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Aclu Npp Know Your Rights Publications Sent by Mail 2009

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Know Your Rights:
Publications Sent by Mail1
ACLU National Prison Project
915 15th St. N.W., 7th Floor
Washington, DC 20005

Important Note: The law is always evolving. If you have access to a prison law library, it is a
good idea to confirm that the cases and statutes cited below are still good law. The date at the
bottom of this page indicates when this information sheet was last updated. The purpose of this
document is to provide general information about the law – it does not constitute legal advice.
“[P]rison walls do not form a barrier separating prison inmates from the protections of the
Constitution,” including the First Amendment.2 This means that prisoners have some right to
receive publications through the mail. However, prisoners’ First Amendment rights are far more
limited than those of non-prisoners, and prison officials can significantly restrict the publications
prisoners receive.
Legal Test
Restrictions on prisoners’ access to publications cannot be arbitrary; they must be “reasonably
related to legitimate penological interests.”3 Nonetheless, in practice, courts generally will
accept the judgment of prison authorities in deciding whether censoring a publication is
reasonable.
Following the Supreme Court’s decision in Turner, courts consider the following factors in
determining whether prison censorship is permissible:
1. Whether there is a “valid, rational connection between the prison regulation
and the legitimate governmental interest put forward to justify it.”4 In other
words, does the censorship serve a valid purpose, such as preventing violence?
This factor is the most important and often determines how courts rule.
2. Whether there are “alternative means of exercising the right that remain
open to prison inmates.”5 For example, if prisoners cannot receive certain
1

Copyright August 14, 2009 by the National Prison Project of the ACLU. This document may
be freely distributed without charge to prisoners and to those providing legal assistance to them.
Please direct corrections or comments to the address above.

2

Turner v. Safley, 482 U.S. 78, 84 (1987).

3

Turner, 482 U.S. at 89.

4

Id.

5

Id.
1

Updated August 2009

publications in the mail, do they have other access to publications? For example,
can prisoners still receive other publications in the mail, or read books in a
library?
3. What impact the “accommodation of the asserted constitutional right” will
have on “guards and other inmates, and on the allocation of prison resources
generally.”6 In other words, what are the downsides (including financial cost to
the prison system) of not censoring publications?
4. Whether there are “ready alternatives” for furthering the governmental
interest.7 In other words, is there something obvious the prison could do that
would protect whatever interest the prison has in mind (such as security) without
banning publications?
The Turner standard applies to convicted prisoners, and somewhat greater protections may
apply to pre-trial detainees held in jails.8 The law is unsettled as to the protections afforded to
immigration detainees. Some courts have held that immigration detainees are entitled to greater
protections than pretrial detainees.
Even if a policy is facially constitutional (meaning the policy itself does not violate the
Constitution) you may be able to argue that the policy as applied to the particular material you
want to receive violates the Constitution.9

Total Ban on Receipt of Publications
Many courts have held that the “prohibition of virtually all reading materials deprives the
inmates of their First Amendment right to receive information and ideas.”10 However,
categorical bans on publications sent by mail have been upheld in some cases, particularly where

6

Id. at 90.

7

Id.

8

Bell v. Wolfish, 441 U.S. 520, 545 (1979) (“[P]retrial detainees, who have not been convicted of
any crimes, retain at least those constitutional rights that we have held are enjoyed by convicted
prisoners.”).

9

See, e.g., Thornburgh v. Abbott, 490 U.S. 401, 404 (1989) (rejecting facial challenge to Bureau
of Prisons policy on incoming publications but leaving open the possibility that the policy might
be unconstitutional as applied to particular publications).
10

Parnell v. Waldrep, 511 F. Supp. 764, 768 (W.D.N.C. 1981); see also Mann v. Smith, 796 F.2d
79, 82 (5th Cir. 1986) (striking down jail’s categorical ban on magazines and newspapers);
Payne v. Whitmore, 325 F.Supp. 1191, 1193 (N.D. Cal. 1971) (striking down jail’s total
prohibition on receiving newspapers and magazines by mail).
2
Updated August 2009

such rules apply to jails that hold detainees for a short period of time or prisoners in particularly
restrictive segregation units.11
News and Political Speech
Courts have generally struck down rules which deny inmates access to mainstream newspapers
and magazines.12 The confiscation of inmates’ political literature violates the First Amendment
unless prison officials can show that the publication poses a danger to prison security—for
example, by inciting violence.13
Weapons, Escape Plans, and Illegal Activity
Prisons and jails may ban material that describes how to build weapons, instructs how to escape,
or instructs how to break the law.14
Nudity and Pornography
Courts have held that prisons and jails generally can ban magazines that contain frontal nudity
and/or pornography (including magazines such as Playboy and Penthouse, as well as more
“hardcore” magazines).15 Courts are divided as to whether magazines that show partial nudity
(such as Stuff and FHM) can also be banned.16 It has also been held that prohibitions on nudity
11

