“Inciting a Riot”: Silent Sentinels, Group Protests, and
Prisoners’ Petition and Associational Rights
Nicole B. Godfrey*
CONTENTS
INTRODUCTION ....................................................................................1113
I. THE SUFFRAGISTS’ PROTESTS ..........................................................1118
A. Alice Paul and Lessons Learned from the Suffragettes ..............1119
B. The Silent Sentinels’ Protests .....................................................1120
C. In-Prison Petitions and Protests ................................................1123
II. THE FIRST AMENDMENT AND PRISONER PETITION AND
ASSOCIATIONAL RIGHTS .....................................................................1130
A. Jones v. North Carolina Prisoners’ Labor Union, Inc.................1132
B. The Flaws of Deference to Prison Officials ...............................1135
III. IMPORTANCE OF PROTECTING PRISONER ASSOCIATIONAL AND
PETITION RIGHTS .................................................................................1139
A. “Inciting a Riot” .........................................................................1140
B. Modern Prisoner Protests...........................................................1143
CONCLUSION........................................................................................1145

INTRODUCTION
In January 1917, a group of women led by Alice Paul began a twoand-a-half year protest in support of women’s suffrage.1 As the first
activists to ever picket the White House,2 these women became known as

* Visiting Assistant Professor, University of Denver, Sturm College of Law. JD, LLM, MA. Thanks
to Tammy Kuennen, Sara Hildebrand, Sarah Matsumoto, Katherine Wallat, and Tania Valdez for their
helpful comments and suggestions, and thanks to Ciara Anderson, JD ‘20, for her invaluable research
assistance. Thanks to the participants at Seattle University for their comments and questions and to
the editors on the law review for their diligent work on this piece. All errors are my own.
1. DORIS STEVENS, JAILED FOR FREEDOM: AMERICAN WOMEN WIN THE VOTE 21, 59 (Carol
O’Hare ed., 1995).
2. Id.

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the “Silent Sentinels” for their practice of standing in peaceful silence
while holding banners displaying “provocative political slogans or
demanding the right to vote.”3 While President Woodrow Wilson initially
appeared “amused and interested”4 in the women’s protest, even ordering
the White House guards to “invite them for a cup of coffee,”5 the White
House’s toleration of the picketers diminished after the United States
entered World War I in April 1917. 6 Shortly thereafter, the peaceful nature
of the Silent Sentinels’ protest changed. This change came to fruition
not because of any actions taken by the women; rather, local police,
with implicit support from the White House, began “arresting and
jailing picketers for disorderly conduct and obstructing sidewalk traffic,
even though they were doing nothing differently than they had for the
past six months.”7
While the first arrests led to little time in prison, the Silent Sentinels’
persistence in continuing the protests in the face of arrest eventually led to
terms of incarceration.8 By October 1917, District of Columbia police
officers had arrested at least seventy women, and some women faced terms
of imprisonment as great as six months. 9 For those women facing
incarceration, the District of Columbia confined them to the District Jail
and the Occoquan Workhouse in Virginia.10 In both prisons, the women
continued their protest through a series of non-violent actions, including
circulating petitions, organizing work strikes, and engaging in hunger
strikes.11 These group protests called attention not only to the unjust nature
of the Silent Sentinels’ incarceration but also the squalid and miserable
conditions of the prisons, including the inedible food, unsanitary cells,
vermin-infested blankets, and brutal corporal punishment.12 Certainly, the
3. Lynda G. Dodd, Parades, Pickets, and Prison: Alice Paul and the Virtues of Unruly
Constitutional Citizenship, 24 J.L. & POL. 339, 398 (2008) (quoting Silent, Silly, Offensive, N.Y.
TIMES, Jan. 11, 1917, at 14).
4. STEVENS, supra note 1, at 67.
5. Id.
6. Id. at 67. See infra Section I.B. (providing further detail into how the suffragist movement
brought unwelcome attention to the Wilson administration during a contentious war period in
American history).
7. SUSAN WARE, WHY THEY MARCHED: UNTOLD STORIES OF THE WOMEN WHO FOUGHT FOR
THE RIGHT TO VOTE 244 (2019).
8. Nicole B. Godfrey, Suffragist Prisoners and the Importance of Protecting Prisoner Protest,
53 AKRON L. REV. 279, 386-87 (2019).
9. WARE, supra note 7, at 245. There are conflicting accounts as to how many women were
arrested as a result of the picketing movement. Compare id. (noting seventy arrests), with JOHANNA
NEUMAN, GILDED SUFFRAGISTS: THE NEW YORK SOCIALITES WHO FOUGHT FOR WOMEN’S RIGHT TO
VOTE 129 (2017) (noting five hundred arrests).
10. See, e.g., WARE, supra note 7, at 246; J.D. ZHANISER & AMELIA R. FRY, ALICE PAUL:
CLAIMING POWER 282 (2014).
11. Dodd, supra note 3, at 411; STEVENS, supra note 1, at 107, 115.
12. Godfrey, supra note 8, at 335–36.

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protests demonstrated the will of the nation’s suffragists to persist in their
advocacy until the passage of the Nineteenth Amendment, but the inprison protests also drew the attention of federal and District of Columbia
officials to the conditions in the Occoquan Workhouse and the District of
Columbia jail.13 While the protests failed to lead to reform of the prisons,
they did create a small amount of transparency into the workings of the
institutions that had theretofore been lacking.14
Unfortunately, transparency in modern prison systems is similarly
absent, despite the sheer enormity of the modern criminal justice system.15
The United States incarcerates nearly 2.2 million people today.16 Yet the
indignities suffered each day by the human beings living in American
prisons and jails occur largely out of sight from the general public.17 While
intrepid journalists have published important exposés on modern
American prison life in recent years,18 the nation’s prisons remain “the

13. Id. at 336.
14. Id.
15. Shaila Dewan, Inside America’s Black Box: A Rare Look at the Violence of Incarceration,
N.Y. TIMES (Mar. 30, 2019), https://www.nytimes.com/2019/03/30/us/inside-amercas-black-box.
html?smid=nytcore-ios-share [https://perma.cc/X88Y-FXN6].
16. Drew Kann, 5 Facts Behind America’s High Incarceration Rate, CNN (Apr. 21, 2019),
https://www.cnn.com/2018/06/28/us/mass-incarceration-five-key-facts/index.html [https://perma.cc/
J9WW-X9JH].
17. Dewan, supra note 15; see also Nicole B. Godfrey, Institutional Indifference, 98 OR. L. REV.
151, 152–53 (2019) (cataloguing the types of indignities suffered by those incarcerated in the modern
prison system).
18. See, e.g., Shane Bauer, My Four Months as a Private Prison Guard, MOTHER JONES
(July/Aug. 2016), https://www.motherjones.com/politics/2016/06/cca-private-prisons-correctionscorporation-inmates-investigation-bauer/ [https://perma.cc/AC84-YQLZ] (describing cells that look
like tombs, guards using force on a prisoner who just had open-heart surgery as “all part of the
bid’ness,” and the reporters own priorities changing as “[s]triving to treat everyone as human takes
too much energy”); Mark Binelli, Inside America’s Toughest Federal Prison, N.Y. TIMES (Mar. 26,
2015), https://www.nytimes.com/2015/03/29/magazine/inside-americas-toughest-federal-prison.html
[https://perma.cc/U6N7-MLVT] (recounting tales of self-mutilation, psychosis, and suicide at the
federal supermax where all prisoners are held in solitary confinement); Annie Correal, No Heat for
Days at a Jail in Brooklyn Where Hundreds of Inmates Are Sick and ‘Frantic,’ N.Y. TIMES (Feb. 1,
2019), https://www.nytimes.com/2019/02/01/nyregion/mdc-brooklyn-jail-heat.html [https://perma.cc
/69GU-G8JX] (recounting the experience of federal detainees “stuck in freezing cells” with little to
no power or heat for at least a week); Jennifer Gonnerman, Do Jails Kill People?, NEW YORKER (Feb.
20, 2019), https://www.newyorker.com/books/under-review/do-jails-kill-people [https://perma.cc/
DQQ3-4CLA] (noting that the well-known New York City jail on Rikers Island “has long been
notorious for its culture of brutality”); German Lopez, America’s Prisoners Are Going on Strike in at
Least 17 States, VOX (Aug. 22, 2018), https://www.vox.com/2018/8/17/17664048/national-prisonstrike-2018 [https://perma.cc/JFP6-PQBF] (describing the work and hunger strike planned by
prisoners across the country from August 21 to September 9, 2018); Aviva Stahl, Force-Feeding Is
Cruel, Painful, and Degrading—and American Prisons Won’t Stop, NATION (June 4, 2019),
https://www.thenation.com/article/force-feeding-prison-supermax-torture/ [https://perma.cc/J347PJHW] (describing the force-feeding tactics utilized on prisoners engaging in hunger strikes by the
nation’s federal supermax).

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black boxes of our society.”19 But, in order to fully understand the
complexities and true nature of our criminal justice system—in particular,
the shape and contours of the American form of punishment (i.e.,
incarceration)—the voices and stories of those living inside prison walls
must be heard.20
To ensure necessary accountability of those we entrust to incarcerate
the millions of Americans behind bars, incarcerated voices must be heard
by not only the public but also by those in power. In 2006, the Commission
on Safety and Abuse in America’s Prisons released a report detailing the
problematic conditions that permeated the nation’s prisons and jails.21 The
report pointed to the lack of an independent, external monitor of prisons,
concluding that without such a checking system, prisons are free to operate
with little accountability or transparency.22
This lack of accountability is compounded by the fact prison systems
often punish prisoners who seek to have their voices heard through petition
or protest.23 For example, in January 2020, three men incarcerated by the
Michigan Department of Corrections penned an open letter to Michigan
Governor Gretchen Whitmer and Corrections Department Director Heidi
Washington, describing abusive treatment and unhealthy conditions at the
Chippewa Correctional Facility in Michigan’s Upper Peninsula.24 Rather
than take heed of the contents of the letter, the Michigan prison system
instead issued a disciplinary ticket against at least one of the three men,
convicting him of “inciting a riot” and placing him in solitary confinement
19. Dewan, supra note 15.
20. See generally Andrea C. Armstrong, No Prisoner Left Behind? Enhancing Public
Transparency of Penal Institutions, 25 STAN. L. & POL’Y REV. 435, 462–66 (2014) (discussing
problems inherent to the lack of transparency of penal institutions); Laura Rovner, On Litigating
Constitutional Challenges to the Federal Supermax: Improving Conditions and Shining a Light, 95
DENV. L. REV. 457, 460–64 (2018) (discussing the invisibility of prisons as compared to other aspects
of the criminal justice system).
21. John J. Gibbons & Nicholas deBelleville Katzenbach, Confronting Confinement: A Report
of the Commission on Safety and Abuse in America’s Prisons, 22 WASH. U. J.L. & POL’Y 385, 408–
12 (2006) (“Corrections leaders work hard to oversee their own institutions and hold themselves
accountable, but their vital efforts are not sufficient and cannot substitute for external forms of
oversight.”).
22. See id. at 408.
23. See, e.g., ALBERT WOODFOX, SOLITARY: UNBROKEN BY FOUR DECADES IN SOLITARY
CONFINEMENT. MY STORY OF TRANSFORMATION AND HOPE 278–79 (2019); Paul Egan, U.P. Prison
Inmate Wrote Complaint About Conditions. Then He Was Moved to Solitary, D ET. FREE PRESS (Feb.
11, 2020), https://www.freep.com/story/news/local/michigan/2020/02/11/chippewa-correctionalfacility-michigan-prisoner-edward-walton/4721477002/ [https://perma.cc/PEE6-P7EQ]; Joseph
O’Sullivan, Inmates Sue Washington Corrections Officials After Being Put in Solitary Confinement
Over Food Strike, SEATTLE TIMES (Oct. 30, 2019), https://www.seattletimes.com/seattlenews/crime/inmates-sue-washington-corrections-officials-after-being-put-in-solitary-confinementover-food-strike/?utm_source=The+Marshall+Project [https://perma.cc/BJ5R-Y7K5].
24. Egan, supra note 23.

