Banning Inmate Magazine Subscriptions May Violate the First Amendment

October 12, 2016

It may be time to update your jail mail policy.

Recently, there have been a spat of challenges to jail and prison policies which ban individual magazine and newspaper subscriptions for inmates. The policies are often enacted for security and budgetary reasons, such as preventing inmates from accumulating a lot of extra paper and avoiding staff resources spent on reviewing publications for potential security concerns. The challenges to these policies revolve around a publisher or author’s right to speak, an inmate’s right to hear/read the speech, and both parties’ right to challenge or appeal decisions effecting these rights. Almost without exception, courts have upheld these challenges under the First Amendment’s Free Speech Clause and the Fourteenth Amendment’s Due Process Clause.

The current trend in the courts grants less deference to prison administrators. Outright, complete bans on magazines have been held unconstitutional and less-restrictive policies have been successfully limited. The policies are discussed on a case-by-case basis. Courts consider where the inmate is housed (maximum security or general population), the size of the facility, number of employees, number of inmates, whether the subscription involves a daily newspaper or monthly magazine, what alternatives the inmates have and other factors.

The decision to censor or withhold delivery of a publication must be accompanied by procedural safeguards, including notice to an inmate that the correspondence was rejected, the reason why, reasonable opportunity to protest the decision and an explanation of how the inmate can maintain ownership of the property by allowing family or other means to collect the property or store the property on their behalf.

Notice and an opportunity to challenge the decision should also be provided to the publisher, so that both parties know that the speech was censored by the facility. A publication rejection form should include the inmate and publication name, the specific reason for the censorship or denial of the publication and the steps for which the publisher and/or inmate can protest the decision to a higher administration member of the facility pursuant to the facilities policies or facility handbook.

For more information or for assistance in reviewing your facility’s mail policy, please contact our firm.

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