Since the formation of our nation, Americans have enjoyed a right to Free Speech that is unrivaled among modern nations. The right has long survived incarceration as well, from the 1800s Henry David Thoreau’s “On Civil Disobedience” to the Letters from Birmingham Jail, by Dr. Martin Luther King Jr. during the Civil Rights Movement of the 1960s. It is alive and well today, notwithstanding the great changes in the ways our society communicates in the Internet Era and this post-9/11 age.
Jaan Lamaan is a federal prisoner serving a life sentence at USP Tucson, Arizona, a maximum security prison operated by the Federal Bureau of Prisons. He is also the Publisher of 4Struggle Magazine, a forum devoted to the expression of what the publication calls America’s political prisoners. Mr. Lamaan is in his sixties now, and is himself imprisoned for his activities as a member of the Ohio Seven, a self-described counterrevolutionary group that robbed banks and committed other crimes in the 1960s. Other contributors to 4Struggle include Mumia Abu-Jamal, a Pennsylvania prisoner and internationally known activist and members of MOVE, Earth Liberation Front and other groups considered terrorists by many observers. The publication is, by any measure, controversial, and makes no bones about its mission to disseminate the ideas of the outermost members of our political system, men and women whose views are hostile to our system of government and those who operate it.
Notwithstanding the adversarial bent of 4Struggle and its contributors, the publication operates in an entirely legal manner, pursuant to our long history of Free Speech from behind prison walls. The Supreme Court has consistently held that prisoners have a First Amendment right to be “free from government interference” in expressing their views outside the walls, if that interference is “based on the content of [their] speech or proposed speech.”*1
The Court’s protection of Free Speech has even led it to strike down such well-intended statutes like New York’s so-called “Son of Sam” law, which was written in the wake of David Berkowitz’s conviction for murdering 11 people, intended to prevent him and those like him from profiting from their stories. In doing so, the Court ruled that no matter how repugnant the idea of letting murderers profit from their tale might be, such content-based restrictions are prohibited by the First Amendment.*2 It should be noted that while these individuals can still publish their writings, any income earned through them can be attacked by victims’ rights organizations or those to whom they are indebted.
The right to Free Speech ensures that prison administrators can’t bar prisoners from writing to the press. While the press has no more right to enter a prison and talk to prisoners than any other member of the public, the courts have held that any restrictions on press interviews must be fair and non-discriminatory,*3 and prisoners enjoy an unimpeded right to write to the press from their cells. A recent court ruling even allows prisoners to write under a byline (have their name published along with their writings)*4, something which the Bureau of Prisons had strenuously argued against.
Magazines like 4Struggle are not the only type of prisoner periodicals protected by the Constitution. Indeed, even publications whose purpose is to criticize the very correctional officials confining the prisoner-authors are protected, such as Prison Legal News, a prisoner-run periodical emanating from the Washington state prison system, and the California Lifers Newsletter, which is highly critical of the state’s parole system and its personnel. Even Martha Stewart, the television personality imprisoned for investment-related crimes, published on the Internet during her incarceration, advocating for better treatment of her fellow female prisoners.
According to the Prisoners’ Self-Help Litigation Manual*5, “Prisoners generally do not have access to the internet, but they may get others to place materials on the Internet for them, or others may write about them on the Internet. One court*6 has struck down a statute that forbade prisoners from contact by mail with communication service providers or from having access to the Internet through a provider.”
Prisoners are also permitted to publish books and articles from behind the wall. Indeed, the Federal Bureau of Prisons’ policy on inmate manuscripts provides that inmates are “encourage(d)” to “use their leisure time for creative writing(.)”*7 The Code of Federal Regulations clarifies. “An inmate may prepare a manuscript for private use or for publication while in custody without staff approval.”*8 It defines manuscripts as works of “fiction, nonfiction, poetry, music and lyrics, drawings and cartoons, and other writings of a similar nature.”*9
The framers of the Constitution were aware that Free Speech was an important component of the democratic system of government, and sought to allow dissent and the exchange of ideas by all of its citizens, including Mr. Lamaan and those like him, no matter how unpopular their views may be. And while there have been some changes in the way we as a society communicate in the wake of 9/11 — the Patriot Act comes to mind — those confined in America’s prisons enjoy an unparalleled right to communicate their ideas. This is, quite simply, a testament to the ideals of freedom that this nation was founded upon and continues to aspire to.
*1 Kimberlin v. Quinlan, 199 F.3d 496, 502 (D.C. Cir. 1999).
*2 Simon & Schuster v. Crime Victims Board, 502 U.S. 105, 116 (1991).
*3 Pell v. Procunier, 417 U.S. 817, 822-28 (1974).
*4 Jordan v. Pugh, 540 F. Supp. 2d 1109, 1119-20 (D.Colo. 2007).
*5 Boston, J., & Manville, D. (2010). Prisoners’ Self-Help Litigation Manual. (4th Edition). New York, NY: Oxford University Press. Pg. 208.
*6 Canadian Coalition against the Death Penalty v. Ryan, 269 F. Supp. 2d 1199, 1202-03 (D. Ariz. 2003).
*7 Federal Bureau of Prisons’ Program Statement 5350.27 (Inmate Manuscripts).
*8 28 C.F.R. s. § 551.81 (Manuscript Preparation).
*9 28 C.F.R. s. § 551.80 (Definition).
(First published at http://ezinearticles.com/?The-Right-to-Write:-Publishing-From-Prison&id=7423768)