Censorship in Amerikan prisons
by a Tennessee prisoner fighting against the censorship of MIM Notes at
his/her institution

The First Amendment to the United States Constitution provides: "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 First Amendment of the Constitution of the United States made
applicable to the states by the Fourteenth Amendment in effect guarantees
to the people the right of free expression in order that there may be a
full and unrestricted interchange of ideas for bringing about any political
and social changed desired by the people and gives protection to all ideas
no matter how unorthodox or controversial so long as they have the
slightest redeeming social importance.

The exceptions to the free speech rights include words or conduct used in
such circumstances and of such nature as to create a clear
and present danger that they will bring about the substantive evils that
congress has the right to prevent.

Prison officials can restrict incoming correspondence if the restrictions
are "reasonably related" to legitimate interests. But prison officials may
not censor letters just because they criticize prison conditions or
personnel, or offend them in some way. _Procunier v. Martinez,_ 94
S.Ct.1800. Incoming letters may be censored if there is a "reasonable
relationship" between censorship and some legitimate correctional purpose.
In _Thornburgh v. Abbott,_ 109 S.Ct. 1874 (1989), the Supreme Court
upheld the censorship of publications that are "detrimental to the
security, good order, or discipline of the institution or ... might
facilitate criminal activity." This same principle holds true for books,
magazines and newspapers. Censorship will not, or rather should not apply,
"solely because the publication's content is political, unpopular or
repugnant". _Thornburgh v. Abbott,_ 109 S.Ct. 1874, 1881-82 (1989).
The Supreme Court did not decide what publications could properly be
censored under the regulation upheld in Thornburgh. Historically, prison
officials have also tried to censor unorthodox political, sexual, racial
or religious views, and especially views that are critical of prison
officials. Such censorship was generally struck down under the
_Procunier v. Martinez_ standard.

To begin a censorship case, you should look closely at the prison system's
censorship rules. If it appears that the censors have violated those
rules, you may be better off seeking relief on that basis in state court
than pursuing a constitutional claim in federal court. In general, the
violation of state law and regulations by state officials cannot be
remedied in federal court.

Censorship may be an exception to this rule. The Supreme Court has stated
that when First Amendment rights are implicated "precision of regulation
must be the touchstone." _NAACP v. Button,_ 83 S.Ct 328 (1963).

Also, prison censors must observe procedural safeguards. First, there must
be an "individualized" determination that a particular publication
violates the rules at the time it is censored. The prison cannot simply
establish an "excluded list" of publications. The Supreme Court in
_Thornburgh_ relied heavily on the existence of this protection in
upholding the censorship regulation. Most courts have required additional safeguards
as well, including notice of the censorship, an opportunity to be heard, a
meaningful statement of reasons for the censorship, a prompt decision, and
the right to appeal to an official other than the censor.

Some courts have held that the sender of the literature should also
receive notice and an opportunity to be heard. A requirement of notice to
the sender would be consistent with the Supreme Court's holding that the
author of a censored letter should get a change to protest. _Procunier
v. Martinez,_ 94 S. Ct. 1800 (1974). (This procedural part of _Procunier_
was not overruled by _Thornburgh v. Abbott_.) Notice to the sender is
also consistent with common sense. The prisoner is hardly in a position to
dispute the censorship of a publication he has not been allowed to see.
The sender, who knows what is in the publication or can find out, is
better able to explain why the publication should not have been censored.

A prisoner challenging censorship of MIM Notes must be prepared to show:
(1) that the censorship is not reasonably related to any correctional
objective, and (2) that MIM Notes are not detrimental to the security,
good order, or discipline of the institution.

The courts require prisoners to exhaust their administrative remedies; if
MIM Notes is rejected be sure to appeal the decision all the way to the
final authority. Be sure to fully read the prison policies pertaining to
censorship. And if you decided to go to court, be sure to read the legal
cases cited in this article.

"Power to the People"

Note: Sections of this article was taken from the Prisoner's Self-Help
Litigation Manual.