A First Amendment Analysis: Can Prisons Ban The New Jim Crow?

As stated by Supreme Court Justice O’Connor, “Prison walls do not form a barrier separating prison inmates from the protections of the Constitution.” As such, the First Amendment should and must protect all citizens, even prisoners. However, is this legal necessity reflected with current prison book bans? Recently, New Jersey banned inmates from reading Michelle Alexander’s The New Jim Crow, a book about racial bias and mass incarceration.[1] After the ACLU sent a letter claiming the ban violated prisoners' First Amendment rights, the state lifted it.[2] Courts agree that, because of safety concerns that uniquely arise in prisons, inmates’ rights can sometimes be abridged provided there is a “legitimate penological concern” justifying the abridgment.[3] For example, a prison can ban books that contain maps of the area surrounding a prison, because this might help inmates escape. Clearly, there are practical problems with allowing prisoners unrestricted speech rights. So, how do the courts adjudicate between a prisoner’s free speech rights and a prison’s need to function smoothly? And how valid was the ACLU's claim that a prison ban on The New Jim Crow violated the First Amendment?

Thus, to address these crucial questions, it is vital to assess whether the First Amendment guarantees a right to receive free speech. While preventing a book from being published at all is clearly a ban on the author’s speech, banning a certain class of people from reading a book presents a different case of complexities. Analysis of Supreme Court history, including Martin v. Struthers (1943), indicates the First Amendment includes the right to receive as well as engage in protected speech. In this case, the court ruled Jehovah’s witness had a right to distribute pamphlets to people’s homes and homeowners further had a right to receive this information: “The right of freedom of speech and press has broad scope . . . This freedom embraces the right to distribute literature and necessarily protects the right to receive it.”[4] This is because a right to free speech is useless unless the public can hear what one has to say.

Does this right to receive speech follow Americans into prison? The Turner Test, established during the 1987 Supreme Court Case Turner v. Safley, states when a prison can enact restrictions on First Amendment rights. It has 4 questions about such a restriction; a response of “no” to any of these questions means a restriction fails the test and is unconstitutional.

First, is the restriction reasonably related to a “legitimate and neutral government concern?” “Neutral” means a restriction cannot target a specific belief. Examples of content-neutral restrictions laws are ones that “ restrict noisy speeches near a hospital, ban billboards in residential communities, limit campaign contributions, or prohibit the mutilation of draft cards.”[5]

Second, does the restriction leave another way for prisoners to exercise their rights? For example, Pell v. Procunier held that bans on prisoners conducting in-person interviews with the media were constitutional if phone interviews were allowed. This is because alternate ways for prisoners to communicate with the media and exercise free speech were permitted.

Third, would allowing a prisoner the right which the restriction bars him from place a burden on other prisoners or staff? For example, the Supreme Court ruled that allowing prisoners to telephone anyone they want would place a burden on prison staff. Prison staff often background check everyone a prisoner calls, and without restrictions on who an inmate calls potentially thousands of background checks would be necessary.[6]

Fourth, is there another restriction accomplishing the same goal yet preserving prisoners’ rights? For example, in Holt v. Hobbs, a prison policy forcing Muslims to shave religiously required beards was deemed unconstitutional.[7] The goal of the regulation was to prevent prisoners from hiding their identities, but the court ruled that there were other ways for prisons to identify inmates that violated fewer rights.

The Turner Test makes it unlikely that there is a "legitimate penological interest" in banning The New Jim Crow, supporting the ACLU's claim that the ban was unconstitutional. First, there does not seem to be a legitimate government concern related to the ban. The book discusses drugs, but only in the context of the War on Drugs, and provides no information on making them. It is thus unlikely a prisoner could use information found in the book to commit a crime. Additionally, the restriction was likely not content-neutral, as The New Jim Crow indicts the current criminal justice system. Restrictions on free speech that are not content-neutral are generally not considered constitutional by the Supreme Court.[8]

However, it is important to note that the Turner Test, in practice, is leniently applied. A central element of the test is that it advises a low standard of scrutiny for restrictions on prisoners’ rights: the burden of proof is on prisoners to prove restrictions unconstitutional, rather than on prisons to prove restrictions constitutional. Defendants merely have to prove a reasonable connection between a restriction and a legitimate, neutral government goal, rather than demonstrate that this restriction was the sole means to obtain that goal.[9] Courts apply this standard because they do not have the specialized knowledge on running a prison that a prison warden has. So, despite its apparent unconstitutionality, it is hard to determine whether the ban on The New Jim Crow would have survived circuit or Supreme Court scrutiny because in practice, the courts defer to prisons in Turner cases.

