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St. John's Law Review
Volume 92
Number 1 Volume 92, Spring 2018, Number 1

Article 2

September 2018

Locked Up, Shut Up: Why Speech in Prison
Matters
Evan Bianchi
David Shapiro

Follow this and additional works at: https://scholarship.law.stjohns.edu/lawreview
Recommended Citation
Evan Bianchi and David Shapiro (2018) "Locked Up, Shut Up: Why Speech in Prison Matters," St. John's Law Review: Vol. 92 : No. 1 ,
Article 2.
Available at: https://scholarship.law.stjohns.edu/lawreview/vol92/iss1/2

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ARTICLES
LOCKED UP, SHUT UP: WHY SPEECH IN
PRISON MATTERS
EVAN BIANCHI † & DAVID SHAPIRO †
INTRODUCTION
On January 18, 2017, Michael D. Williams, an Alabama
prisoner, received notice from Holman Correctional Facility that
his mail had been rejected. 1 The prison was blocking his receipt
of the San Francisco Bay View, a 40-year-old national black
newspaper covering political and cultural issues in the Bay Area
and beyond. 2 The newspaper publishes articles and op-eds on
topics such as the childcare crisis, 3 the need for multi-unit
smoke-free housing policies, 4 net neutrality and free speech, 5 and
police response to crimes involving black victims. 6 Writings by
prisoners are often featured in the publication as well. 7

†
Law Clerk, United States District Court for the Southern District of Texas.
The authors are grateful to Andrew Koppelman, Robert Owen, Heather Schoenfeld,
and the St. John’s Law Review Editorial Board for their helpful feedback on drafts.
†
Clinical Assistant Professor of Law, Northwestern Pritzker School of Law, and
Director of Appellate Litigation, Roderick and Solange MacArthur Justice Center.
1
Michael D. Williams, Alabama’s Holman Prison Bans the Bay View for Being
‘Racially Motivated,’ Subscriber Declares Hunger Strike, S.F. BAY VIEW (Mar. 26,
2017), http://sfbayview.com/2017/03/Alabamas-Holman-Prison-bans-the-Bay-View-fo
r-being-racially-motivated-subscriber-declares-hunger-strike/; see also Christopher
Harress, Holman Prison Bans ‘Racially Motivated’ Newspaper, AL.COM (Mar. 27,
2017), https://www.al.com/news/index.ssf/2017/03/holman_prison_bans_racially_mo.
html.
2
S.F. BAY VIEW, http://sfbayview.com (last visited June 22, 2018).
3
Mary Ignatius, Parents Bring the Child Care Crisis to Sacramento at the 21st
Annual Stand for Children Day, S.F. BAY VIEW (May 9, 2017), http://sfbayview.com
/2017/05/Parents-bring-the-child-care-crisis-to-Sacramento-at-the-21st-annualStand-for-Children-Day/.
4
Marlene Christine Hurd, Why Oakland Needs a Multi-Unit Smoke Free
Housing Policy, S.F. BAY VIEW (Apr. 29, 2017), http://sfbayview.com/2017/04/WhyOakland-needs-a-multi-unit-smoke-free-housing-policy/.
5
Linda Kennedy, Net Neutrality: Protecting Your Right to Free Speech in the
21st Century, S.F. BAY VIEW (May 2, 2017), http://sfbayview.com/2017/05/Netneutrality-Protecting-your-right-to-free-speech-in-the-21st-century/.
6
Slauson Girl, Did Police and EMT Response Contribute to Humboldt State
Student’s Death?, S.F. BAY VIEW (Apr. 27, 2017), http://sfbayview.com/2017/04/Didpolice-and-EMT-response-contribute-to-Humboldt-State-students-death/.
7
See, e.g., Anthony Robinson, Why Isn’t ‘Prison Reform’ Seeking an Effective
Demand for Change?, S.F. BAY VIEW (Mar. 26, 2017), http://sfbayview.com/2017/

1

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Why was Mr. Williams barred from receiving the San
Francisco Bay View? On the rejection notification, prison
officials stated that the newspaper was banned because it was
“racially motivated.” 8 Nothing more. Holman Correctional
Facility was not the only prison to prohibit prisoners from
receiving the newspaper. 9 Texas and Pennsylvania banned the
newspaper in prisons statewide, and the editor of the newspaper
received letters from prisoners in Louisiana, Indiana, California,
and Illinois claiming that they had been denied the publication
as well. 10
Censorship of this nature is pervasive in American prisons
and jails. 11 To our surprise, however, the academic literature has
yet to provide a full account of why speech in prison matters from
a First Amendment standpoint. Previous scholarship has argued
that American courts offer little protection to the expressive
freedoms of incarcerated men and women because judges defer

03/Why-isnt-prison-reform-seeking-an-effective-demand-for-change/ (opinion piece
written about prison reform by a prisoner in California).
8
Williams, supra note 1.
9
See Kamala Kelkar, From Media Cutoffs to Lockdown, Tracing the Fallout
from the U.S. Prison Strike, PBS NEWSHOUR (Dec. 18, 2016), https://www.pbs.org/
newshour/nation/prison-strike-lockdown-fallout.
10
Id.
11
See David M. Shapiro, Lenient in Theory, Dumb in Fact: Prison, Speech, and
Scrutiny, 84 GEO. WASH. L. REV. 972, 988–1005 (2016). Though restrictions on
incoming speech are only one aspect in which prisoners’ speech is limited, see infra
Section I.B, book bans illustrate the stark arbitrariness of speech regulations in
prisons. Prisoners in Texas can obtain copies of Mein Kampf, but Michelle
Alexander’s monograph, The New Jim Crow: Mass Incarceration in the Age of
Colorblindness, was prohibited in North Carolina and New Jersey until earlier this
year because it was “likely to provoke confrontation between racial groups.” Jonah
Engel Bromwich, Why Are American Prisons So Afraid of This Book?, N.Y. TIMES
(Jan. 18, 2018) [hereinafter Bromwich, Why Are American Prisons So Afraid of This
Book?], https://www.nytimes.com/2018/01/18/us/new-jim-crow-book-ban-prison.html;
see also Matthew Haag, Texas Prisons Ban 10,000 Books. No ‘Charlie Brown
Christmas’ for Inmates., N.Y. TIMES (Dec. 7, 2017), https://www.nytimes.com/
2017/12/07/us/banned-books-texas-prisons.html. North Carolina and New Jersey
have since lifted the ban on the book after receiving complaints from the American
Civil Liberties Union. Jonah Engel Bromwich, North Carolina Prisons Drop Ban on
‘New Jim Crow’, N.Y. TIMES (Jan. 24, 2018), https://www.nytimes.com/2018/01/24
/us/new-jim-crow-north-carolina.html. The New Jim Crow is still prohibited in
Florida, where the ban was apparently instituted because the prison system’s
literature review determined that the book was filled with “racial overtures.”
Bromwich, Why Are American Prisons So Afraid of This Book?, supra.