E.g. Beard v. Banks, 548 U.S. 521, 531 (2006) (prison may ban inmates in long-term
segregation unit from receiving newspapers and magazines); Hause v. Vaught, 993 F.2d 1079,
1084 (4th Cir. 1993) (jail holding detainees for short periods of time may ban prisoners from
receiving publications in the mail). But see Parnell, 511 F. Supp. at 768 (striking down
publications ban at jail); Mann, 796 F.2d at 82 (same); Payne v. Whitmore, 325 F. Supp. at 1193
(N.D. Cal. 1971) (same); Prison Legal News v. Fulton County, 1:07-CV-2618-CAP (N.D. Ga.
July 13, 2009) (same).

12

E.g. Morrison v. Hall, 261 F.3d 896, 903-05 (9th Cir. 2001) (striking down regulation limiting
prisoners to first class and second class mail that prevented prisoners from receiving The New
York Times, Sports Illustrated, and Montana Outdoors); Prison Legal News v. Cook, 238 F. 3d
1145, 1151 (9th Cir. 2001) (striking down same regulation as applied to Prison Legal News).
13

E.g., Greybuffalo v. Kingston, 581 F. Supp. 2d 1034 (W.D. Wis. 2007) (prisoner had right to
receive literature regarding the American Indian Movement, a civil rights organization, but not
literature from a Native American group characterized as a “gang”).

14

E.g., Thornburgh v. Abbott, 490 U.S. 401, 405 n. 5 (1989).

15

Mauro v. Arpaio, 188 F.3d 1054, 1063 (9th Cir. 1999) (en banc); Amatel v. Reno, 156 F.3d
192 (D.C. Cir. 1998).

16

Compare Strope v. Collins, 492 F.Supp.2d 1289, 1300 (D. Kan. 2007) (denying summary
judgment to prison officials who refused to deliver FHM and stating “a rational trier of fact could
conclude that defendants’ censorship of entire publications based on the fact that they contain a
few photographs of women which reveal their partially bare buttocks is not reasonably related to
a legitimate penological interest”) with Moses v. Dennehy, 523 F.Supp.2d 57, 64 (D. Mass. 2007)
3
Updated August 2009

that lack exceptions for materials with artistic merit (such as pictures of nude figures on the
Sistine Chapel ceiling) are not constitutional.17
Bureau of Prisons Program Statement 5266.10 – which applies to federal prisons only – lists the
following examples of publications that contain some nudity but nonetheless may be delivered to
prisoners: National Geographic; Our Body, Our Selves; sports magazine swimsuit issues; and
lingerie catalogs.
Religious Publications
Under the First Amendment, the Turner standard, described above, also applies to religious
exercise.18 Thus, regulation of publications will overcome First Amendment challenges if the
restrictions are reasonably related to penological interests. However, prisons cannot discriminate
against religious publications by arbitrarily subjecting them to rules that do not apply to nonreligious publications.19
In addition to the First Amendment, access to religious publications is sometimes protected by
the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc et seq. (RLUIPA)
(which applies to non-federal prisoners) and the Religious Freedom Restoration Act, 42 U.S.C. §
2000bb et seq. (RFRA) (which applies to federal prisoners). Generally speaking, RLUIPA and
RFRA are more protective of religious exercise than the First Amendment, prohibiting state or
local institutions from imposing a substantial burden on the religious exercise of prisoners unless
that burden furthers a compelling government interest and is the least restrictive means of
furthering that interest.20 For example, some courts have held that prisons may not ban even
religious materials that express racist or intolerant thoughts, so long as they do not advocate
actual violence.21 However, courts have held that prison officials do not violate RLUIPA or the

(listing FHM and Stuff along with magazines that show full nudity, describing them collectively
as publications that “invariably contain nude or semi-nude depictions, or sexually explicit
content,” and upholding ban on such publications).
17

Aiello v. Litscher, 104 F. Supp. 2d 1068, 1080 (W.D. Wis. 2000).

18

See O’Lone v. Shabazz, 482 U.S. 342, 350-53 (1987).

