishing people for speech does not discourage the speech; it only drives it underground, and encourages conspiracy. In the battle for public order, free speech is the ally, not the enemy." If this is true outside the walls, there is no reason to think that the opposite rule applies once sentence is pronounced. Unfortunately, prison wardens have been permitted to proceed from the opposite assumption --that punishing speech will prevent that speech and, accordingly, prevent the realization of the ideas advocated by the speakers.

The courts have never evaluated the importance of free speech rights in light of the values protected by the First Amendment, preferring instead to address the other side of the equations invoking the familiar shibboleths that prisons are difficult places to run, that running them requires the exercise of judgments uniquely suited to corrections officials, and that courts are unsuited to make these determinations. But these arguments cannot withstand analysis.

Running a prison certainly is difficult and dangerous. But this hardly supports the conclusion for which it is invoked. The difficulty of the government's task has never provided a basis for suppressing the free speech rights of the citizenry. Courts, despite two decades of blather about difficult tasks, have yet to articulate the reason why administering three cells in a county jail, for example, is so much more difficult than, say, running the City of New York that the managers of the former should be given vast powers that are denied to the latter. Nor has any evidence appeared in the record of any prison case that proves running a prison is so much more difficult than running a nuclear power plant, the Center for Disease Control, a satellite research facility, or some other enterprise which leaves the free speech rights of its members more or less intact. Of course, when speech raises some grave risk of imminent danger, then and only then is the government free to act, in the narrowest of fashions, to avert that danger. The courts have never explained why a "least restrictive means" test, striking the proper balance between order and rights in the outside world, is unsuited for prison free speech.

Nor have they ever explained why the managers of all prisons and jails are given the same authority to suppress free speech rights, despite obvious differences among institutions that directly affect the difficulty of the task of administration. Some prisons are huge institutions housing thousands of people; others are only a few cells in a municipal building. Some prisons contain maximum-security prisoners serving long sentences for violent crimes, while others house a population of low security, nonviolent offenders who participate in work release programs by day. Many, indeed most, incarcerated persons have not been convicted of anything. Yet the Supreme Court accords exactly the same authority and requires precisely the same deference to the Podunk County Sheriff as it does to the head of the Federal Bureau of Prisons. A prisoner with a perfect record, serving the last weeks of a short sentence in an honor camp can be treated, for First Amendment purposes, the same as a death-row prisoner on the eve of execution.

It also is simply untrue that prison administrators, as such, possess some mysterious expertise that requires deference from the federal courts. Prison administrators differ widely in background, education, skills, and social attitudes. There is no penological consensus that literature "condoning" homosexuality, for example, is dangerous to institutional security. The Kentucky warden in Espinoza was more likely motivated by his own prejudices than any generally shared expertise. Indeed, the mayor of New York City recently signed legislation permitting gay and lesbian "domestic partners" of jail inmates the same visitation rights as heterosexual married couples.[85]

And even assuming that prison administrators as a whole do possess training and education different from that of the citizenry as a whole, no court has ever suggested that such training is so far beyond the ken of the federal judiciary that the former are incapable of being understood by the latter. Every day, federal courts deal with the intricacies of everything from giant financial empires to DNA research. They deal with bodies of knowledge far more specialized than that required for an associate's degree in prison management.

The argument that federal courts are unsuited to running prisons also unravels when pulled a bit. In the first instance, protecting the free speech rights of prisoners should not require the federal court to "run" the prison. It simply requires the federal court to define and protect the most fundamental right in this country, something the federal courts presumably are suited to do, even in this benighted era.

Of course, sometimes the intransigence or incapacity of the prison administration requires courts to assume responsibility for day-to-day functioning. Federal courts are as unsuited to run prisons as they are to operate public schools, large financial institutions, airlines, newspapers, grocery stores, or bus companies. However, they do end up running such institutions, usually quite capably, when the original managers are unwilling or unable to meet their obligations.[86]

The notion that the judgments of prison administrators are entitled to wide-ranging deference is a concept utterly alien and antithetical to the rest of First Amendment jurisprudence. Prison administrators are the persons who are least likely to be trusted with the power to censor inmates. It is they who feel the lash of prisoners' freedom of speech most keenly; it is they who are called to task when corruption and brutality are exposed. The idea that governors, by virtue of their roles as governors, should have the power to silence the governed is absurd in any other context but penal institutions.