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obsequiously to the censorship decisions of prison officials. 12 This
article addresses an antecedent question: Why does speech in
prison matter in the first place, if at all?
Prison speech is important under the free expression
rationales that figure most prominently in Supreme Court case
law—the marketplace of ideas, democracy legitimation, the
checking value of free speech, and self-fulfillment.
The
marketplace of ideas does not function properly when the
government impedes prisoners from participating in public
discourse, especially with regard to criminal justice and mass
incarceration matters. Under the democracy legitimation theory,
unrestrained prison censorship excludes prisoners’ voices from
the discussion of political and public issues that is central to
facilitating democratic decision-making. As for the checking
value of free speech, discourse cannot restrain the power of
prison officials if those very officials have the authority to keep
complaints about their conduct and prison conditions from ever
leaving the prison’s walls.
And prison censorship surely
compromises self-fulfillment; as Justice Thurgood Marshall
wrote: “When the prison gates slam behind an inmate, he does
not lose his human quality; his mind does not become closed to
ideas; his intellect does not cease to feed on a free and open
interchange of opinions . . . .” 13 For purposes of this article, we
remain agnostic as to which of the prominent free expression
theories provides the best justification for valuing prisoner
speech. Prison speech matters under each of them.
The rise of mass incarceration in the United States
heightens the importance of protecting free speech in prison. The
unprecedented scale of incarceration in America—where some
2.2 million people reside in prisons and jails—leaves more people
Erwin Chemerinsky, for example, discusses how the Supreme Court has
treated prisons when it comes to protection of individual rights, showing that
judicial oversight is most needed over such institutions. See Erwin Chemerinsky,
The Constitution in Authoritarian Institutions, 32 SUFFOLK U. L. REV. 441, 441–42
(1999). Sharon Dolovich explores the Court’s unprincipled stance of deference in
prisoners’ rights jurisprudence. Sharon Dolovich, Forms of Deference in Prison Law,
24 FED. SENT’G REP. 245, 245 (2012). Scott Moss argues for the application of
intermediate scrutiny in the context of prisons. Scott A. Moss, Students and Workers
and Prisoners—Oh, My! A Cautionary Note About Excessive Institutional Tailoring
of First Amendment Doctrine, 54 UCLA L. REV. 1635, 1678–79 (2007). Many others
have commented on and critiqued Turner’s reasonableness standard. For a list of
prior literature, see Shapiro, supra note 11, at 976 n.20.
13
Procunier v. Martinez, 416 U.S. 396, 428 (1974) (Marshall, J., concurring).
12

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than ever before at the mercy of speech restrictions. 14 Because
poor people and people of color face disproportionate rates of
incarceration, prison censorship affects these groups with the
greatest force, reducing their power to participate in the public
forum. 15 As the issue of mass incarceration has assumed greater
prominence in social discourse—with everyone from Hillary
Clinton to Newt Gingrich calling for sentencing reform—prison
censorship has the perverse ability to exclude the voices of
incarcerated men and women from debates about incarceration
itself. 16
Prison speech may be divided into four categories: (1) pure
incoming speech, such as a letter sent by a non-prisoner to a
prisoner; (2) pure outgoing speech, such as a letter sent by a
prisoner to a non-prisoner; (3) mixed incoming/outgoing speech,
such as a real-time conversation between a prisoner and a nonprisoner during a visit or telephone call; and (4) pure internal
speech, such as a conversation between two prisoners. At first
blush, it might seem that theories of free speech focused on
public discourse—such as the marketplace of ideas and
democracy legitimation—should be concerned only with pure
outgoing speech and mixed incoming/outgoing speech. After all,
pure incoming speech is directed into the prison and pure
internal speech occurs within the prison; neither enters the
public discourse.
Nevertheless, the breadth of ideas and
information that prisoners can receive—from those outside
prison walls and from other prisoners—ultimately affects their
Therefore,
ability to produce outwardly-directed speech. 17
greater protection for pure outgoing speech and mixed
incoming/outgoing speech would only partly solve the problems
created by excessive judicial deference to prison censorship. To

14
THE SENTENCING PROJECT, TRENDS IN U.S. CORRECTIONS 2 (2018),
http://sentencingproject.org/wp-content/uploads/2016/01/Trends-in-USCorrections.pdf.
15
See infra Section III.A.
16
Michelle Mark, Where Hillary Clinton Stands on Criminal Justice, BUS.
INSIDER (Oct. 8, 2016), http://www.businessinsider.com/where-hillary-clinton-standson-criminal-justice-2016-10; Newt Gingrich & Van Jones, Prison System Is Failing
America, CNN (May 22, 2014), http://www.cnn.com/2014/05/21/opinion/gingrichjones-Prison-system-fails-America/index.html.
17
See infra Section I.C.

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enable prisoners to function as full participants in public
discourse, the law must protect not only their ability to
disseminate speech, but also their ability to receive it.
Our ultimate conclusion—that prison speech matters—
suggests that the current legal standard that governs prisoners’
First Amendment claims, the legitimate penological interest test
established by the Supreme Court in Turner v. Safley, is
inadequate. The Turner standard requires a high level of judicial
deference to prison officials’ censorship decisions, leaving
prisoners’ speech with less protection than it merits.
This Article proceeds in three Parts. Part I describes the
deferential Turner standard that governs First Amendment
claims brought by prisoners. Virtually every word uttered or
written to a prisoner and virtually every word uttered or written
by a prisoner receives extremely limited legal protection. Largely
as a result of this legal regime, senseless censorship is all too
common in American prisons. Jailers and prison officials seem to
have received the message that they can ban speech with
impunity.
Part II argues that the combination of Turner deference and
mass incarceration divests prisoners of expressive power, thereby
distorting public discourse. Not only do people in American
prisons and jails comprise a significant portion of the
population—some 2.2 million men and women—but the people
locked up are poorer, blacker, and browner than the population
at large. The combination of mass incarceration and prison
censorship skews public debate in favor of wealthier, whiter, nonincarcerated participants. The same combination prevents some
of the most relevant speakers from engaging in public discourse
on prison-related topics such as solitary confinement and mass
incarceration: prisoners themselves.
Part III demonstrates that under the leading theories of free
expression, prison speech matters.
It matters from the
standpoint of the marketplace of ideas, democracy legitimation,
the checking value of free speech, and self-fulfillment. Under all
of these theories, prison speech is of consequence and deserves
more protection than it now receives.

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I.

[Vol. 92:1

THE RULE OF DEFERENCE

When it comes to judicial review of prison censorship,
deference to prison officials is the order of the day. The Supreme
Court established a deferential standard for prison speech
restrictions in Turner v. Safley, and several lower court decisions
take such deference to great extremes. 18 The Turner standard
applies to virtually all categories of speech that a prisoner
creates, transmits, and receives. This includes: all speech from
outsiders, such as incoming letters and publications; all real-time
communication with outsiders, such as a visits and phone calls;
and all communication between two prisoners or between a
prisoner and a corrections official. 19 The one category potentially
exempted from deference under Turner is “pure outgoing speech,”
meaning one-way communications directed from a prisoner to an
outsider.
A.

Deference Under Turner

The dominant legal standard for evaluating prisoner speech
is the legitimate penological interest test established by the
Supreme Court in Turner, 20 described as “the most important
and widely used legal standard for evaluating prisoners’ rights
claims.” 21 Courts have cited the test in decisions more than 8,000
times. 22 Turner’s legitimate penological interest test posits that
“when a prison regulation impinges on inmates’ constitutional
rights, the regulation is valid if it is reasonably related to
legitimate penological interests.” 23 Four inquiries inform this
analysis: (1) whether there is a “ ‘valid, rational connection’
between the prison regulation and the legitimate governmental
interest”; (2) “whether there are alternative means” for prisoners
to exercise constitutional rights; (3) “the impact accommodation
of the asserted constitutional right will have on guards and other
inmates, and on the allocation of prison resources generally”; and
18
Turner v. Safley, 482 U.S. 78, 89–91 (1987); see infra note 36 and
accompanying text.
19
See infra Section I.B.
20
Turner, 482 U.S. at 89.
21
Christopher E. Smith, Justice Sandra Day O’Connor and Corrections Law, 32
HAMLINE L. REV. 477, 493 (2009).
22
Shapiro, supra note 11, at 975.
23
Turner, 482 U.S. at 89 (emphasis added).

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(4) the presence or “absence of ready alternatives.” 24 The first of
these prongs—the existence of a valid rational connection—is the
crux of the standard and is often dispositive. 25
Turner and its progeny require courts to accord great
deference to the judgment of prison officials in assessing whether
there is a rational connection between a speech restriction and a
valid penological interest. 26 The standard reflects the view that
“prison administrators . . . , and not the courts, [are] to make the
difficult judgments concerning institutional operations.” 27 For
example, prison officials in Turner prohibited correspondence
between prisoners at different facilities because the officials
believed that such correspondence “facilitate[d] the development
of informal organizations that threaten the core functions of
prison administration, maintaining safety and internal
security.” 28 The Court held that “the choice made by corrections
officials—which is, after all, a judgment ‘peculiarly within [their]
province and professional expertise’—should not be lightly set
aside by the courts.” 29 In Thornburgh v. Abbott, the Supreme
Court elaborated on the reasons for judicial deference to prison
censorship:
[W]e have been sensitive to the delicate balance that prison
administrators must strike between the order and security of
the internal prison environment and the legitimate demands of
those on the “outside” who seek to enter that environment, in
person or through the written word . . . . Acknowledging the
expertise of these officials and that the judiciary is “ill
equipped” to deal with the difficult and delicate problems of
prison management, this Court has afforded considerable
deference to the determinations of prison administrators who,
in the interest of security, regulate the relations between
prisoners and the outside world. 30

24
25
26

at 89.

