PRISONER'S FREE SPEECH RIGHTS - THE RIGHT TO RECEIVE PUBLICATIONS

• NCJ Number: 58915
• Journal: Washington University Law Quarterly Volume: 1977 Issue: 4 Dated: (FALL) Pages: 649-685
• Author(s): A H GLUCK
• Date Published: 1977
• Length: 37 pages
• Corporate Author: Washington University
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

CASE LAW PERTAINING TO THE FIRST-AMENDMENT FREE-SPEECH RIGHTS OF INMATES, PARTICULARLY THEIR RIGHT TO RECEIVE PUBLICATIONS, IS EXAMINED.

Abstract

THE DISCUSSION OPENS WITH AN ANALYSIS OF THE RIGHT TO FREE SPEECH GUARANTEED BY THE FIRST AMENDMENT AND THE CONFUSION WROUGHT BY THE EMERGENCE OF THIS RIGHT IN PRISON AFFAIRS. THE STANDARD ARTICULATED BY THE U.S. SUPREME COURT IN PROCUNIER VS. MARTINEZ TO TEST THE CONSTITUTIONALITY OF RESTRICTIONS ON INMATES' PERSONAL CORRESPONDENCE WITH THOSE OUTSIDE THE PRISON COMMUNITY IS EXAMINED, AS IS THE STANDARD ENUNCIATED IN PELL V. PROCUNIER, WHICH INVOLVED VISITATION RIGHTS. IT IS POINTED OUT THAT RECEIPT OF PUBLICATIONS IS MORE ANALOGOUS TO PERSONAL COMMUNICATION THAN TO VISITATION, AND THAT THE MARTINEZ TEST IS THE APPROPRIATE ONE FOR DECIDING CASES IN WHICH RECEIPT OF PUBLICATIONS IS THE ISSUE. IN THE MARTINEZ DECISION, THE COURT HELD THAT CERTAIN REGULATIONS RESTRICTING INMATE CORRESPONDENCE WERE UNCONSTITUTIONAL BECAUSE THEY VIOLATED THE RIGHT OF OUTSIDERS TO COMMUNICATE WITH INMATES. ALTHOUGH IT DID NOT RECOGNIZE A FREE-SPEECH RIGHT OF INMATES, THE MARTINEZ DECISION DID CONTRIBUTE TO THE ANALYSIS OF FREE-SPEECH ISSUES IN THE PRISON CONTEXT BY DELINEATING A TWO-PRONG TEST. UNDER THE TEST, A REGULATION LIMITING FREE EXPRESSION IS JUSTIFIABLE ONLY IF IT FURTHERS IMPORTANT GOVERNMENT INTERESTS IN REHABILITATION, SECURITY, OR ORDER, AND IF THE RESTRICTION IS NOT OVERLY BROAD. THE LOWER FEDERAL COURTS' MISAPPLICATION OF THE MARTINEZ TEST IN LIMITING RATHER THAN GUARANTEEING INMATES' RIGHT TO RECEIVE PUBLICATIONS IS DEMONSTRATED. THE SUPREME COURT'S DECISION IN JONES V. NORTH CAROLINA PRISONERS' LABOR UNION, WHICH INVOLVED AN INMATE UNION'S USE OF BULK MAILINGS, IS ALSO ANALYZED AND IS CONCLUDED NOT TO BE APPLICABLE TO CASES INVOLVING RECEIPT OF PUBLICATIONS. THE COURT IS URGED TO ADOPT THE MARTINEZ TEST EXPLICITLY AND TO RECOGNIZE THE FREE-SPEECH RIGHTS OF PRISONERS. (LKM)