Amdt1.2.8.2.3 Freedom of Speech and the Role of the Government: Government as Imprisoner

First Amendment:

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 with the legitimate penological objectives of the corrections system.¹ The identifiable governmental interests at stake in administration of prisons are the preservation of internal order and discipline, the maintenance of institutional security against escape or unauthorized entry, and the rehabilitation of the prisoners.² In applying these general standards, the Court at first arrived at somewhat divergent points in assessing prison restrictions on mail and on face-to-face news interviews between reporters and prisoners. The Court’s more recent deferential approach to regulation of prisoners’ mail has lessened the differences.

First, 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, regulation of mail must further an important interest unrelated to the suppression of 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 the protection of the particular government interest involved.

In Turner v. Safley,⁵ however, the Court made clear that a standard that is more deferential to the government is applicable 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 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 the regulation of 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.¹⁰These 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 Thomas and Scalia concurred in the result but would do away with 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

Neither prisoners nor reporters have any affirmative First Amendment right to face-to-face interviews, when general public access to prisons is restricted and when there are alternatives by which the news media can obtain information respecting prison policies and conditions.¹⁵ Prison restrictions on such interviews do indeed 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 agreeing with a previous affirmation that news gathering is not without its First Amendment protections,¹⁷ the Court denied that the First Amendment imposed upon the government any affirmative obligation to the press. The First and Fourteenth Amendments bar government from interfering in any way with a free press. The Constitution does not, however, require government to accord the press special access to information not shared by members of the public generally.¹⁸ Pell and Saxbe did not delineate whether the equal access rule applied only in cases in which there was public access, so that a different rule for the press might follow when general access was denied; nor did they purport to define what the rules of equal access are. No greater specificity emerged from Houchins v. KQED,¹⁹ in which a broadcaster had 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 [n]either the First Amendment nor the Fourteenth Amendment mandates a right of access to government information or sources of information within the government’s control. . . . [U]ntil the political branches decree otherwise, as they are free to do, 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 Stewart, whose vote was necessary to the disposition of the case, agreed with the equal access holding but would have approved 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 Thus, any question of special press access appears settled by the decision; yet the questions raised above remain: May everyone be barred from access and, if access is accorded, does the Constitution necessitate any limitation on the discretion of prison administrators?²²