Lastly, if the suspension of First Amendment rights was some-how justifiable because prisons are so unique and so dangerous that some special rule should apply, the free speech rights of all members of the institution, including prison guards, administrators, as well as prisoners, could be suspended or adjudicated under a separate constitutional standard. Not surprisingly, this has not been the case.

In Curle v. Ward,[87] New York's Third Appellate Division applied a "strict scrutiny" standard to a prison regulation prohibiting staff members from belonging to the Ku Klux Klan. The Commissioner of the Department of Correctional Services determined that such membership was a threat to the administration, programming, and security of the institution. In Curle, there was no talk of the difficulty of running prisons or of "deference" to a method that "treads too broadly on constitutional" choices.[88] There was no Baraldini-type analysis, permitting prison authorities to take preemptive action based upon organizational affiliations. The difficulty of running the prison could not permit the abridgement of fundamental rights of guards.

Similarly, in Babcock v. Michigan Department of Corrections,[89] the United States District Court for the Western District of Michigan held that prison administrators could not punish a guard who spoke to the press regarding prison conditions, notwithstanding the contention by the warden that the statements were false, reflected poorly on the department, and caused a security threat. The court held that the guard's "statements concerned potentially illegal drug activity occurring in a publicly funded institution, and the treatment of persons who disclose such activity. These are, by any standard, matters of public concern."[90] In Harris v. Evans,[91] the Eleventh Circuit struck down a prison policy prohibiting staff members from communicating directly with the parole board regarding the merits of any particular case. The prison authorities' invocation of the talismanic phrase "security" left the court in Evans unmoved as it held that "citizens who comment on individual parole decisions are offering input on the working of the state's criminal justice system."[92]

Conclusion

Prison free speech cases demonstrate, in the starkest possible terms, the hypocrisy of the federal judiciary and its high-minded pronouncements when the liberty of the poor and oppressed is at issue. Our prisons are vast warehouses for entire generations of black and Latino youths who are being taught the meaning of power and authority, but most certainly not the meaning of democracy, or the importance of free expression. There is every reason to believe that these youths emerge from prison imbued with the same tolerance for ideas and discourse as the wardens. A frightening thought.

[The authors are PLN subscribers affiliated with the New York-based Center for Constitutional Rights. They have long been active in First Amendment and prisoner-rights cases. Reprinted from Creighton Law Review by PLN with permission.]



Notes:

1. Colman McCarthy, Thornburghs Solution: Lock 'em Up, Wash. Post, July 13, 1991, at A19.

2. Cf. Blacks Law Dictionary 1194 (6th ed. 1990) (defining prison as "[a] public building or other place for the ... imprisonment of persons convicted of the more serious crimes, as distinguished from reformatories and county or city jails":) (emphasis added).

3. U.S. Const. amend. I. The First Amendment provides in relevant part, "Congress shall make no law . . . abridging the freedom of speech." Id.

4. Stuart J. Taylor, Locked Up in Jail, Locked Out of Court, Legal Times, June 24,1991, at 27.

5. Eugene H. Methvin, An Anti-Crime Solution: Lock Up More Criminals, Wash. Post, Oct. 27, 1991, at C1

6. Violence Threatens Dream Atlanta J. & Const., Jan. 20, 1992, at 10; Richard Prince, The Forgotten Prisoners . . . Hispanics Behind Bars, Gannett News Serv., Dec.13,1992.

7. National Center on Institutions and Alternatives, Hobbling A Generation: Young African American Males in the Criminal Justice System of Americas Cities: Baltimore, Maryland (1992), cited in 2 Washington Digest, National Assn of Criminal Defense Lawyers (Nov. 1992).

8. 416 U.S. 396 (1974).

9. Procunier v. Martinez, 416 U.S. 396, 404 (1974), overruled by Thornburgh v. Abbott, 490 U.S. 401 (1989).

10. 393 U.S. 503 (1969).