Id. at 89–90.
Shapiro, supra note 11, at 982 & n.54.
See, e.g., Thornburgh v. Abbott, 490 U.S. 401, 407–08 (1989); Turner, 482 U.S.

27
Turner, 482 U.S. at 89 (alterations in original) (citing Jones v. N.C. Prisoners’
Labor Union, Inc., 433 U.S. 119, 128 (1977)).
28
Id. at 92.
29
Id. at 92–93 (alteration in original) (quoting Pell v. Procunier, 417 U.S. 817,
827 (1974)).
30
Thornburgh, 490 U.S. at 407–08.

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Indeed, Turner itself marked the only time that the Supreme
Court invalidated a prison restriction that it analyzed under the
Turner standard—a ban on inmate marriage. 31 The Supreme
Court, applying Turner, has consistently upheld prison
regulations restricting a range of expressive activities, including
accessing publications, meeting with visitors, and engaging in
religious worship. 32
Lower courts have taken Turner deference to even greater
extremes, giving prison speech restrictions far more deference
than required under Turner. 33 Prisoners who challenge speech
restrictions confront “the often vast deference accorded to prison
officials and the steep, uphill battle that inmates must surmount
when fighting for their First Amendment rights to access
magazines, movies, music, and other popular forms of media
Examples of senseless restrictions upheld by
materials.” 34
federal courts of appeals include a prohibition on all newspapers
and magazines, a rejection of a book about the treatment of
women in prison, and a refusal to deliver the Physician’s Desk
Reference. 35
Prison officials appear to have received the message that
they enjoy “practical immunity” from First Amendment lawsuits
by prisoners due to a combination of Turner deference, other
legal obstacles that stand in the way of successful prisoner
actions (such as administrative exhaustion under the Prison
Litigation Reform Act), and non-legal impediments (such as
limited education, poverty, and the difficulty of obtaining
counsel). 36 The prison censors carry on with impunity. 37 As one
of us has argued previously and at greater length, “anything
goes” seems to be the attitude of prison officials, who have been
liberated from serious judicial oversight. 38 Prison officials have

Turner, 482 U.S. at 97–99.
Beard v. Banks, 548 U.S. 521, 530 (2006); Overton v. Bazzetta, 539 U.S. 126,
131 (2003); Thornburgh, 490 U.S. at 408–13; O’Lone v. Estate of Shabazz, 482 U.S.
342, 349–50 (1987).
33
Shapiro, supra note 11, at 1026.
34
Clay Calvert & Kara Carnley Murrhee, Big Censorship in the Big House—A
Quarter-Century After Turner v. Safley: Muting Movies, Music & Books Behind Bars,
7 NW. J.L. & SOC. POL'Y 257, 269 (2012).
35
Shapiro, supra note 11, at 988–94.
36
See id. at 1012–19.
37
Id. at 995–1005.
38
See id. at 1027.
31
32

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done “everything from prohibiting President Obama’s book as a
national security threat; to using hobby knives to excise Bible
passages from letters; to forbidding all nonreligious publications;
to banning Ulysses, John Updike, Maimonides, case law, and cat
pictures.” 39
B. Speech Subject to Turner Deference
To understand the breadth of communication governed by
Turner’s deferential standard, it is helpful to divide prisoners’
speech into four major categories based on where the speech
originates and where it is directed. We refer to these categories
as pure incoming speech, pure outgoing speech, mixed
incoming/outgoing speech, and internal speech. The chart on the
next page summarizes this taxonomy, and the text that follows
describes the law that applies to each category.

39

Id.

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Category

Description

Examples

Standard

Pure
incoming
speech

Speech from an
outsider to a
prisoner

A letter or
publication
sent from a
non-prisoner
to a prisoner

Turner
legitimate
penological
interest
test

Pure
outgoing
speech

Speech to a prisoner
from an outsider

A letter sent
by a prisoner
to an outsider

Varies by
circuit

Mixed
incoming
/outgoing
speech

An exchange
between a prisoner
and an outsider, in
which speech flows
in both directions
and therefore cannot
be categorized as
pure incoming
speech or pure
outgoing speech

A real-time
conversation
between a
prisoner and a
non-prisoner
during a visit
or telephone
call

Turner
legitimate
penological
interest
test

Pure
internal
speech

Speech by a prisoner A discussion
that does not leave between two
the prison
prisoners, or a
discussion
between
a
prisoner and a
correctional
officer

Turner
legitimate
penological
interest
test

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Pure Incoming Speech: Turner Deference

Under the Supreme Court’s decision in Thornburgh v.
Abbott, the Turner standard clearly applies to pure incoming
speech, such as publications sent to prisoners. 40
2.

Pure Outgoing Speech: Standard Varies by Circuit

While the issue is not free from debate, the best reading of
Supreme Court case law is that a more searching standard of
judicial review applies to prisoners’ pure outgoing speech under
Procunier v. Martinez, 41 a decision that predates Turner. In
Martinez, which concerned a challenge to prison rules that
censored outgoing prisoner mail, the Court applied the following
test: (1) “the regulation or practice in question must further an
important or substantial governmental interest unrelated to the
suppression of expression”; and (2) “the limitation of First
Amendment freedoms must be no greater than is necessary or
essential to the protection of the particular governmental
interest involved.” 42 This standard, which requires both an
important or substantial interest and tailoring between a speech
restriction and the governmental interest, demands greater
scrutiny than the Turner standard, which requires only a
legitimate interest and a rational connection. In Thornburgh,
however, the Supreme Court declined to apply the Martinez
standard to incoming publications, noting the greater
“implications of incoming materials” for “prison security.” 43
In our view, Thornburgh’s focus on the distinction between
incoming and outgoing speech shows that the Court intended to
limit the Martinez standard to outgoing speech, not to reject the
Martinez standard for all speech by prisoners. 44 But the circuits
are split on this question. For example, the Fifth Circuit has
held that Thornburgh overrules Martinez completely and that

Thornburgh v. Abbott, 490 U.S. 401, 407–08 (1989).
Procunier v. Martinez, 416 U.S. 396 (1974).
42
Id. at 413 (emphasis omitted).
43
Thornburgh, 490 U.S. at 413.
44
JOHN BOSTON & DANIEL E. MANVILLE, PRISONERS’ SELF-HELP LITIGATION
MANUAL 188 nn.67–68 (4th ed. 2010); David M. Shapiro, The Cutting Edge of Prison
Litigation, 1 UCLA CRIM. JUST. L. REV. 95, 97–98 (2017).
40
41

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the deferential Turner standard applies to all prisoner speech. 45
Other circuits hold that the more searching Martinez standard
continues to apply to pure outgoing speech. 46
3.

Mixed Incoming/Outgoing Speech: Turner Deference

Mixed incoming/outgoing speech consists of two-way
communications between a prisoner and an outsider that occur in
real-time. The primary examples are phone calls and in-person
visits.
In these exchanges, the prisoner is directing
communications out of the prison, and the outsider is directing
communications into the prison.
The deferential Turner
standard governs mixed incoming/outgoing speech. Thus, in
Overton v. Bazetta, the Supreme Court applied the Turner
standard to restrictions on visits, which involve speech
exchanged between prisoners and outsiders. 47 Lower courts have
similarly applied Turner when deciding whether restrictions on
the number of people prisoners are allowed to call violate the
First Amendment. 48
4.