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as punishment.25 To support the conviction, the Michigan Department
of Corrections found that the prisoner “admitted to writing a letter
encouraging people on the outside to call the warden and tell her if
she doesn’t make changes the prisoners want that there will ‘be a
protest scheduled to take place at this prison to make national attention out
of the situation.’”26
This call for protest of conditions and treatment faced by incarcerated
people follows in the footsteps forged by the Silent Sentinels and their inprison protests. But, as will be discussed in further detail below, such
group petition and protest activities would likely result in similar “inciting
a riot” charges in almost every modern prison system. 27 In large part, the
proliferation of such scurrilous charges in the regulations governing
modern prison systems is undoubtedly related to the long-standing
deference afforded to prison officials by the federal courts and the
associated curtailment of prisoners’ First Amendment rights that results
from such deference.
This Article argues for increased legal protections for prisoners who
choose to engage in group protest to shed light on the conditions of their
incarceration. A companion piece to a similar article that focused on
prisoner free speech rights,28 this Article uses the acts of protest utilized
by the Silent Sentinels to examine why prisoners’ rights to petition and
association should be strengthened. By strengthening these rights, the
Article argues that we will advance the values enshrined by the First
Amendment’s Petition Clause while simultaneously advancing the rights
of the incarcerated millions with little to no political power.
The Article proceeds in three parts. First, Part I provides the
historical background necessary to understand the utility of the Silent
Sentinels as an example demonstrating the importance of protecting the
rights to petition and association for the disenfranchised. From there, Part
II provides an overview of the doctrinal law associated with prisoners’
rights to petition and associate. Part II also discusses the deference to
prison officials inherent to First Amendment doctrine as applied to
prisoners. Finally, Part III examines how the activities of the Silent
Sentinels amount to what almost all prison systems call “inciting a riot”
under modern prison regulations and argues that such a result is
inconsistent with the purpose and values of the First Amendment. Part III

25. Id.
26. Id. (quoting Corrections Department spokesman Chris Gautz who quoted “a letter Walton
allegedly sent through the prison email system, known as JPay”).
27. See infra Section III.A.
28. See Godfrey, supra note 8.

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concludes by cataloguing examples of modern prison protest and calling
for more robust protections for such protest.
I. THE SUFFRAGISTS’ PROTESTS
By the middle of the second decade of the twentieth century, the fight
for women’s suffrage in the United States had been raging for more than
half a century.29 Prior to the Civil War, the Equal Rights Association
spearheaded the movement with a focus not only on women’s rights but
also the abolition of slavery.30 By 1869, the Equal Rights Association
fractured into two “separate, warring camps” that eventually led to the
formation of two new organizations in 1870.31 The American Woman
Suffrage Association (AWSA) focused its efforts on securing women’s
right to vote at the state level.32 In contrast, the National Woman Suffrage
Association (NWSA) “espoused a radical platform of sweeping social
change to improve the status of women, and advocated a constitutional
amendment to guarantee women’s voting rights.”33
For twenty years, the two organizations advocated for women’s
rights through divergent methods, but by 1890, the two organizations
merged to become the National American Woman Suffrage Association
(NAWSA).34 The NAWSA adopted the more moderate advocacy
approach championed by the AWSA,35 a move that some scholars claim
brought the suffrage movement to a standstill in the early 1900s.36 The
29. When the American movement for women’s suffrage actually began is a matter of debate,
for “[h]istory is defined less by what happened than by who tells the story.” Sally Roesch Wagner,
Introduction THE WOMEN’S SUFFRAGE MOVEMENT, at xxii (Sally Roesch Wagner ed., 2019).
Historians often point to the 1848 Seneca Falls Convention as the start to the woman suffrage
movement, but “it’s also possible that a grade school student going through her local newspaper for a
History Day project may someday find an account of a woman’s rights meeting held before 1848,
setting back that beginning marker.” Id. at xxii-xxiii; see also WARE, supra note 7, at 15 (noting that,
while “[t]he Seneca Falls Convention holds an iconic place in the history of woman suffrage, . . . it
was not, as is often asserted, the first convention ever held on the question of women’s rights”).
30. STEVENS, supra note 1, at 13.
31. Id. at 13–14.
32. Id. at 14.
33. Id.
34. Though beyond the scope of this piece, much controversy surrounded the circumstances
leading up to the merger of the AWSA and NWSA in 1890. See generally THE WOMEN’S SUFFRAGE
MOVEMENT 314–20 (Sally Roesch Wagner ed., 2019).
35. STEVENS, supra note 1, at 15.
36. See Sally Roesch Wagner, Afterward to THE WOMEN’S SUFFRAGE MOVEMENT 484 (Sally
Roesch Wagner ed., 2019) (“When the merger favored the AWSA organizational structure, the
grassroots process of the NWSA was lost. As the NAWSA leadership entrenched power at the top,
disgruntled suffragists dropped out of the organization, often forming their own. State workers on the
ground fought the national leadership’s dictating their course of action and withholding money if the
states didn’t fall into line. Campaigns were disrupted and lost as a result. A grassroots movement had
been turned into a top-down authoritarian organization worthy of any corporation.”).

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NAWSA focused on campaigning state-by-state, and despite some early
successes in Colorado, Idaho, and Utah in the 1890s, “from 1896 to 1910,
no other state responded to NAWSA’s extensive state campaign work.”37
Known as the doldrums, “[n]ot a single suffrage victory, state or national,
was achieved” during this time period.38 All of this began to change during
the second decade of the twentieth century when Alice Paul returned to
the United States from Great Britain armed with the lessons she had
learned from her British counterparts.39
A. Alice Paul and Lessons Learned from the Suffragettes
A Quaker by birth, Alice Paul began her advocacy for suffrage rights
in 1907 after hearing Christabel Pankhurst speak at the University of
Birmingham in the United Kingdom. 40 Leaders of the suffrage cause in
Great Britain, Emmeline Pankhurst and her daughters Christabel and
Sylvia began “employing a more militant approach to suffrage
campaigning in 1905.”41 After hearing Christabel’s speech, Ms. Paul
joined the Women’s Social and Political Union (WSPU)—the
organization founded by the Pankhursts.42 With the WSPU, Ms. Paul
participated in marches and demonstrations with the British suffragettes,
activities which led to her arrest on seven occasions.43 Three of these
arrests led to imprisonment where Ms. Paul joined her fellow suffragettes
in a series of hunger strikes.44 On at least one occasion, prison officials
force fed the hunger-striking women.45
While Ms. Paul’s experience with the WPSU no doubt had a
profound influence on her, she shied away from some of the more militant
tactics employed by the Pankhursts in England.46 Staying true to her
37. Dodd, supra note 3, at 361.
38. Roesch Wagner, supra note 29.
39. STEVENS, supra note 1, at 17. While the focus of this piece is on the protests coordinated and
led by Alice Paul and the National Women’s Party, I do not mean to suggest that the NAWSA played
no role in securing the right to vote for women in the United States. Because of the American
constitutional scheme, the NAWSA’s state-by-state approach undoubtedly contributed to the passage
and ratification of the Nineteenth Amendment, which required approval by thirty-six states. Id. at 20;
see also ELAINE WEISS, THE WOMAN’S HOUR: THE GREAT FIGHT TO WIN THE VOTE 1 (2019); Dodd,
supra note 3, at 361 (describing NAWSA’s “decentralized, state-by-state campaign for women’s
suffrage, either by state constitutional amendment or state legislative enactment”).
40. See Dodd, supra note 3, at 356.
41. Id.
42. See id. at 356–57.
43. Id. at 357.
44. Id. at 357–58.
45. Id. at 358.
46. WEISS, supra note 39, at 62 (describing the Pankhurst “forces” as “attack[ing] shops and
office windows with hammers, plant[ing] small bombs in postboxes, and set[ting] fire to government
property”).

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Quaker background, Ms. Paul’s “militant” tactics never grew more violent
than “[h]oisting a picket sign, chaining wrists to a fence, and burning
paper.”47 Nevertheless, Ms. Paul’s tutelage by the Pankhursts provided her
“invaluable experience in organizing parades, developing a network of
supporters, opening new local offices, and facing arrest for their
protests.”48 Ms. Paul brought this experience with her when she returned
home to the United States in January of 1910.49
B. The Silent Sentinels’ Protests
For two years after her return from Europe, Ms. Paul stayed out of
the American suffrage battle; instead, she focused on her doctoral research
at the University of Pennsylvania.50 But by 1912, Ms. Paul found herself
ready to join the American suffragists and “persuaded the staid NAWSA,
headquartered in New York, to permit her to organize a lobbying arm in
Washington, D.C. Known as the Congressional Union, its sole purpose
was to lobby for a federal woman suffrage amendment.”51 For the
Congressional Union’s first public protest, Ms. Paul chose to organize her
fellow suffragists in a parade set to occur the day before President
Woodrow Wilson’s first inauguration in March 1913.52 The parade
consisted of “some 8,000 college women, professional women, working
women, and middle-class members of the NAWSA” who marched
through the streets of the nation’s capital surrounded by the hundreds of
thousands of people in town for the inauguration.53 While the
“predominantly male crowd watching the parade as it passed down
Pennsylvania Avenue jeered, taunted, spat upon, and roughed up the
women,” the police sat idly by, failing to protect the women.54
Nonetheless, Ms. Paul viewed the parade as a rousing success, largely
because of the publicity garnered.55
In the wake of the parade’s success, Ms. Paul began “intensive
lobbying campaigns” aimed at garnering support from both the
Democratic Party-controlled Congress and White House.56 Ms. Paul’s
tactics, however, began to clash with the NAWSA leadership, leading the
Congressional Union to withdraw from the NAWSA to form the National
47. Id.
48. Dodd, supra note 3, at 358.
49. See id. at 359.
50. Id.
51. STEVENS, supra note 1, at 18.
52. Id.
53. Id.
54. Id. at 18–19.
55. Id.
56. Id.

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Women’s Party (NWP) in 1916.57 Shortly after this split, in January 1917,
the NWP began a two-and-a-half-year protest in support of women’s
suffrage.58 This protest started outside the White House gates where a
dozen women gathered carrying purple, white, and gold banners; they
became the first group of American citizens to ever picket the White
House.59 Earning the moniker “Silent Sentinels,” the women stood in
peaceful silence while holding banners with slogans like, “Mr. President,
what will you do for women’s suffrage?” and “How long must women
wait for liberty?”60
For the first several months, the White House picketing lines
remained largely peaceful.61 President Wilson mostly ignored the
picketers, merely tipping his hat or smiling at them as he passed on his
way in and out of the White House.62 As the women persisted in their daily
protest throughout the winter months, the President ordered the White
House “guards to invite them for a cup of hot coffee,” an invitation the
Silent Sentinels declined.63 In all, the President seemed to view the protest
as “a trifling incident staged by a minority of the radical suffragists” and
remained “confident in his national power.”64 In effect, he tolerated the
picketers’ presence but saw no need to change his own political agenda in
response to the protest.
President Wilson’s toleration evaporated by April 1917, however,
when the United States entered World War I.65 While many expected the
NWP to suspend its picketing campaign in support of the war effort, Ms.
Paul and other NWP leaders decided to continue their protest because “in
doing so the organization serve[d] the highest interests of the country.”66
This decision lost the NWP a sizable portion of its membership, but the
strategy ultimately succeeded in keeping public attention on the cause of
suffrage.67 The United States’ war effort also gave the suffragists a new
advocacy angle: they became determined to highlight the hypocrisy
inherent in President Wilson’s championing of democracy around the
57. Id.
58. Id.
59. Id.
60. Id. at 59; see also Rivera Sun, Silent Sentinels Start Suffrage Protest on Jan 10th, 1917,
RIVERA SUN (Jan. 8, 2016), http://www.riverasun.com/silent-sentinels-start-suffrage-protest-on-jan10th-1917/ [https://perma.cc/F9A7-MKBX].
61. STEVENS, supra note 1, at 59–66.
62. Id. at 61.
63. Id.
64. Id.
65. Id. at 67.
66. Dodd, supra note 3 (quoting CHRISTINE A. LUNARDINI, FROM EQUAL SUFFRAGE TO EQUAL
RIGHTS: ALICE PAUL AND THE NATIONAL WOMAN’S PARTY, 1910-1928, at 111–12 (2000)).
67. Id. at 401 n.264.

