Book Bans: First Amendment Violation of Prisoners

By: Athina Hinson-Boyte

Just Mercy

In December, the film adaptation of Bryan Stevenson’s book, Just Mercy was released in theaters. It tells the true story of Walter McMillian, a young black man who was sentenced to death for a murder he did not commit.

The book shows the injustices and racism of the criminal system and how it “treats the rich and guilty better than the poor and innocent.” The movie brought reality of what prisoners in the United States have faced to audiences across the country. But, some prisoners were stripped of their ability to access the story themselves. In early January, North Carolina and Kansas banned the book in their prison systems.

Book Bans in Prisons

Banning books in prison is not an uncommon practice. Many states have a list of books that incarcerated individuals are not allowed to access. Often, these lists include sexually explicit materials, as well as materials that endorse criminal activity or violence. While prisons are concerned about gang violence and racial division, studies show that access to reading and education in prison reduces violence.

These bans have likely been around in some form for the last 30 years, but there has been a significant increase in recent years. One rationale for this uptick given by officials is concern of drug smuggling, particularly now that synthetic marijuana can be soaked into the pages of books. However, the research suggests that concern is highly exaggerated.

North Carolina’s current list prohibits 658 books, magazines, and newspapers. Illinois has 9,160 entries on its current list, including puzzling entries such as the Complete Idiot’s Guide to Sign Language.

Freedom of Speech for the Incarcerated

The Supreme Court has stated that “prison walls do not form a barrier separating prison inmates from protections of the Constitution.” However, it seems that this extent of limiting incoming speech to prisoners does just that.

In Turner v. Safley (1987), the Supreme Court took on the question of what the standard should be for restricting the speech of incarcerated individuals. The Court decided to grant deference to the professional judgement of prison officials. The result was the Turner standard: “there must be a reasonable relationship between the restriction at issue and a legitimate penological objective.”

In every single Supreme Court case dealing with freedom of speech protections since Turner, the prison systems have emerged victorious. Meaning the highest court has done nothing to ensure the right to free speech for incarcerated individuals.

While the Turner standard has had marginally more success in the lower courts where some prison speech restrictions have been overturned, regulations based on shaky rationales are still upheld often enough to still be concerned.

In Munson v. Gaetz (7th Cir. 2012), an inmate was given the wrong medications by prison staff, and this mistake could have resulted in severe medical complications. After the incident, the inmate decided to educate himself on drug interactions. He tried using the Physician’s Desk Reference from the prison library, but found that he had to wait long periods of time before he was able to check out the book.

Munson tried to order his own copy of the book to the prison, but the prison refused to deliver it to him. Its reason consisted of a single, capitalized word on a standardized form: “DRUGS.” Even though that same book was available in the prison library, the Seventh Circuit determined that the reasoning was sufficient to prohibit Munson from accessing his own copy of the book. “Allowing reduced access does not mean that barring unfettered access is illegitimate,” it stated.

The Reality of Book Bans in Prisons

This case poses a significant question: are these restrictions really about penological objectives, or are they about keeping those who are incarcerated in a vulnerable position? Prison systems are banning thousands of books, magazines, and other materials each year, sometimes without providing any reasoning at all. Some of these prohibitions are entirely nonsensical. Florida has banned Klingon dictionaries and a coloring book about chickens.

Even in circumstances where seemingly valid reasons for bans are provided, those reasons are stretched beyond comprehension. Bans on nudity and pornography have resulted in the exclusion of art books, including those showing fine art and those that teach the reader how to draw. Books that states have prohibited because they allegedly incite violence include A Game of Thrones and even Dungeon and Dragons game handbooks.

Many banned books are written by black authors. The typical reason given for these prohibitions is “racial antagonism.” However, while North Carolina prohibits Kindred, The Bluest Eye, and Warrior’s Don’t Cry, a memoir about integrating Little Rock’s Central High, Adolph Hitler’s Mein Kampf does not appear on its banned list. In fact, it also doesn’t appear on the lists of at least eleven other states, including California, Louisiana, and Texas. As a result, I am not convinced that the true reason for these bans is to avoid general racial antagonism. Rather, the policies disproportionately and unfairly target books with black authors.    

The Role of Book Bans in Oppressing Prisoners

Given these bizarre inconsistencies, what is the true purpose of these bans? Are they really intended to maintain penological order? Or are they actually used to further dehumanize those who are incarcerated, particularly black and brown individuals?

As Michelle Alexander, author of The New Jim Crow stated, “[s]ome prison officials are determined to keep the people they lock in cages as ignorant as possible about the racial, social, and political forces that have made the United States the most punitive nation on earth.”

Successful Challenges and A Path Forward

While the higher courts have been of little help when it comes to ensuring the First Amendment Rights of our incarcerated population, civil rights actions and public outcry have been effective.

In January 2018, the ACLU of NC was able to get the state’s prison system to remove a ban on The New Jim Crowby threatening litigation. In June of 2019, the ACLU had a similar success with the Arizona prison system which prompted it to remove the ban on Chokehold. And earlier this year, the ban on Just Mercy in North Carolina and Kansas proved to be short-lived after attracting significant public criticism. This means that drawing attention to this matter and advocating for the First Amendment rights of the incarcerated has been effective.  Perhaps the law will soon change to reflect the significance of this fundamental right next time the Supreme Court is faced with a case calling for the First Amendment rights of prisoners to be upheld.