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Civil Rights  
Prison Extremism and
The First Amendment
Questions and Answers
  1. Why is extremism an issue in prisons?

  2. Do inmates have the same First Amendment rights as everybody else?

  3. What legal standard is used to determine the constitutionality of prison regulations?

  4. Is the same legal standard used to determine the constitutionality of prison regulations that implicate an inmate's right to free exercise of religion?

  5. How should prison officials evaluate whether particular material can be withheld from inmates?

  6. Can prison officials apply the same restrictions to outgoing prison material?

  7. Can extremist "missionaries" be prevented from visiting prisons?

  8. Under what circumstances must prisons accommodate prisoners' religious dietary requirements?

1. Why is extremism an issue in prisons?

Extremist groups often pose special security risks in prisons. They may encourage the overthrow of the government, and prison officials can be targeted as agents of "illegal" government authority. Further, their literature often encourages ethnic hatred, promoting a violent and racially charged prison atmosphere.

Since the 1980s, white supremacist organizations have spread throughout the American prison system, beginning with the growth of Aryan Brotherhood.1 Aryan Nations, although not permitting inmates to become members, has engaged in "prison outreach" since 1979. In 1987, it began publishing a "prison outreach newsletter" called The Way to facilitate recruitment. Aryan Nations also disseminates its literature and letters to inmates. The World Church of the Creator and some Identity Church groups engage in similar outreach activity, as do other racist groups, such as Nation of Islam. The situation is further complicated by the fact that nonideological criminal prison gangs are often organized based on race, which increases racial polarization.

Imprisoned extremists also pose a security threat by continuing their activities while incarcerated. They recruit inmates, and teach other inmates extremist tactics. Some imprisoned extremists also have attempted to continue to influence adherents outside of prison by, for instance, publishing newsletters from the prison to maintain their outside following.

Prison officials have responded in various ways, reflecting the fact that each state has its own prison system (as do cities, counties and the federal government), and that prisons have varying populations. At times, prison officials have tried to limit access to extremist literature, and these responses have occasionally given rise to litigation because they potentially impinge upon inmates' First Amendment rights. The questions are especially complicated when the censored material comes from a group that claims to be religious.

Notes:  1 Aryan Brotherhood, at one time associated with Aryan Nations, began as a virulent racist and anti-Semitic prison gang, and has since developed into a crime gang associated with extortion, drug operations and prison violence.

2. Do inmates have the same First Amendment rights as everybody else?

The United States Supreme Court has said that "prison walls do not form a barrier separating prison inmates from the protections of the Constitution." Nevertheless, inmates' First Amendment rights are less extensive than other citizens' and their rights can be limited due to security or other penological concerns. Because of the particular challenges administrators face running prisons, the Supreme Court has acknowledged there is a compelling government interest which warrants limiting prisoners' rights. Courts have been deferential to prison officials' assessments of security threats, and sensitive to their related regulatory decisions, even if such decisions impact inmates' First Amendment rights.

A prison regulation that impinges on an inmate's constitutional rights will be upheld in court if that regulation is reasonably related to legitimate penological objectives. This means that, generally, prison officials can ban extremist materials from prisons because of concerns that the distribution of such material will undermine prison security. Extremist books, leaflets, and magazines have been forbidden to prisoners on this basis. Such material has not been allowed through the mail and has not been kept in the prison library.

However, prisons have less discretion to limit inmates' religious practices than other First Amendment rights due to a new federal law. Because of the Religious Land Use and Institutionalized Persons Act (RLUIPA), prison officials' discretion in limiting access to extremist material may depend in part on whether such material is related to an inmate's religious exercise. Therefore, prison regulations that affect religious exercise, including access to religious literature, will be reviewed carefully if challenged in court.

3. What legal standard is used to determine the constitutionality of prison regulations?

The Supreme Court announced the standard under which it would review the constitutionality of prison regulations in Turner v. Safley, a case involving a challenge to a complete prohibition on inmate marriage. As noted earlier, a prison regulation is constitutional if it is reasonably related to legitimate penological objectives. Under this standard, courts have upheld regulations based on the consideration of certain factors:

  • Is there a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it?
  • Are there alternative means of exercising the assert- ed right that remain open to inmates?
  • How great a negative impact will accommodating the inmates' rights have on guards, other inmates,a nd on the allocation of prison resources?

Courts will consider the existence of obvious and easy alternatives to a challenged regulation as evidence of a regulation's arbitrariness.

4. Is the same legal standard used to determine the constitutionality of prison regulations that implicate an inmate's right to free exercise of religion?

No, the same standard is not applicable to determining the constitutionality of prison regulations alleged to violate inmates' free exercise rights. The constitutionality of such regulations is determined under the more stringent standard set forth in RLUIPA. RLUIPA says that the government cannot impose a substantial burden on the religious exercise of an inmate, even if the inmate's religious exercise is being limited by a generally applicable rule. However, an inmate's religious practices can be limited if the prison official demonstrates that the regulations in question (i) further a compelling interest and (ii) the same interest cannot be served in a manner that is less restrictive of the inmate's free exercise rights.

