Prison Journalism Navigator
Laws Around Prison Journalism
In the United States, journalists enjoy broad freedoms to investigate, author and publish news stories for the public good. There are also robust laws, such as the Freedom of Information Act, that help journalists provide transparency.
While these freedoms protect members of the outside press, the same cannot be said about incarcerated journalists.
Incarcerated journalists can play an important role in the national discourse about criminal justice through their first-hand access to the often murky world behind bars. Sometimes, however, their ability to do so may be stymied by legal ambiguities. On one hand, the incarcerated in the United States have a First Amendment right to communicate with outside news organizations. On the other hand, there are uncertainties about a prison journalist’s right to publish. Case law has tended to defer to prison administrators.
Prison Journalism Project (PJP) believes we can only do our best work if we understand the rights of prison journalists and the laws that might impact how we work with them. Below, we share our learnings in the hope that we can help provide clarity about the law and inform other newsrooms in the way they work with writers.
Broadly speaking, we considered two main legal questions that may surface in this kind of work: First, are writers legally able to act as journalists and second, can they be compensated for it?
Below is our analysis of our research findings and a state-by-state guide on relevant rules and regulations that might impact incarcerated people’s rights to do journalism and be compensated for it.
Free Speech in Prison
While Americans enjoy broad free speech rights outside of prison, those rights do not necessarily exist behind bars. There are different legal guidelines for different types of prisoner speech (e.g., speech between incarcerated persons; speech from an incarcerated person to prison staff, etc.). PJP is most interested in the freedom of incarcerated persons to speak with people outside prison via mail and phone, as these mediums represent the bulk of our contact with writers.
In a set of cases known as Turner and Martinez, the U.S. Supreme Court drew a distinction between a prison’s ability to censor prisoner correspondence based on the direction in which it travels. As the Supreme Court sees it, a prison is more likely to have a valid penological interest in censoring incoming communications (which may destabilize prison life) than outgoing communications (which would contribute to the national discourse).
In its 1987 decision in Turner v. Safely, the Supreme Court ruled that a prison may censor or impose restrictions on speech so long as there is a “valid, rational connection” between such restrictions and “legitimate penological objectives” like security and rehabilitation.
By contrast, the Court set a stricter test for the censorship of outgoing communications in Procunier v. Martinez. Like Turner, Martinez allows prisons to censor outgoing mail if doing so “furthers an important or substantial government interest.” But, unlike Turner, the Martinez test requires that censorship of outgoing mail be “no greater than is essential to the furtherance of that interest.”
In short, prisons may censor both incoming and outgoing communications, but prisons have much wider latitude to engage in incoming censorship, whereas their outgoing censorship must be narrowly tailored to a specific penological purpose.
Turner and Martinez are not specific to journalistic communications; they relate generally to prisoner correspondence. However, several courts have applied the Turner and Martinez tests to the question of whether incarcerated journalists have the right to publish their work.
Practically speaking, this means that publications meant for incarcerated readers should take care that the content does not trip censorship.
The first, Jordan v. Pugh, addressed a federal regulation that prohibited people in prison from publishing their work outside of prison under bylines. The government argued that it had an interest to prohibit bylines because they could elevate the perceived status of writers in their prisons, which could lead to disciplinary problems.
The U.S. Court of Appeals for the 10th Circuit disagreed, finding that the evidence for elevated prison status arising from bylines was mostly speculative. Furthermore, the court determined that the “no byline” rule constrained the First Amendment rights of outside publications to publish incarcerated speech, regardless of whether the speech made it back into prison.
Similarly, the 10th Circuit expressed concern that the no-byline rule might chill the work of prison journalists because they could be subjected to discipline based upon the decision of an outside organization to run their work under a byline.
At the same time, however, the Jordan court declined to rule on a related federal regulation that prohibited prisoners from becoming regular journalists for outside publications. The 10th Circuit noted that acting as a reporter indicates a closer relationship between the writer and publication that could include a form of compensation, which prisons have an interest in regulating.
By contrast, a second case, McBroom v. Minnesota Correctional Facility Oak Park Heights, applied the Supreme Court’s tests to less restrictive regulations on outgoing communications related to prison journalism.
James David McBroom had mailed a poem out of his Minnesota prison for consideration to be published. Guards discovered it in a search and disciplined him on the basis that the content was “threatening.” McBroom challenged a rule at his Minnesota prison that allowed mail to the media to be searched. The court, however, found the rule to be constitutional because it did not prohibit mail to the media outright, it only provided for random screenings. On top of that, the Court also found that the state was within its rights to screen outgoing mail for threatening content, regardless of whether that content appeared in a creative context like a poem.