Pure Internal Speech: Turner Deference

While the Supreme Court has not considered a case
involving purely internal speech, the rationale for Turner
deference—the maintenance of internal prison order 49—certainly
applies to speech that occurs entirely within a prison. Indeed,

45
See, e.g., Prison Legal News v. Livingston, 683 F.3d 201, 214–15 (5th Cir.
2012); Samford v. Dretke, 562 F.3d 674, 678–79 (5th Cir. 2009).
46
See, e.g., Koutnik v. Brown, 456 F.3d 777, 781 (7th Cir. 2006); Nasir v.
Morgan, 350 F.3d 366, 369 (3d Cir. 2003); Treff v. Galetka, 74 F.3d 191, 194 (10th
Cir. 1996); Bell-Bey v. Williams, 87 F.3d 832, 838 (6th Cir. 1996); Witherow v. Paff,
52 F.3d 264, 265 (9th Cir. 1995); Stow v. Grimaldi, 993 F.2d 1002, 1003–04 (1st Cir.
1993).
47
Overton v. Bazzetta, 539 U.S. 126, 133–36 (2003).
48
Pope v. Hightower, 101 F.3d 1382, 1385 (11th Cir. 1996) (“Consideration of
the Turner factors demonstrates that the ten-person telephone calling list imposed
at Donaldson bears a reasonable relation to legitimate penological objectives.”);
Benzel v. Grammer, 869 F.2d 1105, 1106, 1109 (8th Cir. 1989) (holding that “[b]ased
on the wide deference given prison officials under recent Supreme Court
decisions . . . internal security and rehabilitation concerns” justified a three-person
telephone calling list).
49
Turner v. Safley, 482 U.S. 78, 90 (1987).

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the Supreme Court has extended the Turner standard to Free
Exercise cases in which prisoners challenge restrictions of
religious freedom that occur entirely within prison walls. 50
***
In sum, if one envisions speech in prison as a territorial map,
the Martinez standard occupies a small island surrounded by a
sea of Turner deference. Turner applies to internal speech,
incoming speech, and mixed incoming/outgoing speech. These
categories of speech encompass everything that a prisoner says to
another prisoner or a prison staff member, every word that
enters a prison by mail, and every word exchanged by a prisoner
and a non-prisoner in a visit, phone call, or interview. The more
exacting Martinez standard is limited to pure outgoing speech,
such as letters sent by prisoners, and even that exception to
Turner deference varies by circuit. 51
C. Degradation of Pure Outgoing Speech
Even in the circuits that apply the more exacting Martinez
standard to pure outgoing speech, the very limited protection
that Turner affords to internal speech, incoming speech, and
mixed incoming-outgoing speech threatens pure outgoing speech
indirectly. The receipt of speech is critical to the production of
speech. Generally, in addition to the constitutional right of a
sender to have her communication delivered to the recipient, a
recipient has a constitutional right to receive a sender’s
communication. 52 Without the ability to receive, people have
fewer ideas, sources, and information at their disposal when
creating their own speech. As the Supreme Court has held,
“access to ideas makes it possible for citizens generally to
exercise their rights of free speech and press in a meaningful

O’Lone v. Estate of Shabazz, 482 U.S. 342, 352–53 (1987) (upholding
restrictions on attending a weekly Muslim congregational service).
51
See Samford v. Dretke, 562 F.3d 674, 678–79 (5th Cir. 2009); Smith v. Delo,
995 F.2d 827, 830 (8th Cir. 1993); Shapiro, supra note 44, at 97–98.
52
Kleindienst v. Mandel, 408 U.S. 753, 762 (1972) (“[T]he Constitution protects
the right to receive information and ideas.”); see also Stanley v. Georgia, 394 U.S.
557, 564 (1969) (“This right to receive information and ideas, regardless of their
social worth, is fundamental to our free society.” (citation omitted)); Susan Nevelow
Mart, The Right to Receive Information, 95 LAW LIBR. J. 175, 175 (2003) (“Although
the First Amendment to the Constitution guarantees the right to free speech, if you
can’t get access to the speech, the value of the guarantee diminishes.”).
50

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manner.” 53 Indeed, “without freedom to acquire information, the
right to publish would be impermissibly compromised.” 54 As Jack
Balkin has written, “[f]reedom of speech is part of an interactive
cycle of social exchange, social participation, and self-formation.
We speak and we listen, we send out and we take in. . . . [A]nd
we make something new out of what existed before.” 55 The
corollary of prohibiting incoming information is the creation of
speech that is less informed and less meaningful.
In short, restrictions on input affect output. 56 The fact that
the more searching Martinez standard applies to pure outgoing
speech in some circuits does not protect such speech, even in
those circuits, from the effects of Turner deference. Turner
deference envelops, directly and indirectly, nearly all prisoner
speech. It applies to every word that enters a prison, every word
within a prison, and, in some circuits, every word that leaves a
prison. 57 And even where Turner does not apply directly to pure
outgoing speech, it threatens the production of speech by
curtailing the consumption of speech.
II. MASS INCARCERATION AS MARKETPLACE DISTORTION
Turner deference encompasses not only a large swath of
speech, but also a large segment of the population. With the
United States locking up 2.2 million people—more people than
any other nation on earth—incarcerated men and women make
up a substantial portion of the body politic. 58 The Turner
standard allows the government to censor this portion of the
population much more severely than it can censor the population
at large.

53
Bd. of Educ. v. Pico, 457 U.S. 853, 868 (1982). The Supreme Court’s
precedents have focused on the First Amendment’s role “in affording the public
access to discussion, debate, and the dissemination of information and ideas.” Id. at
866 (quoting First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 783 (1978)).
54
Branzburg v. Hayes, 408 U.S. 665, 728 (1972).
55
Jack M. Balkin, Digital Speech and Democratic Culture: A Theory of Freedom
of Expression for the Information Society, 79 N.Y.U. L. REV. 1, 32 (2004).
56
Thomas Emerson argued that the freedom of expression includes “the right of
the individual to access . . . knowledge; to shape his own views; to communicate his
needs, preference and judgments; in short, to participate in formulating the aims
and achievements of his society and his state.” Thomas Emerson, Toward a General
Theory of the First Amendment, 72 YALE L.J. 877, 880 (1963) (emphasis added).
57
Shapiro, supra note 11, at 988−95.
58
THE SENTENCING PROJECT, supra note 14.

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Prison censorship harms the marketplace of ideas in at least
two ways. Not only does it result in a general diminution of
speech and viewpoint variety in the public sphere, it also skews
the overall composition of public discourse by allowing
prisoners—a group disproportionately composed of people of
color—to be subjected to sweeping speech restrictions. The
prison population is not racially representative of the population
as a whole, and because race often correlates with views on
various matters of public concern, silencing prisoners threatens
to distort public discourse by muffling particular viewpoints. 59
In the United States, African Americans are incarcerated at
five times the rate of whites. 60 The rate for Latinos is 1.4 times
the rate of whites. 61 Men make up the vast majority of the prison
population, 62 and young men of color are much more likely to be
incarcerated than young white men. 63 Poverty and lower rates of
educational attainment, factors that disproportionately affect
people of color—and that often are intertwined—also increase the
chances of being incarcerated. 64

See infra Section III.B.
ASHLEY NELLIS, THE SENTENCING PROJECT, THE COLOR OF JUSTICE: RACIAL
AND ETHNIC DISPARITY IN STATE PRISONS 3 (2016), http://www.sentencingproject.org
/publications/color-of-justice-racial-and-ethnic-disparity-in-state-prisons/;
see
JENNIFER TURNER & JAMIL DAKWAR, ACLU, RACIAL DISPARITIES IN SENTENCING 1
(2014), https://www.aclu.org/sites/default/files/assets/141027_iachr_racial_disparitie
s_aclu_submission_0.pdf.
61
NELLIS, supra note 60.
62
DANIELLE KAEBLE & LAUREN GLAZE, U.S. DEP’T OF JUSTICE, CORRECTIONAL
POPULATIONS IN THE UNITED STATES, 2015 14 (2016), https://www.bjs.gov/content
/pub/pdf/cpus15.pdf.
63
Peter Wagner, Incarceration Is Not an Equal Opportunity Punishment,
PRISON POL’Y INITIATIVE, https://www.prisonpolicy.org/articles/notequal.html (last
updated Aug. 28, 2012).
64
See, e.g., Sean F. Reardon et al., Patterns and Trends in Racial/Ethnic and
Socioeconomic Academic Achievement Gaps, in HANDBOOK OF RESEARCH IN
EDUCATION FINANCE AND POLICY 491 (Helen F. Ladd & Margaret E. Goertz eds., 2d
ed. 2015); Lance Lochner & Enrico Moretti, The Effect of Education on Crime:
Evidence from Prison Inmates, Arrests, and Self-Reports, 94 AM. ECON. REV. 155,
183 (2004); Bernadette Rauby & Daniel Kopf, Prisons of Poverty: Uncovering the PreIncarceration Incomes of the Imprisoned, PRISON POL’Y INITIATIVE (July 9, 2015),
https://www.prisonpolicy.org/reports/income.html. This is not to mention the
devastating effects that imprisonment has on individuals and communities of color
more generally. See Dorothy E. Roberts, The Social and Moral Cost of Mass
Incarceration in African American Communities, 56 STAN. L. REV. 1271, 1272–73
(2004); PAUL SAMUELS & DEBBIE MUKAMAL, LEGAL ACTION CTR., AFTER PRISON:
ROADBLOCKS TO REENTRY: A REPORT ON STATE LEGAL BARRIERS FACING PEOPLE
59
60