11. Martinez, 416 U.S. at 412.

12. See infra notes at 40-44 and accompanying text (discussing Martin v. Risen, 741 F. Supp. 1406 (N.D. Cal. 1990), vacated sub nom, Chronicle Publishing Co. v. Risen, 962 F.2d 959 (9th Cir. 1992))

13. 417 U.S. 817 (1974).

14. In the companion case of Saxbe v. Washington Post Co., 417 U.S. 843 (1974), the court upheld a similar blanket ban established by federal authorities. See Saxbe, 417 U.S. at 850.

15. Pell v. Procunier, 417 U.S. 817, 822 (1974) (quoting Price v. Johnson, 334 U.S. 266, 285 (1948)). In Martinez, the Court noted that the issue before it was not only the First Amendment right of prisoners but also those to whom the correspondence was addressed. Accordingly, it left for another day the issue of "prisoners rights." The Court in Pell heralded the coming of that day.

16. Id. Thus, free speech rights are not taken away as part of the punishment imposed by society upon the malefactor. Indeed, although some civil rights are expressly withdrawn from the incarcerated by statute, no penal law has attempted to abrogate freedom of speech as a penalty. It also should be noted that many of those persons behind bars are pre-trial detainees who have been convicted of nothing and cannot be "punished" consistent with the Due Process Clause.

17. Turner v. Safley, 482 U.S. 78, 88 (1987). Following Pell, the elevated scrutiny suggested in Martinez was limited to analysis of restrictions on outgoing correspondence, Thornburgh v. Abbott, 490 U.S. 401, 424 (1989), and sometimes not even those. See Martin, 741 F. Supp. at 1409.

18. The Court in Pell, in a neat piece of constitutional prestidigitation, actually created the opposite of a least restrictive means test for such claims, articulating a sort of "least intrusive rights" test. The fact that prisoners could communicate with the press through the mails led the Court in Pell to uphold the ban on face-to-face meetings. Pell, 417 U. S. at 827-28.

19. 433 U.S. 119 (1977).

20. Jones v. North Carolina Prisoners Labor Union, Inc., 433 U.S. 119, 122-23 (1977).

21. That North Carolina officials regarded a prison labor union as subversive is hardly a surprise, given that States dismal record toward organized labor generally.

22. 441 U.S. 520 (1979).

23. Bell v. Wolfish, 441 U.S. 520, 549 (1979).

24. So efficiently did this quartet of cases demolish the free speech rights of prisoners, the Reagan-Bush court felt the need to address the question only twice, wreaking comparatively minor damage. In Turner, the court upheld a flat ban on prisoner-to-prisoner correspondence. And in Abbott, the Court ratified the right of prison administrators, already widely recognized by lower federal courts, to censor incoming written materials that threatened the security of the institution.

25. Peter Applebone, With Inmates at Record High, Sentence Policy is Reassessed, N.Y. TIMES, Apr. 25, 1988, at Al, C4.

26. Nebraska Press Assn v. Stuart, 427 U.S. 539, 559 (1976).

27. New York Times Co. v. United States, 403 U.S. 713, 726-27 (1971) (Brennan J., concurring).

28. 814 F.2d 1093 (6th Cir. 1987).

29. Espinoza v. Wilson, 814 F.2d 1093, 1095 pith Cir. 1987) (emphasis added).

30. Id. at 1098-99. Permitting a ban on free expression to stand as long as one of the asserted justifications for it is constitutionally valid hardly promotes honesty and integrity either in the promulgation of regulations or in federal litigation.

31. 608 F. Supp. 1095 (ND. Tex. 1985).

32. Wagner v. Thomas, 608 F. Supp. 1095, 1097 (N.D. Tex. 1985) (quoting DALLAS COUNTY JAIL POLICY No. 211.80.41(IV)(A)(7)).

33. 624 F.2d 569 (5th Cir. 1980).

34. Vodicka v. Phelps, 624 F.2d 569, 573 (5th Cir.1980).

35. 594 F.2d 407 (4th Cir 1979).

