MIM Legal Notes: Fight Censorship in Massachusetts Prisons 
from a Walpole prisoner

ITAL At press time it appears that MCI Cedar Junction (a.k.a. 
Walpole prison in Massachusetts) is no longer enforcing the 
Massachusetts regulation that books must come from publishers. 
This victory came after many months of protest from MIM and RAIL, 
many protest postcards sent to the prison administrators, many 
letters of complaint, and much organizing work by both the 
prisoner within Walpole and MIM and RAIL activists on the outside. 
We print this article to help prisoners elsewhere with similar 
battles and to remain vigilant should the Walpole administrators 
once again start censoring books that MIM's Free Books for 
Prisoners program sends in to our comrades behind the bars.

ITAL The version of this submission has been heavily edited to fit 
into MIM Notes. Text edited from the original mainly deals with 
the specific situation at Walpole. All Massachusetts prisoners 
working with MIM have received a full-length version. If you are 
working on a similar case and would like the full version, check 
MIM's website or write us. END

The Superintendent of MCI-Cedar Junction distributed a memorandum 
to prisoners in reference to the "Purchase of Books and 
Periodicals." It stated that policy 103 CMR 403 is specific that 
"all publications must come directly from the publisher."

The enforcement of this regulation infringes on prisoners' First 
Amendment Rights. "It is well settled that the First Amendment 
protects the flow of information to prisoners; any limitation must 
reasonably relate to a legitimate penological interest."(1)

Based on this regulation, the prison property office is 
contrabanding literature from bookstores or other book 
distributors. The prison treasurer's office is also refusing to 
process prisoner purchase slips used by prisoners to order books 
from bookstores or other book distributors. After proceeding 
though the institutional grievance process and after keeping 
records of this censorship, a prisoner is in a position to mount a 
court challenge to the constitutionality of this regulation.

A court challenge to this regulation can be successful. The 
standard of review used to determine whether such a regulation 
infringes on a prisoner's First Amendment right derives from ITAL 
Turner v. Safley END, 107 S. CT 2254 (1987).

Under the ITAL Turner END standard of review, "[f]irst a rational 
relationship must exist between the regulation and the proffered 
legitimate government interest." ITAL Id END at 2262. During the 
litigation of your claim, the DOC must present its justifications 
for having a publisher only regulation that specifically prohibits 
books or periodicals from bookstores or other books distributors.

You can anticipate that the DOC will allege that the regulation is 
"reasonably related" to security concerns. Prisoncrats around the 
country use this justification for censorship. They argue that the 
sweeping ban on literature from bookstores and other distributors 
is to minimize contraband. The DOC will probably argue, in some 
unsupported and convoluted way, that books and periodicals coming 
directly from the publisher are less likely to contain contraband 
than other literature. Although this argument implies that 
reputable bookstores are more likely than publishers to engage in 
smuggling, the court will give the DOC substantial deference when 
making their determination whether the regulation and its 
justifications have a "rational relationship."(2)

Regardless of the DOC's argument regarding the regulation's 
relationship to security concerns and contraband reduction, and 
regardless of how much deference the courts give to the DOC 
justifications, the DOC already has a viable mechanism to prevent 
smuggling. For demonstrating this, a prisoner can show the Inmate 
Mail policies that generally include provisions for mail 
inspection and censorship for other reasons.

The total ban on all books and periodicals sent to prisoners from 
bookstores or other distributors is irrational. "... a regulation 
cannot be sustained where the logical connection between the 
regulation and the asserted goal is so remote as to render the 
policy arbitrary or irrational."(3)

Under the ITAL Turner END standard of review, the "second" factor 
the court will consider "is whether there are alternative means of 
exercising the right that remain open to prison inmates. "The DOC 
will most assuredly argue that such a regulation clearly allows 
prisoners alternative means to receive literature.

At first glance the DOC argument may seem to have validity. 
Prisoners can in fact exercise their option and purchase 
literature from a publisher. Upon closer examination, the DOC's 
argument can be reduced to exactly what it is: a specious argument 
by arrogant DOC administrators who are attempting to restrict and 
in some cases totally prohibit the flow of ideas and information 
to prisoners without just cause.

First and foremost, the DOC fails to define "publisher" in their 
regulations. According to the American Heritage Dictionary 
definition of "publisher," a bookstore or other book distributor 
falls squarely on what constitutes a "publisher." Hence the DOC 
enforcement of the publisher only regulation is arbitrary. If the 
DOC narrowly defines "publisher" and excludes all bookstores and 
other book distributors from their definition, prisoner's 
available alternative means of obtaining certain types of 
literature, books periodicals and other information will be 
extremely limited. In most cases, prisoners will be left without 
an available alternative means of obtaining literature, book or 
periodical.(4)

Some examples of how prisoners do not have 'alternatives':

1) Certain publishers only do business on a business to business 
basis. 