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In aggregate terms, people of color who are incarcerated
have different views on many matters of public concern than
people who are white and free, especially when it comes to
criminal justice. Curtailing prisoners’ ability to participate in
public discourse—the combined result of locking up millions of
people and failing to safeguard their expressive freedom—
translates into viewpoint distortion. The threat of distortion
looms especially large in the present because mass incarceration
and criminal justice reform have become focal points of public
According to the Sentencing Project, “[w]hite
debate. 65
Americans are more punitive than people of color.” 66 Thus,
“while the majority of whites supported the death penalty for
someone convicted of murder in 2013, half of Hispanics and a
Similar
majority of blacks opposed this punishment.” 67
differences of opinion exist over sentencing practices, the
principal driver of mass incarceration: “Compared to blacks,
whites are also more likely to support ‘three strikes and you’re
out’ laws, to describe the courts as not harsh enough, and to
endorse trying youth as adults.” 68
Americans also split along racial lines in their attitudes
toward policing. In 2016, the Pew Research Center reported
that:
Only about a third of blacks but roughly three-quarters of
whites say police in their communities do an excellent or good
job in using the appropriate force on suspects, treating all racial
and ethnic minorities equally and holding officers accountable
when misconduct occurs. Roughly half of all blacks say local
police do an excellent or good job combating crime—a view held
by about eight-in-ten whites. 69

CRIMINAL RECORDS 9 (2004), http://lac.org/roadblocks-to-reentry/upload/
lacreport/LAC_PrintReport.pdf.
65
See infra note 75 and accompanying text.
66
THE SENTENCING PROJECT, RACE AND PUNISHMENT: RACIAL PERCEPTIONS OF
CRIME AND SUPPORT FOR PUNITIVE POLICIES 3 (2014), http://sentencingproject.org/
wp-content/uploads/2015/11/Race-and-Punishment.pdf.
67
Id. (emphasis omitted).
68
Id.
69
RICH MORIN & RENEE STEPLER, PEW RESEARCH CTR., THE RACIAL
CONFIDENCE GAP IN POLICE PERFORMANCE 2 (2016), http://assets.pewresearch.org
/wp-content/uploads/sites/3/2016/09/ST_2016.09.29_Police-Final.pdf.
WITH

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When asked whether their local police departments use “the
right amount of force for each situation,” 75% of whites, 62% of
Hispanics, and 33% of blacks respond that the police are doing an
excellent or good job. 70 Similarly, Gallup polling data aggregated
from 2014 to 2016 shows that 58% of whites but only 29% of
blacks report having “a great deal or quite a lot of confidence in
The same polls indicated that 76% of African
police.” 71
Americans but only 45% of whites believe that the criminal
justice system is biased against African Americans. 72
Opinion polling, however, does not capture the full cost of
excluding prisoners from public discourse. The loss lies not only
in the potential distortion of how many people can be heard
arguing for or against a given policy or proposition, but also in
the silencing of important perspectives that only prisoners may
have. Consider the words of Robert King, who spent twenty-nine
years in solitary confinement in Alabama, and Sarah Shourd,
who endured a period of solitary confinement in Iran. King
writes:
Some days I would pace up and down and from left to right for
hours, counting to myself. I learned to know every inch of the
cell. Maybe I looked crazy walking back and forth like some
trapped animal, but I had no choice—I needed to feel in control
of my space.
At times I felt an anguish that is hard to put into words. To live
24/7 in a box, year after year, without the possibility of parole,
probation or the suspension of sentence is a terrible thing to
endure. 73

Shourd writes:
After two months with next to no human contact, my mind
began to slip. Some days, I heard phantom footsteps coming
down the hall. I spent large portions of my days crouched down
on all fours by a small slit in the door, listening. In the
periphery of my vision, I began to see flashing lights, only to
Id. at 5.
Frank Newport, Public Opinion Context: Americans, Race, and Police,
GALLUP (July 8, 2016), http://www.gallup.com/opinion/polling-matters/193586/public
-opinion-context-americans-race-police.aspx?g_source=Blog&g_medium=sidebottom
&g_campaign=tiles.
72
Id.
73
Robert King, I Spent 29 Years in Solitary Confinement, THE GUARDIAN (Aug.
27, 2010), https://www.theguardian.com/lifeandstyle/2010/aug/28/29-years-solitaryconfinement-robert-king.
70
71

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jerk my head around to find that nothing was there. More than
once, I beat at the walls until my knuckles bled and cried myself
into a state of exhaustion. At one point, I heard someone
screaming, and it wasn’t until I felt the hands of one of the
friendlier guards on my face, trying to revive me, that I realized
the screams were my own. 74

Firsthand accounts like King’s and Shourd’s enrich public
discussion of solitary confinement, but we will never know what
other voices have been silenced by the effects of Turner
deference. Prison censorship distorts and diminishes public
discourse by excluding many of the people most affected by the
criminal justice system from public discussion of the very issues
that affect them. This marketplace distortion likely affects
public debates on mass incarceration, solitary confinement,
private prisons, prison conditions, and life without parole
sentences—all topics that have been matters of heightened public
concern in recent years. 75

Sarah Shourd, Tortured by Solitude, N.Y. TIMES (Nov. 5, 2011),
http://www.nytimes.com/2011/11/06/opinion/sunday/in-an-iranian-prison-torturedby-solitude.html.
75
See, e.g., Tina Rosenberg, Even in Texas, Mass Imprisonment Is Going out of
Style, N.Y. TIMES (Feb. 14, 2017), https://www.nytimes.com/2017/02/14/opinion/evenin-texas-mass-imprisonment-is-going-out-of-style.html?mcubz=3; Margaret Winter,
Is This the Beginning of the End for Solitary Confinement in the United States?,
ACLU (Sept. 23, 2015), https://www.aclu.org/blog/prisoners-rights/solitaryconfinement/beginning-end-solitary-confinement-united-states?redirect=blog/speakfreely/beginning-end-solitary-confinement-united-states; Clint Smith, Why the U.S.
Is Right to Move Away from Private Prisons, NEW YORKER (Aug. 24, 2016),
http://www.newyorker.com/news/news-desk/why-the-u-s-is-right-to-move-away-fromprivate-prisons; Daniel Denvir, Private Prisons Are Not the Problem: Why Mass
Incarceration Is the Real Issue, SALON (Aug. 24, 2016), http://www.salon.com
/2016/08/24/private-prisons-are-not-the-problem-why-mass-incarceration-is-the-realissue/; Jolie McCullough, Heat Is Part of Life at Texas Prisons, but Federal Judge
Orders One To Cool It, TEX. TRIBUNE (July 20, 2017), https://www.texastribune.org
/2017/07/20/texas-prison-heat-air-conditioning-lawsuit/; Rebecca Shaeffer, A British
Court Rules That Sending Defendants to the U.S. Prison System Is a Human Rights
Violation, WASH. POST (Feb. 7, 2018), https://www.washingtonpost.com/news/
democracy-post/wp/2018/02/07/a-british-court-rules-that-sending-defendants-to-theu-s-prison-system-is-a-human-rights-violation/?utm_term=.6ac26050f60f;
Joe
Fassler & Claire Brown, Prison Food is Making U.S. Inmates Disproportionately
Sick, THE ATLANTIC (Dec. 27, 2017), https://www.theatlantic.com/health/archive
/2017/12/prison-food-sickness-america/549179/; Sarah Barr, Youth Advocates Using
Documentary To Sway Public Opinion on JLWOP, JUV. JUST. INFO. EXCHANGE (July
28, 2015), http://jjie.org/2015/07/28/youth-advocates-using-documentary-to-swaypublic-opinion-on-jlwop/; Madison Pauly, How Louisiana Tried and Failed to Stop
Life Prison Sentences for Teens, MOTHER JONES (June 8, 2016),
74

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III. PRISON SPEECH MATTERS
We show in this section that prisoners’ speech matters under
the free expression theories that have had the greatest influence
on Supreme Court decisions in First Amendment cases—the
marketplace of ideas, democratic legitimation, the checking value
of free speech, and self-fulfillment.
A.

