Strategic Censoring of Speech to Keep the Peace in Custodial Settings

Typically, the courts frown on content-based censoring of speech, whether verbal or written. One example is Colin Kaepernik taking a knee rather than saluting, putting his hand over his heart, or even just standing respectfully during the national anthem. While many disagree with his actions, and may loudly denounce his message, he has the right under the First Amendment to take this action. Similarly, courts have allowed the KKK to march in Skokie, Illinois, despite considerable local opposition to the message of racial hate.

But what happens when a prison or jail wants to censor speech because it may incite others? For example, in the circumstance when a local newspaper covers a hate crime, listing the name of the perpetrator, specific details, and perhaps even inflammatory photos, and the perpetrator ends up in custody, where people of many races and backgrounds are incarcerated, there are safety and security concerns raised for the perpetrator’s safety. Custody officials have a duty to protect the inmates from known and foreseeable dangers. It is foreseeable that a person of this notoriety would have a target on his back in custody, when mingling with others. Perhaps more concerning, if the person’s presence in the jail or prison stirs up racial tensions, it could lead to riots or other violent confrontations between different races and/or gangs, implicating safety and security throughout the facility.

When safety and security are at issue, restriction of speech is permissible provided it meets the rational basis test. Think, for example, of the person falsely yelling “Fire” in a crowded theater. The courts have held that while the First Amendment protects speech, it does not protect dangerous speech. The courts have also approved prison officials’ decisions to prohibit inmates from obtaining or possessing dangerous or pornographic books and magazines. The prohibition cannot be a blanket one, such as prohibiting any books in Administrative Segregation units, but a particular book may be banned if it would cause disorder or violence. The decision should be made on a case-by-case basis and the inmate must have a process available to appeal the decision. Unpopular content, such as religious or philosophical material, may not be excluded because of its contents when there is no risk of violence.

To determine whether a prison regulation or decision meets the rational basis test, the courts examine whether the decision is reasonably related to a legitimate, neutral government interest. Redacting an article about a prisoner involved in a local hate crime is related to the legitimate, neutral interest of wanting to protect the prisoner as well as seeking to prevent racial tensions in the facility. The court will also consider whether the regulation or decision leaves open other ways for prisoners to express themselves, how the regulation impacts other prisoners and prison resources, and whether there are easy alternatives which would not restrict prisoners as much.

In this example, after censoring the article or the name of the perpetrator, the prisoners would still have the rest of the newspaper to read. The decision would involve some use of staff time to read the paper, and censor the information that would affect security concerns, but the impact is minimal when balanced against the dangers. There are no less restrictive alternatives to redacting one article, or better yet simply the name of the perpetrator (although such selective editing might alert prisoners to an issue within their population). If, on the other hand, custody officers simply stopped delivering the newspaper to inmates, out of concern for possible stories that might put inmates at risk or stir up racial tensions, this decision would not pass constitutional muster because it restricts the inmates’ First Amendment rights more than necessary.

Does it matter who pays for the materials? This doesn’t seem to matter to the courts. While some inmates might perceive a bigger slight if they paid for the book or newspaper that is prohibited, versus being denied the ability to read material paid for by the facility, this distinction doesn’t matter for purposes of First Amendment analysis.

If prisons or jails seek to censor news stories in the newspaper, they should do so sparingly. Restricting this option for the rare case when one of the prisoners is featured in a story that would put them at risk of harm from other inmates will help the institution to justify their decision to the courts, if challenged. Keep in mind that the story may also be broadcast on the radio or television, which will be harder to censor. Additionally, some prisoners may hear the information from outside visitors or during a phone call with a friend or family member. Options such as protective custody or “sensitive needs” placement should be considered if a prisoner is in potential danger because of news coverage of their criminal conduct. When a prisoner is high notoriety, such as the Seal Beach salon shooter, s/he is segregated immediately.

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