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world while denying democratic participation to half of his own citizens.68
With this goal in mind, the suffragists created new banners meant to
embarrass President Wilson and his administration. Specifically, the
suffragists utilized those banners whenever a foreign envoy visited the
White House.69 This new strategy turned out to be a tipping point that
would ultimately cause the suffragists to be arrested en masse, an outcome
that generated even more publicity for the NWP and its cause.70
On June 20, 1917, the Wilson administration hosted a Russian envoy
at the White House.71 When the envoy arrived at the White House gates,
the suffragists stood holding a banner seeking to draw on the sentiments
espoused during the Russian Revolution.72 The banner read:
To the Russian Envoys, we the women of America tell you that
America is not a democracy. Twenty million American women are
denied the right to vote. President Wilson is the chief opponent of
their national enfranchisement. Help us make this nation really free.
Tell our government it must liberate its people before it can claim
free Russia as an ally.73

This banner drew the ire of an angry passerby, who tore it down. 74
When the women returned the next day with a similar banner, a group of
boys destroyed the second banner, too.75 On each day, police officers stood
idly by, watching the destruction of the banners.76 With these actions, the
peaceful nature of the Silent Sentinels’ daily protest forever changed.
On June 22, 1917, two days after the destruction of the first banner,
“local police, apparently with the tacit support of the Wilson
administration, started arresting and jailing picketers for disorderly
conduct and obstructing sidewalk traffic, even though they were doing
nothing differently than they had for the past six months.” 77 Police only
arrested two picketers on that first day of arrests, and local officials quickly
dismissed the charges levied against them.78 However, the arrests
continued over the next several days.79 On June 26, 1917, D.C. officials
arrested six women for “obstructing the traffic,” tried them, and sentenced
68. Id. at 400.
69. Id.; see also STEVENS, supra note 1, at 74.
70. STEVENS, supra note 1, at 73.
71. Id.
72. WARE, supra note 7, at 244.
73. STEVENS, supra note 1, at 74.
74. Id.; WARE, supra note 7.
75. STEVENS, supra note 1, at 74.
76. Id.
77. WARE, supra note 7, at 244.
78. STEVENS, supra note 1, at 76; Dodd, supra note 3, at 404.
79. STEVENS, supra note 1, at 76.

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them to a $25 fine after returning a guilty verdict.80 When the women
refused to pay the fine, the court ordered they be incarcerated in the D.C.
jail for three days.81 Thus began a series of arrests and incarcerations for
the Silent Sentinels that would last for the next several months, drawing
critical attention across the nation.82
C. In-Prison Petitions and Protests
The first incarcerated Silent Sentinels spent only minimal time in the
District Jail, but by July 17, 1917, local officials had arrested, tried,
convicted, and sentenced sixteen picketers to sixty days at the Occoquan
Workhouse in Virginia.83 The Occoquan Workhouse in Lorton, Virginia,
is an infamous prison known for its squalid conditions.84 The Women’s
Workhouse at Occoquan opened in 1912 and confined “poor women of
color, imprisoned for crimes such as disorderly conduct and prostitution.
The women of the workhouse did laundry for the facility, while others
worked in the gardens.”85 The suffragists confined to Occoquan found
themselves facing horrible conditions.86 Prison officials served the women
inedible food with worms in it, gave them blankets that had not been
washed or cleaned for a year, withheld communication from the outside
world, and subjected them to ruthless forms of punishment, including
“physical intimidation and violence.”87 The prison superintendent and his
son meted out particularly brutal punishments, including beating the
80. Id.
81. Dodd, supra note 3, at 404.
82. See, e.g., STEVENS, supra note 1, at 162, 168, 172–73, 179.
83. Dodd, supra note 3, at 404–05.
84. See Wilson Korges, The Lasting Legacy of Suffragists at the Lorton Women’s Workhouse,
FOLKLIFE (Mar. 21, 2018), https://folklife.si.edu/magazine/lasting-legacy-of-suffragists-at-lortonoccoquan-womens-workhouse [https://perma.cc/AX7W-AJTT]. Workhouses in general have largely
been known as places for the destitute. Seán McConville, The Victoria Prison: England, 1865-1965,
in THE OXFORD HISTORY OF THE PRISON: THE PRACTICE OF PUNISHMENT IN WESTERN SOCIETY 117
(Norval Morris & David J. Rothman eds., 1995). Arising as a form of punishment in Europe in the
late sixteenth century, the workhouse punishment regime revolved around forced labor, wherein
prisoners were expected to put in ten-to-twelve-hour days (with Sundays reserved for religious
worship) and produce a certain fixed output of product. Pieter Spierenburg, The Body and the State:
Early Modern Europe, in THE OXFORD HISTORY OF THE PRISON: THE PRACTICE OF PUNISHMENT IN
WESTERN SOCIETY 45, 61 (Norval Morris & David J. Rothman eds., 1995). Institutions of “strict
control” with a “harsh disciplinary regime,” workhouse conditions (e.g., unpalatable food provided in
only minimal amounts, hard labor, shameful uniforms, and boards rather than beds for sleep) were
deliberately meant to deter prisoners from returning. Patricia O’Brien, The Prison on the Continent:
Europe, 1865-1965, in THE OXFORD HISTORY OF THE PRISON: THE PRACTICE OF PUNISHMENT IN
WESTERN SOCIETY 178, 182 (Norval Morris & David J. Rothman eds., 1995); see also McConville,
supra, at 128. The conditions at Occoquan proved no different than these traditional workhouses.
WARE, supra note 7, at 246.
85. Korges, supra note 84.
86. WARE, supra note 7, at 246.
87. Id.; see also STEVENS, supra note 1, at 96.

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women, limiting their food to bread and water, and utilizing a form of
punishment known as “the greasy pole.”88
This method of punishment consisted of strapping girls with their
hands tied behind them to a greasy pole from which they were partly
suspended. Unable to keep themselves in an upright position, because
of the grease on the pole, they slipped almost to the floor, with their
arms all but severed from the arm sockets, suffering intense pain for
long periods of time.89

Exploiting the integrated nature of the workhouse and pre-existing
racial tensions, prison officials also forced women of one race to brutally
attack women of another race, threatening punishment for refusal.90
Given the conditions at Occoquan, it should be no surprise that the
initial sentences to the workhouse in July 1917 caused quite a stir,
particularly given the “well-connected women” associated with the
suffrage movement.91 The convicted suffragists included the daughter of a
former ambassador and secretary of state, the wife of a Progressive Party
leader, and other society figures.92 The husbands of many of the women
“turned to [President] Wilson in outrage,” and the sentences to Occoquan
garnered enormous press coverage.93 By July 19, 1917, President Wilson
had issued pardons to the women.94
Nevertheless, the women continued their picketing and more arrests
followed.95 By August 17, 1917, local police officers arrested six more
suffragists, each sentenced to thirty days at Occoquan.96 The arrests
continued in the subsequent weeks, and on September 4, 1917, local
officials arrested a group and sentenced them to sixty days at Occoquan.97
President Wilson issued no further pardons, and the women garnered no
special treatment in the prison, finding conditions of “poor sanitation,
infested food, and dreadful facilities.”98
As far as possible the women intended to abide by the routine of the
institution, disagreeable and unreasonable as it was. They performed
the tasks assigned to them. They ate the prison food without protest.
They wore the coarse prison clothes. But at the end of the first week
88. STEVENS, supra note 1, at 96, 99.
89. Id. at 99.
90. Id.
91. Dodd, supra note 3, at 405.
92. Id.
93. Id. at 406–07.
94. Id. at 407.
95. Id. at 407–08.
96. Id. at 408.
97. Id.
98. Id. at 411.

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of detention they became so weak from the shockingly bad food that
they began to wonder if they could endure a diet of sour bread, halfcooked vegetables, and rancid soup with worms in it.99

Meanwhile, local officials, with White House support, continued to
arrest the picketers and sentence them to longer and longer sentences.100
The publicity of the suffragists’ incarceration, “the reports of [the]
dreadful conditions in [the] jail,” and the resignation of a close confidant
of President Wilson in September—a resignation made in solidarity with
the picketers—led to “unprecedented demonstrations of support in
Congress.”101 By September 14, 1917, one month after the second large
set of prisoners arrived at Occoquan, Senator Andrieus A. Jones, the Chair
of the Senate Committee on Woman Suffrage, visited Occoquan.102 One
day later, the House of Representatives reported the Nineteenth
Amendment out of committee.103
As it became clear that the arrests would continue, the women would
receive longer and longer sentences, and the publicity garnered by the
arrests put pressure on Congress, the suffragists moved their protest inside
prison walls.104 Claiming to be political prisoners, the women sought to
intensify the pressure the picketing placed on the Wilson Administration
by highlighting the injustice of their plight.105 The women began
circulating a petition within Occoquan—”the first organized group action
ever made in America to establish the status of political prisoners.”106
Catching wind of the petition, prison officials moved many women to
solitary confinement.107 The petition demanded (1) that the suffragists be
treated as political prisoners; (2) that the suffragists be allowed to
congregate together and all be released from solitary confinement; (3) that
the suffragists be afforded the opportunity to meet with their lawyers; (4)
that the suffragists be allowed to receive food from the outside; and (5)
that the suffragists be provided writing material and books, letters, and
newspapers.108
In the petition, the suffragists also highlighted the horrid conditions
within Occoquan, stating that they did not immediately create the petition
“because on entering the workhouse [they] found conditions so very bad
99. STEVENS, supra note 1, at 95.
100. Dodd, supra note 3, at 410.
101. Id. at 405, 410–11.
102. Id. at 411.
103. Id.
104. Id.
105. STEVENS, supra note 1, at 95.
106. Id.
107. Id. at 107.
108. Id. at 107–08.

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that before [they] could ask that the suffragists be treated as political
prisoners, it was necessary to make a stand for the ordinary rights of
human beings for all the [prisoners].” 109 After garnering signatures for the
petition, the suffragists smuggled it out of Occoquan for delivery to the
commissions of the District of Columbia. 110 In addition to the petition, the
suffragist prisoners also announced a prison work strike.111
Rather than respond in any meaningful way, prison officials and
district commissioners transferred the signatories out of Occoquan to the
District Jail, placing each in solitary confinement.112 Conditions at the
District Jail proved no better than conditions at Occoquan: built in the
1870s, the jail’s cells measured six-by-nine feet, so small that the women
could touch each side with their fingerprints, arms outstretched.113 The tiny
cells were infested with vermin, including rats and bed bugs, and each cell
contained an open toilet, which, when combined with the prison’s practice
of closing the windows from the late afternoon until morning, created a
stifling environment with no fresh air.114 The windows in the cells locked,
and jail officials punished any woman who attempted to open a window.115
The jail served food no more palatable than the food at Occoquan, and the
women survived on bread, water, and molasses (occasionally provided by
jail officials).116
In protest of these conditions and the suffragists’ placement in
solitary confinement, Alice Paul, who had been arrested on October 20,
1917, and sentenced to seven months, began a hunger strike, drawing on
the lessons learned during her years working with the Pankhursts.117 To
Ms. Paul and the others who joined her, the hunger strike was “the ultimate
form of protest left.”118 Rather than heed the demands of the suffragists,
however, the jail administrators began force-feeding the hunger strikers.119
In response to the force-feeding, suffragists on the outside increased
the number of picketers at the White House gates.120 This increase led to
the largest arrest of picketers participating in the protest campaign. On
November 11, 1917, officials arrested forty-one Silent Sentinels.121 After
109. Id. at 108.
110. Dodd, supra note 3, at 411.
111. STEVENS, supra note 1, at 107.
112. Id. at 108.
113. ZHANISER & FRY, supra note 10, at 282.
114. Id. at 282–83; see also STEVENS, supra note 1, at 113.
115. STEVENS, supra note 1, at 113.
116. Id. at 114.
117. Dodd, supra note 3, at 415.
118. STEVENS, supra note 1, at 115.
119. Id. at 118–19.
120. Dodd, supra note 3, at 413.
121. Arrest 41 Pickets for Suffrage at the White House, N.Y. TIMES, Nov. 11, 1917, at 1.