The Marketplace of Ideas

The marketplace of ideas theory dates back to John Milton’s
Areopagitica, written in 1644. 76 John Stuart Mill presented a
similar argument much later in On Liberty. 77 The theory
suggests that unfettered debate leads to the revelation of truth.
According to this theory, censorship impedes the discovery of
truth by suppressing free discussion. The marketplace of ideas
theory entered Supreme Court jurisprudence in 1919, 78 when
Justice Holmes famously dissented in Abrams v. United States:
[W]hen men have realized that time has upset many fighting
faiths, they may come to believe even more than they believe
the very foundations of their own conduct that the ultimate
good desired is better reached by free trade in ideas—that the
best test of truth is the power of the thought to get itself
accepted in the competition of the market . . . . That at any rate
is the theory of our Constitution. 79

The marketplace of ideas theory has been adopted in several
subsequent Supreme Court decisions and continues to influence
both case law and scholarship. 80

http://www.motherjones.com/politics/2016/06/louisiana-still-throwing-kids-in-jail-forlife/.
76
See generally JOHN MILTON, AREOPAGITICA: A SPEECH FOR THE LIBERTY OF
UNLICENSED PRINTING, TO THE PARLIAMENT OF ENGLAND (1644), reprinted in
AREOPAGITICA AND OTHER PROSE WORKS (Jim Miller ed., Dover Pubs., Inc. 2016).
77
JOHN STUART MILL, ON LIBERTY (1859), reprinted in THE SIX GREAT
HUMANISTIC ESSAYS OF JOHN STUART MILL 145 (3d prtg. 1970) (“He is capable of
rectifying his mistakes, by discussion and experience. Not by experience alone.
There must be discussion, to show how experience is to be interpreted. Wrong
opinions and practices gradually yield to fact and argument: but facts and
arguments, to produce any effect on the mind, must be brought before it.”).
78
Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).
79
Id.
80
See Bd. of Educ. v. Pico, 457 U.S. 853, 866 (1982); Red Lion Broad. Co. v.
FCC, 395 U.S. 367, 390 (1969); Stanley Ingber, The Marketplace of Ideas: A
Legitimizing Myth, 1984 DUKE L.J. 1, 2 n.2 (1984) (compiling a list of First
Amendment cases in which the marketplace of ideas was present); Paul H. Brietzke,

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Turner deference allows prison censorship that curtails
prisoners’ participation in the marketplace of ideas. If the
purpose of the marketplace of ideas is to seek truth, then the
voices of prisoners are among the most important views to
consider when discussing prison-related issues. Just as one
would want to hear what farmers have to say about agriculture,
or teachers about education, one would want to know what
prisoners have to say about the operation of prisons. For the
marketplace of ideas to function properly, prisoners must have
access to it. 81
Consider here the racial and economic disparities in the
prison population, highlighted earlier. 82 The upshot of these
disparities, when combined with restrictive prison censorship, is
that in the aggregate, people who are richer, whiter, and not
incarcerated, will enjoy greater access to the marketplace of ideas
than others. Disparate access will result in a distorted mixture
of viewpoints in public discourse because demographic factors
correlate with viewpoints on at least some matters of public
concern, especially ones involving criminal justice.
B. The Checking Value of Free Speech
Like the marketplace of ideas theory, the “checking value”
theory of free expression holds that the First Amendment
protects the open exchange of ideas, but this theory does not
conceive of free expression as a means to discover truth. 83 In The
Checking Value in First Amendment Theory, Vincent Blasi
argued that a central function of the First Amendment is to
protect the press when it exposes governmental abuses of
power. 84 Blasi advocates for the free flow of information, not
How and Why the Marketplace of Ideas Fails, 31 VAL. U. L. REV. 951, 952 n.6 (1997)
(adding to Ingber’s original list); Joseph Blocher, Institutions in the Marketplace of
Ideas, 57 DUKE L.J. 821, 825 n.7 (2008).
81
See infra note 88.
82
See supra notes 60–61, 63 and accompanying text.
83
Vincent Blasi, The Checking Value in First Amendment Theory, 1977 AM. B.
FOUND. RES. J. 521, 527 (1977).
84
Id. (noting that in the years prior to publishing, “the First Amendment has
had at least as much impact on American life by facilitating a process by which
countervailing forces check the misuse of official power as by protecting the dignity
of the individual, maintaining a diverse society in the face of conformist pressures,
promoting the quest for scientific and philosophic truth, or fostering a regime of ‘selfgovernment’ in which large numbers of ordinary citizens take an active part in
political affairs”).

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because he believes it will actually lead to truth—he concedes
this point—but instead because “any governmental intervention
in the market is likely to exacerbate rather than ameliorate the
preexisting distortions.” 85 Distortion is problematic because it
dilutes the accountability of those in positions of authority.
One of the most important functions of prisoners’ speech is to
expose prison abuses, a matter of public concern. 86 But speech
critical of prison officials also faces a heightened risk of
censorship, for it is often officers and their colleagues—those who
hold censoring power—who are being criticized. In Martinez, for
example, the regulations at issue prohibited prisoners from
“magnify[ing] grievances,” and the Supreme Court observed that
this provision “fairly invited prison officials and employees to
apply their own personal prejudices and opinions as standards
for prisoner mail censorship.” 87 “Not surprisingly, some prison
officials used the extraordinary latitude for discretion authorized
by the regulations to suppress unwelcome criticism.” 88 In other
words, correctional officers’ biases led them to stifle criticism. 89
Justice Marshall amplified this point in his concurrence, warning
that “the most obvious victim of the indirect censorship effected
by a policy of allowing prison authorities to read inmate mail is
criticism of prison administration.” 90

85
Id. at 550; see also Elizabeth Blanks Hindman, First Amendment Theories
and Press Responsibility: The Work of Zechariah Chafee, Thomas Emerson, Vincent
Blasi and Edwin Baker, 69 JOURNALISM Q. 48, 56 (1992).
86
See generally Victoria Law, Tens of Thousands of California Prisoners Launch
Mass Hunger Strike, THE NATION (July 10, 2013), https://www.thenation.com/article
/tens-thousands-california-prisoners-launch-mass-hunger-strike/; German Lopez,
We're in the Midst of the Biggest Prison Strike in U.S. History, VOX (Oct. 19, 2016),
https://www.vox.com/identities/2016/10/19/13306178/prison-strike-protests-attica;
Noelle Crombie, Women Inmates File Second Suit Against State Prison Doctor, THE
OREGONIAN (Apr. 24, 2017), www.oregonlive.com/pacific-northwest-news/index.ssf/
2017/04/second_lawsuit_filed_against_c.html.
87
Procunier v. Martinez, 416 U.S. 396, 415 (1974).
88
Id.
89
Id. (“[A]t one institution under the Department’s jurisdiction, the checklist
used by the mailroom staff authorized rejection of letters ‘criticizing policy, rules or
officials,’ and the mailroom sergeant stated in a deposition that he would reject as
‘defamatory’ letters ‘belitting staff or our judicial system or anything connected with
Department of Corrections.’ Correspondence was also censored for ‘disrespectful
comments,’ ‘derogatory remarks,’ and the like.”).
90
Id. at 427 (Marshall, J., concurring).