In summary, the case law suggests that incarcerated writers generally have the right to communicate with, and be published by, outside organizations. But there are limits to this freedom.
For example, a prison could argue that a story that criticizes a guard’s misconduct is dangerous, even if the story does not expressly threaten the guard’s safety. Prisons have some right to place limits on the kind of journalism that incarcerated people can publish.
Compensation for Published Work
Another important question for organizations interested in publishing incarcerated journalism is whether they can compensate prison journalists.
Needless to say, a state cannot enact a law prohibiting outside publications from compensating outside writers. However, with regard to compensating incarcerated writers, the ability of outside organizations to pay them depends on laws of the state they are in.
Florida and the Federal Bureau of Prisons both have rules that explicitly disallow compensation for prisoner “memoirs.”
Most other prison systems bar incarcerated people from “conducting businesses” through the mail. The meaning of that term has been interpreted differently in practice, but some states, like Oregon, Indiana and Ohio, make an exception for compensation for published work. Arguably, compensation for publication does not amount to enough to constitute “a business.”
Below, we provide a state by state breakdown of relevant laws, rules and regulations.
State By State Breakdown of Relevant Laws, Rules and Regulations
|Federal||Incarcerated people are not permitted to “act as reporter[s]” and prohibited from receiving compensation, according to 28 C.F.R. §540.20(b)|
|Alabama||ALDOC AR 439 prohibits incarcerated people from entering into contracts with and working for nonprofits: “The Institutional Warden has the authority to assign/allow inmates to work in the community. However, the Warden will ensure inmates work for City, County, State or Federal Agencies only. Inmates will not be allowed to work for non-profit organizations or the general public. If there is a question as to the status of an agency a legal opinion will be obtained.”|
|Alaska||22 AAC 05.525 states that “Prisoners will be afforded reasonable opportunities to contact or correspond with media representatives.”|
22 AAC 810.03 states that incarcerated people cannot “conduct any type of business operation” without prior approval.
|Arizona||Arizona DO 914 states that incoming mail can be rejected if it “poses a direct and immediate threat to the security, safety or order of the institution” or “substantially hinders efforts to treat or rehabilitate the inmate.”|
|Arkansas||Mail with the media is considered privileged, and can only be opened in the presence of the recipient per the Arkansas Inmate Handbook.|
|California||CCR 13010.15.2 grants media representatives the right to interact with incarcerated Californians: “Media representatives may contact any State prison inmate by mail. It is not necessary for media to notify the CDCR before communicating with an inmate. Incoming letters are opened, inspected for contraband, subject to be|
read, and then forwarded to the inmate … When corresponding with an inmate, media representatives may provide a telephone number where an inmate can call them collect. It is up to the inmate to initiate the call …”
|Colorado||CDOC AR 300-38: Mail can be rejected if “an offender is entering into a contract or engaging in business without the written approval of the administrative head of the facility where the offender is incarcerated.”|
|Connecticut||PJP was not able to find any laws, rules or regulations pertaining to prison journalism in Connecticut.|
|Delaware||PJP was not able to find any laws, rules or regulations pertaining to prison journalism in Delaware.|
|Florida||33 FL ADC 33-602.207 forbids incarcerated people from being compensated for their published writing: “An inmate who wishes to submit writings for publication shall provide a written statement to mailroom staff verifying that the inmate is not seeking compensation, nor will he accept compensation for the writings.”|
|Georgia||Ga Comp. R. & Regs. 125-3-5-.05 forbids incarcerated people from entering into employment contracts with media organizations: “Inmates shall not be hired out to private persons or corporations.”|
Ga Comp. R. & Regs. 125–3–3–.03 Indicates that mail with the press is considered privileged: “The term ‘Press’ is defined as newspapers, news magazines, news services, and radio and television stations. Privileged press mail must reflect the return address including the name of the newspaper, news magazine, news service, radio station or television station commercially printed on the envelope. The mailing address of out-going press mail must reflect the name of the newspaper, news magazine, news service, radio station or television station.”
|Hawaii||The Hawaii Inmate Handbook states that “all mail will be censored with the exception of legal mail.”|
|Idaho||PJP was not able to find any laws, rules or regulations pertaining to prison journalism in Idaho.|
|Illinois||20 Ill. Adm. Code 525.130: Outgoing mail can be rejected if it “solicits gifts, goods, or money from other than family members.”|
|Indiana||IC 11-8-2-5(A)(8) allows incarcerated writers’ written works to be published and they can receive compensation as long as it’s approved by the facility head or designee. If the work is based on the crime for which they have been convicted, they must deduct 20% of the initial advance payment for a victims’ fund. The requirement to seek approval explicitly does not restrict them from sending a letter to the editor of a newspaper or magazine or writing letters to people outside.|
|Iowa||OP-MTV-O1 indicates that correspondence and communication “between the media incarcerated individuals shall be guided by the same regulations imposed by the institution for general correspondence (see OP-MTV-01,|
OP-MTV-01 permits incarcerated people to publish their work through outside organizations, provided that they are not conducting business “It is permissible for incarcerated individual to mail manuscripts to another party, so as long as the incarcerated individual does not violate departmental rules related to entering into a business contract.”
