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