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Abuses by prison officials increase the importance of
prisoners’ speech as a check on government power. 91 Erwin
Chemerinsky has observed that in authoritarian institutions
such as prisons, “there is a great need for judicial protection of
rights . . . because of the great likelihood of serious rights
violations. Indeed, the greater the authority some have over
others, and the fewer the checks or limits on behavior, the
greater the chance for abuse.” 92 Without prisoners’ speech,
public information about prisons would come primarily from
prison officials themselves. 93 Speech in prisons is especially
fragile because limited checks on officials’ behavior increase the
risk of retaliation. 94 In this way, Turner deference diminishes
the checking value of free speech by granting prison officials free
reign to censor speech about prison abuses. 95
C. Democracy Legitimation
The democracy legitimation theory asserts that free political
discourse is necessary to democratic decision-making and the
proper functioning of democratic government. It follows that

91
See, e.g., Sharon Dolovich, Cruelty, Prison Conditions, and the Eighth
Amendment, 84 N.Y.U. L. REV. 881, 887–89 (2009) (noting the troubling prevalence
of overcrowding, violence, rape and sexual assault, and inadequate health care in
correctional facilities); MARGARET NOONAN ET AL., U.S. DEP’T OF JUSTICE,
MORTALITY IN LOCAL JAILS AND STATE PRISONS, 2000–2013—STATISTICAL TABLES 1
(2015), https://www.bjs.gov/content/pub/pdf/mljsp0013st.pdf (noting the increase of
prisoner deaths); Words from Prison: Sexual Abuse in Prison, ACLU,
https://www.aclu.org/other/words-prison-sexual-abuse-prison (last visited June 22,
2018); Craig Haney et al., Interpersonal Dynamics in a Simulated Prison, 1 INT’L J.
CRIMINOLOGY & PENOLOGY 69, 80–81 (1973) (demonstrating how power abuses are
inherent in authoritarian institutions such as prisons).
92
Chemerinsky, supra note 12, at 458.
93
DAVID M. SHAPIRO, ACLU, BANKING ON BONDAGE: PRIVATE PRISONS AND
MASS INCARCERATION 40–41 (2011), https://www.aclu.org/sites/default/files/field_
document/bankingonbondage_20111102.pdf (“For-profit prison companies go to great
lengths, and apparently spend significant funds, to put forth a positive public image.
Certain private prison companies offer the public well-manicured websites with
extensive press releases and video footage touting their accomplishments . . . . Private prison companies also funnel money . . . into communications
departments . . . . Meanwhile, private prison websites rarely report negative
information: no one would know from [the Corrections Corporation of America]’s
website that one of its employees sexually abused multiple female immigration
detainees, or that one of its facilities is allegedly so violent that it has been dubbed
the ‘gladiator school.’ ”).
94
See Chemerinsky, supra note 12, at 458.
95
See supra Section I.A.

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speech related to the governing function is entitled to the
strongest First Amendment protection.
The democracy
legitimation theory therefore prizes political speech, or at least
speech that may impact political or public issues.
The theory appears in James Madison’s Report on the
Virginia Resolutions, where he wrote that if either the legislative
or executive branch failed to “discharge its trust,” the President
and the legislators “should be brought into contempt or
disrepute, and incur the hatred of the people,” who should vote
them out of office. 96 This process requires free speech because a
given official may or may not deserve the public’s contempt—it is
a question that “can only be determined by a free examination
thereof, and a free communication among the people thereon.” 97
Justice Brandeis argued a similar point in his 1927
concurrence in Whitney v. California, where he described free
speech as a means to “political truth”:
Those who won our independence believed that the final end of
the State was to make men free to develop their faculties, and
that in its government the deliberative forces should prevail
over the arbitrary. . . . They believed that freedom to think as
you will and to speak as you think are means indispensable to
the discovery and spread of political truth; that without free
speech and assembly discussion would be futile; that with them,
discussion affords ordinarily adequate protection against the
dissemination of noxious doctrine; that the greatest menace to
freedom is an inert people; that public discussion is a political
duty; and that this should be a fundamental principle of the
American government. 98

The Supreme Court has since recognized Justice Brandeis’
concurrence as the “classic formulation” of the democracy
legitimation theory. 99
96
JAMES MADISON, REPORT ON THE VIRGINIA RESOLUTIONS (1800), reprinted in
4 THE DEBATES OF THE SEVERAL STATE CONVENTIONS, OF THE ADOPTION OF THE
FEDERAL CONSTITUTION, AS RECOMMENDED BY THE GENERAL CONVENTION AT
PHILADELPHIA, IN 1787 574 (Jonathan Elliot ed., 2d ed., Philadelphia, J.B.
Lippincott 1866), http://press-pubs.uchicago.edu/founders/documents/v1ch8s42.html.
97
Id.
98
Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring).
99
See N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964) (quoting Whitney,
274 U.S. at 375–76) (“[Those who won independence for the United States]
recognized the risks to which all human institutions are subject. But they knew that
order cannot be secured merely through fear of punishment for its infraction; that it
is hazardous to discourage thought, hope and imagination; that fear breeds

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Alexander Meiklejohn similarly argued that the First
Amendment protects democratic governance. 100 The people are
the governors, and they exercise their governing function in the
voting booth. 101 Properly exercising that function demands a free
flow of information and opinion. Speech regarding political or
public issues is therefore entitled to the highest protection.
Meiklejohn’s approach to the First Amendment is structural—the
Amendment is designed to protect “the freedom of those activities
of thought and communication by which we ‘govern.’ ” 102
The democracy legitimation account has appeared in
scholarship 103 as well as Supreme Court cases post-Whitney. For
example, in Stromberg v. California, the Court held that “[t]he
maintenance of the opportunity for free political discussion to the
end that government may be responsive to the will of the people
and that changes may be obtained by lawful means, an
opportunity essential to the security of the Republic, is a
fundamental principle of our constitutional system.” 104 Likewise,
in Garrison v. Louisiana, Justice Brennan wrote that “speech
concerning public affairs is more than self-expression; it is the
essence of self-government.” 105
Turner deference compromises the democratic legitimization
function of free speech by allowing prodigious censorship of
political discourse.
Turner deference makes no distinction
repression; that repression breeds hate; that hate menaces stable government; that
the path of safety lies in the opportunity to discuss freely supposed grievances and
proposed remedies; and that the fitting remedy for evil counsels is good ones.
Believing in the power of reason as applied through public discussion, they eschewed
silence coerced by law—the argument of force in its worst form. Recognizing the
occasional tyrannies of governing majorities, they amended the Constitution so that
free speech and assembly should be guaranteed.”).
100
See Alexander Meiklejohn, The First Amendment is an Absolute, 1961 SUP.
CT. REV. 245, 252 (1961) [hereinafter Meiklejohn, The First Amendment is an
Absolute]; ALEXANDER MEIKLEJOHN, POLITICAL FREEDOM: THE CONSTITUTIONAL
POWERS OF THE PEOPLE 115–18 (1960).
101
See Meiklejohn, The First Amendment is an Absolute, supra note 100, at 255.
102
Id.
103
See Robert C. Post, The Constitutional Concept of Public Discourse:
Outrageous Opinion, Democratic Deliberation, and Hustler Magazine v. Falwell, 103
HARV. L. REV. 603, 603 (1990); Owen M. Fiss, Free Speech and Social Structure, 71
IOWA L. REV. 1405, 1410 (1986) (“We allow people to speak so others can vote.
Speech allows people to vote intelligently and freely, aware of all the options and in
possession of all the relevant information.”).
104
Stromberg v. California, 283 U.S. 359, 369 (1931).
105
Garrison v. Louisiana, 379 U.S. 64, 74–75 (1964). For a discussion of the selffulfillment theory, see infra Section III.D.