36. Pittman v. Hutto, 594 F.2d 407, 409 (4th Cir. 1979).

37. In 1989, the Supreme Court in Abbott approved such censorship whenever a warden finds that printed material would be "detrimental to security, good order, or discipline of the institution, or might facilitate criminal activity." Abbott, 490 U. S. at 403 n.1 & 404 (quoting 28 C.F.R. § 540.71(b) (1988)). Given the practice of the lower federal courts, the decision in Abbott broke little new ground.

38. Prison administrators have a wide variety of means to punish prisoners who violate institutional rules. These include (1) limitation or suspension of mail, telephone, commissary, and recreational privileges; (2) isolation in solitary confinement for anywhere from a few days to decades: (3) transfer to a more "secure" facility or to a more restrictive department within the prison; and (4) loss of statutory "good time." Depending on the jurisdiction, every day of good behavior can reduce a sentence by as much as one day. Hence, loss of all good time can effectively double the sentence that a prisoner actually must serve and, accordingly, is considered by staff and prisoners alike as one of the harshest punishments. And any institutional infraction could affect a prisoners parole.

39. 683 F.2d 1044 (7th Cir. 1982).

40. 12741 F. Supp. 1406 (N.D. Cal. 1990).

41. Martin v. Rison, 741 F. Supp. 1406, 1410 (N.D. Cal. 1990), vacated sub nom., Chronicle Publishing Co. v. Rison, 962 F.2d 959 (9th Cir. 1992).

42. Id. at 14. According to the district court, heightened scrutiny under Martinez was not required because the ideas did not just exit the institution, they also returned through the newspaper. Id. at 1412.

43. id. at 1414-15. These harms included creating a danger of threats of violence, focusing attention on an individual prisoner which could lead to unrest, creating fear on the part of the staff that their statements might be reported, encouraging a prisoner to be more loyal to his paper than to the prison, and preventing a prisoner from becoming too well known, which could result in his having disproportionate Influence in prison. Id. There was evidence that the "prison staff was upset about the article." Id. at 1415.

44. Other facts that would, in any other context, have called into question the sincerity of the prison in even-handed application of prison rules were that two other federal prisoners had written under by-lines but were not punished, and that Martin had written about eighteen prior articles for the San Francisco Chronicle, that were published as regular Sunday features. Martins writings were known to some prison authorities and cited favorably in his parole file. Id. at 1420.

45. 638 F. Supp. 1019 (D. Mass. 1986).

46. Scarpa v. Ponte, 638 F. Supp. 1019, 1020 (D. Mass. 1986) (footnote omitted).

47. 779 F.2d 1040 (5th Cir. 1986).

48. Gibbs v. King, 779 F.2d 1040, 1045 (5th Cir. 1986), cert denied, 476 U.S. 1117 (1986).

49. 713 F.2d 1003 (3d Cir.1983).

50. Hadden v. Howard, 713 F.2d 1003, 1006 (3d Cir. 1983) (citing PA. CODE § 95.102a(b)(25), (31)).

51. 691 F. Supp. 432 (D.D.C. 1988)

52. Baraldini v. Meese, 691 F. Supp. 432, 445 (D.D.C. 1988), revd sub nom, Baraldini v. Thornburgh, 884 F.2d 615 (D.C. Cir. 1989). The conditions of the Lexington HSU and the effect they had on the women confined there was documented by film makers Nina Rosenblum and Alexandria White in the Public Broadcasting Network film Through The Wire.

53. Baraldini, 691 F. Supp. at 445.

54. Baraldini v. Thornburgh, 884 F.2d 615, 620 (D.C. Cir. 1989).

55. 622 F.2d 967 (8th Cir. 1980).

56. Nickens v. White, 622 F.2d 967, 971-72 (8th Cir.), cert. denied, 449 U.S. 1017 (1980).

57. Jones, 433 U.S. at 132 (1977).

58. Baraldini, 884 F.2d at 618.

59. 598 F. Supp. 607 (D.R.I. 1984).

60. Dooley v. Quick, 598 F. Supp. 607, 611 (D.R.I. 1984), affd, 787 F.2d 579 (1st Cir. 1986).

61. Id. at 612. Prison officials are also free to curtail discussions among prisoners while they are in the mess hall, prison corridors, and working. See Lamar v. Coffield, 353 F. Supp. 1081, 1082, 1084 (S.D. Tex. 1972).

