Legal Resources to Fight Censorship in U.S. Prisons

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Prisoners' Legal Clinic (PLC)

PLC Purpose Statement

The Prisoners' Legal Clinic is an organization of prisoners in the United $tates who are fighting injustice in the anti-imperialist movement. The PLC is led and supported by MIM(Prisons). Fighting the injustice system is just one part of the anti-imperialist struggle, and it is important that we not lose sight of the connections to this larger battle. Many prisoners have written to MIM(Prisons) expressing interest in legal issues, or requesting legal assistance. At the same time, many comrades are facing political repression and censorship from receiving materials from MIM(Prisons). In response, we initiated the PLC in hopes of pushing our legal work forward. The PLC is a space where prisoners can contribute to the legal strategy that will push forward our anti-imperialist agenda.

The Prisoners' Legal Clinic is part of the international anti-imperialist movement that works from the vantage point of the international proletariat. We carry out our work as part of a larger anti-imperialist strategy. The projects taken on must be directly related to our movement's strategy of building public opinion for national liberation struggles generally, and our work of fighting against censorship and political repression specifically. Therefore, the PLC will not provide one-on-one help for persynal issues or criminal cases. Instead, we encourage comrades to write articles for Under Lock & Key about the political implications of their own cases.

PLC Guides

MIM(Prisons) Censorship Pack

MIM(Prisons) campaigns to pursue both political and some legal remedies to the blackout of revolutionary thought. While we have no illusions that prisons can be fundamentally reformed so long as they remain under control of the capitalist state, we believe we may be able to score some short-term victories with this anti-censorship work which will make it easier to do revolutionary work in prison. We want to choose winnable battles and focus on cases where public opinion about prisons and prisoners can be raised, especially where it hurts the image of the prisons and the United States generally. In this, we need your help.

Be sure to download the PDF of our Censorship Guide, which is a more regularly updated version of the case law information below. Feel free to print and send the PDF to your contacts in prison to help them fight censorship of any mail.

We are always looking for people in the outside with legal experience to help advance our abilities to fight censorship and maintain our ability to send political literature to prisoners through the mail. If you want to get involved, contact us!

Other Legal Resources

Jailhouse Lawyer's Manual
The Jailhouse lawyer's Handbook
Short Guide to Fighting Criminal Cases by an Oregon Prisoner
We The People: Legal Primer

Censorship Case Law


Some case law that may be helpful in fighting censorship are cited below. You should try to research the whole case for yourself, so you can better understand these citations. In your research you will probably find more cases and quotes that will be helpful to you. Links to the full cases are provided when available. You can also search Under Lock & Key for articles related to the law.

Prison Legal News (PLN) reached a settlement with the California Department of Corrections and Rehabilitation (CDCR) in 2007. This settlement took years to enforce but eventually provided the basis for relative freedom of communication in California prisons.

In re Crawford, 206 Cal.App.4th 1259 (2012) is a case where the state of California censored a prisoner's outgoing letter for using the term "New Afrikan" alleging it was promoting gang activity. The court found there was no basis for this and reportedly stated in one of its responses to the defendent, "Gang related correspondence is not within the exception to the First Amendment test for censorship of outgoing inmate mail." (this is not in the final opinion)

Shakur v. Selsky, 391 F.3d 106 (2nd Cir. 2004) is a case concerning New Afrikan literature in New York.

Johnson v. Raemisch, 557 F.Supp.2d 964 (2008) The plaintiff in Johnson also wrote an article for Under Lock & Key explaining the strategy used in this case.

"The court required that an inmate be notified of the rejection of correspondence and that the author of the correspondence be allowed to protest the decision and secure review by a prison official other than the original censor." Procunier v. Martinez, 416 U.S.396. 94 S.Ct 1800

More recently it was decided that publishers must be notified as well: "Having recognized that Montcalm indeed has a constitutional interest in communicating with its inmate-subscribers, we cannot conclude that it is entitled to no process at all when VDOC prevents the subscribers from receiving Montcalm's publications. An inmate who cannot even see the publication can hardly mount an effective challenge to the decision to withhold that publication, and while the inmate is free to notify the publisher and ask for help in challenging the prison authorities' decision, the publisher's First Amendment right must not depend on that." Montcalm Publ'g Corp. v. Beck, 80 F.3d 105, 106 (4th Cir.), cert. denied, 519 U.S. 928 (1996)