Through American legal history, restrictions on free speech in prisons have increased, rather than lessened.[10] The Turner Test replaced a previous test from Procunier v. Martinez (1974), which applied strict scrutiny to restrictions on prisoners’ speech.[11] When a law is subject to strict scrutiny, the burden of proof is on the defendant to prove a restriction is constitutional.[12] But the Turner Test, as noted, applies the much weaker rational basis test. The change in standard of scrutiny has allowed courts to be less sympathetic to prisoners’ rights. In one of the most recent applications of the Turner Test, the Supreme Court ruled that a prison’s ban on all newspapers, magazines and photographs for “incorrigible, recalcitrant” prisoners was indeed constitutional.[13]

One can read the Turner Test as part of the decades-long story of the rollback of prisoners’ rights that has occurred since the 1980s. Since Turner’s establishment in 1987, the number of incarcerated people in America has increased from roughly 400,000 to roughly 1.6 million.[14] While the incarcerated population increased by nearly 400%, the total population increased by under 100%.[15] Currently, felons or ex-felons cannot vote in 48 states.[16] The ban on The New Jim Crow, therefore, had great symbolic importance, as the book critiques our current era of mass incarceration. In a sense, the ban symbolizes the not only the restraint of truth surroundings issues of mass incarceration, but it also symbolizes the restraint of debate among those who day-by-day must experience the aftermath of this broken system. Thus, its lifting has restored the possibility of further debate − and the possibility for reform.

[1] Bromwich, Jonah Engel and Benjamin Muller. “Ban on Book About Mass Incarceration Lifted in New Jersey Prisons After A.C.L.U. Protest.” New York Times. January 8, 2018. Accessed February 1, 2018. https://www.nytimes.com/2018/01/08/nyregion/new-jim-crow-nj-jails.html.

[2] Ibid.

[3] Turner v. Safley, 482 U.S. 78 (U.S. Supreme Court, 1987).

[4] Martin v. Struthers, 319 U.S. 141 (U.S. Supreme Court, 1943).

[5] Stone, Geoffrey R. “Content-Neutral Restrictions.” University of Chicago Law Review, Vol. 54 Iss. 1 Art. 2, 1987, https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=2968&context=journal_articles.

[6] Pope v. Hightower, 101 F.3d 1382 (11 Circuit, 1996).

[7] “Holt v. Hobbs,” Oyez. https://www.oyez.org/cases/2014/13-6827.

[8] Volokh, Eugene. “Supreme Court Reaffirms Broad Prohibition on Content-based Speech Restrictions in Today’s Reed v Town of Gilbert Decision.” Washington Post. June 18, 2015. Accessed February 2, 2018.

https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/06/18/supreme-court-reaffirms-broad-prohibition-on-content-based-speech-restrictions-in-todays-reed-v-town-of-gilbert-decision/?utm_term=.cb4d5bc7e869.

[9] “Rational Basis.” Cornell Legal Information Institute. Accessed February 3, 2018. https://www.law.cornell.edu/wex/rational_basis.

[10] Chiang, Emily. “The Turner Standard: Balancing Constitutional Rights and Governmental Interests in Prisons.” University of California Irvine Law Forum Journal. Fall 2007. Accessed February 4, 2018.

https://www.socsci.uci.edu/lawforum/content/journal/LFJ_2007_chiang.pdf.

[11] Procunier v. Martinez, 416 U.S. 396 (U.S. Supreme Court, 1974).

[12] “Strict Scrutiny.” Cornell Legal Information Institute. Accessed February 3, 2018. https://www.law.cornell.edu/wex/strict_scrutiny.

[13] Beard v. Banks, 548 U.S. 521 (U.S. Supreme Court, 2006).

[14] “Trends in U.S. Corrections,” The Sentencing Project. June 2017. Accessed February 10, 2018. https://sentencingproject.org/wp-content/uploads/2016/01/Trends-in-US-Corrections.pdf.

[15] “National Population Totals and Components of Change: 2010-2017.” U.S. Census Bureau. January 18, 2018. Accessed February 9, 2018.

[16] “Felony Disenfranchisement Laws: Map.” ACLU. Accessed February 9, 2018.

https://www.aclu.org/issues/voting-rights/voter-restoration/felony-disenfranchisement-laws-map.