Rights Behind Bars: The First Amendment and Prisons

Being convicted of a crime and sentenced to prison means a loss of physical freedom.

But does being incarcerated by the government mean losing all freedoms that people in the U.S. otherwise enjoy?

In short, no, people in prison still have First Amendment rights, but their right to exercise those freedoms can be more limited in prison.

First Amendment rights in prison

The First Amendment says that the government cannot infringe on people’s exercise of the freedoms of religion, speech, press, assembly and petition. But that does not mean that these freedoms are always unlimited everywhere.

In some places, such as government-run public schools and in prisons, the government has responsibilities to ensure the safety of the people required to be there.

When the government can show that limits on First Amendment freedoms are required to keep people safe, the courts have permitted limiting the exercise of the First Amendment’s five freedoms for people in prisons and for people entering as visitors — limits that the government could not impose broadly on everyone.

First Amendment religious freedom and prison

The First Amendment protects the free exercise of religion and prevents the government from favoring any one religion over any other.

For many people of different faiths, exercising religion requires following certain rules about food and grooming as well as having access to religious services and items needed for religious practices.

The government is responsible for trying to accommodate these needs for people in prison, unless it can show that rules limiting religious exercise are needed to protect safety.

For example, Herbert Dettmer, a Wiccan man in prison in Virginia, was denied access to candles, incense, a clock, a robe and other items for his religious practice. But prisoners of other faiths were allowed to have clocks and wear robes, and candles were available in prison chapels. Dettmer sued and won in 1985 because under the First Amendment, the government cannot treat followers of various religions differently. If the prison officials showed that having candles in prison really was too dangerous, for example, it would have to ban candles for all prisoners of any religion.

Prisons also often have rules for how people in prisons — both inmates and staff — can wear their hair because of health concerns and the need to be able to identify people. Courts have overturned some bans on beards in prison or required prisons to have a religious exception to such bans. But some more specific rules, such as limiting beards to half an inch long, have been allowed without requiring a religious exception. People in prison from Muslim, Rastafarian, Sikh, Christian and other faith traditions have all sought religious freedom rights to wear their hair or beards as required by their religions.

Prisons have less authority to regulate visits and gatherings with clergy than with other possible visitors, though religious gatherings can still be limited in higher security situations. In 2022, the U.S. Supreme Court said that Texas rules limiting a pastor’s actions during a death row inmate’s execution were too harsh. Texas said the pastor could not touch John Ramirez or pray aloud. The court said the government had not proved those restrictions were necessary for safety.

Federal laws such as the Religious Land Use and Institutionalized Persons Act and similar laws at the state level set a high standard that prisons must meet to limit religious freedom compared to what the Supreme Court has said would be required by the First Amendment.

First Amendment free speech and prison

Prisons cannot censor the free expression of people in prison just because prison officials do not like the opinions or viewpoints of the expression. They can censor expression only for the legitimate purposes of maintaining order and security in prison.

For example, prisons may ban incoming mail, books and magazines that provide instructions for how to break the law, build weapons or escape. They can also ban nudity and pornography. Prisons also often state that books must be mailed directly from publishers, not from individuals, to prevent forbidden items from being included inside books.

The First Amendment means the government cannot totally ban these types of content for everyone in the U.S. But it can ban them from prisons because of the important need to keep everyone there safe. Prisons do need to tell both the sender and recipient if mail including books or magazines is banned or censored. Access to books in prisons is an ongoing area of First Amendment free speech discussion.

When evaluating whether restrictions on speech in prisons are OK under the First Amendment, courts look at why the restriction is required, whether alternatives that allow more expression would be too difficult or expensive for the prison and whether people in prison still have other ways to express themselves. The Supreme Court laid out how courts should evaluate prison regulations that affect First Amendment freedoms in 1987 in Turner v. Safley. In that case, people in Missouri prisons sued over regulations limiting them from sending letters to other prisoners in different institutions and from marrying. The court said limiting the mail was OK but limiting marriage was not.

While prison officials have more leeway to limit the topics of books and magazines that enter a prison, they have less authority to regulate outgoing mail — unless they can show it causes problems inside the jail. For example, prison officials can’t censor letters from prisoners that include opinions about the prison that officials may dislike or disagree with. However, they may be able to censor outgoing mail that is used to commit another crime or that includes gang symbols.

