MIM Notes 192 August 15 1999
MIM Legal Notes 

MIM & Masses build battle against Amerikan censorship 

MIM Legal Notes is a product of MIM's Serve the People Prisoners' 
Legal Clinic. We are publishing articles about the first amendment 
and censorship in prisons in this issue. 

Fighting prison censorship of mail and political literature is one 
of MIM's priorities at this time. Amerika is at war with its 
internal semi-colonies. Oppressed nationals are disproportionately 
imprisoned and receive unjust sentences. While incarcerated, 
prisoners are tortured, brutalized and denied basic human needs, 
such as medical care. This makes it all the more critical that 
those in prison are able to receive, read, and write mail 
facilitating an end to oppression. 

MIM has long recognized prisoners as one of the most revolutionary 
groups in Amerika. This is precisely the reason prisoncrats censor 
widely. Often prison authorities violate their own rules and 
policies regarding censorship. MIM fights censorship as part of 
anti-imperialist revolution. 

First Amendment "rights" in prison

submitted by B. Shabazz, 

Even under the worst prison conditions in Amerika, prisoners 
retain some limited First Amendment rights. Burton v. Nault 902 
F.2d 4 (6th Cir. 1990); Brooks v. Seiter, 779 F.2d 1117, 1180 (6th 
Cir 1985) and Thornburgh v Abbott, 490 U.S. 401, 109 S. Ct. 1874 
(1989).

Reasonableness test 

To ban written material, prison officials must put forth a reason 
that is logically related to a real concern. Turner v. Safley, 482 
U.S. 78.89 (1987); and Parrish v. Johnson, 800 F.2d 600, 604 (6th 
Cir. 1986) (Burden of showing a "legitimate reason" for rejecting 
mail rests with prison officials.) Prison officials cannot deny 
ever receiving mail when challenged because the senders' act of 
mailing creates a presumption of delivery to the institution.

In Eckford-El v Toombs 760 F.Supp. 1267 (W.D. Mich. 1991) prison 
officials were admonished for banning a prisoner-oriented 
magazine, 'Antigone', without providing notice of the censorship 
or holding a hearing. The warden claimed that publication arrived 
bulk mail, rather than first class. But courts have held that is 
not a "legitimate" reason to ban mail. Brooks 779 F.2d.181. 

In Ward v. Washtenew County Sheriff 881 F.2d. 325 (6th Cir. 1986), 
the Court of Appeals for the 6th Circuit held that prisoners have 
a right to receive subscriptions and other publications. Guadhardo 
v. Estelle 580 F.2d. 748 (5th Cir. 1978). Likewise, the publishers 
have rights under the First Amendment to distribute their 
publications, Martin v. Kelly 803 F. 2d 236, 241 (6th Cir. 1986).

Fourteenth Amendment 

Application of the First Amendment to the states, including 
prisons, is through the Fourteenth Amendment's Due Process Clause. 
"Any decision to censor mail, including books and publications 
must receive 'Minimal Procedural Safeguard'" Thornburgh v. Abbott 
490 U.S. 401, 109 S. Ct. 1874 (1989). In Thornbugh, 490 US. 401, 
the Supreme Court granted federal wardens the authority to reject 
incoming publications found to be detrimental to institutional 
security. The Court explicitly required the warden to "advise the 
inmate promptly in writing of the reason for rejection," pursuant 
to 28 C.F.R. 540.71 (d). 490 U.S. at 406, 109 S. Ct. at 1879. More 
importantly, the rejection notice "must refer to the 'specific 
articles' or material considered objectionable." 28 C.F.R. 540.71 
(d), 490 U.S. at 405, 109 S. Ct. at 1877. 

The warden "may not reject a publication 'solely because its 
content is religious, philosophical, political, social or sexual 
or because its content is unpopular or repugnant.'" Id. Only if a 
publication is "determined detrimental to the security, good 
order, or discipline of the institution or if it might facilitate 
criminal activity" may the warden reject a particular edition of a 
publication. 490 U.S. at 404, 109 S. Ct. at 1877. Finally, the 
court specifically adopted 28 C.F.R. 540.71 [C], mandating the 
warden's review of each edition of a publication individually as 
it arrives at the institution. A warden may not summarily reject 
an entire publication, which means "the warden shall review the 
individual publication prior to the reject of that publication." 
28 C.F.R. 540.71 [C]. 490 U.S. at 404, 109 S. Ct. at 1877. 

Prison officials cannot reject mail or publications without 
review. The case of Thornburgh v. Abbott 490 U.S. 401, 109 S. Ct. 
1876 (1989) also applies to review committees. Abdul Wali v. 
Coughlin 754 F. 2d 101 (2d Cir. 1985) gives guidance as to how 
long a review committee can take to decide on a publication, 
saying that three weeks is a reasonable time within which to 
decide whether to allow the publication to reach the prisoner to 
whom it was mailed. 

To file an appeal, one would argue that his or her rights under 
the U.S. Constitution's First and Fourteenth Amendments have been 
violated. Prisoners are generally required to exhaust their 
'administrative remedies', meaning appealing to the highest level 
prison authorities before filing in the courts. But because the 
issue is one of a clear-cut constitutional violation, exhaustion 
of administrative remedies are not required after an initial 
prison hearing. 

Fight Prison Censorship!

Fight Oppression! 

MIM Legal Notes is researched and written by our comrades behind 
the walls. We publish these articles and briefs because we believe 
that the legal research and arguments will be useful to other 
prisoners. As the work of MIM and prisoners, through the Serve the 
People Prisoners' Legal Clinic grows, we plan to increase 
publication of MIM Legal Notes. Look for upcoming issues on 
Security Threat Group policies and Parole Board oppression.