19

Bess v. Alameida, No. 03-2498, 2007 WL 2481682, at *17 (E.D. Cal. Aug. 29, 2007) (rule that
“applied solely to religious publications, distinguishing between religious publications and all
other publications” violated the Constitution); see also generally Church of the Lukumi Babalu
Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532 (1993) (“At a minimum, the protections of the
Free Exercise Clause pertain if the law at issue discriminates against some or all religious
beliefs.…”).

20

Cutter v. Wilkinson, 544 U.S. 709, 712 (2005).

21

E.g., Nichols v. Nix, 810 F. Supp. 1466 (S.D. Iowa 1993), aff’d, No. 93-1490, 1994 WL 20653
(8th Cir. Jan. 28, 1994).
4
Updated August 2009

First Amendment when they prevent prisoners from receiving racist and intolerant publications
that actively advocate violence.22
Publisher Only Rules
Court have generally upheld rules that only permit prisoners to receive hardcover and softcover
books and bound periodicals from commercial sources.23 However, some courts have held that
prisoners cannot be prohibited from receiving clippings and copies of articles from noncommercial sources.24
Gift Subscriptions
Most courts have held that prison officials cannot prevent friends or family members from
purchasing gift subscriptions for prisoners by forcing prisoners to pay for subscriptions out of
their own accounts.25 Other cases have reached the opposite conclusion.26
Right to Notice
Prisoners have a right to be notified by prison officials when they censor an incoming
publication.27
Practical Considerations
•

22

In theory, prisons and jails cannot unreasonably restrict access to publications.
Nonetheless, winning a lawsuit that challenges a restriction on publications (even
a seemingly unreasonable restriction) is not an easy task. Courts will expect you
to be able to prove that a restriction serves no reasonable purpose. This means
that even to defeat a policy that seems arbitrary or too restrictive on its face, you

Borzych v. Frank, 439 F.3d 388, 390-91 (7th Cir. 2006).

23

Bell v. Wolfish, 441 U.S. 520, 549-550 (1979); see also Ward v. Washtenaw County Sheriff’s
Dep’t., 881 F.2d 325, 329 (6th Cir. 1989); Hurd v. Williams, 755 F.2d 306, 308-09 (3d Cir.
1985); Kines v. Day, 754 F.2d 28, 30 (1st Cir. 1985); Cotton v. Lockhart, 620 F.2d 670, 672
(1980).

24

Allen v. Coughlin, 64 F.3d 77, 81 (2d Cir.1995); see also Lindell v. Frank, 377 F.3d 655, 65960 (7th Cir. 2004).
25

Crofton v. Roe, 170 F.3d 957, 961 (9th Cir. 1999); Jacklovich v. Simmons, 392 F.3d 420 (10th
Cir. 2004).

26

Wardell v. Maggard, 470 F.3d 954, 961-63 (10th Cir. 2006) (prison policy banning gift
subscriptions is constitutional); Rice v. State, 95 P.3d 994, 1011-12 (Kan. 2004).

27

E.g., Procunier v. Martinez, 416 U.S. 396, 417 (1974) (holding that the “decision to censor or
withhold delivery of a particular letter must be accompanied by minimum procedural
safeguards,” including notice), overruled on other grounds, Thornburgh, 490 U.S. 401; Prison
Legal News v. Cook, 238 F.3d 1145, 1152-53 (9th Cir. 2001).
5
Updated August 2009

will probably still need to develop a full factual record about whether the policy is
justified. This can be extremely difficult if you do not have the funds to conduct
full discovery or afford expert witnesses.

28

•

In some cases, you may be able to show that a policy is unreasonable because the
prison’s rationale conflicts with other policies. For example, if a prison bans
magazines on the ground that they create a fire hazard but allows newspapers and
books that create similar fire risks, you may be able to show that the ban on
magazines is not rational.

•

If you are challenging the failure to deliver publications on a limited number of
occasions, a court may hold that prison officials did not violate the Constitution
by failing to deliver the publications to you even if you had a constitutional right
to receive them. This is because isolated failures to deliver publications may be
the result of negligence by mailroom personnel, rather than intent to violate the
Constitution.28

•

If your goal is to obtain a judgment awarding money (as opposed to only
changing the rules or allowing you to receive a publication), several additional
doctrines may make it very hard (though not always impossible) to succeed in
court.

•

When you learn that a publication has been rejected, you should always try to
check the institution’s publication policy. If you believe the policy has been
violated, you may be able to get the publication delivered by filing a grievance
showing that the failure to deliver the publication violated the policy.

E.g., Jones v. Salt Lake County, 503 F.3d 1147, 1163 (10th Cir. 2007).
6

Updated August 2009

 

 

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