2) Certain literature from organizations are not for sale directly 
to the public from the publisher; instead, the literature is 
printed by the publisher per order of that particular 
organization.

3) Certain books and periodicals may no longer be in stock through 
the original publisher.

4) Certain benevolent organizations provide books to indigent 
prisoners for free.

5) Prisoners are barred, under the publisher only regulation, from 
receiving books from friends and family members who go to a 
bookstore or other book distributor, purchase a books, and have 
the bookstore mail the book to the prisoner.

The publisher only regulation also fails under the second factor 
of the ITAL Turner END standard. In most cases, preventing the 
prisoner from receiving literature from a bookstore or other book 
distributor prevents access to an alternative means for the 
prisoner to exercise his First Amendment right to receive 
information and ideas.(5)

Under the ITAL Turner END standard of review, the "third" factor 
the court will consider "is the impact accommodation of the 
asserted constitutional right will have on guards and other 
inmates, and on the allocation of prison resources generally.(3) 
The ITAL Turner END Court continues on with a warning that "few 
changes will have no ramifications on the liberty of others or on 
the use of the prison's limited resources for preserving 
institutional order. ITAL Id END at 2262.

This is one of those situations, however, where it can be 
successfully argued that accommodating prisoners First Amendment 
right to receive information via books and periodicals from 
bookstores and other distributors will have zero impact "on 
guards", 'other inmates,' and "the allocation of prison 
resources." ITAL Id END. Any arguments by the DOC concerning 
security, contraband and censorship, in relationship to the impact 
on guards, inmates, and prison resources must all fail: The DOC 
already has an extremely proficient practice in place, which it 
diligently engages, to prevent the introduction of contraband into 
the institution. The DOC also already has an adequate regulation 
in place to read and censor incoming publications "where necessary 
to protect legitimate governmental interest."

Under the ITAL Turner END Standard of review, the fourth and final 
factor the Court will consider is 'whether the prison can easily 
serve its interest with alternative means without infringing upon 
the rights of prisoners"(6)

When the DOC defends the publisher only regulation and argues 
security, contraband etc, defeating their specious arguments can 
be accomplished by pointing to existing regulations. Demonstrating 
to the court that there is already a regulation in place that 
addresses the DOC concerns about smuggling and contraband should 
be the final nail in the coffin for this unnecessary publisher 
only regulation. The Court acknowledged this in ITAL Turner END, 
"if an inmate claimant can point to an alternative that fully 
accommodates the prisoner's rights at de minimis cost to valid 
penological interests, a court may consider that as evidence that 
the regulation does not satisfy the reasonable relationship 
standard."(3)

For all the above mentioned reasons, the DOC enforcement of the 
publisher only regulation should be prohibited as it violates 
prisoners First Amendment rights. We publish this as a means to 
assist prisoners with similar problems. It is possible to hold 
Amerika to its own rules and fight battles that gain inches of 
freedom within the imperialist system. But ultimately, we know 
that so-called rights do not exist under imperialist control. Only 
the so-called rights of the oppressor are upheld and this is 
because the oppressor holds state power. The oppressed can gain 
privileges within this corrupt system, but ultimately to serve the 
interests of the oppressed, a dictatorship of the proletariat is 
necessary to build a just society.

Notes:

1. See ITAL Crofton v. Roe END , 170 F.3d 957, 959 (9th Cir 1999) 
and cases cited.

2. See ITAL Bell v. Wolfish END 99 S. Ct 1861, 1879 (1979) and 
cases cited. Moreover, it is difficult to dispute that DOC 
administrators "have a legitimate interest in preventing 
smuggling' ITAL Wolfish END Id. at S. Ct 1900.

3. ITAL Turner v. Safley END, Id at S. Ct 2262.

4. See Rights of Prisoners, 2d Ed 5.03, Publisher Only Rules.

5. The second factor in the ITAL Turner END Standard will probably 
be the DOC stronghold. See UDNERLINE O'Lone v. Estate of Shabazz 
END, 107 S. Ct 2400, 2406 (1987) and ITAL Thornbugh v. Abbott END, 
109 S. Ct 1874, 1884 (1989) for opposing viewpoint and deference 
the Court may give the DOC when considering "...whether there are 
alternative means of exercising the right that remain open to 
prison inmates."

6. ITAL Croften v. Roe END, Id at 959. ITAL Turner v. Safely END, 
ITAL Id END at S. CT 2262.