62. 482 U.S. 78 (1987).

63. Turner, 482 U.S. at 91.

64. 729 F.2d 362 (5th Cir. 1984).

65. Adams v. Gunnell, 729 F.2d 362, 365 (5th Cir. 1984).

66. 783 F.2d 1532 (11th Cir. 1986).

67. Jersawitz v. Hanbury, 783 F.2d 1532, 1534 (llth Cir.), cert. denied sub nom., Jersawitz v. Noonan, 479 U.S. 883 (1986).

68. Wolfsh, 441 U.S. at 550-51.

69. Wagner, 608 F. Supp. at 1102.

70. 755 F.2d 306 (3d Cir. 1985).

71. Hurd v. Williams, 755 F.2d 306, 308 (3d Cir. 1985).

72. 748 F. Supp. 570 (M.D. Tenn. 1990).

73. Jackson v. Norris, 748 F. Supp. 570, 573 (M.D. Tenn. 1990), aff 'd, 928 F2d 1132 (6th Cir. 1991).

74. 790 F.2d 1299 (7th Cir. 1986).

75. Gaines v. Lane, 790 F.2d 1299, 1304 (7th Cir. 1986). The Court in Gains upheld the regulation under the Martinez elevated scrutiny standard. Id. See Burton v. Nault, 902 F.2d 4, 5 (6th Cir.) (allowing prison officials to read outgoing mail, even if privileged, to learn whether drug use played any role in a prisoners unsuccessful suicide attempt), cert. denied, 111 S. Ct. 198 (1990).

76. 869 F.2d 1105 (8th Cir. 1989).

77. So much for Damon and Pythias.

78. See Martian H. Redish, The Value of Free Speech, 130 U. Pa. L. REV. 591, 593 (1982).

79. Alex Haley & Malcom X, The Autobiography of Malcolm X 179 (1965).

80. See Alexander Berkman, Prison Memoirs Of An Anarchist (2d ed. 1920).

81. See Caryl Chessman, Cell 2455, Death Row (1954).

82. See Skylark Sing Your Lonely Song: An Anthology of Prison Writings of Bobby Sands (1982).

83. Mary H. Maguire, Attack of the Common Lawyers on the Oath Ex Officio, in Essays in History and Political Theory of Charles Howard McIwain 212-13 (1936). See Thornhill v. Alabama, 310 U.S. 88, 95 (1940) (stating that the First Amendment "safeguard[s] . . . the[ ] rights to the ends that men may speak as they think on matters vital to them").

84. John E. Nowak & Ronald D. Rotunda, Constitutional Law § 16.6, at 940 (4th ed. 1991).

85. N.Y. Newsday, Jan. 27, 1993, Part II, at 50. The legislation went into effect on March 3, 1993, and applies to all 20,000 persons, mostly pretrial detainees, in New York City jails.

86. Actually, federal courts have shown themselves to be quite good at running prisons. Throughout the 1970s, numerous prisons and jails were placed into federal receivership, and run by the federal courts, because they were unable to meet the constitutionally minimum standards of health, safety, and dignity required by the Eighth Amendment. The termination of those receiverships in the 1980s says more about the lowering of constitutional standards than it does about the upgrading of prison administrations.

87. 399 N.Y.S.2d 308 (N.Y. App. Div. 1977).

88. Curie v. Ward, 399 N.Y.S.2d 308, 312 (N.Y. App. Div. 1977), modified, 389 N.E.2d 1070 (N.Y. 1979).

89. 1990 U.S. Dist. LEXIS 3644 (W.D. Mich. Apr. 2, 1990) (unpublished decision).

90. Babcock v. Michigan Dept of Corrections, 1990 U.S. Dist. LEXIS 3644, at 7 (W.D. Mich. Apr. 2, 1990) (unpublished decision).

91. 920 F.2d 864 (11th Cir. 1991).

92. Harris v. Evans, 920 F.2d 864, 867 (11th Cir. 1991).

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