Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
A prison inmate retains only those First Amendment rights that are not inconsistent with his status as a prisoner or the legitimate penological objectives of the corrections system.1 The Supreme Court has recognized that the government has legitimate interests in preserving internal prison order and discipline, maintaining of institutional security against escape or unauthorized entry, and rehabilitating prisoners.2 In applying these general standards, the Court initially seemed to arrive at somewhat divergent points in assessing prison restrictions on mail and on face-to-face news interviews between reporters and prisoners. Later cases took a more deferential approach to restrictions on both, and the Court walked back language in earlier rulings that suggested heightened scrutiny applied in assessing restrictions on inmates’ mail.
In Procunier v. Martinez,3 the Court invalidated mail censorship regulations that permitted authorities to hold back or to censor mail to and from prisoners whenever they thought that the letters “unduly complain,” express “inflammatory . . . views,” or were “defamatory” or “otherwise inappropriate.” 4 The Court based this ruling not on the rights of the prisoner, but instead on the outsider’s right to communicate with the prisoner either by sending or by receiving mail. Under this framework, the Court held, mail regulation must further an important interest unrelated to suppressing expression; regulation must be shown to further the substantial interest of security, order, and rehabilitation; and regulation must not be used simply to censor opinions or other expressions. Further, a restriction must be no greater than is necessary to protecting particular government interest involved.
In Turner v. Safley,5 however, the Court held that a standard that is more deferential to the government applies when the free speech rights only of inmates are at stake. In upholding a Missouri restriction on correspondence between inmates at different institutions, while striking down a prohibition on inmate marriages absent a compelling reason such as pregnancy or birth of a child, the Court announced the appropriate standard: “[W]hen a regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” 6 Four factors “are relevant in determining the reasonableness of a regulation at issue,” 7 the Court explained:
First, is there a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it? Second, are there alternative means of exercising the right that remain open to prison inmates? Third, what impact will accommodation of the asserted constitutional right . . . have on guards and other inmates, and on the allocation of prison resources generally? And, fourth, are ready alternatives for furthering the governmental interest available?8
Two years after Turner v. Safley, in Thornburgh v. Abbott, the Court restricted Procunier v. Martinez to regulating outgoing correspondence, finding that the needs of prison security justify a more deferential standard for prison regulations restricting incoming material, whether those incoming materials are correspondence from other prisoners, correspondence from nonprisoners, or outside publications.9
In Beard v. Banks, a plurality of the Supreme Court upheld “a Pennsylvania prison policy that ‘denies newspapers, magazines, and photographs’ to a group of specially dangerous and recalcitrant inmates.” 10 These inmates were housed in Pennsylvania’s Long Term Segregation Unit and one of the prison’s penological rationales for its policy, which the plurality found to satisfy the four Turner factors, was to motivate better behavior on the part of the prisoners by providing them with an incentive to move back to the regular prison population.11 Applying the four Turner factors to this rationale, the plurality found that (1) there was a logical connection between depriving inmates of newspapers and magazines and providing an incentive to improve behavior; (2) the Policy provided no alternatives to the deprivation of newspapers and magazines, but this was “not ‘conclusive’ of the reasonableness of the Policy” ; (3) the impact of accommodating the asserted constitutional right would be negative; and (4) no alternative would “fully accommodate the prisoner’s rights at de minimis cost to valid penological interests.” 12 The plurality believed that its “real task in this case is not balancing these factors, but rather determining whether the Secretary shows more than simply a logical relation, that is, whether he shows a reasonable relation” between the policy and legitimate penological objections, as Turner requires.13 The plurality concluded that he had. Justices Clarence Thomas and Antonin Scalia concurred in the result but would eliminate the Turner factors because they believe that “States are free to define and redefine all types of punishment, including imprisonment, to encompass various types of deprivation—provided only that those deprivations are consistent with the Eighth Amendment.” 14
Only two months after Procunier v. Martinez, the Court rejected a First Amendment challenge to regulations barring face-to-face media interviews with specific inmates.15 Prison restrictions on such interviews implicate the First Amendment rights of prisoners, the Court held, but such rights must be balanced against “the legitimate penological objectives of the corrections system” and “internal security within the corrections facilities,” taking into account available alternative means of communications, such as mail and “limited visits from members of [prisoners'] families, the clergy, their attorneys, and friends of prior acquaintance.” 16