Since RLUIPA was enacted in September 2000, it has not yet been interpreted by the courts. Therefore, how this statute will impact prison regulations that affect inmates' religious exercise remains unclear.

5. How should prison officials evaluate whether particular material can be withheld from inmates?

Generally, the First Amendment does not allow speech to be censored by the government because of the content of that speech. The government can only limit the time, place, and manner of speech. However, because inmates have more limited First Amendment rights than other citizens, some content-based discrimination is allowed for security reasons. For example, the United States Court of Appeals for the 10th Circuit upheld a prison official's decision to withhold entire issues of the magazine, Muhammad Speaks, because certain articles in the magazine created a danger of violence by advocating racial, religious, or national hatred. This decision was prior to the passage of RLUIPA, and therefore the Court's analysis might be somewhat different today. Under current law, if having the entire magazine withheld was determined to be a substantial burden on inmates' free exercise rights, the Court might require that the offending material be removed rather than the entire issue being withheld.

Regulations that exclude publications from a prison because of security concerns have been found constitutional when the regulations have required individualized review of any material before it is banned, notification to inmates that the material has been denied, and the possibility of review of such decisions. Courts have tended to find prison regulations that ban all literature from particular groups unconstitutional. However, the determination of the constitutionality of a given regulation or the implementation of the regulation has tended to be very fact-specific. Courts look not only at the regulation at issue but also consider the nature of the prison (high, medium, or low security) and the particular administrative challenges faced by the prison (such as crowding and quantity of incoming mail) in determining reasonableness, or the practical existence of less restrictive alternative measures.

6. Can prison officials apply the same restrictions to outgoing prison material?

The Supreme Court does not allow content regulation with respect to outgoing mail from inmates. While outgoing mail can be searched for contraband,2 content regulation of outgoing mail is also more restricted because it implicates the First Amendment rights of non-prisoner addressees.3 In addition, outgoing material does not pose a threat to internal prison security; therefore content limitations have been considered less urgent. However, regulations can limit the content of outgoing mail categorically. For example, escape plans, threats, running a business, and blackmail are categories that have been disallowed. Therefore, correspondence from prisoners to extremist groups cannot be banned outright because of its content. However, inmates can be prevented from distributing a newsletter from prison when doing so constitutes running a business.

Notes: 2 Special rules exist with respect to attorney-client correspondence or mail that implicates an inmate's right to access the courts that are beyond the scope of this discussion.
3 However, prison officials can forbid all correspondence between incarcerated individuals.

7. Can extremist "missionaries" be prevented from visiting prisons?

Prison officials can ban categories of prison visitors, such as former inmates or visitors who have previously broken visiting rules. An extremist "missionary" can be barred from a prison because of generally applicable rules. In addition, prisons can create procedures for requesting visiting ministers, and impose conditions on the selection of the ministers, such as sponsorship by an outside religious organization. Prison officials can also exclude prison "missionaries" if they are advocating violence or otherwise fomenting prison unrest by encouraging racial tension. However, under RLUIPA, the prison would have to show that any restrictions on visiting clergy are the least restrictive means of achieving its end.

Prison officials do not have a responsibility to hire a minister for each religious denomination represented in the prison population. However, if visiting ministers of one denomination are compensated, visiting ministers of other denominations must be equally compensated. Security limitations can be placed on inmate-led prayer or services, but again, under RLUIPA, the prison would have to show that any restrictions on such gatherings is the least restrictive means of achieving its end. For example, it is more likely that the prison could limit the frequency of such meetings, the number of attendees and require supervision than that such gatherings could be banned outright.

8. Under what circumstances must prisons accommodate prisoners' religious dietary requirements?

Accommodating religiously based dietary rules has become an issue when dealing with extremists because incidents have raised concern that extremists "adopt" religious practices that are not based on sincere beliefs in order to obtain special privileges, such as specialized diets. Generally, if an inmate's request for a special diet is because of a sincerely held belief and religious in nature, the inmate has a constitutionally protected interest. Under RLUIPA, a request for a special religious diet can only be refused based on a compelling prison interest and if it is the least restrictive means possible for the prison protecting that interest. Prisons may offer more limited food selection to prisoners with religious dietary limitations, such as providing only cold kosher meals rather than hot food. In the past, when determining whether a prison was required to provided a special diet for a prisoner, courts have considered whether the dietary restrictions were central to the prisoner's religious observance. Under RLUIPA, such a determination would probably not be relevant. The threshold question in evaluating the prison's obligation to accommodate a request would still be whether the inmate's dietary request arose out of sincerely held beliefs that were religious in nature.

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