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Protest Speech
Andrea C. Armstrong*

This article examines the racial origins of two foundational cases
governing prisoner protest speech to better understand their impact in light
of the Black Lives Matter movement. Two Supreme Court cases provide the
primary architecture for the regulation of prisoner or detainee speech. The
first, Adderley v. Florida, is (mis)interpreted for the proposition that jails
(and by analogy, prisons) are non-public spaces. Under First Amendment
doctrine, non-public spaces are subject to heightened regulation and
suppression of speech is authorized. The second, Jones v. North Carolina
Prisoners’ Labor Union, Inc., amplifies the effect of Adderley and prohibits
prisoner solicitation for union membership. Together, these two cases
effectively provide broad discretion to prison administrators to punish
prisoners and detainees for their protest speech. Neither Adderley nor
Jones acknowledge the racial origins of the cases. Holdings in both cases
relied on race-neutral rationales and analysis and yet, the underlying
concerns in each case appear tied to racial concerns and fears. Thus this
Article is a continuation of a broader critical race praxis that reminds us
that seemingly objective and neutral doctrines themselves may incorporate
particular ideas and notions about race.
Today’s protesters face a
demonstrably different doctrinal landscape, should they protest within the
prison or jail walls. While the content of speech by a “Black Lives Matter”
activist may not change, the constitutional protection afforded to that
speech will be radically different depending on where she speaks.


Associate Professor of Law, Loyola University New Orleans College of Law. Yale
(J.D.); Princeton (M.P.A). Thanks to Brittany Beckner, Katherine Cochrane, Emma Douglas,
Emily Posner, and Victor Jones for their tremendous research efforts and the Dean of Loyola for
financial assistance during the writing of this paper. This article and argument have evolved
over time and I owe a debt of gratitude to Hope Metcalf, Margo Schlanger, Rob Verchick, Isabel
Medina, and participants in the Latina and Latino Critical Theory Conference (LATCRIT), the
Law and Society Association, the Lutie Lytle Writing Workshop, the Tulane Faculty Forum, the
Tulane Forum on the Future of Law & Inequality, and the Southern University Law & Society
Faculty Forum, for their comments on earlier versions of this article. This article could not have
been written without the support of Jean Ewing and Alice Riener.

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Armstrong—Racial Origins of Doctrines Limiting Prisoner When Protest Speech


   Introduction ..................................................................................................... 2	
   Prisoners’ Unprotected Protests .................................................................... 6	
   Ineffective Legal Methods of Protest ........................................................ 8	
   Punishment for Protest ............................................................................ 10	
   Adderley v. Florida .................................................................................... 14	
   Adderley and Race .................................................................................. 14	
   Adderley’s Impact ................................................................................... 20	
   Jones v. North Carolina Prisoners’ Labor Union, Inc. ............................... 25	
   Jones and Race ........................................................................................ 26	
   Jones’ Impact ........................................................................................... 34	
   Race, Protest, and Incarceration .................................................................. 38	
   Conclusion ................................................................................................. 40	


Two inmate welders refused a direct order to build the lethal injection
gurney to replace the electrocution chair at a state maximum security prison.1
They were placed in administrative segregation – solitary confinement in a
single cell for 23 hours a day – for their protest.2 The next day, the other 37
welders, including one whose brother had been executed in the outgoing electric
chair, similarly refused and were similarly punished.3 Hundreds of inmates
assigned to farm the 18,000 acre prison engaged in a work stoppage to protest
both the order and the punishment of their fellow inmates. Ultimately, the
warden rescinded the order but not before issuing hundreds of disciplinary
reports to the inmates (which can affect everything from inmate classification to
privileges to parole) and placing many in isolation.4 None of these inmates
could claim their protest was protected by the First Amendment of the U.S.
Constitution and thereby challenge their punishments.
While the U.S. Constitution does not stop at the prison wall, certain
constitutional rights are limited once exercised within carceral facilities. 5 Some

E.g., Bell v. Wolfish, 441 U.S. 520, 545-46 (1979) (standing for the proposition that the
retention of constitutional rights in prison is not without limitations and applies equally to
pretrial detainees and convicted prisoners); Overton v. Bazzetta, 539 U.S.126 (2003) (holding
that limits on visiting rights of inmates does not violate the First Amendment right to free


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constitutional rights, such as the right to be free from discrimination under the
Equal Protection Clause of the Fifth and Fourteenth Amendment,6 apply with
equal force whether or not an individual is incarcerated.7 At the other end of the
spectrum, the right to bear arms under the Second Amendment is non-existent
for the incarcerated.8 In between these two extremes, the exercise of
constitutional rights of the incarcerated differs from the non-incarcerated,
depending on the right claimed and the security concerns of the detention
The First Amendment rights to freedom of speech, expression, and
association are especially limited in the carceral context. “A prison inmate
retains those First Amendment rights that are not inconsistent with his status as a
prisoner or with the legitimate penal objectives of the correctional system.”9
Courts have applied this rule to limit and/or regulate: the content of incoming
mail for prisoners, visitation, prisoner-to-prisoner contact, and media access,
among other things. 10
In this Article, I focus on a very specific type of First Amendment
speech: prisoner11 protest speech. I use the term “protest speech” to describe
non-violent conduct and direct action methods typically employed by the civil

Although the Fifth Amendment does not contain the actual text of the Equal Protection Clause,
the Supreme Court has interpreted the Fifth Amendment’s guarantee of due process by federal
authorities to incorporate the guarantees of the Equal Protection Clause of the Fourteenth
Amendment, which applies to states. See Bolling v Sharpe, 347 U.S. 497 (1954).
See Johnson v. Cal, 543 U.S. 499 (2005).
18 U.S.C.A. § 1791 (West, Westlaw through P.L.114-200). And indeed may be limited for
those re-entering society after incarceration, depending on the crime and state and federal law.
E.g.18 U.S.C.A § 922(g)(1) ((g) (West, Westlaw through P.L. 114-200) (It shall be unlawful for
any person--(1) who has been convicted in any court of, a crime punishable by imprisonment for
a term exceeding one year; . . . or possess in or affecting commerce, any firearm or ammunition;
or to receive any firearm or ammunition which has been shipped or transported in interstate or
foreign commerce.); N.C. Gen. Stat. Ann. § 14-415.1 (West 2016). See, e.g., D.C. v. Heller, 554
U.S. 570, 626 (2008) (acknowledging the validity of limits on firearm ownership by felons while
upholding the individual right to bear arms).
Pell v. Procunier, 417 U.S. 817, 822 (1974).
See e.g., Ronald Kuby & William Kunstler, Silencing the Oppressed: No Freedom of Speech
for Those Behind The Walls, 26 CREIGHTON L. REV. 1005 (1993)(surveying cases of diminished
First Amendment rights for prisoners).
This article uses the terms detainee and prisoner interchangeably to refer to those involuntarily
incarcerated. Detainee usually refers to those who are incarcerated but not yet convicted. For
detainees, their conditions of confinement claims are governed by the due process clauses of the
Fifth and Fourteenth Amendments. Prisoners are those who have been criminally convicted and
accordingly, their conditions claims would be brought under the Eighth Amendment’s ban on
cruel and unusual punishment. Though they are distinct terms, for purposes of this First
Amendment analysis, the constitutional rules limiting speech are the same.


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rights movement.12 These include organizing, sit-ins, work slowdowns or
stoppages, hunger strikes, petitioning, etc. “Protest speech” can involve
elements of speech, expression, and association depending on how the protest is
As the example of inmate welders in Angola demonstrates, a prisoner
protesting inhumane conditions in the facility where he is incarcerated can be
punished by prison authorities. “Prison walls do not form a barrier separating
prison inmates from the protections of the Constitution.”13 Lower courts have
almost uniformly held that protestative acts – such as drafting, circulating, or
signing petitions or work stoppages – are not protected speech.14 Punishments
vary but can run the gamut from solitary confinement to loss of visiting
privileges. And prisoners continue to risk punishment, in part, because in a few
cases, protest actually led to changes.15
Two Supreme Court cases provide the primary architecture for the
regulation of prisoner or detainee speech. The first, Adderley v. Florida16, is
(mis)interpreted for the proposition that jails (and by analogy, prisons) are nonpublic spaces. Under First Amendment doctrine, non-public spaces are subject
to heightened regulation and suppression of speech is authorized. The second,
Jones v. North Carolina Prisoners’ Labor Union, Inc.17, amplifies the effect of
Adderly and prohibits prisoner solicitation for union membership. Together,
these two cases effectively provide broad discretion to prison administrators to
punish prisoners and detainees for their protest speech.
It is generally accepted that our country’s fascination with incarceration
disproportionally impacts minority communities.18 Approximately 2.3 million

Thus the term “protest speech” includes “symbolic speech” (i.e. speech that is
“communicative in character” such as display of certain symbols or flags), “speech-plus
conduct” (i.e. acts that consist of both expression and conduct such as sit-ins and picketing), as
well as the more typical direct speech (i.e. letter writing, actual utterances). See D. Sneed &
Harry W. Stonecipher, Prisoner Fasting as Symbolic Speech: The Ultimate Speech-Action Test,
32 HOW. L.J. 549 (1989).
Turner v. Safley, 482 U.S. 78, 84 (1987).
See discussion infra. But see Nicholas v. Miller, 109 F. Supp. 2d 152, 156 (S.D.N.Y. 2000)
(acknowledging that a few courts have recognized “political association” claims for impact
litigation, but distinguishing protest from litigation.)
See Heather Ann Thompson, Rethinking Working-Class Struggle Through the Lens of the
Carceral State 8 LABOR, NO. 3, 2011, at 15, 29 (discussing how inmate protests “helped pave the
way” for improved work environments and limited governance input).
Adderly v. Fla., 385 U.S. 39 (1966).
433 U.S. 119 (1977).
Nat’l Research Council of Nat’l Academies, THE GROWTH OF INCARCERATION IN THE UNITED
STATES: EXPLORING CAUSES AND CONSEQUENCES 56 (Jeremy Travis and Bruce Western, eds.,
2014) [hereinafter GROWTH OF INCARCERATION]


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people are incarcerated at any given time by federal, state, and local
governments.19 Over the last 40 years, the rate of incarceration in the United
States has increased by approximately 500%.20 African-Americans and Latinos
comprise 56% of the incarcerated, but only represent 30% of the total U.S.
population.21 Beginning in the 1970s, the United States’ incarceration rate
increased sharply, “but much more in absolute terms for African-Americans
than for whites.”22 This stems, in part, from the criminalization of urban spaces
following the gains of the civil rights era.23 The racial disparities in
incarceration prompted Loïc Wacquant to argue that the term “mass
incarceration” shrouds the “hyper-incarceration” of primarily poor AfricanAmerican men from urban areas.24 This fascination with incarceration has
created a “carceral state,” that exists “to exclude and control those people
officially labeled as criminals.”25
But what is missing in part from this conversation about incarceration is
that in certain cases, the doctrinal rules that govern prisoner behavior themselves
emerge out of specific racial contexts. Neither Adderley nor Jones acknowledge
the racial origins of the cases and yet, I argue it is critical to understand the
racial context in order to fully understand the impact of these two opinions.
Holdings in both cases relied on race-neutral rationales and analysis and yet, the
underlying concerns in each case appear tied to racial concerns and fears. Thus
this Article is a continuation of a broader critical race praxis that reminds us that
seemingly objective and neutral doctrines themselves may incorporate particular
ideas and notions about race.26

Peter Wagner and Bernadette Rabuy, Mass Incarceration: The Whole Pie: 2016, Prison Policy
Initiative, (last visited August 13, 2016). The
2.3 million includes immigration detention, juvenile facilities, involuntary civil commitments
and military detention, in addition to jail and prison populations. If we only look at state and
federal jail and prison criminal detentions, the U.S. incarcerated approximately 1.5 million
people in 2014. See E. Ann Carson, U.S. Dept. of Justice, Bureau of Justice Statistics, Prisoners
in 2014, 1 (Sept 2015)
Nicole D. Porter, Unfinished of Civil Rights in the Era of Mass Incarceration and the
Movement for Black Lives, 6 WAKE FOREST J. OF L. & POL’Y 1, 3 (2016).
Id. at 6.
GROWTH OF INCARCERATION, supra note 18 at 58.
Heather Ann Thompson, Why Mass Incarceration Matters: Rethinking Crisis, Decline, and
Transformation in Postwar American History, J. AMER. HIS. 703, 706 (December 2010).
Loïc Wacquant, Class, Race, & Hyperincarceration in Revanchist America, DÆDALUS,
Summer 2010, at 74.
Sharon Dolovich, Exclusion and Control in the Carceral State, 16 BERKELEY J. CRIM. L. 259,
261 (2011).
See e.g., Charles R. Lawrence, III, The Word and the River: Pedagogy As Scholarship As
Struggle, 65 S. CAL. L. REV. 2231, 2262 (1992) (describing critical race methodology in
personal terms and reflecting on the non-neutrality of the law and scholars).