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conviction, the women arrived at Occoquan on November 15, 1917,
ushering in what suffragists would later call the “Night of Terror.”122 From
the moment the women arrived at the prison, prison officials subjected
them to rough man-handling and physical beatings.123 Prison officials
threw the women into dark, dirty cells with iron beds and open toilets that
flushed only from the outside.124 Throughout the night, the women
experienced “forced stripping, physical violence, shackling with manacles
to prison bars, and threatened use of straightjackets and gags.”125 Prison
officials provided the women with no food for almost twenty-four hours
and denied the women visitation with their attorney and family
members.126 Many of the women immediately began a hunger strike.127 In
an effort to break the will and morale of the hunger strikers, the Occoquan
officials isolated them from one another, interrogated them, informed
them that no one from the outside cared about their plight, lied to them
that their attorney quit fighting for their case and cause, and instructed
them that their compatriots had given up the fight.128 The women
“suspected the lies and remained strong in their resistance.” 129
Eventually able to consult with their lawyer, the women filed a
petition for a writ of habeas corpus, arguing that their confinement at
Occoquan was illegal because Occoquan fell outside the territorial
confines of the District of Columbia, where they had been convicted and
ordered to serve their sentences.130 They also argued that their sentencing
papers authorizing imprisonment as punishment indicated they should be
confined in the District Jail.131 On November 23, 1917, Judge Edmund
Waddill of the United States District Court for the Eastern District of
Virginia held a hearing on the writ petition.132 The women filed into the
courtroom looking “haggard, red-eyed, and sick,” some too weak to walk
to their seats and some bearing “the marks of the attack on the ‘night of
terror.’”133 Judge Waddill, “alarmed by the writ’s description of the
women’s treatment, calling it ‘bloodcurdling’ if true,” granted the

122. Dodd, supra note 3, at 413.
123. Id.
124. STEVENS, supra note 1, at 122–23.
125. WAGNER, supra note 34, at 339 (citing Accuse Jailors of Suffragists, N.Y. TIMES, Nov. 17,
1917, at 1).
126. STEVENS, supra note 1, at 124.
127. Id. at 124–26.
128. Id. at 126.
129. Id.
130. Id. at 127, 130.
131. Id.
132. Id. at 128.
133. Id. at 129.

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petition.134 The judge found “that the suffragists had been illegally
imprisoned at Occoquan (rather than the District Jail) and that they could
be paroled on bail or finish their terms at the District Jail.” 135 In a show of
solidarity with the women already serving sentences in the jail, twentytwo women chose to finish their sentences and joined the hunger strike
already in progress when they arrived.136 Faced with thirty hunger-striking
women, the jail released all of the women on November 27 and 28,
1917.137 By March 4, 1918, the D.C. Circuit Court of Appeals invalidated
the women’s convictions.138
Thereafter, as congressional momentum built behind the passage of
the Nineteenth Amendment, the women paused their picketing for a short
while.139 On January 10, 1918, “exactly forty years to a day from the time
the suffrage amendment was first introduced into Congress and exactly
one year to a day from the time the first picket banner appeared at the gate
of the White House,” the House of Representatives passed the Nineteenth
Amendment.140 However, when it became clear that the Senate would stall
the Amendment’s passage, the women again gathered at Lafayette
Monument, directly across from the White House, with their banners in
tow on August 6, 1918.141 District officials arrested forty-eight women at
the protest, charged them with and convicted them of “holding a meeting
in public grounds” and “climbing a statue,” and sentenced them to ten (for
holding a public meeting) or fifteen (for climbing a statue) days.142
District officials transported twenty-six of these women to an
abandoned building that used to serve as a men’s workhouse until it “ha[d]
been declared unfit for human habitation in 1909.”143
This place was the worst the women had experienced. Hideous
aspects which had not been encountered in the workhouse and jail
were encountered here. The cells were damp and cold. The doors
were partly of solid steel with only a small section grating, so that a
very tiny amount of light penetrated the cells. The cots were of iron,
without any spring and with only a thin straw pallet to lie upon. So
frightful were the nauseating odors which permeated the place, and

134. ZHANISER & FRY, supra note 10, at 294.
135. Dodd, supra note 3, at 415 n.346.
136. STEVENS, supra note 1, at 130.
137. Id. at 129.
138. Hunter v. District of Columbia, 47 App. D.C. 406, 410 (D.C. Cir. 1918).
139. STEVENS, supra note 1, at 137–40.
140. Id.
141. Id. at 141.
142. Id. at 129.
143. Id.

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so terrible was the drinking water from the disused pipes, that one
prisoner after another became violently ill.144

Picking up right where they left off during their last prison stint, the
suffragists immediately restarted their protests: all but two very elderly
women declared a hunger strike upon arrival.145 Within five days, district
officials once again released the women early, prior to the completion of
their sentences.146
In the months that followed, the women’s protests continued, and the
district police made periodic arrests.147 With each arrest, conviction, and
sentence, the women continued their practice of hunger striking in
prison.148 While their in-prison petitioning and protests advanced their
cause, it also brought attention, albeit limited, to the conditions of
confinement at Occoquan and the District Jail.149 The suffragists’ press
coverage eventually led to a congressional investigation into the
conditions at Occoquan and, “after receiving one too many protest letters
about the suffragists plight,” President Wilson requested an inquiry into
Occoquan’s conditions.150 While the President’s secretary, and right-hand
man, confirmed the women’s poor treatment, the President rejected his
opinion, instead tasking a district commission with the assignment of
preparing an investigative report on conditions. 151 The commissioners “did
little more than interview the prison officials,” and the report ultimately
kowtowed to political pressure.152 However, the inquiry nonetheless
brought a small amount of transparency to the prison that had theretofore
been lacking.153
The suffragists’ in-prison protest strategies are often replicated by
prisoners in the modern American carceral state. Yet, much like the
suffragists’ experience, today’s prisoners often face extreme punishment
and retaliation for protest activities like petitioning and striking,
particularly when the prisoners attempt to engage in any form of group
protest. Prison officials mete out such punishment and retaliation with
impunity largely because of the deference afforded to prison officials
under modern First Amendment doctrine as applied to prisoners. The next
section discusses this doctrine and its attendant deference.
144. Id. at 144.
145. Id.
146. Id.
147. See, e.g., id. at 162, 168, 172–73, 179.
148. Id. at 162.
149. Id. at 98.
150. ZHANISER & FRY, supra note 10, at 288.
151. Id.
152. Dodd, supra note 3, at 423–24; see also ZHANISER & FRY, supra note 10, at 288.
153. ZHANISER & FRY, supra note 10, at 288.

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II. THE FIRST AMENDMENT AND PRISONER PETITION AND
ASSOCIATIONAL RIGHTS
Among other rights,154 the First Amendment protects “the right of the
people peaceably to assemble and to petition the Government for a redress
of grievances.”155 These rights are severely restricted and essentially nonexistent in prison. While there are obvious and valid reasons to exclude
gang membership from constitutional protections,156 prisoner membership
in other groups, both formal and informal, is also often excluded from
constitutional protection.157 Most importantly, pursuant to the Supreme
Court’s decision in Jones v. North Carolina Prisoners’ Labor Union,
Inc.,158 prison officials have unfettered discretion to ban prisoner
organizations that oppose or criticize prison policies. Moreover, even
when a prison system allows a prisoner organization to exist, the prison
may restrict the activities of those organizations whenever it sees fit with
little to no judicial oversight.159
154. In a companion piece to this Article, I focused on the First Amendment right to free speech
and used the example of the suffragist prisoners to argue for a more robust right to speech for prisoners.
See generally Godfrey, supra note 8.
155. U.S. CONST. amend. I.
156. See Westefer v. Snyder, 422 F.3d 570, 575 (7th Cir. 2005) (holding that segregation of gang
members and subsequent transfer to supermax prison did not violate First Amendment); Harbin-Bey
v. Rutter, 420 F.3d 571, 576–79 (6th Cir. 2005) (upholding designation of prisoners who received and
sent mail and publication with gang references as a “Security Threat Group” leader with restrictions
on visiting, community placement, and other privileges); Stewart v. Almeida, 418 F. Supp. 2d 1154,
1162–63 (N.D. Cal. 2006) (upholding “gang validation” procedure that usually resulted in gang
members placement in SHU); Koch v. Lewis, 96 F. Supp. 2d 949, 960–66 (D. Ariz. 2000) (upholding
requirement that gang members renounce gang membership and inform on other members to get out
of segregation), vacated as moot, 399 F.3d 1099 (9th Cir. 2005).
157. See, e.g., Burnette v. Phelps, 621 F. Supp. 1157, 1159–60 (M.D. La. 1985) (finding
prisoners who wanted to speak to other prisoners in the dining hall had no First Amendment
associational right to challenge a rule prohibiting speaking); Dooley v. Quick, 598 F. Supp. 607, 612
(D.R.I. 1984) (finding that prisoners had no associational right to challenge prison rules limiting how
and when prisoners may see each other so long as there is some opportunity for human contact), aff’d,
787 F.2d 579 (1st Cir. 1986); see also Brew v. School Bd. of Orange Cnty., 626 F. Supp. 709, 716–18
(M.D. Fla. 1985) (finding no associational claim for work release prisoner and teacher who wanted to
fraternize on school premises), aff’d, 802 F.2d 1397 (11th Cir. 1986). But see Franklin v. Murphy, 745
F.2d 1221, 1230 (9th Cir. 1984) (holding that claim that prison hospital ordered other prisoners not to
associate with plaintiff and threatened to punish plaintiff for such association “arguably” stated a claim
for denial of freedom of association). Notably, even religious organizations have less constitutional
protection under the First Amendment. See Fraise v. Terhune, 283 F.3d 506, 518–23 (3d Cir. 2002)
(allowing prison officials to classify the Five Percenters as a “Security Threat Group” and to segregate
any prisoner who refuses to renounce all ties with the group); In re Long Term Admin. Segregation
of Inmates Designated as Five Percenters, 174 F.3d 464, 466–69 (4th Cir. 1999).
158. See Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119 (1977).
159. See, e.g., Preast v. Cox, 628 F.2d 292, 294 (4th Cir. 1980) (upholding rule that prisoner
groups receive official recognition before engaging in joint activities even though denial of recognition
would be unreviewable by the court); Akbar v. Borgen, 803 F. Supp. 1479, 1485–86 (E.D. Wis. 1992)
(upholding rule forbidding “unsanctioned” group activity on its face and as applied to a prisoner
seeking to form a Muslim organization); Hudson v. Thornburgh, 770 F. Supp. 1030, 1036 (W.D. Pa.