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between political speech and any other type of speech—it applies
equally to suppression of books about creating home-made
shanks and books about the history of socialism. 106 Judicial
deference thus enables prison officials to exclude prisoners from
political discourse vital to democratic government. Turner
deference is further at odds with the democratic legitimation
theory because the criminal justice system is undoubtedly a
matter of public concern. As Justice Stewart wrote in Pell v.
Procunier, “the conditions in this Nation’s prisons are a matter
that is both newsworthy and of great public importance.” 107
Turner deference, however, severely undercuts the ability of nonprisoners, and prisoners themselves, to receive information about
prisons and the penal system.
D. Self-Fulfillment
The theories described above are “structural” in that they
view free speech not as an end in itself but as a condition
necessary for a society to achieve other goals—truth, official
accountability, democratic governance. In contrast, the selffulfillment theory views the First Amendment as a personal
right, one that protects individual expression for the sake of
individual expression.
Thomas Emerson, the scholar most closely associated with
the individual self-fulfillment theory of First Amendment,
concluded that expression was the realization of an individual’s
own character and potentialities. 108 He reasoned that:
106
Amatel v. Reno, 156 F.3d 192, 210 (D.C. Cir. 1998) (Wald, J., dissenting)
(“[L]awmakers who believe that books on Russian history may lead to disrespect for
the United States may ban those books for prisoners; lawmakers who hold pro-life
views may prevent prisoners from reading publications describing Roe v. Wade; and
lawmakers who hold an antiquated view of the role women should play in society
may ban the distribution in prisons of publications with feminist themes. Each of
these actions could logically be taken in the name of rehabilitation, broadly defined,
and each, without doubt, would contribute to a continual evisceration of the First
Amendment rights of prisoners.”).
107
Pell v. Procunier, 417 U.S. 817, 830 n.7 (1974). Justice Stewart cited a speech
by Chief Justice Burger to support the idea that if society “want[s] prisoners to
change, public attitudes toward prisoners and ex-prisoners must change. . . . A visit
to most prisons will make you a zealot for prison reform.” Id. (quoting Warren
Burger, For Whom the Bell Tolls, reprinted at 25 Record of N.Y.C.B.A. (Supp.) 14,
20–21 (1970)).
108
Emerson, supra note 56, at 879–81 (“The right to freedom of expression is
justified first of all as the right of an individual purely in his capacity as an
individual. It derives from the widely accepted premise of Western thought that the

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every man—in the development of his own personality—has the
right to form his own beliefs and opinions. And, it also follows,
that he has the right to express these beliefs and opinions.
Otherwise they are of little account. For expression is an
integral part of the development of ideas, of mental exploration
and of the affirmation of self. The power to realize his
potentiality as a human being begins at this point and must
extend at least this far if the whole nature of man is not to be
thwarted. 109

Under this theory, as long as an act of expression serves the
integral function of allowing humans to find “meaning
and . . . place in the world,” then it should be free of censorship. 110
Like Emerson, C. Edwin Baker argued that the First
Amendment protects the act of speech for the sake of individual
development, not the content of speech itself. 111 Under this
theory, “the Constitution should protect all expressive conduct,
whether or not intended to communicate propositions or
attitudes to others, that involves individual self-expression or
attempts at creation, unless the conduct operates coercively,
physically obstructs others’ activities, or otherwise interferes
with others’ legitimate decisionmaking authority.” 112
The self-fulfillment rationale, like other positive theories of
free expression, has been invoked in judicial opinions. Justice
Marshall, a proponent of the theory, concurred in Procunier v.

proper end of man is the realization of his character and potentialities as a human
being.”).
109
Id. at 879.
110
Id. at 879–80; see also David A. J. Richards, Free Speech and Obscenity Law:
Toward a Moral Theory of the First Amendment, 123 U. PA. L. REV. 45, 62 (1974)
(“The idea here is that people are not to be constrained to communicate or not to
communicate, to believe or not to believe, to associate or not to associate. The value
placed on this cluster of ideas derives from the notion of self-respect that comes from
a mature person's full and untrammelled exercise of capacities central to human
rationality. . . . Freedom of expression permits and encourages the exercise of these
capacities: it supports a mature individual's sovereign autonomy in deciding how to
communicate with others; it disfavors restrictions on communication imposed for the
sake of the distorting rigidities of the orthodox and the established. In so doing, it
nurtures and sustains the self-respect of the mature person.”).
111
See C. Edwin Baker, The Process of Change and the Liberty Theory of the
First Amendment, 55 S. CAL. L. REV. 293, 342–43 (1982); see also Hindman, supra
note 85, at 59 (noting how Baker’s theory differs from theories such as Blasi’s
checking value, which views the First Amendment as protecting speech because of
its content).
112
Baker, supra note 111, at 333.

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Martinez, which dealt with the censorship of prisoners’ outgoing
correspondence. Citing Emerson’s Towards a General Theory of
the First Amendment, Justice Marshall wrote:
The First Amendment serves not only the needs of the polity
but also those of the human spirit—a spirit that demands selfexpression.
Such expression is an integral part of the
development of ideas and a sense of identity. To suppress
expression is to reject the basic human desire for recognition
and affront the individual’s worth and dignity. 113

More recently, the rationale of the self-fulfillment theory
appeared in the case Ashcroft v. Free Speech Coalition, 114 where
Justice Kennedy wrote: “The right to think is the beginning of
freedom, and speech must be protected from the government
because speech is the beginning of thought.” 115
Turner deference compromises the self-fulfillment value of
free expression. It grants the government vast power to censor
prisoners’ speech, and correctional officials have used this power
to censor literary, scientific, and religious speech in prison. 116
Removing access to these sources of knowledge and inspiration
dilutes a prisoner’s right to self-fulfillment by hindering the
ability to draw on external sources when forming his or her own
beliefs. While self-fulfillment is not dependent on unlimited
access to outside information—after all, many prisoners engage
in self-expression through various artistic, academic, and literary
avenues despite the Turner standard 117—the degree to which
prisoners are able to fully engage in self-fulfillment is lessened by
incoming and internal speech restrictions permitted under
Turner.

Procunier v. Martinez, 416 U.S. 396, 427 (1974) (Marshall, J., concurring)
(citing Emerson, supra note 56, at 879–80).
114
Ashcroft v. Free Speech Coal., 535 U.S. 234, 248 (2002).
115
Id. at 253.
116
See Shapiro, supra note 11, at 995–1005.
117
See Amy Rutledge, Program Helps Female Inmates with Stress, Self
Expression, WGN-TV (Mar. 9, 2017), http://wgntv.com/2017/03/09/program-helpsfemale-inmates-with-stress-self-expression/;
PRISON
WRITERS,
http://prison
writers.com (last visited June 22, 2018); THE PRISON ARTS COALITION,
https://theprisonartscoalition.com (last visited June 22, 2018); J. PRISONERS ON
PRISONS, http://www.jpp.org (last visited June 22, 2018).
113

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CONCLUSION
Turner deference depends on the assumption that judicial
meddling in prison affairs will compromise prison order and
security. 118 One of us has argued previously that this concern is
overblown—and the best evidence is the fact that heightened
statutory protections for prisoners’ religious exercise have not
unleashed violence and disorder, which makes it doubtful that
increased protections of prisoners’ non-religious expression would
have widespread negative effects. 119
When it comes to
restrictions on expressive activities, the benefits of deference to
prison authorities appear to be overstated.
Not only are the benefits of deference to prison censorship
limited, but, as this Article has shown, the costs of deference are
quite severe. Speech by prisoners is vital to the American system
of free expression, yet the current legal regime fails to accord
such speech the protection it deserves. The extreme deference
accorded prison officials by Turner and its progeny enables
censorship that compromises the core functions of the First
Amendment.
Turner deference does not merely impact
individual prisoners; it threatens the legitimacy of our system of
free expression by encouraging unwarranted and insurmountable
obstacles to speech for a large segment of the American
population.

Turner v. Safley, 482 U.S. 78, 84–85 (1987).
Shapiro, supra note 11, at 1021–23 (noting that the Religious Land Use and
Institutionalized Persons Act and the Religious Freedom Restoration Act command
courts to apply strict scrutiny to substantial burdens on prisoners’ religious rights).
118
119

 

 

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