"The decision to censor or withhold delivery of a particular letter must be accompanied by minimum procedural safeguards against arbitrariness or error." Procunier v. Martinez, 416 U.S.396. 94 S.Ct 1800

"Wardens may not reject a publication 'solely because its content is religious, philosophical, political, social[,] sexual, or . . . unpopular or repugnant,' or establish an excluded list of publications, but must review each issue of a subscription separately." Thornburgh v. Abbott, 490 U.S. 401

"When a prison regulation restricts a prisoner's First Amendment right to free speech, it is valid only if it is reasonably related to legitimate penological interests." Lindell v. Frank, 377 F.3d 655, 657 (7th Cir. 2004), citing Turner v. Safely, 482 U.S. 78, 89 (1987).

"Under the test laid out in Turner v. Safley, 482 U.S. 78, 89-90 (1987), the DOC's ban on non-subscription bulk mail and catalogs is not rationally related to a legitimate penological interest and is therefore unconstitutional." Prison Legal News v. Lehman 397 5.30 692 (9th Cir. 2005)

"We therefore find as a matter of law that as applied to pre-paid, for-profit, subscription publications, [prohibiting inmates from receiving bulk rate, third, and fourth class mail] is not rationally related to a legitimate penological objective." Morrison v. Hall, 261 F.3d 896 (9th Cir. 2001)

"First, the regulation or practice in question must further an important or substantial governmental interest unrelated to the suppression of expression. Such interests include security, order, and rehabilitation. Second, the challenged action must be no greater than is necessary or essential to the protection of that interest." Koutnik v. Brown, 456 F.3d 777, 784 (7th Cir. 2006) referring to standards set in Procunier v. Martinez 416 U.S.396. 94 S.Ct 1800.

"The G[eorgia] DOC's ban on mail that is printed from the Internet is not rationally related to its legitimate penological concerns, and prohibits prisoners from accessing valuable information that they have no practical means of accessing otherwise." Williams v. Donald, No. 5:01-CV-292-2 (M.D. Ga.)

"Prison authorities were not entitled to delete from, refuse to mail or refuse to give a prisoner any communication between prisoner and any court, any public official or agency or any lawyer with respect to either his criminal conviction or a complaint he might have concerning administration of prison where he was incarcerated." Sostre V. McGinnis, 442 F.2d 178

"We hold that publishers and prisoners have a constitutionally protected right to receive subscription non-profit bulk mail and that a ban on bulk mail was unconstitutional as applied to such mail." Prison Legal News v. Cook, 238 F.3d 1145 (9th Cir. 2001)

"Prison authorities cannot rely on general or conclusory assertions to support their policies." Walker v. Sumner (9th Cir. 1990) 917 F.2d 382, 385

"Unsupported security claims couldn't justify infringement on First Amendment rights." Crofton v. Roe (9th Cir. 1999) 170 F.3d 957

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The following section of information has been paraphrased and updated from an ACLU brochure by MIM(Prisons) for this Censorship Pack. To receive a full copy of this article that contains much more information on prisoners' First Amendment rights, send the equivalent of $2.00 in donation to MIM(Prisons), P.O. Box 40799, San Francisco, CA 94140, or write to us about the work you're doing fighting censorship and why having the whole article would help you.

Restrictions on incoming correspondence are governed by the Turner v. Safely, 482 U.S. 78, 89 (1987) reasonableness test. Restrictions on outgoing mail are subjected to the more rigorous review established by Procunier v. Martinez, 416 U.S. 396 (1974). Although subject to the Turner reasonableness test for restrictions on incoming mail, courts remain suspicious of censorship based on content or regulations that leave unbridled discretion to censor disfavored materials in the hands of prison officials. In Thornburgh, for example, the Court noted that it was "important to inquire whether prison regulations restricting inmates' First Amendment rights operated in a neutral fashion, without regard to the content of the expression." 490 U.S. at 415 (quoting Turner, 482 U.S. at 90). When the prison rejects a publication solely because the content could reasonably be deemed a threat to security, the regulation may be deemed "neutral," even though the rejection can be described as "content-based." See Thornburgh, 490 U.S. at 415-16; see also Koutnik, 456 F.3d at 782-83 (rejecting facial overbreadth and vagueness challenges to prohibition on possessing gang symbols).