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Part I of this Article explores the current risks for inmates who protest
within the prison or jail walls. Part II explores Adderley with a particular focus
on unearthing the racial dimensions of the case. Part III examines Jones to fully
understand the impact of Adderley and the implications for the civil rights
movement. Part IV places these two cases within the larger racial context of the
African-American civil rights movement. This critical race perspective is
essential to understanding judicial reluctance to protect protests within carceral
facilities and the doctrine facing today’s “Black Lives Matter” activists.


Despite the lack of legal protection, inmates engage in protests to draw
attention to prison conditions and laws that eliminate or reduce the possibility of
early release. In 2014 and again in 2016, inmates in Alabama claim to have
staged massive work stoppages as a form of protest. The Alabama Department
of Corrections acknowledged that there had been a disturbance at the prison
starting on January 1, 2014.27 A spokesman for the prison said that inmates at
St. Claire and Holman Correctional facilities had refused to work in the kitchen
and the laundry, stating that they would like to be paid for their work.28 (The
Thirteenth Amendment provides for an exception to the general prohibition on
forced labor for those convicted of a crime.)29 An inmate who spoke with
reporters stated that “all the prisoners” at both of the prisons were
participating.30 The Holman Correctional facility has a capacity for 1,002
inmates and the St. Clair Correctional facility has a capacity of 1,514.31 The
Alabama Department of Corrections offered a different account, reporting that
only a handful of inmates refused to report to work.32 The inmate’s grievances
included overcrowding, dissatisfaction with the mental health treatment

Brandon Moseley, Alabama Prisoner’s Strike Continues, ALABAMA POLITICAL REPORTER
(Jan. 7, 2014),
See Andrea Armstrong, Slavery Revisited in Penal Plantation Labor, 35 SEAT. U. L. REV. 846
(2012) (arguing that the “convict exception” in the Thirteenth Amendment should be interpreted
as an exception to “involuntary servitude” but not to the prohibition on slavery).
Alabama Department of Corrections, Holman Correctional Facility (last visited Aug. 6, 2016 1:30PM); Alabama
Department of Corrections, St. Clair Correctional Facility (last visited Aug. 6, 2016 1:30PM).
Josh Eidelson, Exclusive: Inmates to strike in Alabama, declare prison is “running a slave
empire”, SALON (April 18, 2014 12:30PM),


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available at the prison, the inadequacy of prison food, dissatisfaction with
inmate’s wages, and lack of educational opportunities.33 Similarly, in May
2016, inmates at two additional facilities in Alabama refused to perform their
work assignments.34 Inmates at the facilities said they were protesting the
conditions of their confinement, good time calculations and parole.35 The work
stoppage included more than 300 inmates at one facility alone.36 Both facilities
were put on lockdown because of the strikes.37 The prisoners emailed a list of
demands to the media that included the following: abolishing sentences of life
without parole for first time offenders; repealing the Habitual Felony Offender
Act;38 implementing education, rehabilitation and reentry programs; expanding
the Alabaman Innocence Inquiry Commission; and, ending prison slavery..39
In April 2016, inmates went on simultaneous strikes at seven Texas State
prisons. The prisoners refused to leave their cells and report for their work
assignments.40 The Texas Department of Corrections responded by imposing
lockdown restrictions in all seven facilities.41 The demands, communicated by
the Incarcerated Workers Organizing Committee (IWOC), an inmate advocacy
group with contacts inside of Texas state prisons, included humane living
conditions, a repeal of the $100 medical co-pay, a right to an attorney for habeas
corpus proceedings, and creation of an oversight committee for the operation of
Texas jails and prisons.42
Sometimes the protest takes the form of a hunger strike. In March 2016,
approximately 1,000 of the 1,300 inmates at the Kinross correctional facility in

Connor Sheets, Inmates at multiple Alabama prisons go on strike in protest against system,
conditions, ALABAMA.COM (May 02, 2016 at 3:35 PM),
Raven Rakia, Hundreds of Inmates Across Alabama Have Gone on Strike to Protest 'Prison
Slavery', VICE NEWS (May 13, 2016 2:45 pm),
The Habitual Felony Offender Act is Alabama’s version of a “three-strikes” law and has led to
life sentences for some repeat offenders convicted of drug charges and other low-level, nonviolent offenses. Rakkia, supra.
Chase Hoffberger, Texas Inmates Strike for Better Conditions: Inmates at seven state prisons
have refused to leave their cells, AUSTIN CHRONICLE (April 6, 2016, 12:28PM),
Kriston Capps, Texas Prisoners Strike for Unionization, CITY LAB (April 8, 2016),


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Armstrong—Racial Origins of Doctrines Limiting Prisoner When Protest Speech

the upper peninsula of Michigan engaged in a silent protest over food conditions
at the facility.43 The next day a similar number refused to eat the meals
provided by the prison.44 The next day only about 40 prisoners came to
breakfast, compared to the usual 500.45 That same day 60 inmates came to
lunch and only 30 for dinner. Over 1,200 inmates normally go to each of those
meals.46 Inmates also engaged in silent protests at the Michigan facility, by
leaving the yard 20 minutes early protest of the food conditions.47
There is certainly evidence that would support the inmates’ concerns
about inhumane treatment. Prisoners have been denied adequate and life-saving
medical care;48 may live in unsanitary conditions including a lack of running
water;49 may endure repeated assaults by both guards and other inmates; and can
be forced in some cases to become a slave to the state.50 Case law is replete
with modern-day examples of unconstitutional prison conditions including lack
of running water, unsanitary facilities, repeated excessive force, extreme heat or
cold, sexual assault, and failure to provide necessary (and sometimes lifesaving) medical treatment.51
In addition, over the last few decades, many states have taken a more
punitive approach to sentencing. Across the United States, governments have
adopted laws that have contributed to increased sentence lengths for the
incarcerated, ranging from mandatory minimum sentences to three
strikes/habitual offender laws to removing the possibility of parole from life
sentences.52 Many of these particularly punitive laws apply to crimes for which
minorities are disproportionately arrested.53 Thus, not only may inmates
experience inhumane treatment, but they are also subject to that inhumane
treatment for longer lengths of time.

Ineffective Legal Methods of Protest


Paul Egan, Prisoners protest food under new contractor Trinity, DETROIT FREE PRESS (March
22, 2016 8:08PM)
Brown v. Plata, 131 S.Ct. 1910, 1925 (2010).
Armstrong, supra note 29.
See e.g., Brown, supra note 50 at 1910-1930.
GROWTH OF INCARCERATION, supra note 18, at 89.
Id. at 91.


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Inmates have few legal methods to challenge these types of prison
conditions. Prisoners may describe the conditions in written outgoing mail to
family, friends, politicians and the media for example.54 While protection for
outgoing mail is certainly one of the strongest constitutional protections for
inmates, it is also distinctly inefficient as a means of protest particularly in the
age of mass incarceration. Many prisoners are serving longer sentences, with a
higher percentage serving life sentences55 and often in locations remote from
their families and communities.56 As a result, family and social ties are strained
and even broken and thus unavailable as potential prisoner advocates.57
Moreover, the poor and minorities are disproportionately represented in prison58
and even where such social ties remain, they are likely ineffective in penetrating
traditional centers of power from which the poor and minorities are historically
excluded.59 As such, mailing protests outside the prison walls – while a
protected First Amendment right – is in practice often meaningless as a form of
Prisoners have also engaged in hunger strikes, in effect hurting only
themselves in their refusal to eat. Nevertheless, most courts have held that
wardens are free to force feed inmates when medically necessary.60 Wardens
have argued that hunger strikes disrupt security and order in prisons, though
with little supportive evidence.61 Instead, wardens speculate that the death of a
hunger striker will incite prison unrest and that the medical needs of the hunger
striker drains resources from other necessary prison tasks. Though wardens
have failed to proffer actual examples and data to support their conclusions,
some courts have nevertheless adopted these arguments in allowing prisoners to
be force-fed.

E.g., Procunier v. Martinez, 416 U.S. 396, 413 (1974); Turner v. Safley, 482 U.S. 78 (1987);
Pell v. Procunier, 417 U.S. 817, 824 (1974).
GROWTH OF INCARCERATION, supra note 18, at 52-54.
Bernadette Rabuy and Daniel Kopf, Separation by Bars and Miles: Visitation in state prisons
(Oct. 20, 2015), Prison Policy Initiative,;
but see GROWTH OF INCARCERATION, supra note 18, at 40 (noting that 1/3 of the incarcerated
population are housed in jails, which may be closer to home).
See GROWTH OF INCARCERATION, supra note 18, at 262.
Id. at 202-203.
See Atiba R. Ellis, Race, Class, and Structural Discrimination: On Vulnerability Within the
Political Process, 28 J. CIV. RTS. & ECON. DEV 33, 34 (2015).
See e.g., Mara Silver, Testing Curzan: Prisoners and the Constitutional Question of SelfStarvation, Note, 58 STAN. L. REV. 631, 649 (2005).
Steven C. Bennett, The Privacy and Procedural Due Process Rights of Hunger Striking
Prisoners, 58 N.Y.U. L. REV. 1157, 1210-1217 (1983) (summarizing cases where prison
officials have argued that hunger strikes present an institutional threat).


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Prisoners may also file a civil suit, but under the Anti-Terrorism and
Effective Death Penalty Act, prisoners must first exhaust the prison’s internal
administrative grievance process.62 Filing written individual grievances with the
prison administration is generally considered protected speech for prisoners
under the First Amendment.63 Others have exhaustively detailed the myriad of
problems with the prisoner grievance requirements,64 including problems in
accessing prison rules and regulations, the lack of a clear procedure for filing
grievances, the failure of prisoner authorities to meaningfully review the
grievances, etc. In addition, transfer between institutions and even release can
complicate the grievance filing process. For purposes of this paper, the filing of
a civil suit poses two difficulties as an avenue of effective prisoner protest.
First, the reasons for the protest are often, but not always, an immediate need but
the grievance and civil suit process is long. So in my opening example of
inmates refusing to build the lethal-injection gurney, the crisis was immediate
and the process was ill-equipped to address the inmates’ protests. The second
difficulty is tied to the first. Where lower courts have failed to recognize a First
Amendment right to non-violent protest for prisoners, prison authorities are less
cautious in their suppression and punishment of that speech.
As a result of these legal but ineffective methods of protest, prisoners
have engaged in a variety of unprotected activities to challenge their conditions,
which I call “protest speech.” “Protest speech” for purposes of this paper
include a range of traditional community organizing and civil rights tools, all of
which are non-violent acts. Examples include sit-ins, work stoppages and slow
downs, petitions, and hunger strikes. None of these actions are designed to
encourage violence, lead to escape, or otherwise threaten the safety of prisoners
or staff. Yet each of these acts is accompanied by a demand.

Punishment for Protest

When prisoners engage in protest speech, however, they may be
disciplined by prison authorities for disruption to the order and security of


42 U.S.C. §1997 (1996).
Smith v. Mosley, 532 F.3d 1270, 1276 (11th Cir. 2008).
See Margo Schlanger & Giovanna Shay, Preserving the Rule of Law in America’s Jails
and Prisons: The Case for Amending the Prison Litigation Reform Act, 11 U. PA. J. CONST.
L. 139, 139-40 (2008); Giovanna Shay & Johanna Kalb, More Stories of Jurisdiction-Stripping
and Executive Power: Interpreting the Prison Litigation Reform Act (PLRA), 29 CARDOZO L.
REV. 291(2007); Margo Schlanger, Prisoners' Rights Lawyers' Strategies for Preserving the
Role of the Courts, 69 U. MIAMI L. REV. 519 (2015).