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While the group associational rights of prisoners are unequivocally
limited, the status of prisoners’ right to petition is not as clear. Some courts
have found that a prisoner’s right to petition is a protected right,160 while
others allow prison systems to restrict or ban prisoner petitions. 161 The
ambivalence of the federal courts regarding a prisoner’s right to petition
runs contrary to the historical importance of the right to petition as a
crucial means of redress for the disenfranchised.162 Regarded as “among
the most precious of the liberties safeguarded by the Bill of Rights,” 163
the right to petition has long-been used by groups with little to no
political power as a way to participate in democracy.164 For example,
historically, prisoners have been able to use the right to petition to
instigate legislative investigations into prison conditions.165 However,
as discussed in detail below, prisoners’ right to petition is significantly
curtailed today. Before turning to that discussion, we must first
examine why prisoners’ associational rights are so curtailed and the

1991) (upholding prison system’s decision to disband Association of Lifers because prison officials
determined the group’s existence posed a security threat); Salahuddin v. Coughlin, 591 F. Supp. 353,
361 (S.D.N.Y. 1984) (upholding ability of the prison system to restrict the associational rights of
prisoners involved in the Inmate Liaison Committee). But see Nicholas v. Miller, 189 F.3d 191, 194–
95 (2d Cir. 1999) (per curiam) (declining to award summary judgment on associational claim where
prison prohibited the formation of the Prisoners’ Legal Defense Center); Castle v. Clymer, 15 F. Supp.
2d 640, 665–66 (E.D. Pa. 1998) (holding that prison system could not transfer a prisoner for his
activities in a Lifers organization that the prison authorized).
160. See, e.g., Bridges v. Russell, 757 F.2d 1155, 1156–57 (11th Cir. 1985); Haymes v.
Montanye, 547 F.2d 188, 191 (2d Cir. 1976); Stoval v. Bennett, 471 F. Supp. 1286, 1290 (M.D. Ala.
1979).
161. See, e.g., Duamutef v. O’Keefe, 98 F.3d 22, 24 (2d Cir. 1996) (allowing a prohibition on
petitions because of the existence of a grievance process); Nickens v. White, 622 F.2d 967, 971–72
(8th Cir. 1980) (upholding a regulation prohibiting “mass protest petition” given the existence of
alternative methods for individual prisoners to express their views (e.g., correspondence and the
grievance process)); Williams v. Stacy, 468 F. Supp. 1206, 1209–11 (E.D. Va. 1979) (allowing
prohibition of petition that described prison guards as “Nazis” and “maniacs” and warning of “another
Attica”).
162. See Borough of Duryea v. Guarnieri, 564 U.S. 379, 388 (2011).
163. See United Mine Workers v. Ill. State Bar Ass’n, 389 U.S. 217, 222 (1967).
164. See Gregory A. Mark, The Vestigial Constitution: The History and Significance of the Right
to Petition, 66 FORDHAM L. REV. 2153, 2181–82 (1998) (noting the historical use of petitions by
prisoners to address both individualized grievances related to their convictions but also to lead “to
such legislative action as the investigation of the treatment of prisoners); Stephen A. Higginson, A
Short History of the Right to Petition Government for the Redress of Grievances, 96 YALE L.J. 142,
153 (1986) (noting that “unrepresented groups—notably women, felons, Indians, and, in some cases,
slaves—represented themselves and voiced grievances through petitions”).
165. Higginson, supra note 164, at 147 n.27 (recounting an “occurrence in Georgia” where “[t]he
House, acting on petitions which alleged inhuman prison treatment, ‘immediately resolved itself into
a Committee of the Whole House upon said Petition,’ and went in a body to the jail to look into the
matter” (quoting RALPH VOLNEY HARLOW, HISTORY OF LEGISLATIVE METHODS IN THE PERIOD
BEFORE 1825 97 (1917))).

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deference afforded to prison officials in relation to all infringements on
prisoners’ First Amendment rights.
A. Jones v. North Carolina Prisoners’ Labor Union, Inc.
For more than a century after the adoption of the Bill of Rights, the
American federal courts refused to entertain claims challenging prison
conditions.166 Federal courts remained steadfastly unwilling to interfere in
the internal management of prisons by using an approach that later became
known as the “hands-off” doctrine.167 This doctrinal approach to prisoners’
constitutional rights changed, however, in the late nineteen sixties and
early nineteen seventies when prisoners began organizing in protest of the
institutional conditions of the prisons that confined them.168
While the courts began recognizing the enforceability of certain
constitutional rights for prisoners, American politics began to sharply shift
focus “to maintaining civic order and fighting crime.”169 In reaction to
this wave of prisoner activism, prison systems began to expend
enormous effort trying to limit prisoners’ ability to meet and organize
within prison walls:
They attempted to ban meetings of [prisoners] within prisons. They
tried to forbid the sending or receiving of union-related material
through the prison mail system. They also singled out specific
prisoner labor leaders for time in segregation. However, the biggest
thorn in their side was [prisoner] claims to the right to unionize. If
[prisoners] could join a union, then they would have rights. If they
had rights, then prison officials would no longer have carte blanche
to extract prisoners’ labor as they saw fit.170

166. Godfrey, supra note 17, at 165.
167. Id. (quoting Edgardo Rotman, The Failure of Reform: United States, 1865-1965, in THE
OXFORD HISTORY OF THE PRISON: THE PRACTICE OF PUNISHMENT IN WESTERN SOCIETY 169, 191
(Norval Morris & David J. Rothman eds. 1995)).
168. See Godfrey, supra note 17, at 165 (noting the federal courts’ abandonment of the handsoff doctrine in the late sixties and early seventies); Heather Ann Thompson, Rethinking Working-Class
Struggle through the Lens of the Carceral State: Toward a Labor History of Inmates and Guards, in
8 LABOR: STUDIES IN WORKING-CLASS HISTORY OF THE AMERICAS 15, 30 (2011) [hereinafter
Thompson, Working-Class Struggle] (noting that prisoner activism escalated in the 1960s and early
1970s). See generally Heather Ann Thompson, BLOOD IN THE WATER: THE ATTICA PRISON UPRISING
OF 1971 AND ITS LEGACY (2016) [hereinafter Thompson, ATTICA] (recounting the history and
aftermath of the 1971 prison riot in Attica Correctional Facility in Attica, New York).
169. Thompson, ATTICA, supra note 168, at 18. The racism and racial subjugation inherent to
the politics of the War on Crime and the War on Drugs have been well-documented and analyzed. See
generally MICHELLE ALEXANDER, THE NEW JIM CROW: MASS INCARCERATION IN THE AGE OF
COLORBLINDNESS, passim (2010).
170. Thompson, Working-Class Struggle, supra note 168, at 30.

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Prison officials’ efforts to quell prisoner organizing and protest
activities culminated in the 1977 Supreme Court decision in Jones v. North
Carolina Prisoners’ Labor Union.171
Jones concerned the activities of the North Carolina Prisoners’ Labor
Union (NCPLU), founded in 1974 to
secure meaningful rehabilitation programs, to defend human and civil
rights of prisoners, to arrange for community based support groups
to appear before legislative bodies in the interests of prison reform,
to educate the public through the publication of a union newspaper
and through news releases, to retain attorneys for the protection of
prisoners’ legal rights, and for the advancement of prisoners’
economic, political, social, and cultural interests.172

By the time the Jones case reached the Supreme Court, the NCPLU
had approximately 2,200 members living in forty different correctional
institutions across the state of North Carolina.173 The organization took
pride in its multi-racial composition, and its Board of Directors included
“seven white persons, six black persons and one American Indian.” 174
In reaction to the formation of the NCPLU,175 North Carolina prison
officials promulgated an administrative regulation that (1) prohibited
prisoners from soliciting others to join a prisoner union, (2) prohibited any
prisoner union from using North Carolina Department of Correction
property, (3) called for the permanent exclusion of any person entering a
correctional unit with the purpose of organizing, and (4) prohibited
correctional officers from negotiating with any prisoner union.176 Pursuant
to this regulation, prison officials took several actions that interfered with
the operation of the NCPLU.177 First, prison officials censored any
incoming mail, whether sent by prisoners or non-prisoners, that related to
solicitation of union members.178 Second, prison officials censored the
NCPLU’s bi-monthly newsletter, preventing its introduction into any
North Carolina prison by disposing of it or returning it to the sender.179

171. See Jones v. N.C. Prisoners’ Labor Union, Inc., 433 U.S. 119 (1977).
172. Brief for Appellee at 5, Jones v. N.C. Prisoners’ Labor Union, Inc., 433 U.S. 119 (1977)
(No. 75-1874), 1976 WL 181714, at *7.
173. Id.
174. Id.
175. Notably, despite legally incorporating as a labor union under the auspices of the Secretary
of State of North Carolina, the NCPLU expressly disclaimed any intention to operate as a true labor
union as defined by the National Labor Relations Act. N.C. Prisoners’ Labor Union, Inc. v. Jones, 409
F. Supp. 937, 940 n.1 (E.D.N.C. 1977).
176. Jones, Brief for Appellee, supra note 172, at *8.
177. Id. at *8–10.
178. Id. at *9.
179. Id. at *9–10.

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Finally, prison officials barred paralegals employed by the NCPLU’s
attorneys from visiting the prisoners.180
The NCPLU filed suit in the United States District Court for the
Eastern District of North Carolina in early 1975, claiming defendant prison
officials violated “its rights and the rights of its members to engage in
speech, press, association and assembly activities protected by the First
Amendment” by enacting and enforcing the above regulation.181 In
defense of its infringement on the NCPLU’s rights, North Carolina prison
officials asserted four reasons why its restrictions were lawful.182 First,
prison officials claimed the NCPLU may create “a divisive element”
amongst the prisoner population.183 Second, prison officials speculated
that the individual prisoner organizers may become “power figures”
among the incarcerated population.184 Third, prison officials discounted
the need for an organization like the NCPLU, reasoning that the Inmate
Grievance Commission provides prisoners a forum for “airing their
complaints.”185 Finally, prison officials feared “work stoppages and
mutinies, riots, and chaos could result” in allowing the NCPLU to continue
its operations.186 The NCPLU responded to these concerns by asserting
that the “apprehensions were all of a speculative nature” and that prison
officials could point to no “facts derived from the six preceding months of
Union activity within the North Carolina correctional system, or to
experiences in the prison systems of other jurisdictions, which lent any
support to their fears.”187
On March 26, 1975, the Eastern District of North Carolina certified
a three-judge district court panel to determine the constitutionality of the
regulation.188 Almost a year later, on March 16, 1976, the three-judge
panel held the regulation unconstitutional and entered a judgment in favor
of the NCPLU.189 The North Carolina prison officials sought review of the
district court’s judgment in the Supreme Court.190

180. Id. at *10.
181. Id. at *4.
182. Id. at *10–11.
183. Id. at *10.
184. Id.
185. Id. at *10–11.
186. Id. at *11.
187. Id. at *11.
188. Id. at *5.
189. Id.
190. Id. at *2. 28 U.S.C. § 1253 grants the Supreme Court jurisdiction over any appeal “from an
order granting or denying, after notice and hearing, an interlocutory or permanent injunction in any
civil action, suit or proceeding required by any Act of Congress to be heard and determined by a
district court of three judges.”

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The Supreme Court reversed the district court, upholding the prison
officials’ ban on solicitation for union meetings and membership.191 In
reaching its conclusion, the Supreme Court stressed that the prisoners’
“First Amendment associational rights . . . must give way to the
reasonable considerations of penal management.”192 In reaching this
conclusion, the Court noted the realities of prison life significantly curtail
and necessitate restrictions on prisoners’ right to associate.193 Importantly,
however, the Court stressed the need to defer to the discretion of prison
officials who determined that “the presence, perhaps even the objectives,
of a prisoners’ labor union would be detrimental to order and security in
the prisons.”194 The Court reached this conclusion despite the paucity of
evidence supporting the prison officials’ conclusions that “work
slowdowns or stoppages or other undesirable concerted activity” would
result from the NCPLU’s existence.195 By ignoring this clear lack of
evidence, the Supreme Court ushered in an era of blind deference to prison
officials that allows for frequent and consistent infringement of the First
Amendment rights of prisoners.196 That deference inhibits prisoners’
ability to protest in the manner of the suffragists’ prisoners because such
protest activity will inevitably lead to further punishment.
B. The Flaws of Deference to Prison Officials
The deference accorded the prison officials in Jones has proved the
rule rather than the exception in the decades since the Supreme Court
issued its decision.197 While the Supreme Court ostensibly promises
prisoners that “[p]rison walls do not form a barrier separating”198 them
191. Jones v. N.C. Prisoners’ Labor Union, Inc., 433 U.S. 119, 129, 133 (1977).
192. Id. at 132.
193. Id.
194. Id. (emphasis added). Please recall that the so-called detrimental objectives of the NCPLU
included the following:
secure meaningful rehabilitation programs, to defend human and civil rights of prisoners,
to arrange for community based support groups to appear before legislative bodies in the
interests of prison reform, to educate the public through the publication of a union
newspaper and through news releases, to retain attorneys for the protection of prisoners’
legal rights, and for the advancement of prisoners’ economic, political, social, and cultural
interests.
Jones, Brief for Appellee, supra note 172, at *7.
195. Jones, 433 U.S. at 123 (quoting N.C. Prisoners’ Labor Union, Inc. v. Jones, 409 F. Supp.
937, 942 (E.D.N.C. 1976)); see also id. at 124 (finding “not one scintilla of evidence to suggest that
the Union had been utilized to disrupt the operation of the penal institutions”).
196. Id. at 141–43 (Marshall, J., dissenting) (criticizing the Jones majority’s blind deference to
the North Carolina prison officials and failure to account for the credibility assessment conducted by
the three-judge panel in the district court).
197. See Godfrey, supra note 8, at 337–41.
198. Thornburgh v. Abbott, 490 U.S. 401, 407 (1989) (quoting Turner v. Safley, 482 U.S. 78,
84 (1987)).