Courts do tend to defer to what prison officials say is necessary to maintain security, but they have sometimes invalidated some laws and prison guidelines as too restrictive.

For example, several state laws that limit how people convicted of crimes can earn money from selling their works of expression such as books and articles — called “Son of Sam” laws — have been struck down as violating free speech rights, though some more limited versions of these laws have been allowed.

And in 2015, a Pennsylvania law passed the previous year limiting prisoners’ speech was struck down. The law had enabled the victims of crimes to get court orders preventing offenders from any conduct, including giving speeches, that could be offensive to the victims.

What about prison workers’ speech and press rights?

When they are at work or speaking about their work as a representative of the government, people who work at prisons must stick to what their employer allows them to say. Government workers’ free speech rights apply only when they’re speaking as private people about matters of public concern that don’t interfere with their employer. But prisons cannot totally ban workers from talking to journalists.

First Amendment press freedom and prison

The news media’s right to access prisons and prisoners’ right to publish outside of prison are First Amendment press freedom issues.

When it comes to press access to prisons, members of the media do not have any special access rights that the public does not have. If a prison has rules or limits for visitors, those rules and limits apply to friends, family and journalists alike.

The Supreme Court upheld specific restrictions on face-to-face interviews between people in prison and members of the media in Pell v. Procunier (1974). It said that other forms of communication, like writing letters or calling on the phone, were still available, and past face-to-face interviews had resulted in violence between people in prison who were part of interviews and those who were not. The four California prison inmates and three journalists who sued lost their case. Three justices disagreed, citing the public’s right to know.

Four years later, the court rejected a First Amendment-based right of access to prisons for journalists. In Houchins v. KQED Inc. (1978), reporters from a radio station sought access to a local jail after a prisoner died by suicide. The reporters did not ask to interview any inmates, they simply wanted to inspect the jail and take photographs. The local sheriff denied their request. The court ruled in his favor, saying the media had no special right of access to prisons and could have obtained information about conditions at the jail through other methods.

RELATED: Read how journalists who are incarcerated use press freedom

First Amendment freedom of assembly and prison

The right of people in prison to gather or associate together is perhaps the most restricted of First Amendment rights in prisons.

For example, in Overton v. Bazzetta (2003), the Supreme Court ruled that prisons generally can regulate who can visit prisons and who can receive visitors. In that case, the court said it was OK to ban visits from children and formerly incarcerated people and to ban people with substance abuse violations from receiving visitors other than their lawyer or clergy.

Similarly, prisons can limit incarcerated people from forming associations or unions and can ban meetings and sending mail in bulk to prisoners.

Courts have ruled that as long as people in prison have other ways to communicate, forming groups can be limited to maintain security and order.

First Amendment freedom of petition and prison

As with each First Amendment freedom, the right to petition can be regulated in prisons depending on the method of petition and risks to security they pose.

For example, courts have ruled that it is OK to limit prisoners from physically assembling for protest as well as from circulating physical petitions to sign. However, prisons do need to ensure there is a way for people to petition prison officials and to share complaints or report wrongdoing.

Petitions by people in prison to other government officials on issues of concern could be subject to any regular prison regulations on outgoing mail or phone calls. However, prison officials cannot prevent such acts of petition just because they dislike or disagree with the viewpoint of the petitioner.

The right of people in prison to petition the courts regarding their own legal cases is typically conducted through lawyers. Prisons cannot ban people in prison from contact with their counsel and cannot read or censor legal mail. They can only check that it doesn’t contain banned items like weapons or drugs.

The bottom line for First Amendment freedoms in prison

Ultimately, the government is responsible for upholding First Amendment freedoms and for the health and safety of people in government custody in prisons.

This means that, while people in prisons do have First Amendment rights, prisons have increased responsibilities to prevent violence and accomplish the goals of the prison. Sometimes, fulfilling these responsibilities requires rules that limit how people in prison can exercise First Amendment freedoms. But the government must prove any restrictions that limit First Amendment freedoms are justified.

Karen Hansen is a content writer at Freedom Forum. She can be reached at [email protected].

This article is compiled based on previously published Freedom Forum content and with the input of Freedom Forum experts.