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prisons and in some states, may be convicted of additional offenses based on
their acts of protest.
Several states have specific criminal offenses that capture acts of protest
in correctional institutions.65 Some of these statutes define the terms “riot” and
“strike” so broadly that non-violent acts of protest become criminal acts. 66 It is
unclear to what extent inmates are actually prosecuted under these statutes for
non-violent conduct for a variety of reasons. Unless a conviction is appealed,
trial court convictions are less commonly available in legal databases.
Moreover, even if an inmate is charged, an inmate may plead guilty to a lesser
offense to obtain a more favorable sentence. But even if inmates are not
currently being prosecuted for non-violent protest under these statutes, the
statutes very existence may serve as a caution to engaging in protest within the
prison walls.
In Connecticut, for example, a prisoner engaged in non-violent protest
may be criminally convicted of “rioting at [a] correctional institution” under
Conn. Gen.Stat. § 53a–179b(a) (2011). Sub-section a of the statute provides
A person is guilty of rioting at a correctional institution when he incites,
instigates, organizes, connives at, causes, aids, abets, assists or takes part
in any disorder, disturbance, strike, riot or other organized disobedience
to the rules and regulations of such institution.67


E.g., Fla. Stat. Ann. § 944.45 (West 2016) (Designating mutiny, riot, or strike in a correctional
facility as a second degree felony); Conn. Gen. Stat. Ann. § 53a-179c (West 2016) (Designating
inciting to riot at a correctional institution as a class C felony); Wash. Rev. Code Ann. §
9.94.010 (West 2016) (Defining the gathering of two or more inmates for the purpose of
disturbing the “good order” of the institution either through the use or threat of violence or force
as engaging in a riot);	
  Colo. Rev. State. Ann. § 18-8-211 (2016) (designating violent conduct in
combination with two or more others a felony); Ga. Code Ann §16-10-56 (West 2016)
(designing act of violence or other tumultuous act a felony); Mich. Comp. Laws Ann §752.542a
(West 2016) (designating violent conduct within a facility with three or more people a crime);
N.Y. Penal Law § 240.06 (McKinney 2016) (designating riot in the first degree as a class E
felony); Ohio Rev. Code Ann. §2917.02 (West 2016) (designating aggravated riot as a felony),
and §2917.03 (designating riot as a misdemeanor); R.I. Gen. Laws Ann. § 11-38-5 (West 2016)
(designating riot within a correctional facility a crime); S.C. Code Ann § 24-13-430 (2010)
(designating rioting in a facility as a felony); see also W.Va. Code Ann. §62-8-1 (West 2005)
(creates felony crime for resisting lawful authority of guard or officer).
But see e.g.,18 U.S.C.A. § 1792 (Current through P.L. 114-219) (defining riot for purposes of
federal criminal offense of riot or mutiny in penal institutions as encompassing “violent”
actions); Mich. Comp. Laws Ann. § 752.542a (West 2016) (requiring both violence and threat or
harm to safety of others).
Conn. Gen.Stat. § 53a–179b(a) (2011) (emphasis added).


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As Justice Scalia observed in Johnson v. U.S., “Who is to say which the ordinary
“disorder” most closely resembles—a full-fledged prison riot, a food-fight in the
prison cafeteria, or a “passive and nonviolent [act] such as disregarding an order
to move.” 68 In striking the residual clause of the Armed Career Criminal Act
that covered “violent felonies” as void for vagueness, the Supreme Court also
acknowledged that an inmate could be prosecuted for non-violent conduct under
the Connecticut rioting statute.
In Florida, a prisoner may be convicted of the felony of “mutiny, riot,
strike” if she “instigates, contrives, willfully attempts to cause, assists, or
conspires to cause any mutiny, riot, or strike in defiance of official orders, in any
state correctional institution”69 In addition, Florida law provides for a
misdemeanor for any person who “interferes with or in any way interrupts the
work of any prisoner under the custody of the department or who in any way
interferes with the discipline or good conduct of any prisoner.”70 Thus, a
prisoner who organizes a hunger strike or sit-in may be exposed to additional
criminal penalties for their non-violent protest.
Beyond the criminal statutes governing riots and disturbances in prison,
at least one state also criminalizes a particular form of protest, when that protest
occurs in prison. In Louisiana, an inmate convicted of “self-mutilation by a
prisoner” could be sentenced to up to two additional years consecutive to the
sentence being served.71 One defendant was sentenced to an additional four
years in prison after being charged with “attempting to hang himself with a
sheet, sticking his finger in a light socket, cutting his wrist and arm with a blunt

135 S. Ct. 2551, 2560 (2015) (held that imposing an increased sentence under the residual
clause of the Armed Career Criminal Act (ACCA) violates the Constitution's guarantee of due
process). The Court expressly overruled the Second Circuit’s rationale upholding the residual
clause when the Second Circuit held that though the statute had the potential to apply to nonviolent conduct, reported cases of prosecutions under this statute involved either use of a weapon
or resulted in injury to a guard, an inmate, or both. U.S. v. Johnson, 616 F.3d 85 (2nd Cir. 2010)
(holding that conviction under this statute may be considered a violent felony for purposes of the
Armed Career Criminal Act);
Fla. Stat. Ann. § 944.39 (West 2016).
Fla. Stat. Ann. § 944.45 (West 2016).
A. Self-mutilation by a prisoner is the intentional infliction of injuries to himself by a prisoner
incarcerated in any state penitentiary or any local penal or correctional institution or while in the
lawful custody of a peace officer, or the procuring or permitting of another person to inflict
injury on such prisoner by means of shooting, stabbing, cutting, applying chemicals or other
substances to the body, drinking or eating poisonous or toxic substances, or in any manner, when
such results in permanent or temporary injury.
B. Whoever commits the crime of self-mutilation by a prisoner shall be imprisoned at hard labor
for a term not exceeding two years. Any sentence imposed under this Section shall run
consecutively to any other sentence being served by the offender at the time of the offense. La.
Rev.Stat. Ann. 14:404 (2016).


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metal instrument on three occasions, and sticking a radio antenna in his side”
although the motivation for these acts is unclear.72
Prisons may also have internal rules that prohibit non-violent protest and
suffer disciplinary action as a result. For example, New York’s Department of
Corrections Standards of Inmate Behavior Rule 104.12 provides that “inmates
shall not lead, organize, participate or urge other inmates to participate in sit-ins,
lock-ins, or other actions which may be detrimental to the order of the
facility.”73 As a result of violating these internal rules, prisoners may lose
canteen privileges, earned good time credits, certain work assignments, and even
be subject to administrative segregation or placement in secure housing units.
For example, the punishment for circulating a petition in a Texas federal prison
included forfeiture of 30 days of statutory good time, placement in disciplinary
segregation for 15 days and recommendation for a disciplinary transfer.74 In
Georgia, an inmate may be disciplined for “[f]ailure to perform or complete any
work, training, or other assignment, as ordered, directed or instructed, either
verbally or in writing by a staff member, whether that protest is individual or
part of a group.75 In Illinois, the punishment for engaging in a hunger strike can
include loss or restriction of privileges, revocation of good time, or segregation
for up to a year.76 Even if a prisoner were to prevail in an underlying lawsuit
regarding inhumane conditions, the disciplinary punishment for protesting
would remain untouched. The court-ordered remedy would address the
conditions, but not the punishment, unless the prisoner could prove that the
punishment constituted retaliation by prison officials for the original protest.
However, most retaliation claims for protest speech fail, because an essential
element of establishing a retaliation claim is that the prisoner was engaging in
protected speech.77
Other prisoners have been slightly more successful in filing procedural
due process claims challenging the punishment for their protest speech. In those
cases, which mainly consist of punishments for drafting, circulating, or signing
petitions, courts have held that prisons failed to provide notice that such activity

State v. Bay, 503 So. 2d 745, 746 (La. Ct. App.), writ denied, 506 So. 2d 1223 (La. 1987)
N.Y. Comp. Codes R. & Regs. tit. 7, § 270.2(B)(5)(iii)(West 2016).
Adams v. Gunnell, 729 F.2d 362, 365 (1984).
Georgia Department of Corrections, Inmate Handbook, 125-3-2-.04(c)2 and 16.
Ill Admin. Code 504 App. A - Offense numbers and Definitions (Feb. 28, 2014).
See e,g., Freeman v. Texas Dept. of Criminal Justice, 369 F.3d 854, 863 (5th Cir. 2004)
(holding Freeman’s protest of the chaplain’s practices was not protected and therefore his
challenge to his punishment and subsequent transfer to a high-security unit did not qualify as
retaliation). Some prisoners have gotten around this requirement by claiming that the
punishment was in response to a written grievance (which is protected speech), rather than the
act of protest.


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is prohibited. Accordingly, the punishment is unconstitutional, not because the
protest act itself is protected, but because the prison failed to provide notice that
the act was prohibited. But where protest speech concerns disobeying a direct
order, as in our lethal injection example at the beginning of this Article, or
speech that is expressly prohibited, such as a sit-in or work strike, the Due
Process claim will fail.
Though conditions of confinement may present real harms, inmates have
few viable methods to contest these conditions, other than individual grievances
presented to prison administrators. If prisoners engage in protest speech in
carceral facilities, they risk a range of sanctions ranging from an additional
criminal conviction to disciplinary segregation to the loss of certain privileges.
These sanctions are made possible through limiting the protection of the First
Amendment for speech, expression, and association when that activity occurs
within the prison walls.


Race, the civil rights movement, and race relations all play a critical role
in understanding the lack of protection for prisoner protest. The Supreme
Court’s 1966 opinion in Adderley v. Florida held that jails are a non-public fora
and therefore protests on jail grounds were not protected under the First
Amendment.78 Modern applications of Adderley ignore the distinction between
First Amendment acts outside of the jail or prison walls versus those within the
prison walls.79 That distinction, however, is critically important since those
within the prison walls are prohibited from leaving and therefore can not alter
the time or place of their activities.80

Adderley and Race

In 1966, the Supreme Court in a 5-4 decision, affirmed the convictions of
32 individuals convicted of criminal trespass for their protest outside of a jail in
Florida. The majority opinion, by Justice Black,81 focuses on how the protesters

Adderley v. Fla., 385 U.S. 39 (1966).
See Bell v. Wolfish, 441 U.S. 520, 552 (1979) (upholding prison policy of forbidding hardback books except by authorized manner, citing Adderley, as a reasonable time, place or manner
See e.g., Id. at 573 n.14 (Marshall J., dissenting).
Justice Black’s position on civil rights issues is full of contradictions. He authored the Court’s
Korematsu opinion, judicially affirming the power of the U.S. government to detain JapaneseAmericans during World War II, Korematsu v. U.S., 323 U.S. 214 (1944), but also voted to deny


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disobeyed a direct order to leave the grounds of the jail and therefore were
properly convicted of criminal trespass.82 Around 250 people gathered at
Florida A&M campus on Monday morning at 9AM and together, marched
peacefully on the sidewalks to the local jail to protest the segregated public
facilities, including the jail, and police brutality.83 None of the protesters carried
weapons or engaged in violence.84 Along the way, crowds jeered and spat on
the protesters.85 The county jail building was adjacent to a grassy area, which
did not have a surrounding fence or “no trespassing” signs.86 Once arriving at
the jail, the protesters obeyed orders to move further away from the jail to the
public sidewalks and grassy area.87 At no point did the demonstrators attempt to
enter the jail or make threats to do so.88 The trespass at issue in this case is the
alleged partial blocking of a non-public driveway leading to the jail facility.
The Supreme Court’s majority opinion in Adderley obscures and
eliminates critical facts, thereby masking the racial implications of the case.
According to the Court,
Petitioners, Harriett Louise Adderley and 31 other persons, were
convicted by a jury in a joint trial in the County Judge's Court of
Leon County, Florida, on a charge of ‘trespass with a malicious and
mischievous intent’ upon the premises of the county jail contrary to
enforcement of racially restrictive covenants at issue in Shelley v. Kramer, 334 U.S. 1 (1948).
Justice Black, at one point in his life, was a member of the Ku Klux Klan and as a senator
representing Alabama, consistently voted against enacting Anti-Lynching federal statute. See,
Debbie Eliot, Author Interviews, A Life of Justice: ‘Hugo Black of Alabama’, NATIONAL PUBLIC
RADIO (Sept. 11, 2005)
(Interview with biographer Steve Suitts about his biography of Justice Black); United Press
International, Justice Black Dies at 85; Served on Court 34 Years, (Sept. 25, 1971) available at (Obituary detailing Justice
Black’s life including his opposition to federal anti-lynching legislation).
Adderley, 385 U.S. at 41, 44-46.
Brief for Petitioners at 6-7, Adderley v. Fla. 385 U.S. 39 (1966) (No. 19).
Id. at 7.; accord Reply Brief for the State at 7, Adderley v. Fla.., 385 U.S. 39 (1966) (No. 19).
Michael Abrams, Harriett Adderley went to bat 50 years ago in civil rights protest that
resulted in landmark case, TALLAHASSEE NEWS (Sept. 25, 2013).
Oral Argument at 12:37, Adderley v. Fla., 385 U.S. 39 (1966) (No. 19), available at
Id. at 13:28.
Adderley, 385 U.S. at 51 (Douglas, J., dissenting)(noting “[t]here was no violence; no threat of
violence; no attempted jail break; no storming of a prison; no plan or plot to do anything but
protest. The evidence is uncontradicted that the petitioners' conduct did not upset the jailhouse
routine; things went on as they normally would. None of the group entered the jail.”).