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from constitutional protections, First Amendment doctrine now formally
incorporates the deference afforded in Jones into the test utilized to
determine whether a prison regulation violates a prisoner’s First
Amendment rights.199 In a companion piece to this Article, I fully
catalogue the myriad criticisms lodged against this doctrine of deference,
and I need not fully repeat that catalog here.200 Rather, I pause only to
highlight those criticisms particular to my focus on the importance of
protecting prisoner rights to association and petition (i.e., those criticisms
most relevant to the Supreme Court’s analysis in Jones).
First, the Jones Court accepted the prison officials’ argument that the
NCPLU’s existence and objectives undermined the good order and
security of the prison without consideration of any evidence to the
contrary.201 In fact, the Jones Court shifted the burden to the prisoners to
“conclusively” demonstrate the fallacy in the prison officials’ position.202
But in crediting the prison officials’ opinions that the NCPLU’s existence
and objective might undermine prison security, the Supreme Court ignored
the fact-finding conclusions of the three-judge panel, which found “not
one scintilla of evidence that the [NCPLU] had been utilized to disrupt the
operation of the penal institutions.”203 Moreover, the Supreme Court’s
decision ignored the contemporary acknowledgement by some prison
administrators that the recognition and support of prisoner groups actually
helps stabilize the prison environment.204 For example, in the early 1970s,
prison officials in Washington allowed prisoners at the Washington State
Penitentiary in Walla Walla “to elect a council with authority to

199. See Turner, 482 U.S. at 84–85 (“Running a prison is an inordinately difficult undertaking
that requires expertise, planning, and the commitment of resources, all of which are peculiarly within
the province of the legislative and executive branches of government. Prison administration is,
moreover, a task that has been committed to the responsibility of those branches, and separation of
powers concerns counsel a policy of judicial restraint. Where a state penal system is involved, federal
courts have . . . additional reason to accord deference to the appropriate prison authorities.”) The
Turner Court expressly emphasized that the four-part test it articulated was driven by its perceived
need to defer to the judgment of prison officials. Id. at 89–91 (articulating the four factors).
200. See generally Godfrey, supra note 8, at 342–45.
201. See Jones, 433 U.S. at 132.
202. Id.; see also Clay Calvert & Kara Carnley Murrhee, Big Censorship in the Big House—A
Quarter-Century After Turner v. Safley: Muting Movies, Music & Books Behind Bars, 7 Nw. J.L. &
POL’Y 257, 294 (2012) (quoting Scott A. Moss, Students and Workers and Prisoners—Oh, My! A
Cautionary Note About Excessive Institutional Tailoring of First Amendment Doctrine, 54 UCLA L.
REV. 1635, 1659 (2007)) (criticizing the burden shifting inherent in the Turner doctrine).
203. N.C. Prisoners’ Labor Union, Inc. v. Jones, 409 F. Supp. 937, 944 (E.D.N.C. 1976).
204. See Jonathan A. Willens, Structure, Content and the Exigencies of War: American Prison
Law After Twenty-Five Years 1962-1987, 37 AM. U. L. REV. 41, 64 (1987) (recognizing that while
“underground” prisoner groups, like gangs, may increase tension within the prison, the act of granting
certain groups legitimacy may, in fact, “contribute to the prison’s stability” by giving voice to the
voiceless prisoner population).

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recommend new programs to the administration.” 205 The move to
recognize and grant some power to prisoner-run organizations created an
immediate and obvious transformation within the prison.206 Prisoners used
their newfound political clout to both push for revolutionary and personal
interests—“[a] single manifesto might demand both Black Power and a
new drama class.”207
Of course, it is unlikely the Jones Court had the advantage of record
evidence of situations where prison systems successfully recognized
prisoner groups like the prisoner council in Walla Walla.208 Nevertheless,
the Court’s reflexive deference to the North Carolina prison officials’
rationale without due consideration of evidence to the contrary reveals an
inherent flaw in the doctrinal deference found in prisoners’ First
Amendment jurisprudence.
Second, as the Jones dissent aptly points out, the Jones Court’s
deference to North Carolina prison officials abdicated the solemn duty of
the federal courts to evaluate evidence presented and “reach an
independent judgment.”209 In prisoners’ rights’ cases, the abdication of
this duty becomes even more critical because of the authoritarian nature
of prison institutions.210 Leaving prison officials to their own unfettered
discretion runs the risk of allowing those officials’ proper exercise of state
power to convert to “its most brutal form,” where that power looks like
tyranny.211 Indeed, certain members of the Supreme Court have
recognized that “careless invocations of ‘deference’” will often result in a
return to the “hands-off” doctrine, wherein the “judicial blind eye” resulted
in “barbarism and squalor” in many prisons.212 By incorporating deference
to prison officials into First Amendment doctrine, the Supreme Court has
all but eradicated the check on institutional tyranny created by the threat
of judicial review.213
205. Id. at 65.
206. Id.
207. Id.
208. Cf. Jones, 433 U.S. at 142 (Marshall, J., dissenting) (quoting ABA Joint Committee on the
Legal Status of Prisoners, The Legal Status of Prisoners (Tent. Draft 1977), in 14 AM. CRIM. L. REV.
377, 419 (1977)) (recognizing that “groups feared by the prisons in the 1960s have become stabilizing
influences in the 1970s”).
209. Id. at 142 (Marshall, J., dissenting).
210. See Erwin Chemerinksy, The Constitution in Authoritarian Institutions, 32 SUFFOLK U. L.
REV. 441, 458 (1999) (noting that prisons, by their very nature, are the “places where serious abuses
of power and violations of rights are likely to occur”); Willens, supra note 204, at 69 (noting that the
“authoritarian prison has historical roots in the slave plantation”).
211. Willens, supra note 204, at 71.
212. Block v. Rutherford, 468 U.S. 576, 594 (1984) (Blackmun, J., concurring).
213. Willens, supra note 204, at 98–99.
When prisoners are defined as brutal, hardened criminal, attacks on their humanity are
easily ignored. When prison is defined as inherently dangerous and violent, attempts to

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Finally, the Jones Court’s deference fails to appreciate the
democratic value inherent in allowing prisoners to voice their collective
concerns.214 While the federal courts have expressly recognized that the
integrity of our criminal justice system is a matter of public concern,215 the
Supreme Court has declined to ensure that the voices of those most
impacted by the criminal justice system—the 2.2 million men and women
incarcerated within that system—are heard. By allowing prison officials
to curtail prisoner associational and petition rights with little to no
oversight, the Supreme Court has almost completely eradicated the few
democratic processes available to the disenfranchised. Those democratic
processes include the ability to petition those in power to correct
unchecked abuse216 and the ability to seek redress in the courts.217 By
weakening prisoners’ associational rights, the Supreme Court not only
limited the ability of prisoners to successfully litigate First Amendment
claims but also limited their ability to attract the attention of lawyers
whose “presence and relentless demand for information” might increase
accountability of prison systems.218
Judicial deference to prison officials on issues involving the
curtailment of prisoners’ associational and petition rights undoubtedly
contributes to the lack of transparency and accountability inherent to the
modern American prison system.219 But the example of the protests staged
maintain institutional security which are themselves dangerous and violent are easily
justified. Both of these definitions have been essential to the legitimation of the new legal
prison. The new prison in turn legitimates attacks on the prisoner, attacks on his space, his
property, his body, and his pride. This prison is the paradigm of an irrational society: driven
by fear and violence under the rhetoric of law and order, built for custody and domination
in the name of freedom and democracy. The irrational society legitimates itself by
rationalizing insane facts. The legitimation works, until finally it becomes irrational to say
the obvious: something must be wrong when society asks its citizens to bend over and
spread their legs so that society may inspect.
Id. at 133–34.
214. See, e.g., Mark, supra note 164, at 2155–56 (recognizing the centrality of the Petition
Clause to “the relationship between the governed and the government”); see also Borough of Duryea
v. Guarnieri, 564 U.S. 379, 396–97 (2011) (observing the importance of petitioning for “groups
excluded from the franchise”).
215. See Miller v. Clinton County, 544 F.3d 542, 549 (3d Cir. 2008).
216. See Mark, supra note 164, at 2182 (noting that “[p]etitioning provided not just a method
whereby individuals within [disenfranchised] groups might seek reversal of harsh treatments by public
authority, judicial or otherwise, but also a method whereby such individuals could seek the
employment of public power to redress private wrongs that did not fit neatly into categories of action
giving rise to a lawsuit. . . . That such power might reside in the hands of those with little, or no, other
formal political power greatly heightens the constitutional significance of the right”).
217. See Willens, supra note 204, at 67 n.140 (recognizing the role litigation plays in
“increas[ing] the visibility of prisons and the dialogue about them”).
218. Id. at 66–67 (noting that the existence of prisoners’ groups allowed those groups to garner
the attention of outside community leaders, which “brought reformers into the prisons”).
219. See Gibbons & deBelleville Katzenbach, supra note 21, at 408–10.

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by the suffragist prisoners demonstrates why protecting these rights for
prisoners is important, not only to ensure appropriate accountability in the
criminal justice system but also to honor the importance of these rights,
even for the incarcerated. However, under current doctrine, prison officials
are free to act with impunity in punishing prisoners for attempting to
expose unlawful or inhumane prison conditions. As such, current doctrine
disserves the values embodied by the First Amendment.
III. IMPORTANCE OF PROTECTING PRISONER ASSOCIATIONAL
AND PETITION RIGHTS
As the suffragists’ in-prison protests demonstrate, allowing prisoners
to organize peacefully and to inform the public and those in power of
injustices occurring inside prison walls can have a profound impact on
public opinion and may ultimately lead to necessary social change.
But most modern American prison systems have enacted rules
that outright forbid any protest activity meant to draw attention to
unjust prison conditions.220 At minimum, these rules certainly
discourage prisoner participation in protest activity because of the harsh
punishments associated with rules violations. 221 Unfortunately, prison
systems remain emboldened to promulgate, maintain, and enforce these
rules because of the lack of serious judicial oversight under current First
Amendment doctrine.222
By limiting prisoners’ ability to engage in collective protest, prison
systems maintain the veil of secrecy that surrounds the American prison.223
While some prisoners may be lucky enough to catch the attention of a
lawyer for assistance in redressing constitutional violations, lawyers may
be reluctant to advise or allow their clients to engage in the type of civil
disobedience practiced by the suffragists.224 But practices of peaceful
220. See infra Section III.A.
221. Id.
222. See Evan Bianchi & David Shapiro, Locked up, Shut up: Why Speech in Prison Matters, 92
ST. JOHN’S L. REV. 1, 8 (2018).
Prison officials appear to have received the message that they enjoy “practical immunity”
from First Amendment lawsuits by prisoners due to a combination of Turner deference,
other legal obstacles that stand in the way of successful prisoner action (such as
administrative exhaustion under the Prison Litigation Reform Act), and non-legal
impediments (such as limited education, poverty, and the difficulty of obtaining counsel).
The prison censors carry on with impunity. As one of us has argued previously and at
greater length, “anything goes” seems to be the attitude of prison officials who have been
liberated from serious judicial oversight.
Id.
223. See Dewan, supra note 15.
224. Cf. Charles R. DiSalvo, The Fracture of Good Order: An Argument for Allowing Lawyers
to Counsel the Civilly Disobedient, 17 GA. L. REV. 109, 110 (1982) (encouraging the legal profession
to “recognize the importance of civil disobedience in creating changes in law and public policy”); see