IDOC Policy IO-RD-02 clarifies rules around engaging in business: “An offender
commits an offense under this subsection when the offender enters a contract,
unauthorized agreement, or engages in a business without the prior written approval
of the Warden.”
|Kansas||K.A.R. 44-1-102 indicates that “correspondence between the media and inmates is subject to the same guidelines and restrictions as are applicable to general correspondence and mail as established by the regulations of the secretary and the general orders of the institutional director or facility supervisor.”|
|Kentucky||501 Ky. Admin. Regs. 3:140 establishes to whom incarcerated people can send letters: “A prisoner shall be allowed to correspond with anyone if the correspondence does not violate state or federal law. Caution shall be taken to protect prisoner rights in accordance with court decisions regarding correspondence.”|
|Louisiana||PJP was not able to find any laws, rules or regulations pertaining to prison journalism in Louisiana.|
|Maine||The Maine State Prison Prisoner Handbook allows incarcerated people to interact with “anyone the prisoner wishes” except other incarcerated people.|
The Maine State Prison Prisoner Handbook prohibits incarcerated people from engaging in “any business activity or profession without authorization from the Chief Administrative Officer.”
|Maryland||COMAR 12.12.20.05 details what kind of mail can be rejected, which could include prison journalism that an institution determines to pose an immediate danger: Mail can be rejected if it “poses a direct and immediate danger of violence or physical harm to a person or persons based upon the current circumstances within the Institution.”|
COMAR 12.12.20.02 establishes what rights incarcerated people in Maryland have to send mail: “An inmate is allowed to send or receive mail consistent with the United States Constitution, federal law and regulations, and Maryland law and regulations.”
The MARYLAND COMMISSION ON CORRECTIONAL STANDARDS: STANDARDS, COMPLIANCE CRITERIA, AND COMPLIANCE EXPLANATIONS FOR ADULT DETENTION CENTERS indicates the state’s support of contact between the media and the incarcerated: ““Contact with the community through media communications (e.g., telephone, correspondence, visits, etc.) ensures a more informed public, enhances inmate morale, and protects the right of freedom of speech.”
|Massachusetts||The MCI-Framingham Inmate Handbook provides that “it is important that inmates understand that they are responsible for their own behavior and that they should avoid behaviors that allow them to be victimized. This includes borrowing and lending, being involved in others personal business and discussing their own personal issues with other inmates.”|
|Michigan||Michigan laws forbid the use of mail “for the purpose of operating a business enterprise” but give incarcerated people the right to “uncensored correspondence with a news media representative.”|
|Minnesota||MNDOC Policy 302.020 prohibits incarcerated people from using “the facility address as a business address.”|
However, they have the right to regularly “correspond by mail with any public news media or representatives thereof.”
|Mississippi||29 Miss. Admin. Code Pt. 1, R. 9.2.4 encourages “interaction with the public and the news media.”|
|Missouri||PJP was not able to find any laws, rules or regulations pertaining to prison journalism in Missouri.|
|Montana||Mont.Admin.R. 20.27.248 dictates that prisons “must have written policy, procedure and practice to ensure the right of inmates to have: (c) reasonable access with media subject to limitations necessary to maintain order and security and protect inmates’ privacy.”|
|Nebraska||PJP was not able to find any laws, rules or regulations pertaining to prison journalism in Nebraska.|
|Nevada||NV AR 750 prohibits “mail items related to business operations, except mail items as necessary to protect property interest that vester before incarceration that have been approved by the Warden/designee.”|
|New Hampshire||N.H. Code Admin. R. Cor 314.09 puts in place several rules prohibiting incarcerated people from conducting businesses: “Unauthorized solicitation of gifts, goods, or money from persons other than the family of the resident” and “correspondence constituting or contributing to the conduct or operation of a business, except correspondence necessary to protect the property or funds of the resident during confinement or for educational purposes” are not allowed.|
|New Jersey||N.J. Admin. Code § 10A:4-4.1(a) forbids incarcerated people from “commencing or operating a business or group for profit or commencing or operating a nonprofit enterprise without the approval of the Administrator [i.e., the CEO of the relevant correctional facility].”|
|New Mexico||PJP was not able to find any laws, rules or regulations pertaining to prison journalism in New Mexico.|
|New York||7 NYCRR 51.15 gives incarcerated people the limited right to be visited and interviewed by the media: “Inmates confined in a facility under the Department of Correctional Services of the State of New York have a limited constitutional right to be visited and interviewed by representatives of the news media.|
(b) Representatives of the news media have a qualified right to visit and interview an inmate confined in a correctional facility who wishes to be visited and/or interviewed.”