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s 821.18 of the Florida statutes set out below. Petitioners, apparently
all students of the Florida A. & M. University in Tallahassee, had
gone from the school to the jail about a mile away, along with many
other students, to ‘demonstrate’ at the jail their protests of arrests of
other protesting students the day before, and perhaps to protest more
generally against state and local policies and practices of racial
segregation, including segregation of the jail. The county sheriff,
legal custodian of the jail and jail grounds, tried to persuade the
students to leave the jail grounds. When this did not work, he
notified them that they must leave, that if they did not leave he
would arrest them for trespassing, and that if they resisted he would
charge them with that as well. Some of the students left but others,
including petitioners, remained and they were arrested.89
Justice Black’s opinion in Adderley, for example, specifically did not
refer to the race of the arrestees.90 The protests took place in September of
1963.91 Local government officials, likely Caucasian, faced a group of 200-250
“Negroes”92 singing and dancing with no intent to disperse. The previous day,
the local sheriff had arrested several individuals for attempting to integrate, i.e.
enter, a Whites-only theater.93 During this period, everyday people engaged in
massive unrest and civil disobedience to end state-approved discrimination
against African-Americans.
In its summary of the facts of the case, the Court at best downplays the
validity of the protesters’ underlying concerns. A less charitable interpretation
is that the Court implies that the protesters had a more sinister motive than
simply protesting racial segregation. The Court’s use of quotation marks around
the word “demonstrate” and insertion of the word “perhaps,” before
acknowledging that racial segregation may be an issue, functions to undercut
moral claims by the petitioners that their protest was valid. In fact, later in the
Adderley opinion, Justice Black is particularly dismissive of the First
Amendment rights claimed by the protesters. The First Amendment does not
mean, according to Justice Black, “that people who want to propagandize
protests or views have a constitutional right to do so whenever and however and

Id. at 40 (footnote omitted).
This stands in stark contrast to a recent prior case, Edwards v. South Carolina, 372 U.S. 229,
230 (1963). The majority opinion by Justice Stewart specifically notes the arrests of 187 “high
school and college students of the Negro race” for breach of the peace while protesting
segregation at the State House. The Court ultimately overturned the convictions.
Petitioners’ Brief at 4, Adderley v. Fla., 385 U.S. 39 (1966) (No. 506), 1966 WL 100632.
Adderley, 385 U.S. at 51 (Douglas, J., dissenting).


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wherever they please.”94 “Propagandize” is a particularly loaded word in the
context of the Cold War, the Red Scare, and efforts to link civil rights leaders to
The trial record in the case establishes additional facts critical to
understanding the racial implications. First, the Court fails to note that Florida
A&M University is an HBCU (Historically Black College or University).96
HBCUs are defined as higher education institutions established before 1964
primarily for the education of African-Americans.97 HBCUs developed in
response to the segregation of educational institutions under the aegis of
“separate but equal” institutions. During the 1950s and 60s, Florida A&M
students were integral to the civil rights movement in Florida.
The protests at issue in Adderly were also part of a broader civil rights
movement in Florida to claim equal rights for African-Americans. In 1956,
African-Americans boycotted public transportation for seven months after two
Florida A&M students were arrested for sitting next to a Caucasian woman on a
bus. Movement organizers were arrested and convicted of “operating an illegal
transportation system” for arranging alternative transportation for protesters.98
In 1960, the civil rights movement in Florida focused on other public
accommodations, such as restaurants and theaters. In February 1960, students at
Florida A&M and Florida State University were arrested and convicted of
“disturbing the peace” for refusing to leave the “Whites-only” lunch counter at
Woolworths.99 In March 1960, police reportedly used tear gas to disrupt a
march of approximately 250 students protesting the arrests of fellow students
during various lunch counter sit-ins.100 Civil rights organizers led pickets and


Adderley, 385 U.S. at 48. See also Greer v. Spock, 424 U.S. 828, 837 (1976) (upholding
military base regulation that prohibited distribution of literature or political demonstrations on
base)(citing this proposition in Adderley).
CAROLINA PRISONERS' LABOR UNION 14-15 (2012). See also Jacquelyn Dowd Hall, The Long
Civil Rights Movement and the Political Uses of the Past, 91 J. OF AMERICAN HISTORY 4, 40
(2005), available at
See Transcript of Record at 5, Adderley v. Florida, 385 U.S. 39 (1966) (No. 506); Florida
Agricultural and Mechanical University, About Florida Agricultural and Mechanical University,
FAMU.EDU (last visited Aug. 12, 2016).
Elementary and Secondary Education Act of 1965 (ESEA), Act of Apr. 11, 1965, Pub. L. No.
89-10, 79 Stat. 27, 29 (codified at 20 U.S.C. §§ 6301-7941 (2002)).
Florida Memory Project, State Library and Archives, (last visited
Aug. 16, 2016).


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sit-ins in segregated downtown Tallahassee businesses, such as “Neisner's,
McCrory's, F.W. Woolworth’s, Walgreen's, and Sears.”101
The Adderley protests on September 16, 1963 were actually the last of
three days of civil rights protests from September 14-16.102 Just a day before the
Adderley protests, four African-Americans girls died in the now infamous
Birmingham church bombing.103 Over 350 individuals were arrested over the
three days of Florida civil rights demonstrations.104
The omitted racial and civil rights context is critical, in part, because of
the actual charge that the protesters were convicted of. The Florida statute
requires “trespass with malicious or mischevious intent.”105 By negating the
racial context in which the protests occurred, the Court also eliminates the actual
intent of the protesters at the jail, i.e. to protest segregation of public facilities
and police brutality. If the actual protest of the demonstrators is eliminated, then
what other purpose is possible for their assembly at the jail facility other than
“malicious or mischevious” intent?
In Adderley, the Court is quick to distinguish how the civil rights
demonstration at the jail is different from a recently upheld civil rights
demonstration at the South Carolina State Capitol House. In both protests,
participants “sang hymns and danced.”106 But Justice Black argues that the
critical difference is the place in which the two demonstrations were conducted,
implying that the Adderley protesters should have selected a venue with greater
First Amendment protection, such as a state-house. In addition, Justice Black
focuses on the right of the persons protesting to be in that particular forum. The
Adderley protesters had no legal right to be present on jail grounds, since the
jails primary purpose was security, whereas the other protesters had a right, as
citizens, to be present in the State Capitol House.
The omission of race by the Court is even more compelling because race
and the purpose of the protests was a central aspect of the demonstrators’ legal
argument. The role of race in the arrests was clearly presented to the U.S.
Supreme Court. For example, in their petition for certiorari, the demonstrators
frame the question presented as


Michael Abrams, Harriett Adderley went to bat 50 years ago in civil rights protest that
resulted in landmark case, TALLAHASSEE NEWS (Sept. 25, 2013).
United Press International, Six Dead After Church Bombing, WASH POST (Sept. 16, 1966),
Abrahams, supra note 106.
Fla. Stat. § 821.18-19 (Repealed by Laws 1974, c. 74-383, § 66) (emphasis added).
385 U.S. at 41.


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[d]oes the arrest and conviction of a group of Negro for violating
a state statute prohibiting ‘trespass . . . with a malicious and
mischevious intent,’ when based solely on said Negroes peaceful
congregation in front of the county jailhouse for the purpose of
protesting the segregated facilities within the jail as well as the
previous arrest of anti-segregation demonstrators deny said
Negroes rights of free speech, assembly, petition, due process,
and equal protection.107
In addition, during oral argument, counsel for the arrestees reminded the Court
that the 32 arrestees were all African-American and were singing freedom
songs.108 Instead, the Court dismisses race from the case by finding that there
was no evidence that the Sheriff exercised his power to arrest because he
disagreed with the substance of the protesters’ grievances.109 Under this logic,
race is not implicated in Adderley because the demonstrators were arrested for
their presence at the jail and not the substance of their protests. Thus Adderley,
a case of criminal arrest for engaging in civil rights protest, becomes
transformed into a race-neutral case cited for two broad propositions: 1) the
government is akin to private property owners when the government restricts
speech to preserve purpose of government property;110 2) time, place, and
manner restrictions on First Amendment rights are legitimate when necessary
for significant government interests.111
Adderley also stands in stark contrast to the increasingly liberal
interpretation of the First Amendment at the time. Randall Kennedy, in his
analysis of the relationship between law, litigation and impact of the civil rights
campaign, with particular attention to Martin Luther King Jr., notes a
“blossoming of libertarian themes in First Amendment jurisprudence.”112 In a
series of cases, the Court affirmed the First Amendment rights of civil rights
demonstrators to engage in sit-ins and protest marches with specific reference to
the race of the arrestees.113

Brief for Petitioners at 3, Adderley v. Fla. 385 U.S. 39 (1966) (No. 19).
Oral Argument, supra note 90, at 2:56.
Adderley, 385 U.S. at 47.
See e.g., Greer v. Spock, 424 U.S. 828, 836, 96 S. Ct. 1211, 1216-17, 47 L. Ed. 2d 505
(1976); U. S. Postal Serv. v. Council of Greenburgh Civic Associations, 453 U.S. 114 (1981).	
See e.g., Wood v. Moss, 134 S. Ct. 2056, 2060, (2014); Nixon v. Shrink Missouri Gov't PAC,
528 U.S. 377 (2000).
Randall Kennedy, Martin Luther King's Constitution: A Legal History of the Montgomery
Bus Boycott, 98 Yale L.J. 999, 1001 (1989).
See e.g., Shuttlesworth v. City of Birmingham, 394 U.S. 147, 148 (1969); Edwards v. South
Carolina, 372 U.S. 229, 230 (1963); Brown v. State of La., 383 U.S. 131 (1966); Cox v. La., 379


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To be clear, the point of unearthing the racial context of Adderely is not
to argue that the opinion was wrongly decided or that the opinion was “racist”
and therefore invalid. Adderley affirmed and sanctioned the use of criminal
penalties against primarily African-American protesters engaging in non-violent
protest speech at a site of heightened government authority, yet erased the role
of race in its majority opinion. And perhaps the Court is justified in its
distinction that the outside of a jail is fundamentally different than the outside of
a state capitol building. But race is still relevant.
The erasure of race from the Adderley opinion could be interpreted in a
variety of ways. While it is clear that race is not addressed in Adderley, it is not
clear why Justice Black omitted any mention of it. Was race omitted because it
was deemed irrelevant and if yes, why? Or alternatively, was race omitted
because it was deemed threatening within the context of generalized unrest
during the civil rights movement? Did the omission of race have any relation to
a continuing insistence114 that the U.S. criminal justice system operates as an
objective arbiter and punisher of crime? By re-situating Adderley within its
racial context, these and additional questions become visible.
fundamentally, Adderley is a foundational case restricting the protest rights of
the incarcerated and as such, should be seen as a product of a distinct racial
moment within our jurisprudence. 115 .

Adderley’s Impact

Since Adderley was decided, the Court has further developed its First
Amendment doctrine to take account of the place or space in which the speech is
conducted. As discussed more fully below, courts have since interpreted
Adderley to provide that jails are non-public spaces and accordingly, the lowest
level of First Amendment protection applies to speech within those spaces.
Thus speech by detainees, by virtue of their incarceration, receives the lowest
level of constitutional protection.