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disruption may be the best way for prisoners to educate the public on what
is happening inside the public institutions that comprise the American
prison system.225 And a strong public response to unfair or illegal prison
policies is almost always enormously useful in getting those polices
rescinded or amended.226 This is particularly true in situations where the
policies are more the result of implicit (or explicit) biases on the part of
prison officials rather than actual issues of prison safety.227 Some
examples of these types of policies are discussed in the next section.
A. “Inciting a Riot”
A nationwide review of prison policies reveals that almost every state
prison system has a disciplinary rule prohibiting the type of non-violent
protest engaged in by the suffragists at Occoquan and in the D.C. jail.
Many prison systems name these prison disciplinary charges “inciting a
riot” or some variation thereof.228 While some of these charges seem to be
also id. at 132 (noting the lack of equal access to lawyers and the legal system for some groups and
reiterating that “social change does not occur solely with the aid of lawyers, courts, and judges”).
225. JAMES TAGER, LITERATURE LOCKED UP: HOW PRISON BOOK RESTRICTION POLICIES
CONSTITUTE THE NATION’S LARGEST BOOK BAN 10 (2019), https://pen.org/wp-content/uploads/
2019/09/literature-locked-up-report-9.24.19.pdf [https://perma.cc/XL5R-8PM6] (acknowledging that
“it may take months or even years for the general public to even learn about” certain prison policies
because of the secrecy surrounding prison policy promulgation).
226. Id. (“Prisons and jails get away with a lot of what they do just because people aren’t
watching. These are closed institutions, and they house politically powerless and unpopular people.
So when you can get public attention, the prison system is often exposed as a paper tiger. Not every
time, but often enough.” (quoting David Fathi, who leads the American Civil Liberties’ Union’s
National Prison Project)).
227. See, e.g., id. at 5 (describing “bans on literature that discusses civil rights, historical abuses
within America’s prisons, or criticism of the prison system itself, often on the grounds that such titles
advocate disruption of the prisoner’s social order”).
228. See, e.g., CAL. CODE REGS. tit. 15, § 3005(d)(2) (2008) (prohibiting prisoners from
participating in or urging others from participating in “a riot, rout, or unlawful assembly”); COLO.
DEP’T OF CORR., ADMIN. REG. 150-01, CODE OF PENAL DISCIPLINE, at § IV.E.14 (“Advocating or
Creating a Facility Disruption”); DEL. DEP’T OF CORR., HOWARD R. YOUNG CORR. INST., INMATE
HANDBOOK 8 (“Inciting a Riot”); FLA. ADMIN. CODE ANN. r. 33-601.314(2-2) (2014) (“Inciting or
attempting to incite riots, strikes, mutinous acts, or disturbances”); GA. COMP. R. & REGS. 125-3-21.C2A (2009) (prohibiting “planning, conspiring or encouraging others to participate in any group
demonstration, disturbance, riot, strike, refusal to work, work stoppage, or work slowdown”); HAW.
DEP’T OF PUB. SAFETY, CORR. ADMIN., POLICY AND PROCEDURES MANUAL, POLICY NO. COR. 13.03,
ADJUSTMENT PROCEDURES GOVERNING SERIOUS MISCONDUCT VIOLATIONS AND THE ADJUSTMENT
OF MINOR MISCONDUCT VIOLATIONS, at 5.0.2.a.6(11),(12); IDAHO DEP’T OF CORR., STANDARD
OPERATING PROCEDURE, DUAL DIVISION, OFFENDER MANAGEMENT, CONTROL NO. 318.02.01.001,
DISCIPLINARY PROCEDURES: OFFENDER, at Appendix A.2 (defining “group disobedience” as
“[p]articipation in a work stoppage, demonstration, or group disobedience that does not result in
property damage or injury where participation is forced or coerced by other inmates”); ILL. ADMIN.
CODE tit. 20, § 504.App.A.205 (2017) (forbidding participation in “unauthorized organizational
activities,” including meetings); IND. DEP’T OF CORR., ADULT DISCIPLINARY PROCESS, APPENDIX I:
OFFENSES 208 (forbidding participation in “unauthorized organizational activities,” including
meetings); IOWA DEP’T OF CORR., OFFENDER RULEBOOK, at E.27 (making any “obstructive” or

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more explicitly tied to violence,229 the elements of others can clearly be
met by merely engaging in any type of organized disobedience, regardless
of whether such disobedience involves violence.230 At least one state has
even criminalized “organized disobedience” within a correctional

“disruptive” conduct a disciplinary offense, including “participating in unauthorized meetings,
gatherings, or petitioning” and “encouraging others to refuse to work or participate in work stoppage”);
KAN. ADMIN. REGS. § 44-12-319 (2007) (prohibiting “disruptive behavior”); KY. CORR., POLICIES &
PROCEDURES, POLICY NO. 15.2, RULE VIOLATIONS AND PENALTIES 9 (“inciting to riot or rioting”);
LA. DEP’T OF PUB. SAFETY & CORR., DISCIPLINARY RULES AND PROCEDURES FOR ADULT
OFFENDERS, at VIII.29 (prohibiting “disturbances”); 03-201-10 ME. CODE R. § 20.1(VI) (PROCEDURE
E) (LexisNexis 2013) (including “demonstration,” which prohibits group demonstrations); MICH.
DEP’T OF CORR., POLICY DIRECTIVE NO. 03.03.105, PRISONER DISCIPLINE, at Attachment A (Code
022 violation includes “joining others in an unauthorized work stoppage”); MONT. STATE PRISON,
OPERATIONAL PROCEDURE, PROCEDURE 3.4.1, INSTITUTIONAL DISCIPLINE, at Major Rule Infractions
4013 (“rioting or encouraging others to riot”); NEV. DEP’T OF CORR., ADMIN. REG. 707, INMATE
DISCIPLINARY PROCESS, at 707.02.5.MJ27 & 28 (prohibiting rioting and “[o]rganizing, encouraging
or participating in a work stoppage or other disruptive demonstration or practice”); N.H. DEP’T OF
CORR., POLICY AND PROCEDURE DIRECTIVE, ENFORCEMENT OPERATIONS, STATEMENT NO. 5.25,
PROCESSING SPOT, DISCIPLINARY, INCIDENT & INTELLIGENCE REPORTS, at Disciplinary Rule
Infractions 21.A (prohibiting participation in any group demonstration, strike, or work stoppage or
slowdown); N.M. CORR. DEP’T, CD-090100, INMATE DISCIPLINE, at Category “A” Offenses A(9) &
A(10) (prohibiting inciting a riot); R.I. DEP’T OF CORR., POLICY AND PROCEDURE, POLICY NO. 11.015 DOC, CODE OF INMATE DISCIPLINE, at Discipline Severity Scale P13 (inciting others to riot); S.D.
DEP’T OF CORR., INMATE LIVING GUIDE 16 (prohibiting engaging in a group demonstration or group
food or hunger strike), 18 (prohibiting “circulating or signing a petition”); TENN. DEP’T OF CORR.,
INMATE RULES AND REGULATIONS 41 (prohibiting participation in or encouragement of an
“institutional disturbance”); TEX. DEP’T OF CRIM. JUST., CORR. INST. DIV., DISCIPLINARY RULES AND
PROCEDURES FOR OFFENDERS, at Attachment A (prohibiting participation in a riot); VT. AGENCY OF
HUMAN SERV., DEP’T OF CORR., SECURITY AND SUPERVISION #410.01, FACILITY RULES AND INMATE
DISCIPLINE, at Attachment 1 (Major “A” Violations) (2012) (prohibiting work strikes and hunger
strikes); VA. DEP’T OF CORR., OPERATING PROCEDURE NO. 861.1, OFFENDER DISCIPLINE,
INSTITUTIONS, at V.A.103 (inciting a riot).
229. See, e.g., CAL. CODE REGS. tit. 15, § 3005(d)(2) (2008) (limiting violation to instances
where the circumstances “produce a clear and present and immediate danger of acts of force or
violence”); KAN. ADMIN. REGS. § 44-12-319 (2007) (limiting a “riot” to those situations where a “use
of force or violence occurs”); LA. DEP’T OF PUB. SAFETY & CORR., DISCIPLINARY RULES AND
PROCEDURES FOR ADULT OFFENDERS, at VIII.29 (2008) (defining “disturbances” as those instances
“involving acts of force or violence”); MO. DEP’T OF CORR., OFFENDER RULEBOOK 6 (prohibiting
participating in “violent behavior that interferes with normal operations of the facility”).
230. See, e.g., COLO. DEP’T OF CORR., ADMINISTRATIVE REGULATION 150-01, CODE OF PENAL
DISCIPLINE, at § IV.E.14 (“Advocating or Creating a Facility Disruption”); DEL., DEP’T OF CORR.,
HOWARD R. YOUNG CORR. INST., INMATE HANDBOOK 8 (“Inciting a Riot”); FLA. ADMIN. CODE ANN.
r. 33-601.314(2-2) (2014) (“Inciting or attempting to incite riots, strikes, mutinous acts, or
disturbances”); GA. COMP. R. & REGS. 125-3-21.C-2A (2009) (prohibiting the “planning, conspiring
or encouraging others to participate in any group demonstration, disturbance, riot, strike, refusal to
work, work stoppage, or work slowdown”); IDAHO DEP’T OF CORR., STANDARD OPERATING
PROCEDURE, DUAL DIVISIONS, OFFENDER MANAGEMENT, CONTROL NO. 318.02.01.001,
DISCIPLINARY PROCEDURES: OFFENDER, at Appendix A.2 (defining “group disobedience” as
“[p]articipation in a work stoppage, demonstration, or group disobedience that does not result in
property damage or injury where participation is forced or coerced by other inmates”).

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institution,231 and another has a disciplinary violation for taking part in a
“minor disturbance.”232
While the behavior prohibited by these laws and regulations is not
always immediately clear, many expressly prohibit the type of non-violent
collective actions I am concerned with here. In particular, the types of
protest I am interested in protecting are “a range of nonviolent collective
actions by prisoners—namely work stoppages, sit-ins, spending boycotts,
hunger strikes, and other forms of protest,”233 including petitions, that will
allow prisoners to draw public attention to abuses and injustices occurring
within prison walls. Importantly, these types of protest may “challenge the
rule or order” of the prison system or “disrupt business as usual”—i.e.,
“peaceful forms of resistance” that “do not involve the threat or the use of
force against persons or property.”234
In urging broader protections for this type of protest, I am cognizant
of the very real risk prison officials must address in that some of these
protests can lead to actual riots—i.e., disturbances wherein violence
against both prisoners and prison guards and damage to property results.235
For that reason, I am not calling for the wholesale rescission or eradication
of these disciplinary rules. Rather, I am calling for the judiciary to take
seriously its role in ensuring that valid, non-violent prisoner protest
activities meant to draw the attention of both the public and those in power
are given proper constitutional protections. In particular, the judiciary
must ensure the voices of those most impacted by modern criminal justice
policies are heard in the current “national debates on mass incarceration,
forced labor, and other injustices of our carceral state,” 236 just as the
suffragist prisoners’ voices were heard in the years leading up to the
passage of the Nineteenth Amendment. To conclude this Article, I turn to

231. See, e.g., CONN. GEN. STAT. § 53-179c (2013) (criminalizing taking “part in any meeting”
of prisoners at a prison where the purpose of such meeting is to “strike” or create “other organized
disobedience to the rules”).
232. FLA. ADMIN. CODE ANN. r. 33-601.314(2-3) (2014) (prohibiting “[c]reating, participating
in or inciting a minor disturbance”).
233. Note, Striking the Right Balance: Toward a Better Understanding of Prison Strikes, 132
HARV. L. REV. 1490, 1491 (2019) [hereinafter Harvard Note].
234. Id. at 1491–92.
235. See, e.g., id. at 1490 (discussing a deadly riot at the Lee Correctional Institution in South
Carolina in April 2018). In including damage to property in the categories of harms for which prison
officials have a legitimate interest, I do not mean to suggest that we should equate bodily harm and
personal rights violations to persons to harm to property. Cf. Jaz Buckley, Police Violence in the Time
of COVID-19, JURIST (June 3, 2020) (criticizing societal concern for the protection of businesses and
property at the expense of Black lives). Rather, I merely mean to concede that prisons have an interest
in maintaining some semblance of order, and the forms of protest I am discussing in this article are
forms of protest that disrupt that order through peaceful means.
236. Harvard Note, supra note 233 at 1500–01.