However, while prison officials can justify prohibitions on "books detailing famous prison escapes" or facilitating criminal activity, courts will not allow prison officials to stretch security justifications to prohibit content that does not pose a meaningful threat. See King, 415 F.3d at 638-39 (holding refusal to permit prisoner to receive book on computer programming violated First Amendment, absent showing of credible threat prisoner could use book to disrupt prison computer system). Courts are also unlikely to condone censorship of publications merely because they express political or social views that are unpopular or even "inflammatory." See Thornburgh, 490 U.S. at 416 n.14 (noting that regulations barring writings that "express 'inflammatory political, racial, religious or other views'" were not sufficiently "neutral" or "unrelated to the suppression of expression"); see also Lindell v. Frank, 377 F.3d 655, 658 (7th Cir. 2004) ("prison officials violate the First Amendment when for reasons unrelated to legitimate penological interests they engage in 'censorship of . . . expression of "inflammatory political, racial, religious or other views"'") (citing Procunier v. Martinez, 416 U.S. at 415).

Similarly, although censorship of sexually explicit visual materials may be justified by security concerns, a regulation that would prohibit materials that clearly have scientific, literary, or artistic merit, even though such materials may depict nudity or describe sexual activity (such as reproductions of the Sistine Chapel, the poetry of Walt Whitman or the Song of Solomon in the Bible) will not survive judicial scrutiny. Aiello v. Litscher, 104 F.Supp.2d 1068, 1079-80 (W.D. Wis. 2000). Aiello may also apply to the heavily-censored MIM Notes 309 that has a photo of a young Vietnamese girl running naked, screaming trying to escape u$ -dropped napalm on the cover.

A general prohibition on the receipt of clippings from non-commercial sources violates the First Amendment. Lindell v. Frank, 377 F.3d at 658-60. A ban on information printed from the internet has been struck down in Georgia, Williams v. Donald, No. 5:01-CV-292-2 (M.D. Ga.) See Clement v. California Dep't of Correct., 364 F.3d 1148 (9th Cir. 2004); see also West v. Frank, 2005 WL 701703, *5 (W.D. Wis. March 25, 2005).

In the preliminary hearing for People v. Greene in California on January 26, 2009 Judge David S. Wesley ruled that the Animal Liberation Front is not a "gang." Judge Wesley stated that the prosecution's expert Lt. Butte had "misled the grand jury. The ALF does not meet the legal requirements to be considered a gang. Their primary goal is to save animals, not commit crimes."

Federal law (18 U.S.C. ¤ 521: Criminal street gangs) defines the term "gang" as "an ongoing group, club, organization, or association of five or more persons: (A) that has as one of its primary purposes the commission of one or more of the criminal offenses described in subsection (c); (B) the members of which engage, or have engaged within the past five years, in a continuing series of offenses described in subsection (c); and (C) the activities of which affect interstate or foreign commerce." The offenses of subsection (c) are - "(1) a Federal felony involving a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)) for which the maximum penalty is not less than 5 years; (2) a Federal felony crime of violence that has as an element the use or attempted use of physical force against the person of another; and (3) a conspiracy to commit an offense described in paragraph (1) or (2)."

Alabama law defines a "streetgang" as, "[A]ny combination, confederation, alliance, network, conspiracy, understanding, or similar arrangement in law or in fact, of three or more persons that, through its membership or through the agency of any member, engages in a course or pattern of criminal activity." Ala. Code ¤ 13A-6-26 (2002).

New York State DOCS rules define "gang" as "a group of individuals, having a common identifying name, sign, symbol or colors, who have individually or collectively engaged in a patter of lawlessness (eg. violence, property destruction, threats of harm, intimidation, extortion, or drug smuggling) in one or more correctional facilities or that are generally recognized as having engaged in a pattern of lawlessness in the community as a whole. For the purposes of this rule, printed or handwritten gang related material is written material that, if observed in the inmate's possession, could result in an inference being drawn about the inmate's gang affiliation, but excludes published material that the inmate has obtained through the facility library or that has been approved for the inmate to possess through the media review process." NYS DOCS 105.13 2070.2(B)(6)(iv).