U.S. 536 (1965); Louisiana ex rel. Gremillion v. Nat'l Ass'n for the Advancement of Colored
People, 366 U.S. 293 (1961); Bates v. City of Little Rock, 361 U.S. 516 (1960); Nat'l Ass'n for
Advancement of Colored People v. State of Ala. ex rel. Patterson, 357 U.S. 449 (1958).
James Forman, Jr., Racial Critiques of Mass Incarceration: Beyond the New Jim Crow, 87
N.Y.U. L. REV. 21, (2012) (Arguing that modern views of mass incarceration through the lens of
Michelle Alexander’s “The New Jim Crow” ignore the narrative of many Americans in which
the provides proper punishment for crimes. The author also argues that the dichotomous racial
structure of this viewpoint does not acknowledge class, other races and criminality as a part of
the larger conversation about criminal justice).
See discussion supra II.B. (Adderley’s Impact)


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The First Amendment does not provide a complete blanket of protection
for private speech. Rather, speech is subject to government regulation. In part,
the degree to which the government may restrict the performance of speech
depends on the forum in which a particular message is being conveyed.116 As
Justice Marshall explained in Grayned v. City of Rockford, the authority of the
government to regulate speech depends in part on where the speech occurs and
to what extent the speech is “incompatible with the normal activity of a
particular place at a particular time.”117 Thus the government could arguably
restrict speech in the reading room of a public library but not restrict the same
speech when it occurs in a park.118 In Perry Education Ass’n v. Perry Local
Educators’ Ass’n,119 the Supreme Court summarized the three types of fora in
analyzing the extent to which the government may restrict forms of speech.
The first are traditional public fora, pertaining to open areas such as
streets, sidewalks, and parks. These areas enjoy the widest level of private
speech protection because they “have imminently been held in trust for the use
of the public and time out of mind, have been used for purposes of assembly,
communicating thoughts between citizens, and discussing public questions.”120
Further, “use of streets places has, from ancient times, been a part of the
privileges immunities, rights, and liberties of citizens.”121 Public fora


See Grayned v. City of Rockford, 408 U.S. 104 , 155-116 (1972) (citing Adderley in
discussing time, place, and manner restrictions for peaceful protests outside of a school in
violation of the city’s anti-noise ordinance). "Appellant Richard Grayned was convicted for his
part in a demonstration in front of West Senior High School in Rockford, Illinois. Negro
students at the school had first presented their grievances to school administrators. When the
principal took no action on crucial complaints, a more public demonstration of protest was
planned. On April 25, 1969, approximately 200 people—students, their family members, and
friends—gathered next to the school grounds. Appellant, whose brother and twin sisters were
attending the school, was part of this group. The demonstrators marched around on a sidewalk
about 100 feet from the school building, which was set back from the street. Many carried signs
which summarized the grievances: ‘Black cheerleaders to cheer too’; ‘Black history with black
teachers'; ‘Equal rights, Negro counselors.’ Others, without placards, made the ‘power to the
people’ sign with their upraised and clenched fists". Id. at 105. The protesters in this case were
outside of a school on the public sidewalk.
Id., at 116 (holding anti-picketing ordinance unconstitutional but upholding anti-noise
ordinance regarding protests on school grounds.)
460 U.S. 37 (1983).
Hague v. CIO, 307 U.S. 496 (1939) (nullifying a mayor’s ordinance which banned political
meetings and the distribution of CIO literature on public grounds.)
Id. at 515.


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historically have been “venues for the exchange of ideas,”122 where a “speaker
can be confident that he is not simply preaching to the choir.”123
The second type of fora are designated (or limited) public fora.
Designated public foras “consist of public property which the State has opened
for use by the public as a place for expressive activity.”124 The crucial
difference between traditional public fora and limited public fora is that the
latter is specifically created by the government for certain groups to engage in
expressive acts. School board meetings125, college and university facilities126,
and municipal auditoriums127 are examples of limited public fora.
Last are the nonpublic fora. Since these areas are not traditionally used
for the expression of speech (such as parks and streets) nor are they created or
opened for the expression of acts (such as municipal auditoriums and university
facilities), nonpublic fora are accorded the least amount of First Amendment
protection. This is because these areas have distinct governmental purposes,
other than public speech or expressive acts. Commonly cited examples include
jails,128 public airport terminals,129 military bases130, and public schools. Courts
have routinely held that jails and prisons are non-public fora.131
The government has the greatest ability to restrict speech in nonpublic
foras. As noted by the Supreme Court, “the State, no less than a private owner
of property, has the power to preserve the property under its control for the use
to which it is lawfully dedicated.”132 In nonpublic foras, the government may
impose time, place or manner restrictions on speech and it “may reserve the
forum for its intended purposes, communicative or otherwise, as long as the

McCullen v. Coakley, 134 S. Ct. 2518, 2529 (2014) (holding Massachusetts law creating
buffer zones around health clinics performing abortions was not narrowly tailored and therefore
violated protesters’ First Amendment rights).
Perry Educ. Ass’n v. Perry Local Educs. Ass’n, 460 U.S. 37, 45 (1983).
See City of Madison Joint School Dist. v. Wisc. Employment Relations Comm’n, 429 U.S. 167
See Widmar v. Vincent, 454 U.S. 263 (1981).
See Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975).
See Adderly v. Florida, 385 U.S. 39 (1966). This categorization is discussed in more depth
See Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992).
See Greer v. Spock, 424 U.S. 828 (1976).
See Cornelius v. NAACP Legal Defense & Educ. Fund, 473 U.S. 788, 803-804 (1985) (citing
Adderley for the proposition that jails are not public fora and Jones for the same proposition in
regards to prisons). But see Pell v. Procunier, 417 U.S. 817, 827-29 (1974) (holding that limits
on face-to-face interviews between the press and inmates was not an unreasonable restriction in
light of alternative means of expression).
Adderley, 385 U.S. at 48.


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regulation on speech is reasonable and not an effort suppress expression merely
because public officials oppose the speakers view.”133 The language “as long as
the regulation on speech is reasonable” implies that courts will examine the
constitutionality of the government’s restriction on an individual’s ability to
engage in expressive acts in a nonpublic forum, under a rational basis standard.
Accordingly, in such non-public fora, the government is free to restrict and even
eliminate speech or otherwise expressive acts, so long as the restriction is not
motivated by the content of the speech. 	
The analysis in Adderley was sufficiently broad to allow subsequent
courts to conclude that jail and prison facilities themselves are non-public fora.
The protests in Adderley were not in the jail facility, but rather, at most, the
“curtilage of the jailhouse.”134 However, the Court emphasized the ability of the
government to control the use of its own property for its own lawful
nondiscriminatory purpose,”135 in this case the facility itself as well as the
adjacent curtilage. The Court’s emphasis essentially extends the inquiry from
the specific space where the protests occurred to a broader inquiry about the
property as a whole.136 In so doing, the Court ascribes the purpose of the facility
itself to the property as a whole. Although Adderley did not specifically hold
that the jail was a non-public forum, subsequent cases have interpreted it as such
under the broad rationale announced in Adderley.137
In a series of cases that have nothing to do with prisons, courts, in dicta,
have characterized jails and prisons are non-public fora.138 For example, the
Fifth Circuit, in a case about speech on public housing grounds, indicates that
jails are non-public fora, citing Adderley as support for that proposition.139 In
outlining the relevant doctrinal framework, the Eleventh Circuit notes prisons
are non-public fora in a case concerning a university’s First Amendment

United States Postal Service v. Greenburgh Civic Ass’n, 453 U.S. at 129.
Addlerey, 385 U.S. at 47.
Adderley, 385 U.S. at 48. (emphasis added).
But see Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 804, 105 S. Ct.
3439, 3450, 87 L. Ed. 2d 567 (1985)(citing Adderley to support proposition that the “jailhouse
grounds” are not public fora.)
In fact, some scholars credit Adderley with providing the foundation for development of the
“non-public forum” doctrine. See C. Thomas Dienes, The Trashing of the Public Forum:
Problems in First Amendment Analysis, 55 GEO. WASH. L. REV. 109, 116 (1986); Martin B.
Margulies, The Davis Case and the First Amendment, 11 ST. JOHN'S J. Legal Comment. 39, 49
In Jones, discussed infra, the Court did conclude, “a prison is most emphatically not a ‘public
forum’” Jones, 433 U.S. at 136. But that is different than concluding that prison is a non-public
forum. Jones only establishes that prisons and jails are not public, but it does not specifically
foreclose the possibility that a prison could be a limited or quasi-public forum.
de la O v. Hous. Auth. of City of El Paso, Tex., 417 F.3d 495, 503 (5th Cir. 2005).


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violations against members of the school’s Gay Lesbian Bisexual Alliance
student group.140 Thus, Adderley underlies court decisions holding that jails and
prisons are non-public fora more generally.
Courts in a few cases have also cited to Adderley when addressing
speech claims within carceral facilities. In Pell v. Procunier, the regulation at
issue prohibited “face-to-face interviews between press representatives and
individual inmates whom they specifically name and request to interview.”141
Plaintiff inmates142 claimed the regulation infringed on their First Amendment
right to freedom of speech by denying media access to incarcerated individuals.
The U.S. Supreme Court upheld the regulation as applied to the inmate plaintiffs
primarily on two grounds: 1) there were available alternatives for individual
contact, such as via mail or personal visits with family and friends; and 2) that
the government may constitutionally regulate speech as to the time, place, and
manner to further significant government interests. The Court cited Adderley,
among other cases, for the second proposition. Because the prison’s interests
are maintaining security and order, combined with deference to the judgments of
prison administrators, the Court concluded that the regulation did not “abridge
any First Amendment freedoms retained by prison inmates.”143 Lower courts
have followed suit. For example, in Paka v. Manson,144 the district court upheld
a prison prohibition on unions, citing to Pell v. Procunier and Adderley, because
the prohibition was an appropriate “time, place, and manner” restriction. One
lower court applied the Adderley rationale to speech by correctional employees
within the prison facility. In Israel v. Abate,145 the district court judge cited
Adderley as an appropriate time, place, and manner restriction in upholding
restrictions on the distribution of union materials among correctional employees
within the detention facility. Hence, despite its uncertain origins, it is generally
taken for granted that jails and prisons after Adderley are non-public fora.
Designating the interior of jails and prisons as non-public fora, however,
is fundamentally at odds with one of the underlying rationales for the First
Amendment’s place-based approach, i.e. the differing constitutional rules
depending on the place in which the speech occurs.146 A place-based approach


Gay Lesbian Bisexual All. v. Pryor, 110 F.3d 1543, 1548 (11th Cir. 1997)
417 U.S. 817, 819 (1974).
Separately, the Court also addressed the claims of plaintiff journalists contesting the
regulation. Procunier, 417 U.S. at 829-835.
Id. at 828.
387 F. Supp. 111 (D. Conn. 1974).
949 F. Supp. 1035, 1043 n.6 (S.D.N.Y. 1996).
See e.g., Heffron v. Int’l Society for Krishna Consciousness, 452 U.S. 640 (1981) (upholding
regulation banning distribution of material except from fixed and limited locations); Int’l Soc.


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is justified, in part, because speakers have a choice in where to express their
views. Jails and prisons, by definition, require the involuntary confinement and
isolation of individuals, thus incarcerated individuals lack a choice in where to
express themselves. 147 As Justice Marshall has noted in dissent in another
prisoners’ rights case, it defies logic to apply “time, place, and manner” analysis
to detainees, who have little to no choice in the time or place of their speech by
virtue of their incarceration.148
The extension of Adderley to speech within the facility ignores the
distinction between the incarcerated and the non-incarcerated. Adderley may
intuitively be correct that jails and prisons are not a public forum for nonincarcerated individuals. Carceral facilities may properly limit public access to
the interior of a facility, for example, to prevent the introduction of contraband
that would threaten the order or security of the facility.149 But for the
incarcerated, the facility is the only forum they may legally access during their
When we re-introduce the racial context of the Adderley case, the
paradox of the case is more readily apparent. What initially began as a case
concerning the rights of African-American protesters to protest segregation
outside of a jail has morphed into a broad proposition that limits the First
Amendment rights of the incarcerated, who are disproportionately racial


Race is also a hidden factor in Jones v. North Carolina Prisoners’ Labor
Union, Inc.150 In 1977, the overruled the a three-judge panel district court and
upheld the curtailment of the rights of prisoners to organize a prisoners’ union

for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992) (applying forum analysis to uphold
restriction of solicitation and distribution of materials in airports).
Procunier, 417 U.S. at 826.
Bell v. Wolfish, 441 U.S. 520, 573 (1979)(Marshall, J. dissenting) (“In each of the cases cited
by the Court for this proposition, the private individuals had the ability to alter the time, place, or
manner of exercising their First Amendment rights.”) (Holding that the prohibition against the
receipt of hardback books unless mailed from the publisher or a book club was not an
unreasonable restriction on prisoners First Amendment rights).
See Saxbe v. Washington Post Co., 417 U.S. 843, 849 (1974) (acknowledging “the truism
that prisons are institutions where public access is generally limited.”) (internal citations and
quotation marks omitted).
433 U.S. 119 (1977).


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within North Carolina. The union, a direct outgrowth of the Black Power
Movement, sought to improve prison conditions and “to serve
as a vehicle for the presentation and resolution of inmate grievances.”151 In so
doing, the Court applied Adderley to conclude that jails and prisons are not
public fora152 and further narrowed the availability of non-violent protest speech
within carceral facilities.

