Sentenced to Shut Up: To Protect Free Expression, Curb Prison Censorship

If Martin Luther King’s “Letter from a Birmingham Jail” were written in 2017, the missive might not have made it out of the jail and into history. Today, too many American prisons and jails saddle the people they lock up with senseless restrictions on their ability to speak, write, and receive information.

Taken together, these constraints stifle free debate and exchange with people in prison at a crucial moment in history. We cannot have a serious conversation about criminal justice and mass incarceration if prisoners are shut out of public discussion.

A prison in Alabama last month was banning an historic African American newspaper as a “racially motivated” publication. As a civil rights lawyer and law professor, I often encounter such needless speech restrictions affecting prisoners.

In Virginia, a mother whose son was jailed wrote him letters that at times quoted from the Bible. She would cut and paste passages from an online copy of the Bible into her letters. Jail officials, however, cut out the biblical passages with a hobby knife, delivering to the son a Swiss cheese of letters with holes where the bible quotations had been.

The reasons for rejection were listed variously as “Internet material” and “religious material from home.” The practice was ended only after I wrote an open letter to the jail authorities, which led the Reverend Pat Robertson to declare on the 700 Club, “It’s happening in Virginia of all places. Whoever did that in that jail needs to get fired.”

In 2010, I sued a jail in South Carolina on behalf of a publisher because the jail prohibited detainees from receiving any magazines containing staples. Staples, the jail asserted, were being used to make tattoo guns. One problem: the jail commissary was selling detainees pads of paper with staples at the same time it was banning publications that contained staples.

To be sure, the threat of violence is real in some prisons. But banning literature does not fix anything, and the examples of senseless restrictions are rampant.

A West Virginia prison allowed magazines such as Playboy and Maxim but prohibited works by John Updike as salacious. In federal prison libraries, a religious books purge resulted in works by Maimonides, the medieval Jewish philosopher, being pulled from the shelves.

A federal prison employee prevented a prisoner in Colorado from receiving books written by President Barack Obama, citing national security concerns. That decision, thankfully, was later overruled. Some jails ban all newspapers and magazines entirely. Others prohibit letters sent to prisoners and allow only postcards.

These absurd restrictions have multiplied and flourished not only because of bad decisions by jailers but also because federal courts have failed to contain the problem.

One federal appellate case decided that a prison could ban people from receiving the Physician’s Desk Reference in the mail because it contains information about drugs — even though the same book was available in the prison library. The prisoner had wanted his own copy of the book to educate himself about medicine because prison medical staff had accidentally administered another prisoner’s medication to him for nearly two weeks.

Another case holds that prisons can ban the game, “Dungeons and Dragons” because it might lead to the formation of gangs.

While prison security requires some level of censorship, the costs of overzealous censorship are serious. America locks up more of its people than any other nation on Earth, and an informed discussion of mass incarceration should include the voices of the people impacted by it.

We cannot understand prisons if the people they confine cannot be heard.

Fixing the problem will require a shift in attitude among courts and corrections leaders. More corrections directors and wardens must train their staff to use censorship judiciously and hold personnel accountable for bad decisions. The judicial model cannot be “anything goes.”

Free debate and the unfettered exchange of ideas are the very backbone of American democracy. We allow the government to squelch them at our peril.