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two examples of modern prisoner protest that have sparked or contributed
to current conversations on criminal justice issues.
B. Modern Prisoner Protests
For the past several years, criminal justice reform has been the topic
of much political debate.237 The reasons for this newfound interest in
criminal justice reform are complex, but evolving public opinion on the
cause and consequences of mass incarceration played a significant part.238
Prison systems have seen reforms related to the use of solitary confinement
and moves toward “normalization” of life inside the walls. 239 Prisoners,
cognizant of the growing conversation on prison reform, have engaged
in various peaceful protest activities in order to draw attention to
particular harmful prison conditions.240 I provide two examples of
these protest activities, but for every example of a successful (or semisuccessful) prison protest, there are many others where prisoners’ protest
activities were thwarted by prison rules, retaliation, and internal
prison punishment.241
An example of a prison protest that led to meaningful reforms of
prison conditions comes out of the California prison system. In 2011 and
2013, thousands of prisoners confined in Special Housing Units (SHUs)
in California’s prisons engaged in a series of hunger strikes to protest the

237. See, e.g., Timothy Williams & Thomas Kaplan, The Criminal Justice Debate Has Changed
Drastically. Here’s Why, N.Y. TIMES (Aug. 20, 2019) https://www.nytimes.com/2019/08/20
/us/politics/criminal-justice-reform-sanders-warren.html [https://perma.cc/5X4G-2VX3].
238. Id.
239. See, e.g., Stephen Hart, Epidemic Underlines Need to Halt Solitary Confinement,
BUFFALO NEWS (Mar. 18, 2020), https://buffalonews.com/2020/03/18/epidemic-underlines-need-tohalt-solitary-confinement/ [https://perma.cc/4MD5-3MNF]; Shannon Halligan, Bill Could Limit Use
of Solitary Confinement in Illinois, WGN9 (Mar. 10, 2020), https://wgntv.com/news/bill-could-limituse-of-solitary-confinement-in-illinois/ [https://perma.cc/MRS9-BXA4]; Michael J. McCarthy,
Colorado’s First Justice Systems Forum Breaks Out of the Box, WESTWORD (Mar. 6, 2020),
https://www.westword.com/news/colorado-justice-systems-forum-looks-at-possible-prison-reforms11658492 [https://perma.cc/3D3L-KMBK]; TCR Staff, Europe Offers Lessons for Overhauling U.S.
Prison ‘Culture,’ Conference Told, CRIME REPORT (Feb. 21, 2020), https://thecrimereport.org/2020
/02/21/democracy-needed-to-turn-tide-in-criminal-justice-reform/ [https://perma.cc/XYS2-AF2U].
240. See, e.g., Aviva Stahl, Force-Feeding Is Cruel, Painful, and Degrading—and American
Prisons Won’t Stop, NATION (June 4, 2019), https://www.thenation.com/article/force-feeding-prisonsupermax-torture/ [https://perma.cc/HYL4-3QNS]; German Lopez, America’s Prisoners are Going
on Strike in at Least 17 States, VOX (Aug. 22, 2018), https://www.vox.com/
2018/8/17/17664048/national-prison-strike-2018 [https://perma.cc/8XFU-YG97]; Josh Harkinson &
Maggie Caldwell, 50 Days Without Food: The California Prison Hunger Strike Explained, MOTHER
JONES (Aug. 27, 2013), https://www.motherjones.com/politics/2013/08/50-days-california-prisonshunger-strike-explainer [https://perma.cc/2KLH-3PQF]. See generally Andrea C. Armstrong, Racial
Origins of Doctrines Limiting Prisoner Protest Speech, 60 HOW. L.J. 221, 226, 228 (2016).
241. See WOODFOX, supra note 23; Egan, supra note 23; O’Sullivan, supra note 23.

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brutal SHU conditions.242 The prisoners’ protest caught the attention of
both advocates and attorneys, and in 2012, lawyers working with the
Center for Constitutional Rights filed a class action lawsuit on behalf of
the prisoners challenging the constitutionality of the conditions in
California’s SHUs.243 In 2015, the case reached a landmark settlement
ending indeterminate solitary confinement in California.244 In January
2019, at the request of the prisoners through their attorneys, the United
States District Court for the Northern District of California determined that
the constitutional violations giving rise to the suit continued in certain
prisons and ordered an additional year of monitoring of the settlement
agreement.245 Thus, while the fight for humane SHU conditions continues
in California, the prisoners’ protest activities prompted meaningful change
and judicial oversight.
A second example of modern prisoner protest occurred from August
21, 2018 until September 9, 2018, when incarcerated individuals across
the country “orchestrated a daring and seemingly improbable coordinated
protest” by engaging in work stoppages, hunger strikes, sit-ins,
and commissary boycotts.246 Organized through a nationwide prisoner
organization called Jailhouse Lawyers Speak, the prisoners “sought
to draw public attention to longstanding grievances over inhumane
treatment within prisons across the country and to call for significant
criminal justice reforms.”247 While public officials met none of the
prisoners’ ten demands,248
242. See Harkinson & Caldwell, supra note 240. Prisoners in the Pelican Bay SHU are confined
to eleven-by-seven feet windowless, concrete cells. See Shane Bauer, Solitary in Iran Nearly Broke
Me. Then I Went Inside America’s Prisons, MOTHER JONES (Nov./Dec. 2012), https://www.mother
jones.com/politics/2012/10/solitary-confinement-shane-bauer/ [https://perma.cc/B8TH-S9CP];
Plaintiffs’ Second Amended Complaint at ¶ 3, Ashker v. Governor of Cal., 2014 WL 2465191 (N.D.
Cal. May 31, 2012) (No. 4:09-cv-05796-CW). At the time of the prisoners’ protests, the California
Department of Corrections and Rehabilitation (CDCR) did not allow the prisoners telephone calls,
contact visits, or any programming. Id. Confined to single occupancy cells, most of the men in the
SHU could not have normal human conversations with the people around them. Id. at ¶ 40. CDCR
forbade prisoners from putting any pictures, photographs, or other decorations on their walls, save a
single calendar. Id. at ¶ 58. CDCR had confined the men in the SHU for decades, some as long as
twenty-two years, by the time the men started hunger striking in protest of these conditions.
Id. at ¶ 14–23, 33.
243. See Order Granting in Part Motion for Class Certification; Denying Motion to Intervene,
Ashker v. Governor of Cal., No. 4:09-cv-05796-CW, 2014 WL 2465191 (N.D. Cal. June 2, 2014).
244. See Order, Ashker v. Newsom, No. 4:09-cv-05796-CW, 2019 WL 330461 (N.D. Cal. Jan
25, 2019).
245. Id. Lawyers for CDCR filed and won an appeal overturning this order. See Ashker v.
Newsom, 968 F.3d 939, 942 (9th Cir. 2020). The prisoners’ attorneys have moved for rehearing to the
en banc Ninth Circuit. See Plaintiffs-Appellees’ Petition for Rehearing En Banc, Ashker v. Newsom
(9th Cir. Aug. 31, 2020) (No. 18-16427).
246. Harvard Note, supra note 233, at 1490.
247. Id.
248. The ten demands outlined by the protesters included:

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the 2018 nationwide prison strike was still a remarkable event in its
scope and coordination, as well as its ability to generate public
support and attention. An estimated 150 different organizations
endorsed the strike; citizens held numerous demonstrations outside
of prisons in solidarity; and a range of national media publications
provided detailed coverage of the protest’s motivations, objectives,
tactics, and status as potentially the ‘largest prison strike in U.S.
history.’249

Joining the ranks of the prison strikes that occurred in conjunction
with the civil rights movement in the 1960s and 1970s, the 2018 prison
strike created critical public awareness of prison conditions.250 The sheer
enormity of the strike and the press coverage it generated demonstrate the
effectiveness of allowing prisoners to collectively make their voices heard
in political debates on criminal justice reform.251 This result—allowing the
disenfranchised to be heard through protest activities protected by petition
and associational rights—is consistent with the meaning and purpose of
the First Amendment.
CONCLUSION
By broadening the protections afforded prisoners exercising their
petition and associational rights, federal courts entertaining the First
Amendment claims of prisoner-plaintiffs will be providing a necessary
1. Immediate improvements to the conditions of prisons and prison policies that recognized
the humanity of imprisoned men and women.
2. An immediate end to prison slavery. All persons imprisoned in any place of detention
under United States jurisdiction must be paid the prevailing wage in the state or territory
for their labor.
3. The Prison Litigation Reform Act must be rescinded, allowing imprisoned human a
proper channel to address grievances and violations of their rights.
4. The Truth in Sentencing Act and the Sentencing Reform Act must be rescinded so that
imprisoned humans have a possibility of rehabilitation and parole. No human shall be
sentenced to Death by Incarceration or serve any sentence without the possibility of parole.
5. An immediate end to the racial overcharging, over-sentencing, and parole denials of
Black and brown humans. Black humans shall no longer be denied parole because the
victim of the crime was white, which is a particular problem in southern states.
6. An immediate end to racist gang enhancement laws targeting Black and brown humans.
7. No imprisoned human shall be denied access to rehabilitation programs at their place of
detention because of their label as a violent offender.
8. State prisons must be funded specifically to offer more rehabilitation services.
9. Pell grants must be reinstated in all US states and territories.
10. The voting rights of all confined citizens serving prison sentences, pretrial detainees,
and so-called “ex-felons” must be counted. Representation is demanded. All voices count!
Jailhouse Lawyers Speak (@JailLawSpeak), TWITTER (April 24, 2018, 6:28 AM), https://twitter.com
/jaillawspeak/status/988771668670799872?s=21 [https://perma.cc/6EHU-UQVQ].
249. Harvard Note, supra note 233, at 1491.
250. Id. at 1499–1500.
251. Id. at 1500–01.

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check on the operation of executive power in the prison systems.252 Like
the suffragists, the modern American prisoner is often disenfranchised and
lacks any political power. The First Amendment exists to ensure that the
voice and ideas of the powerless can be asserted against the powerful.253
In particular, the Petition Clause is meant “to codify a broad right to seek
redress from the whole of government,”254 including redress for
prisoners.255 Because prison systems can and do promulgate policies
meant to entrench biases,256 and prison systems rarely have the capacity to
self-regulate,257 it is incumbent upon the federal courts to protect
prisoners’ right to criticize the prison system and bring to light unlawful
and inhumane conditions.258 This is especially true because prisoners, like
the disenfranchised women who became the Silent Sentinels,
are a politically marginalized community who must be able “to articulate
alternative viewpoints and play active roles in public life.”259 By
providing a platform for such diverse viewpoints, we are able to “keep[ ]
the state honest” and protect our democratic values and constitutional form
of government.260

252. See Dodd, supra note 3, at 342.
253. See Robert L. Tsai, Conceptualizing Constitutional Litigation as Anti-Government
Expression: A Speech-Centered Theory of Court Access, 51 AM. U. L. REV. 835, 844 (2002) (noting
that “the First Amendment serves a crucial purpose related to self-government: it ensures the necessary
preconditions to keep the political process open, accessible and accountable”).
254. Id. at 847.
255. See Mark, supra note 164, at 2182.
256. See Tager, supra note 225, at 5.
257. See Gibbons & deBelleville Katzenbach, supra note 21, at 408-12; see also James E.
Robertson, “One of the Dirty Secrets of American Corrections”: Retaliation, Surplus Power, and
Whistleblowing Inmates, 42 U. MICH. J.L. REFORM 611, 614 (2009) (noting that a study of prisoners
using the internal grievance process in New York revealed “a level of actual retaliation” that “is
unacceptably high”) (internal citations omitted).
258. See Tsai, supra note 253, at 850 (suggesting that “the First Amendment should be read to
protect criticism of government in whatever lawful form that challenge takes”).
259. See id. at 851.
260. Id. at 865.

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