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Aclu Publications Sent by Mail Know Your Rights Sept 2012

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ACLU National Prison Project
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 That said, in practice, courts often 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
publications in the mail, do they have other access to publications? 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

Copyright September 4, 2012 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.

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


Turner, 482 U.S. at 89.





Last updated September 2012

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
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 rare cases, particularly where
such rules apply to facilities 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

Id. at 90.




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.”).

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).


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).


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).

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).

Last updated September 2012

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 At least one court has gone so far as to hold that the
Physician’s Desk Reference may be barred because it contains information about drugs.15
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).16 Courts are divided as to whether magazines that show partial nudity
(such as Stuff and FHM) can also be banned.17 It has also been held that prohibitions on nudity
that lack exceptions for materials with artistic merit (such as pictures of nude figures on the
Sistine Chapel ceiling) are not constitutional.18 Other cases, however, exhibit great deference to
prison officials who ban sexual material, even prohibiting entire books on social and political
topics based on limited references to sexual activity.19
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.


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”); Van Den Bosch v. Raemisch, 658 F.3d 778, 787 (7th Cir. 2011) (upholding
refusal to deliver political publication that criticized prison officials but also “had the potential to endanger prison
guards by encouraging violent self-help remedies, and would likely undermine prisoners’ incentives to work toward
rehabilitative goals”).

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


Munson v. Gaetz, 673 F.3d 630, 633-34 (7th Cir. 2012).


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


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) (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).

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


Prison Legal News v. Livingston, __ F.3d __, 2012 WL 1959580, at *11 (5th Cir. Jun. 1, 2012).

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Religious Publications
Under the First Amendment, the Turner standard, described above, also applies to religious
exercise.20 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.21
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.22 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.23 However, courts have held that prison officials do not violate RLUIPA or the
First Amendment when they prevent prisoners from receiving racist and intolerant publications
that actively advocate violence.24
Postcard Only Rules
Some facilities, especially in recent years, have moved to prohibit publications (and other mail)
under rules that allow communication by postcard only. The law on this issue is evolving, but
one recent decision held that rules of this nature are invalid.25
Publisher Only Rules
Court have generally upheld rules that only permit prisoners to receive hardcover and softcover
books and bound periodicals from commercial sources.26 However, some courts have held that

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


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.…”).


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


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,


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


Prison Legal News v. Columbia County, 2012 WL 1936108, at * 14 (D. Or. May 29, 2012)
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).


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prisoners cannot be prohibited from receiving clippings and copies of articles from noncommercial sources.27
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.28 Some cases have reached the opposite conclusion.29
Right to Notice
Prisoners have a right to be notified by prison officials when they censor an incoming
Practical Considerations
 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
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.

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


Allen v. Coughlin, 64 F.3d 77, 81 (2d Cir.1995); see also Lindell v. Frank, 377 F.3d 655, 659-60 (7th Cir. 2004).


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


Rice v. State, 95 P.3d 994, 1011-12 (Kan. 2004). See also Wardell v. Duncan, 470 F.3d 954, 961-63 (10th Cir.
2006) (ban on gift subscriptions did not violate prisoner’s First Amendment rights where the gift purchase was made
by a third party linked to another prisoner).


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

Last updated September 2012


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


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.

Last updated September 2012