Jones and Race

The North Carolina Department of Corrections prohibited soliciting
other inmates to join the Prisoners’ Union, barred Union meetings, and restricted
bulk mailings related to the union. Justice Rehnquist, writing for the majority,
overturned the trial court, which had held that the state’s union related
regulations had infringed on the First Amendment rights of the prisoners.
Notably, the state did not directly challenge the formation of, or individual
membership in, a prisoners’ union.153 Instead, the state regulations focused on
the ability of the union to operate. The regulation was adopted in March 1975,
after the incorporation of the North Carolina Prisoners’ Labor Union (NCPLU)
in 1974.
The newly introduced North Carolina regulations prohibited
solicitation of new members, whether in person or by correspondence.154 The
regulations also forbid union meetings and negotiations between union
representatives and correctional officials.155 The new regulations stood in stark
contrast to the regulations governing other inmate associations, such as
Alcoholics Anonymous and the Junior Council, which were allowed to both
solicit new members and meet within the detention facilities.156
The North Carolina Prisoners’ Labor Union, Inc. (NCPLU) was
incorporated in 1974 and by the time of trial, claimed approximately 2,000
members scattered across various detention facilities within the state.157 The
trial court concluded that “[t]o permit an inmate to join a union and forbid his
inviting others to join borders on the irrational.”158 And although trial court
found – based on conflicting expert testimony – that there was no consensus on


Id. at 122.
Id. at 134-36.
N. Carolina Prisoners' Labor Union, Inc. v. Jones, 409 F. Supp. 937, 941 (E.D.N.C. 1976),
rev'd, 433 U.S. 119 (1977).
Id. at 941.
Id. at 942.
Id. at 942.
Jones, 433 U.S. at 122.
N. Carolina, 409 F. Supp. at 943.


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the ultimate benefit (or danger) of a union in general,159 the trial court also found
that there was “not one scintilla of evidence to suggest that the Union has been
utilized to disrupt the operation of the penal institutions.”160
In Jones, the Supreme Court overruled the trial court and upheld the state
regulations prohibiting certain union activities. According to the majority
opinion, was not really about speech. The Court noted that “First Amendment
speech rights are barely implicated in this case.”161 This was the case in part,
because Jones relied heavily on Pell v. Procunier, which had relied in part on
Adderley.162 Under Procunier, prisoners only retain those First Amendment
rights that are “not inconsistent with his status as a prisoner or with the
legitimate penological objectives of the corrections system.”163 Accordingly,
the Court held that a regulation prohibiting media access to specific inmates did
not constitutionally infringe on inmates’ First Amendment speech rights.
Instead the Court focused on the First Amendment freedom of
association rights of the inmates. Moreover, Procunier also identified and
discussed four legitimate penological objectives, namely deterrence, namely
deterrence, isolation, rehabilitation, and security.164 In Procunier, the Court
noted that “[c]entral to all other corrections goals is the institutional
consideration of internal security within the corrections facilities themselves.”165
Jones approvingly adopted this rationale in upholding the North Carolina
regulation prohibiting solicitation of union membership. Thus, in Jones, we see
an extension of Adderley and Procunier beyond individual speech, but also to
association among inmates.
The Supreme Court’s 7-2 majority opinion by then-Justice Rehnquist in
Jones also scolded the trial court for failing to give appropriate deference to the
views of the prison administrators about the potential dangers of the NCPLU.166
Deference was due because of the unique circumstances of administering a
detention facility and because courts are not equipped with the specific expertise
required to make these administrative decisions.167 North Carolina prison
officials testified that a prisoners’ union could be misused, leading to work
stoppages and riots.168 Although expert opinion was divided, the Supreme Court

Id. at 943.
Id. at 944.
Jones, 433 U.S. at 130.
See discussion supra III.B.
Pell v. Procunier, 417 U.S. 817, 822 (1974).
Id. at 823.
Jones, 433 U.S. at 125-126.
Id. at 127 (emphasis added).


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held that the trial court should have deferred to the views of the corrections
officials, unless there was evidence that such views were unreasonable.169
Deference, however, is particularly susceptible to the influence of
race.170 When courts accept correctional views at face-value, courts are also
accepting the various factors that informed the correctional views in the first
place. For example, the Supreme Court would not have required North Carolina
officials to explain why there was a potential for misuse by inmates or why riots
were a possibility in light of the lack of violence and disruption in the first few
years of the Union’s existence. In a stark departure from the trial court’s actual
findings, the Supreme Court fully adopted the views of the correctional officials
and even characterized the challenged regulations as preventing an “imminent
threat of institutional disruption or violence.”171 One possibility for these views
is the racial context in which the NCPLU emerged.
Understanding the racial context of the Jones case isn’t to deny that the
1970’s weren’t a turbulent time in American prisons and jails. They were. In
March 1970, 1500 prisoners at Rikers prison in New York refused to eat or
perform work assignments for three days to protest a decrease in commutation
time for good behavior.172 In November 1970, some reports indicated 2100
inmates planned to strike in Folsom prison in California, which held 2400 total.
While the Warden claimed the strike was limited to 500 prisoners, he did
pre-emptively order a general lock down for all cells. Prison industries and
kitchen operations were completely shut down in the non-violent protest, which
ultimately lasted nineteen days.174 Perhaps one of the most infamous prison
rebellions, the four-day stand off in Attica, occurred in 1971.175 But the racial
context may be helpful in understanding why protest in particular became an
issue in the 1970’s.176
Prisoners have attempted to protest inhumane living conditions for
decades, well before the 1970s. For example, in the early 1950s, 31 prisoners at

Id. at 127-128.
See Andrea Armstrong, Race, Prison Discipline, and the Law, 5 U. OF CA. IRVINE L. REV.
101 (2015) (noting the potential influence of race in prison disciplinary decisions in the context
of deference to the judgments of prison officials).
Jones, 433 U.S. at 136.
TIBBS, supra note 99, at 96.
Id. at 107-112. The strike at Folsom has been described as the longest prison strike, and the
beginning of the prison union movement.
TIBBS, supra note 99, at 107-112; John Pallas and Robert Barber, From Riot to Revolution, in
(Erik Olin Wright ed., 1973).
This isn’t to say that race is the only factor, but that race may be a factor.


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Angola cut their Achilles tendons to protest their conditions of confinement.177
More than 50 “largely spontaneous” prison riots occurred in the early 1950s to
protest living conditions.178 The leaders of these riots were usually white,
although people of all races were participants.179 But with the increasing
incarceration of civil rights and Black Power leaders, as well as the increased
political consciousness of the incarcerated during the 1970s, these protests
began to assume a racial overtone.
Jones, according to Donald Tibb’s exhaustive study of the background to
the case, was directly related to the rise of the Black Power Movement180 and
the incarceration of those leaders in jails and prisons nationwide.181 In 1970, the
Huey Newton, then Minister of Defense for the Black Panther Party, specifically
addressed prisoners in an article entitled “Prison, where is thy victory?” 182 In
that article, Newton argued that though the prison may hold the body, a prison
can never contain an idea and urges prisoners to understand that prisons support
an illegitimate state order.183 In a similar vein, civil rights activists began
advancing the idea of “notion of blackness as uninterrupted captivity.”184
Many of the Black Power movement leaders were incarcerated during
this time, providing a vehicle for transmitting the ideas to prison populations.185

Heel Tendons Cut in Gaol Protest, AGE, Feb. 28, 1951, at 4, available at
0DAAAAIBAJ&pg=2935,6603888&hl=en; Ralph Hallow, The prison that dared to pray:
Angola used faith, family to stem violence, WASH. POST (July 15, 2014),
PALLAS &BARBER, supra note 178, at 238-39.
Id. at 240-41.
A not insignificant aspect of the Black Power Movement was the Nation of Islam and its
influence in prisons and jails across the country. A full discussion of the Nation of Islam and the
role of Black Muslim identity is beyond the scope of this article, which is limited to identifying
the racial context of the Jones case. But that should not be interpreted to deny the
intersectionality of race and religion and that potential influence on the outcome of Jones. For
more on the role of the Nation of Islam and their role in prison organizing, see TIBBS, supra note
99, at 15-19.
TIBBS, supra note 99.
Id. at 97.
Huey Newton, Prison – Where is thy victory?, in THE GENIUS OF HUEY NEWTON 18, 18-22
(Huey P. Newton ed., 1970) available at,
James B. Jacobs, The Prisoners' Rights Movement and Its Impacts, 1960-80 2 CRIME AND
JUSTICE 429, 436-437 (1980) available at,


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Prominent Black Power movement organizers, such as Angela Davis and
Eldgridge Cleaver, were arrested and incarcerated.186 An inmate rights lawyer
noted a similar dynamic in 1971 when he claimed “[the guys coming off the
street, the guys who have been in the Black Panthers, in heavy actions outside,
will not all of a sudden junk what they’ve learned and thought about what to
organize around.” 187 Organization and protest within prisons began to
incorporate the protesters’ strategies outside of prison. Prof. Thompson, in her
study of labor movements and prison activism, argues that these prison unions
deliberately “connected the problem of their labor exploitation to that of their
racial subjugation.”188 This shift towards more visible political consciousness of
the incarcerated was then expanded through formal and informal means by the
incarcerated themselves.
The prison unionization effort began in California, according to Donald
Tibbs. Members of the Black Panther Party began organizing “secret political
education” classes for inmates in San Quentin.189 George Jackson, an
incarcerated and self-taught Black radical, was appointed an official field
marshall for the Black Panther Party by Huey Newton while both were
incarcerated at San Quentin.190 Jackson had published Soledad Brother, which
was being smuggled in and read in facilities across California.191 San Quentin
was the site for one of the largest prison strikes at the time, in which 1000
prisoners participated.192 The prisoners demands were written by inmate
Warren Wells, a member of the Black Panther Party. 193 Three months later,
perhaps inspired by San Quentin, inmates at Folsom prison also went on strike,
led by Huey Newton among others.194 Their demands included equal treatment
and the right to form a prisoners’ union.195 The demand for the union was
emblematic of the Black Panther strategy at the time, which one scholar as
characterized as “join[ing] two dominant defense traditions in American history,


TIBBS, supra not 99, at 102; see also Jacobs supra note 189, at 436-437.
Steven W. Roberts, Prisons Feel a Mood of Protest: Mood of Protest, Often Highly Political
and Radical, Emerges in Nation's Prisons, N.Y.TIMES, Sept. 19, 1971 at 1.
Heather Ann Thompson, Rethinking Working-Class Struggle Through the Lens of the
Carceral State 8 LABOR, NO. 3, 2011, at 15, 25.
TIBBS, supra note 99 at 88.
Id. at 94.
Id. at 94.
Id. at 106.
Id. at 106.
Id. at 107.
Id. at 112.


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labor and anti-lynching.”196 According to Donald Tibbs, Black radicals during
this time used “their ability to push their message about the exploitation of
prison inmates beyond race.”197 Within months, California activists, including
formerly incarcerated, formed the first prisoners’ union, the “United Prisoner
Union.” 198 In 1971, that union split based on a disagreement about tactics, into
the United Prisoner Union and the Prisoners’ Union.199 The resulting prisoner
union movement ultimately reflected the strategies and growth of the Black
Power movement.
In 1971, Outlaw, a nationwide prisoners rights newspaper for a
California-based Prisoners’ Union, printed instructions on how to organize a
prison union, including authorization slips designating Prisoners’ Union as the
collective bargaining agent. 200 Within months, 12,000 inmates nationwide
applying for membership. 201 The Outlaw continued to support prisoner
unionization efforts across the U.S. by highlighting organizing efforts in various
institutions.202 By the time that the NCPLU was formed, prisoners had
organized unions in facilities across at least ten states.203
The NCPLU at issue in Jones is a direct result of the California prisoners
unions. The North Carolina inmates wrote to the Prisoners’ Union in California
to request a meeting with their union representatives.204 Connor Nixon, one of
the California Prisoners’ Union organizers, visited North Carolina Central
Prison and met with inmate Wayne Brooks. Together, they agreed to organize
the first iteration of the North Carolina Prisoner Labor Union.205 The NCPLU
deliberately did not portray itself as a race-based movement. In its brief to the
Supreme Court, the NCPLU portrayed its leadership as “multi-racial” noting the
Board of Directors is composed of seven white persons, six black persons and

Dan Berger, We Are the Revolutionaries": Visibility, Protest, and Racial Formation in 1970s
Prison Radicalism 47 (2010) Publicly accessible Penn Dissertations, Paper 250 (citing Rebecca
Hill) at:
TIBBS, supra note 99 at 116.
Id. at 112.
Id. at 122-123.
Id. at 120-24.
Id. at 124.
See e.g., TIBBS, supra note 99, at 125 (discussion May-June 1973 edition of the Outlaw,
article discussed Prisoners’ Union as a national drive to organize prisoner inmates).
Heather Ann Thompson, Rethinking Working-Class Struggle Through the Lens of the
Carceral State 8 LABOR, NO. 3, 2011, at 15, 24. The states include California, Delaware, Maine,
Massachusetts, Michigan, Minnesota, Ohio, Pennsylvania, Rhode Island, and Wisconsin, in
addition to Washington D.C.
TIBBS, supra note 99, at 126.
Id. at 126. Nixon subsequently absconded with the union fees and cards, but Brooks shortly
organized the second iteration of the NCPLU. Id. at 136.


