Important Note: The law is always evolving. If you have access to a prison law library, it is a good idea to confirm that the cases and statutes cited below are still good law. This information sheet was updated in 8/2009. The purpose of this document is to provide general information about the law – it does not constitute legal advice.
"[P]rison walls do not form a barrier separating prison inmates from the protections of the Constitution," including the First Amendment.1 This means that prisoners have some right to receive publications through the mail. However, prisoners' First Amendment rights are far more limited than those of non-prisoners, and prison officials can significantly restrict the publications prisoners receive.
Restrictions on prisoners’ access to publications cannot be arbitrary; they must be "reasonably related to legitimate penological interests."2 Nonetheless, in practice, courts generally will accept the judgment of prison authorities in deciding whether censoring a publication is reasonable.
- Whether there is a "valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it."3 In other words, does the censorship serve a valid purpose, such as preventing violence? This factor is the most important and often determines how courts rule.
- Whether there are “alternative means of exercising the right that remain open to prison inmates.”4 For example, if prisoners cannot receive certain publications in the mail, do they have other access to publications? For example, can prisoners still receive other publications in the mail, or read books in a library?
- What impact the "accommodation of the asserted constitutional right" will have on "guards and other inmates, and on the allocation of prison resources generally."5 In other words, what are the downsides (including financial cost to the prison system) of not censoring publications?
- Whether there are "ready alternatives" for furthering the governmental interest.6 In other words, is there something obvious the prison could do that would protect whatever interest the prison has in mind (such as security) without banning publications?
The Turner standard applies to convicted prisoners, and somewhat greater protections may apply to pre-trial detainees held in jails.7 The law is unsettled as to the protections afforded to immigration detainees. Some courts have held that immigration detainees are entitled to greater protections than pretrial detainees.
2.Total Ban on Receipt of Publications
Many courts have held that the "prohibition of virtually all reading materials deprives the inmates of their First Amendment right to receive information and ideas."9 However, categorical bans on publications sent by mail have been upheld in some cases, particularly where such rules apply to facilities that hold detainees for a short period of time or prisoners in particularly restrictive segregation units.10
3.News and Political Speech
Courts have generally struck down rules which deny inmates access to mainstream newspapers and magazines.11 The confiscation of inmates' political literature violates the First Amendment unless prison officials can show that the publication poses a danger to prison security—for example, by inciting violence.12
4.Weapons, Escape Plans, and Illegal Activity
Prisons and jails may ban material that describes how to build weapons, instructs how to escape, or instructs how to break the law.13
5.Nudity and Pornography
Courts have held that prisons and jails generally can ban magazines that contain frontal nudity and/or pornography (including magazines such as Playboy and Penthouse, as well as more "hardcore" magazines).14 Courts are divided as to whether magazines that show partial nudity (such as Stuff and FHM) can also be banned.15 It has also been held that prohibitions on nudity that lack exceptions for materials with artistic merit (such as pictures of nude figures on the Sistine Chapel ceiling) are not constitutional.16
Under the First Amendment, the Turner standard, described above, also applies to religious exercise.17 Thus, regulation of publications will overcome First Amendment challenges if the restrictions are reasonably related to penological interests. However, prisons cannot discriminate against religious publications by arbitrarily subjecting them to rules that do not apply to nonreligious publications.18
7.Publisher Only Rules
Court have generally upheld rules that only permit prisoners to receive hardcover and softcover books and bound periodicals from commercial sources.22 However, some courts have held that prisoners cannot be prohibited from receiving clippings and copies of articles from noncommercial sources.23
22. Bell v. Wolfish, 441 U.S. 520, 549-550 (1979); see also Ward v. Washtenaw County Sheriff’s Dep't., 881 F.2d 325, 329 (6th Cir. 1989); Hurd v. Williams, 755 F.2d 306, 308-09 (3d Cir. 1985); Kines v. Day, 754 F.2d 28, 30 (1st Cir. 1985); Cotton v. Lockhart, 620 F.2d 670, 672 (1980).
23. Allen v. Coughlin, 64 F.3d 77, 81 (2d Cir.1995); see also Lindell v. Frank, 377 F.3d 655, 659- 60 (7th Cir. 2004).
Most courts have held that prison officials cannot prevent friends or family members from purchasing gift subscriptions for prisoners by forcing prisoners to pay for subscriptions out of their own accounts.24 One case reached the opposite conclusion.25
9.Right to Notice
Prisoners have a right to be notified by prison officials when they censor an incoming publication.26
- In theory, prisons and jails cannot unreasonably restrict access to publications. Nonetheless, winning a lawsuit that challenges a restriction on publications (even a seemingly unreasonable restriction) is not an easy task. Courts will expect you to be able to prove that a restriction serves no reasonable purpose. This means that even to defeat a policy that seems arbitrary or too restrictive on its face, you will probably still need to develop a full factual record about whether the policy is justified. This can be extremely difficult if you do not have the funds to conduct full discovery or afford expert witnesses.
- In some cases, you may be able to show that a policy is unreasonable because the prison’s rationale conflicts with other policies. For example, if a prison bans magazines on the ground that they create a fire hazard but allows newspapers and books that create similar fire risks, you may be able to show that the ban on magazines is not rational.
- If you are challenging the failure to deliver publications on a limited number of occasions, a court may hold that prison officials did not violate the Constitution by failing to deliver the publications to you even if you had a constitutional right to receive them. This is because isolated failures to deliver publications may be the result of negligence by mailroom personnel, rather than intent to violate the Constitution.27
- If your goal is to obtain a judgment awarding money (as opposed to only changing the rules or allowing you to receive a publication), several additional doctrines may make it very hard (though not always impossible) to succeed in court.
- When you learn that a publication has been rejected, you should always try to check the institution’s publication policy. If you believe the policy has been violated, you may be able to get the publication delivered by filing a grievance showing that the failure to deliver the publication violated the policy.