While reaffirming “news gathering is not without its First Amendment protections,” 17 the Court held that the First Amendment did not impose on the government any affirmative obligation “to accord the press special access to information not shared by members of the public generally.” 18 In Houchins v. KQED,19 a broadcaster sued for access to a prison from which public and press alike were barred and as to which there was considerable controversy over conditions of incarceration. Following initiation of the suit, the administrator of the prison authorized limited public tours. The tours were open to the press, but cameras and recording devices were not permitted, there was no opportunity to talk to inmates, and the tours did not include the maximum security area about which much of the controversy centered. The Supreme Court overturned the injunction obtained in the lower courts, the plurality reiterating that the First Amendment does not “mandate[ ] a right of access to government information or sources of information within the government’s control,” and “until the political branches decree otherwise . . . the media have no special right of access to the Alameda County Jail different from or greater than that accorded the public generally.” 20 Justice Potter Stewart, whose vote was necessary to the disposition of the case, agreed with the equal access holding but would have allowed the trial court to craft an injunction more narrowly drawn to protect the press’s right to use cameras and recorders so as to enlarge public access to the information.21
- Pell v. Procunier, 417 U.S. 817, 822 (1974). The Supreme Court has applied this same deferential review to the assessment of neutral regulations inhibiting religious exercise. See Amdt22.214.171.124 Laws Neutral to Religious Practice Regulating Prisons and the Military. In a related, but distinct context, however, state laws that restrict the First Amendment rights of former prisoners that are still under the supervision of the state may trigger strict scrutiny. For example, in Packingham v. North Carolina, the Court struck down a North Carolina law making it a felony for registered sex offenders to use commercial social networking websites that allow minor children to be members, such as Facebook. 582 U.S. ___, No. 15-1194, slip op. (2017). The Court held that the North Carolina law impermissibly restricted lawful speech because it was not narrowly tailored to serve the significant government interest in protecting minors from registered sex offenders. Id. at 8 (holding that it was “unsettling to suggest that only a limited set of websites can be used even by persons who have completed their sentences.” ).
- Procunier v. Martinez, 416 U.S. 396, 412 (1974). The Court later clarified that to the extent Martinez suggested a “categorical discrimination between incoming correspondence from prisoners (to which we applied a reasonableness standard . . . ) and incoming correspondence from nonprisoners” (to which Martinez suggested the Court might have applied a heightened standard), those aspects of the decision were overruled. Thornburgh v. Abbott, 490 U.S. 401, 413–14 (1989).
- 416 U.S. 396 (1974). But see Jones v. North Carolina Prisoners’ Union, 433 U.S. 119 (1977), in which the Court sustained prison regulations barring solicitation of prisoners by other prisoners to join a union, banning union meetings, and denying bulk mailings concerning the union from outside sources. The reasonable fears of correctional officers that organizational activities of the sort advocated by the union could impair discipline and lead to possible disorders justified the regulations.
- 416 U.S. at 396.
- 482 U.S. 78 (1987).
- 482 U.S. at 89. In Overton v. Bazzetta, 539 U.S. 126 (2003), the Court applied Turner to uphold various restrictions on visitation by children and by former inmates, and on all visitation except attorneys and members of the clergy for inmates with two or more substance-abuse violations; an inmate subject to the latter restriction could apply for reinstatement of visitation privileges after two years. “If the withdrawal of all visitation privileges were permanent or for a much longer period, or if it were applied in an arbitrary manner to a particular inmate, the case would present different considerations.” Id. at 137.
- 482 U.S. at 89.
- Beard v. Banks, 548 U.S. 521, 529 (2006) (citations and internal quotation marks omitted; this quotation quotes language from Turner v. Safley, 482 U.S. at 89–90).
- 490 U.S. 401, 411–14 (1989). Thornburgh v. Abbott noted that, if regulations deny prisoners publications on the basis of their content, but the grounds on which the regulations do so is content-neutral (for example, to protect prison security), then the regulations will be deemed neutral. Id. at 415–16.
- 548 U.S. 521, 524–25 (2006). This was a 4-2-2 decision, with Justice Samuel Alito, who had written the court of appeals decision, not participating.
- 548 U.S. at 531.
- 548 U.S. at 531–32.
- 548 U.S. at 533.
- 548 U.S. at 537 (Thomas, J., concurring), quoting Overton v. Bazzetta, 539 U.S. at 139 (Thomas, J., concurring) (emphasis originally in Overton).
- Pell v. Procunier, 417 U.S. 817 (1974).
- 417 U.S. at 822–25.
- Branzburg v. Hayes, 408 U.S. 665, 707 (1972), quoted in Pell v. Procunier, 417 U.S. 817, 833 (1974).
- 417 U.S. at 834. The holding was applied to federal prisons in Saxbe v. Washington Post, 417 U.S. 843 (1974).
- Houchins v. KQED, 438 U.S. 1, 17 (1978). In this case, there was no majority opinion of the Court. A plurality opinion represented the views of only three Justices; two Justices did not participate, three Justices dissented, and one Justice concurred with views that departed somewhat from the plurality.
- 438 U.S. at 15–16.
- 438 U.S. at 18–19 (Stewart, J., concurring in the judgment).