Submitted August 18, 2016
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one American Indian.206 This statement tracks efforts in California to shape
public perception of the United Prisoners Union as “less radical” and raciallyinclusive than the ideologies of some of their Black Panther and Brown Beret
members.207 It also reflects the broader focus on class exploitation as a “convict
During this time period, organizing unions and protests within prisons
were perceived as race-based, even when the unions emphasized a “class”
approach to prison reform.209 Many of the unions during this time period were
founded and led by African-Americans,210 but the reform focus was squarely on
class. A New York Times article from 1971 describes the prisoner movement as
“radical,” “political” and often connected to the “Black Panthers.”211 This
perception of race is so strong that one New York Times reporter concluded,
“[o]ne basic fact about the prison movement is that it is led largely by blacks
and other minority groups.”212
Absent the racial context, Jones could be read as simply a fear of
concerted group activity by the incarcerated. Since security was paramount,
North Carolina officials did not have to wait “until the eve of a riot” to act.213
Rather, the Court opined, the very existence of a union – although not prohibited
or contested by North Carolina regulations – could surely bring trouble. The
trouble, according to the Court, lies in the union’s role in facilitating group
action. But the Court feared not just any group action, but the action by this
group in particular. The Court was not concerned with the activities of other
groups, namely the JayCees or Alcoholics Anonymous, for example. And the
Court uses race-neutral language to describe the potential danger of a union.
“Solicitation of membership itself involves a good deal more than the simple
expression of individual views as to the advantages or disadvantages of a union
or its views; it is an invitation to collectively engage in a legitimately prohibited

Brief for Appellee at 7, Jones v. N.C. Prisoners’ Labor Union, Inc., 433 U.S. 119 (1977)
(No. 75-1874), 1976 WL 181714 (U.S.).
Everett Holles, Convicts Seek to Form a National Union, N.Y. TIMES, Sept. 26, 1971, at 74.
TIBBS, supra note 99 at 117.
See Dan Berger, “We Are the Revolutionaries”: Visibility, Protest, and Racial Formation in
1970s Prison Radicalism 243-248 (Dec. 22, 2012) (unpublished Ph.D dissertation, University of
Pennsylvania)(on file with Publicly Accessible Penn Dissertations, (Provides a broader discussion about the tensions
between the Black nationalist-based prison organizing and the class-labor based prison
Heather Ann Thompson, Rethinking Working-Class Struggle Through the Lens of the
Carceral State 8 LABOR, NO. 3, 2011, at 15, 25.
Roberts, supra note 191.
Jones v. N.C. Prisoners’ Labor Union, Inc., 433 U.S. 119, 133 (1977),


Submitted August 18, 2016
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activity.”214 A union that focuses on “presentation of grievances to, and
encouragement of adversary relations with, institution officials”215 would
present a danger distinct from a group focused on coping with substance abuse,
for example. Certain comments during oral argument, however, indicate
underlying concerns about race.
During oral argument, however, Justice Stewart attempted to compare
the Union to other externally-affiliated racially-based groups. Stewart asked
counsel for the Union whether a prison could constitutionally prohibit external
organizations such as the “Ku Klux Klan (KKK) or the Palestinian Liberation
Organization (PLO)” from organizing chapters within a prison facility.216
Without any basis in the briefs submitted, Justice Stewart sua sponte raised the
issue of the Ku Klux Klan and whether prison officials could prohibit the KKK
from operating within the prison by determining in advance that the organization
would lead to “racial difficulties and racial violence.”217 He also implicitly
questioned whether the stated bylaws and constitution of the NCPLU reflected
its real aims, again in comparison to the KKK as well as other “dictatorships.”218
In so doing, Stewart made two troubling inferences about the NCPLU.
First, his question highlights concerns about potential relationships between
internal organizations and connections to other organizations. Justice Stewart
specifically questioned NCPLU counsel about whether NCPLU was connected
to a union also operating in California.219 Perhaps he feared that the actions by
the internal organization would be influenced or directed by an external
organization with different organizational objectives? Or perhaps he was
concerned that the linkage to an external organization could facilitate activities
by internal chapters at multiple facilities? More broadly, his concern seems to
undermine the idea that the NCPLU could represent authentic issues within the
facility and instead act as a mouthpiece for external objectives.
Second, Justice Stewart’s choice of comparable organizations may
reflect an inference that the NCPLU was similarly linked to race. The KKK
advocates for the supremacy of the Caucasian race and culture.220 Certainly
during the 1960s and 1970s, the KKK was renowned for its use of private

Id. at 131-32.
Id. at 133.
Oral argument at 53:24, Jones, 433 U.S. 119 (1977) (No. 75-1874), available at
Id. at 50:44.
Id. at 51:37-48.
Id. at 53:13.
Southern Poverty Law Center, Ku Klux Klan, SOUTHERN POVERTY LAW CENTER (last visited Aug.
12, 2016).


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violence and threats to achieve racial objectives.221 The KKK held public
lynchings of African-Americans, bombed homes and buildings of AfricanAmericans or their sympathizers, and issued threats of violence to organizations
and individuals advocating for equal rights for African-Americans.222 Similarly,
during this time, the PLO was also generally viewed as a race-based terrorist
organization using violence to achieve its objectives. Another Justice, while
noting that the PLO did not “openly advocate terrorism,” also stated that the
Court could take judicial notice that the PLO “practiced it.”223 These
comparisons are all the more surprising because the NCPLU had neither
advocated racial/ethnic superiority nor violence during its brief existence.
Re-situating Jones within its racial context makes the underlying
concerns of Justice Stewart more visible. The prisoners’ union movement
originated in facilities in California, which had its share of racial violence and
riots. The union effort was linked to individuals and tactics adopted by the
Black Panther Party. The NCPLU began its operations, in part, because of the
assistance of a California-based prisoners’ union. Rightly or wrongly, these
racial concerns were at the forefront of Justice Stewart’s questioning during oral
argument and may have influenced others.

Jones’ Impact

The clearest impact of Jones is in the “major setback” to a growing
prisoners’ labor movement.224 By the time Jones was decided, unions had been
established in at least ten other states.225 By limiting protection for prisoners’
First Amendment rights to speech, expression, and association, the Court also
limited their ability to bargain for improved working conditions.226 But Jones
also has a more subtle impact as authority for subsequent doctrine-shifting cases.
More broadly, Jones is jurisprudentially influential in two distinct ways.
First, Jones significantly deepened the court’s degree of deference to the views
of prison administrators. This enhanced deference was later solidified in Turner
v. Safley, 227 which provided the doctrinal architecture for courts to defer.
Second, Jones is interpreted by analogy to prohibit any non-sanctioned group

Anti Defamation League, The Ku Klux Klan and Resistance to School Desegregation, ADL (last visited, Aug. 12 2016).
Id. at 53:53.
Thompson, supra note 15, at 30.
Id. at 24.
482 U.S. 78 (1987).


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activity, including non-violent activity, because of the potential of a threat to the
order or security of the facility.
As to deference, the Supreme Court relied on Jones in deciding Turner v.
Safley,228 one of the most influential cases on prisoners’ rights.229 In Turner, the
Supreme Court was confronted with two Missouri regulations: 1) preventing
correspondence among inmates at different institutions and 2) requiring the
superintendent’s permission for an inmate to marry. The Turner Court sought to
articulate a broader “standard of review” for prisoners’ claims of constitutional
violations.230 The Court reviewed in detail four recent decisions involving
prisoners’ constitutional rights, including Jones.231 Based on those cases, the
Court concluded that deference is due to the judgments of prison administrators
because otherwise, prison administrators would be unnecessarily hindered in
addressing security and devising creative solutions.232 Moreover, courts would
be engaged in second-hand micromanaging of carceral facilities, an area where
the Courts may lack specific expertise.233 Accordingly, relying in part on Jones,
the Court clarified the applicable standard and identified specific factors
governing prisoners’ challenges to prison rules. Turner required that a
regulation be “reasonably related to legitimate penological interests.”234 To
determine whether the regulation is reasonable, the Court examined the
following four factors : 1) whether there is a “valid, rational connection between
the prison regulation and the legitimate governmental interest”235; 2) “whether
there are alternative means of exercising the right that remain open to prison
inmates”236; 3) the “impact accommodation of the asserted constitutional right
will have on guards and other inmates, and on the allocation of prison resources
generally”237; and 4) whether “ready alternatives”238 to accommodate the
prisoner’s rights are available, with the absence of such alternatives
demonstrating the reasonableness of the prison regulation at issue. Nor is Turner
limited to only situations of “presumptively dangerous” determinations. The

For an excellent and practical critique of the Turner decision itself, see David M. Shapiro,
Lenient in Theory, Dumb in Fact: Prison, Speech, and Scrutiny, 84 GEO. WASH. L. REV. 972,
975 (2016).
Turner, 482 U.S. at 85.
Id. at 86-88.
Id. at 89.
Id. at 78.
Id. at 89.
Id. at 90.
Id. at 90-91


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Court specifically relied on Jones to establish that the “reasonableness” inquiry
applies and takes account of any articulated security concerns.239 Turner thus
established a “lenient”240 standard for prison administrators to satisfy.
Following Turner, deference is one of the primary drivers of the
Supreme Court’s jurisprudence when deciding prisoners’ claims of
constitutional violations.241 For example, the Seventh Circuit upheld censorship
of a prison newsletter that was critical of the parole board and the facility, even
though the newsletter did not suggest group action or protest.242 The Circuit
Court applied Turner and held that the prison’s restriction on the distribution of
the critical articles was reasonable because of the warden’s testimony of the
articles would threaten security by “encouraging distrust of staff and unrest
among inmates” and “encourage disrespect on the part of the inmate.”243 Thus
in Van den Bosch v. Ramisch, the court deferred to the warden’s assessment that
speech, whether describing true or fabricated events, may cause unrest simply
by changing an inmate’s attitude without any physical act. Arguably, under
Ramisch, any speech critical of the facility would cause unrest and therefore not
be constitutionally protected.
Turner deference now applies to virtually all First Amendment
challenges of prison and jail regulations, as well as some Fourth and Fourteenth
Amendment due process claims. Courts will defer to the judgment of the prison
administrators when deciding restrictions on access to the courts,244 attendance
of religious services,245 receipt of mail246 and publications,247 and visitation.248
The Court also applied Turner to uphold a jail’s policy of mandatory stripsearches for detainees entering general population249 and the involuntary
medication of mentally ill prisoners.250 Thus far, the Court has held only two
areas exempt from Turner analysis: claims of racial discrimination under the
Equal Protection Clause and claims of “cruel and unusual punishment” under


Id. at 88-89.
Johnson v. Cal., 543 U.S. 499, 513 (2005) (holding Turner does not apply to claims of racial
discrimination within prisons)
Sharon Dolovich, Forms of Deference in Prison Law, 24 FED. SENT. REP. 245 (April 2012).
Van den Bosch v. Ramisch, 658 F.3d 778 (7th Cir. 2011).
Id. at 787.
Lewis v. Casey, 518 U.S. 343 (1996).
O'Lone v. Estate of Shabazz, 482 U.S. 342 (1987).
Shaw v. Murphy, 532 U.S. 223 (2001).
Thornburgh v. Abbott, 490 U.S. 401 (1989).
Overton v. Bazzetta, 539 U.S. 126 (2003).
Florence v. Bd. of Chosen Freeholders of Cty. of Burlington, 132 S. Ct. 1510, 1515 (2012).
Washington v. Harper, 494 U.S. 210 (1990).