Comrades should be aware that differences in laws between states, 
changes in laws and legal precedents over time, and different case 
circumstances all mean that even something that was successful for 
one person might not work for others. We print the best legal 
writing available to us with the understanding that the PLC will 
only grow stronger with increased exposure and participation. We 
encourage all prisoners and non-prisoners to contribute to this 
program with research, writing, and funding. 

There may be other legal arguments or cases or statutes which 
would better serve your purposes; what you find here should be 
useful as a starting point. If you can do your own legal work, you 
may choose to rely on a purely bourgeois legal argument, or also 
use political arguments to make your legal case. 

Fight censorship of MIM Notes!

by a Florida prisoner 

To help fight censorship of MIM Notes, one prisoner wrote the 
following summary of some relevant case law, to be of help to his 
MIM brothers and sisters in the belly of the beast. MIM's 
commentary is found at the end of this article. 

The First Amendment protects five of the primary freedoms: 1) 
freedom of religion; 2) freedom of speech; 3) freedom of the 
press; 4) freedom to assemble peacefully; and 5) freedom to 
petition the government to correct wrongs. 

The Gitlow v. New York , 268 U.S. 652 (1925) case is an important 
starting point to understand the law, and is discussed below. This 
article is about getting you to understand that we as prisoners 
have certain rights. 

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 redress of grievances. 
The rights set forth in the First Amendment also apply to state 
governments. 

The First Amendment of the U.S. Constitution does apply to 
prisoners, but it can be limited by the prison authorities in the 
name of "security." Prisoners should argue to the prison 
authorities that prisoners reading MIM Notes does not constitute a 
"threat to the security of the facility". 

In Schenck , the threat was as follows: the defendant, general 
secretary of the Socialist Party, sent leaflets to men called to 
military service while the U.S. was at war with Germany. The 
leaflets urged the men to assert their rights against the draft 
and against the war effort. 

Schenck was convicted on charges of attempting to obstruct the 
draft and cause disloyalty in the armed forces. The Supreme Court 
announced the principle that when words are used "to create a 
clear and present danger" then those words are not protected by 
the free speech provisions of the First Amendment. In this case, 
Schenck's words created the "clear and present danger" of harm to 
the war effort. Today, prison authorities use cases like Schenck 
to censor radical political materials in the name of avoiding a 
"clear and present danger." 

Two significant issues concerning freedom of speech were 
subsequently decided in the Gitlow case. The First Amendment 
protection, which by its language only applies to the federal 
government, would also apply to the state governments by reason of 
the Due Process Clause of the Fourteenth Amendment. The second 
issue, which would be considered only if the First Amendment did 
apply to the state governments, concerned the state's power to 
enforce a statute which criminalized a type of speech. 

Gitlow v. New York 268 U.S. 652 (1925) 

Facts : Benjamin Gitlow was indicted in New York for the crime of 
criminal anarchy (lawlessness) which was defined in a state 
statute. Gitlow published and circulated pamphlets which advocated 
the overthrow of government by "force, violence, and unlawful 
means" in violation of the statute. 

Issues : 1) Does the Due Process Clause of the Fourteenth 
Amendment protect individuals from state laws that would deprive 
them of their First Amendment freedom of speech? 2) Does the New 
York criminal anarchy statute deprive Gitlow of his freedom of 
speech? 

Regarding the first issue, the court reasoned that freedom of 
speech and freedom of the press were "among the fundamental 
personal rights and liberties protected by the due process clause 
of the fourteenth amendment from impairment by the states." 
Therefore, the court announced that by reason of the fourteenth 
amendment, it would protect individuals from state statutes that 
deprived individual of fundamental rights such as protected 
speech. 

Regarding the second issue, the court said that the New York 
criminal anarchy statue "does not penalize the utterance of 
publication of abstract doctrine or academic discussion having no 
quality of incitement to any concrete action. What it prohibits is 
language advocating, advising, or teaching the overthrow of 
organized government by unlawful means. 

By this reasoning, MIM publications (including MIM Notes and MIM 
Theory, as well as the classics and other materials that MIM 
distributes as part of the Serve the People Free Books for 
Prisoners Program) should be protected under the First Amendment. 
MIM specifically does not advocate immediate violence or armed 
struggle. It is MIM's mission to build public opinion and 
independent institutions (like independent media, businesses and 
other revolutionary services) of the oppressed. Nothing in MIM 
Notes can be construed as an invitation or incitement to immediate 
violence. Therefore, prison authorities should not be able to 
claim that MIM publications present a "clear and present danger" 
to the "orderly" running of prisons and prison security. 

In addition to Gitlow, comrades in prison should look at these 
cases: Procunier v. Martinez, 416 U.S. 396, 94 S. Ct. 1800 (1974), 
Guajardo v. Estelle 580 F. 2d 748 (5th Circuit 1978), Thornburgh , 
and this statute: 28 CFR section 540.15(d). They should be 
available in your library. 

Note: The warden may not reject a publication solely because its 
content is religious, philosophical, social or sexual or because 
its content is unpopular or repugnant. Also, the warden may not 
impose permanent ban on a specific publication from entering the 
prison, and may not establish a list of prohibited publications. 
Baraldini v. Thornburgh , 884 F. 2d 615 (D.C. Circuit 1989) 

MIM replies: MIM reiterates that there are no "rights" for the 
oppressed -- only power struggles. The First Amendment 
"protections" of "freedoms" do not apply to the oppressed nations 
in Amerika, and especially not to prisoners. The battles to gain 
basic so-called rights must be fought -- sometimes in the courts, 
or on the streets, or by building independent institutions.