7 NYCRR 720.3 forbids incarcerated people from engaging in business activities: “Inmates shall not conduct a mail-order or other business while under the custody of the department. Superintendents may direct administrative services, program services, or security services deputies to monitor correspondence patterns and financial accounts to detect any irregularities which would indicate this type of activity. Violation of this policy by an inmate may result in disciplinary action and/or the monitoring of outgoing correspondence for a specified period of time.”
|North Carolina||Rules prohibit incarcerated people from “solicit[ing] or engag[ing] in any business activity.”|
|North Dakota||PJP was not able to find any laws, rules or regulations pertaining to prison journalism in North Dakota.|
|Ohio||The state of Ohio explicitly allows incarcerated people to be compensated for creative work like writing and art, but sets out guidelines for how they can receive money.|
“An industrial arts account or a subsidiary account to the industrial and entertainment account, including a cash journal, shall be established to cover all approved business transactions related to the sale of arts and crafts made or supplied by inmates and/or services provided to employees, with approval by the warden or designee. The establishment of an industrial arts account requires the approval of the chief of the division of business administration. Surplus funds accruing in the industrial arts account shall be transferred to the industrial and entertainment account.”
“Conducting business operations with any person or entity outside the institution, whether or not for profit, without specific permission in writing from the managing officer” is prohibited.
|Oklahoma||PJP was not able to find any laws, rules or regulations pertaining to prison journalism in Oklahoma.|
|Oregon||OAR 291-119-0015 allows incarcerated Oregonians to be compensated for published work, subject to certain rules.|
|Pennsylvania||Rules prohibit incarcerated people from engaging in business or professional activity.|
|Rhode Island||222-RICR- 20-00-2.8 establishes that correspondence with the media is subject to the same rules and regulations as general correspondence: “Inmates may correspond with representatives of the news media in accordance with Part 10-00-1 of this Title, Inmate Mail.”|
|South Carolina||PJP was not able to find any laws, rules or regulations pertaining to prison journalism in South Carolina|
|South Dakota||The South Dakota Inmate Living Guide institutes punishments if incarcerated people “conduct a business without authorization.”|
|Tennessee||The Tennessee Inmate Rules and Regulations Handbook gives incarcerated people the right to contact media representatives as long as they are not violating institutional policy by doing so: “You may also correspond with members of the media in keeping with the facility rules and schedules. You have the right to uncensored and uninspected outgoing correspondence through the prison mail system except under conditions noted in Policy #507.02.”|
|Texas||Texas Disciplinary Rules and Procedures for Offenders: The unit safe prison program coordinator must be informed of “the exchange of offender produced goods or services for financial gain to the offender or to a third party on behalf of an offender.”|
|Utah||U.A.C. R251-705-3 establishes that “an inmate shall not direct nor establish a new business through the mail unless authorized by the Warden of the facility.”|
U.A.C. R251-106-3 sets out rules for media access to incarcerated people: “(1) It is the policy of the UDC to permit press access to facilities, inmates, supervised offenders and information … (2) Access by news media members shall be restricted:
(a) when the UDC finds it necessary to further its legitimate governmental interests, or to maintain safety, security, order, discipline and program goals;
(b) to conform with statutory and constitutional privacy requirements as interpreted by binding case precedent;
(c) when information or access would be contrary to state interests on matters under litigation; or
(d) to safeguard the privacy interests of those under the supervision of the UDC.”
|Vermont||PJP was not able to find any laws, rules or regulations pertaining to prison journalism in Vermont.|
|Virginia||6 VAC 15-45-1730 gives incarcerated people the right to “reasonable” access to the media: “Written policy, procedure, and practice shall provide for reasonable access between inmates and the media, subject only to the limitations necessary to maintain order and security and protect inmates’ privacy.”|
|Washington||Correctional rules prohibit incarcerated people from entering into an “unauthorized contract.”|
|West Virginia||PJP was not able to find any laws, rules or regulations pertaining to prison journalism in West Virginia.|
|Wisconsin||Per Wis. Adm. Code § DOC 303.36, Wisconsin has a ban on incarcerated people conducting businesses, but it explicitly does not include compensation for written work.|
|Wyoming||PJP was not able to find any laws, rules or regulations pertaining to prison journalism in Wyoming.|