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the Eighth Amendment. 251 Turner has had a “pervasively powerful impact on
prisoners' constitutional cases,”252 an impact which in part was enabled by the
decision in Jones.
Several courts have also expanded the realm of prohibited protest
activities beyond the circumstances presented in Jones. Jones concerned the
actual solicitation to join an organized group, which had as its mission, among
other things, the presentment of group inmate grievances. Simply put, Jones
involved group solicitation of individuals to engage in group activity. But in a
Second Circuit case, the court upheld discipline for an individual’s possession of
a self-authored pamphlet urging group activity, namely a work stoppage to
protest prison conditions. Nor was there any direct evidence of actual or
attempted distribution by the inmate, although certainly possessing three
copies253 could be construed at most as an implicit attempted violation.
The influence of Jones is also evident in cases prohibiting the signing of
petitions. Several courts have cited to Jones in upholding disciplinary violations
for signing group petitions protesting prison conditions.254 As in Jones, none of
these cases concerned actual or threatened violence. Rather the prohibited act in
these cases was simply the act of signature, which at least superficially would
appear to be less of a “group” activity than joining an existing advocacy group.
While these cases are harder to distinguish from Jones, it is nevertheless worth
asking whether signing a group petition is the equivalent to joining a group
activity? Is a petition prohibited because it signals a group consensus? Or
because failure to respond positively to a petition’s demands could lead to the

Johnson v. Cal., 543 U.S. 499, 510 (2005). For Eighth Amendment claims alleging “cruel
and unusual punishment,” the “deliberate indifference” test applies. Id. at 511 (citing Hope v.
Pelzer, 536 U.S. 730, 738 (2002)).
Christopher E. Smith, Justice Sandra Day O'connor and Corrections Law, 32 HAMLINE L.
REV. 477, 495 (2009); see also Shapiro, supra note 242, at 975 (noting Turner has been cited in
over 8000 court opinions).
Pilgrim v. Luther, 571 F. 3d. 201, 203 (2009). The incarcerated plaintiff had admitted to
writing a pamphlet called “Wake Up!,” which called for work stoppages in protest of prison
conditions. After finding three copies of the pamphlet after searching his cell, the plaintiff was
issued a disciplinary report for violation of prison rule 104.12, which prohibits “lead[ing],
organiz[ing], participat[ing] or urg[ing] other inmates to participate in a work-stoppage, sit-in,
lock-in, or other actions which may be detrimental to the order of [the] facility.” Id. at 203.
Adams v. Gunnell, 729 F.2d 362 (5th Cir. 1984) ( two federal prisoners who had been
disciplined for engaging in “conduct which disrupts the orderly running of the institution” by
signing a petition along with 34 other inmates complaining of racial discrimination in the
opportunities to participate in prison programing.). See also Ajala v. Swiekatowski, 2015 WL
1608668 (W.D. Wis. Apr. 10, 2015) (correctional officers confiscated a petition signed by 100
inmates that had been circulated by the plaintiff with a list of demands concerning the conditions
of confinement and threatened a month long strike.).


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types of organized activity (work stoppages, etc) that the Jones court feared?
Courts have failed to ask these questions, and thus expanded Jones to prohibit all
non-individualized grievances. Moreover, citing Jones, at least one court has
held that courts should defer to prison administrators in determining whether a
given document constitutes a group petition.255

Across the United States in the 1950s and 1960s, African
Americans engaged with institutions of American law enforcement
in diverse ways as part of the wider struggle for black freedom.
They courted arrest and imprisonment through nonviolent
demonstrations, found protection in armed self-defense from white
supremacist violence that was tolerated by southern police, fought
against police brutality in race riots, and made prisons sites of
revolutionary activism.256

It is no accident that jails and prisons are a part of our nation’s race and
civil rights story. “For the civil rights movement, jail served many purposes: it
was a rite of passage, a form of community, and a tool for political
mobilization.”257 Localities engaged in mass arrests to subdue and punish civil
rights demonstrators. For example, in 1963 alone, approximately 20,000 people
were arrested in demonstrations across 115 cities. 258 Civil rights activists also
deliberately broke unjust laws and used their carceral detention to advocate for
equality.259 Martin Luther King’s “Letter from a Birmingham Jail” is
emblematic of a larger strategy of reclaiming carceral spaces to highlight
injustice.260 “Overflowing jails joined overflowing church pews to sustain the
movement’s energy.”261 In fact, many civil rights organizations deliberately

Felton v. Eriksen, 2009 WL 1158685 at 1 (W.D. Wis. Apr. 28, 2009), aff’d 366 F. App’x 677
(7th Cir. 2010).
BERGER, supra note 188, at 23.
CAMPBELL, supra note 272, at 177.
See BERGER, supra note 188, at 12.
Martin Luther King, Jr., Letter from a Birmingham Jail, August, 1963, reprinted in The
Negro Is Your Brother THE ATLANTIC MONTHLY, August 1963, at 78 – 88, availibe at; see also BERGER, supra
note 188, at 36 (quoting Reverend Martin Luther King Jr. as “praising the movement’s success
at having ‘transformed jails and prisons from dungeons of shame to havens of freedom and
BERGER, supra note 188, at 36.


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called for demonstrators to “fill the jails.”262 “[Civil rights and Black power
movements] relied on at some level turning incarceration into a spectacle of
freedom.”263 Civil rights organizations also questions the broader criminal
justice system. For example, the Southern Christian Leadership Conference,
founded by Dr. Martin Luther King Jr., explicitly called for the “dismantling the
present penal system.”264 Thus, challenging criminal justice policies and
incarceration were part of a broader civil rights movement demanding equal
rights regardless of race.
Yet, criminal justice is different in kind from most other public
government functions. The power and authority of the government is at its apex
in the criminal justice context. Although there are significant questions about
the privatization of prison operations and services, only the state has the
authority to involuntarily deprive a person of their liberty. This fulsome
expression of authority has its roots in the “social contract theory” of
government as preferable to anarchy.265 A challenge to the moral authority of
the government to detain an individual is a challenge to heart of government
Both Adderley and Jones, in different ways, challenged the legitimacy of
the carceral state through a racial lens. The protesters in Adderley had protested
at a private establishment the day before, the Joy Theater. The protesters could
have marched towards any number of segregated facilities, private or public,
that day. Instead, they chose the jail as their target. Their protests at the jail
sought to highlight the jail was a site of racial oppression, rather than an
objectively neutral arbiter of criminality. Similarly, although the NCPLU in
Jones was carefully presented to the Courts as a multi-racial coalition, it began –
and was perceived at the time – as a race-based resistance movement. The
NCPLU represented an assertion of rights of people deemed to be “criminals.”
In many ways, the Adderley/Jones cases exemplify the “preservationthrough-transformation” dynamic articulated by Prof. Reva Siegel.266
“Preservation-through transformation” is a shorthand term to describe how
contested legal status changes can spawn new regimes that may nevertheless
include aspects of the prior status. For example, Siegel argues that the formal
abolition of slavery led to legally-sanctioned segregation, which allowed for

See discussion of civil rights strategies in Id. at 35-46; see also MARTIN LUTHER KING, JR.
The Sword That Heals, in WHY WE CAN’T WAIT 30 (1968) (discussing the brutalities of
imprisonment and the willingness to endure unjust incarceration to advance the cause of justice).
BERGER, supra note 188 at 26
Paul Delaney, S.C.L.C. Says It Is ‘Broke’ but ‘Proud,’ N.Y. TIMES, Aug. 20, 1972. at 60.
John Bronsteen, Retribution's Role, 84 IND. L.J. 1129, 1131 (2009).
Reva Siegel, Why Equal Protection No Longer Protects: The Evolving Forms of StatusEnforcing State Action, 49 STAN. L. REV. 1111 (1997).


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maintaining the legal inferiority of African-Americans. 267 Thus the regime was
“transformed” from slavery to segregation, and yet many of the contested norms
of slavery were “preserved” within the new regime. Michelle Alexander,
drawing upon Prof. Siegel’s work, identifies this same dynamic at work today in
the age of mass incarceration.268 While the civil rights movement may have
achieved notable gains, Alexander argues that the locus of racial control and
subordination shifted to our criminal justice system.
This shift was neither instantaneous or immediate, but rather evolved
from a series of cases and shifts by the Supreme Court. Three years before
Adderley, the Supreme Court summarily reversed the lower courts’ holding that
an inmate failed to state a cause of action when raising a claim under 42 U.S.C.
§ 1983 in Cooper v. Pate.269 The plaintiff in that case, a Black Muslim, claimed
the prison had denied his constitutional right to freedom of religion. In another
case decided one year after Adderley, the Court in Lee v. Washington, in a per
curiam opinion, held that mandatory racial segregation in jails was


In major cities across the U.S., we have seen a rise in non-violent actions
to protest police involved killings.271 Over 1000 people have been arrested
during non-violent demonstrations, while protesting the killings of Eric Garner,

Id. at 1120-29.
Cooper v. Pate, 378 U.S. 546 (1964).
386 U.S. 952 (1967)
For example, protests after the death of Eric Garner lasted for days, see Pervaiz Shallwani,
300 Arrests After 2 Days of Eric Garner Protests, More Demonstrations Planned, WALL ST. J.
(Dec 5, 2014), Protests after the death of Michael Brown spanned the country,
see Dan Keating, Cristina Rivero and Shelly Tan, A breakdown of the arrests in Ferguson,
WASH. POST (Aug. 21, 2014), the arrests after protests in Ferguson, MO); and,
Associated Press, 159 arrested in Berkeley as protests continue over Eric Garner, Michael
Brown grand jury decisions, TIMES-PICAYUNE (Dec. 9, 2014), (Describing
protests in both Oakland, CA and Berkeley, CA in response to police involved shootings). Also,
after the police involved shootings in St. Paul, MN and Baton Rouge, LA both cities saw large
protest actions, Phil Helsel, Elisha Fieldstadt, Matthew Grimson, and The Associated Press,
Hundreds Arrested in Protests Over Police Shootings in St. Paul, Baton Rouge, NBC NEWS (Jul.


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Michael Brown, Freddie Gray, and Laquan McDonald, Alton Sterling, and
Philandro Castille.272 The speeches of today mirror the speeches during the civil
rights movement in the 1960s and 1970s: that criminal justice systems in many
places were complicit in continuing civil rights abuses.273
The protests of today, like the civil rights protests, are linked to broader
claims about the illegitimacy of the criminal justice system. In a sweeping
policy platform, the Movement for Black Lives specifically targets the
criminalization and incarceration of Black Youth.274 Over 50 Black-led
organizations, including the Black Youth Project 100, contributed to the
development of the policy platform.275 Many of the platform demands recall the
Black Panthers’ Party “Ten Point Program.”276 The platform demands, among
other things, the demilitarization of law enforcement, an end to capital
punishment, and significant overhauls of the conditions detention facilities.277
Other Black-led movements have also questioned the legitimacy of current
incarceration practices by focusing on police violence. Black Lives Matter
activists Johnetta Elzie and DeRay McKesson are part of the planning team for
“Campaign Zero,” which advocates for limiting police intervention, improving
community relations, and holding law enforcement accountable.278 Protests


See Shallwani, supra note 287; Dan Keating, Cristina Rivero and Shelly Tan, supra note 287;
Natalie Neysa Alund, Ferguson protest: 92 arrests in Oakland during 2nd night of looting,
vandalism, MERCURY NEWS (Nov. 26,2014),; Associated Press,
supra note 287; Patrick M. O'Connell , Grace Wong and Tony Briscoe, 4 arrested in 2nd night
of Laquan McDonald shooting protests, THE CHICAGO TRIBUNE (Nov. 26, 2015),; Phil Helsel, Elisha Fieldstadt, Matthew Grimson, and
The Associated Press, supra note 287; 21 Arrested Following March For Philando Castile,
WCCO (Jul 20, 2016),; Juan Sanchez, 30 people arrested during Alton Sterling protest in Baton Rouge,
WDSU ( Jul 9, 2016),
See CAMPBELL, supra note 272, at 177 (describing how “local courts [] upheld the use of
injunctions, trespass, and breach of peace charges to police civil rights demonstrations.”).
The Movement for Black Lives, “A Vision for Black Lives: Policy Demans for Black Power,
Freedom and Justice,” 5-7 (Aug. 1, 2016)
Movement for Black Lives, “About Us,”
Vann R. Newkirk, The Permanence of Black Lives Matter, THE ATLANTIC (Aug. 3, 2016).
Movement for Black Lives, supra note 274 at 6-7.
Campaign Zero,


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today have targeted police stations,279 city government offices,280 and police
union offices281 among others.
But today’s protesters face a demonstrably different doctrinal landscape,
should they protest within the prison or jail walls. While the content of speech
by a “Black Lives Matter” activist may not change, the constitutional protection
afforded to that speech will be radically different depending on where she
speaks. And that difference may in fact be linked to racial fears of the past.


Lolly Bowean, Protesters chain themselves together in front of Chicago police station, CHIC.
TRIB., July 21, 2016,
City New Service, Protesters ordered out of Los Angeles City Hall East continue vigil, L.A.
Daily News, Aug. 16, 2016
Kelly Weill, Black Lives Matter Activists Take on a New Foe: Police Unions, The Daily
Beast (July 21, 2016),