As someone who regularly writes for publications from prison, I’m often asked what the legal parameters of such conduct are. Typically, this discussion starts with a prisoner’s family member contacting me, and expressing that they have been told that their incarcerated loved one is not allowed to publish any articles, blog posts, or books because they are in prison. This logic tends to flow from a commonplace idea: people may not profit from their crimes. But this is a simplistic understanding of a complicated issue. This article strives to help clarify the rights of incarcerated writers, regardless of the prison system they might be incarcerated in.
Constitutional and Federal Protections
The First Amendment forbids “abridging the freedom of speech, or of the press; or the right of the people to peaceably assemble, and to petition the Government for a redress of grievances.” U.S. Constitution, Amendment I. As it pertains to prison writing, inmates retain a First Amendment right to “be free from governmental interference with [their] contacts with the press if that interference is based on the content of [their] speech or proposed speech.” Kimberlin v. Quinlan, 199 F.3d 496, 502 (D.C. Cir. 1999).
This protection largely includes written communication with members of the news media, along with actual writing for the news media or entities that would not qualify as the news media (e.g., a personal blog or website). Abu-Jamal v. Price, 154 F.3d 128, 134-36 (3d Cir. 1998). These protections also extend to detainee’s preparation of manuscripts. Tyler v. Ciccone, 299 F. Supp. 684, 688 (W.D.Mo. 1969). In the Abu-Jamal v. Price case, Pennsylvania prison officials tried to use a prohibition against “engaging in a business or profession” (i.e., as an author or writer) in an effort to silence a prison writer. This application of the regulation was barred with an injunction.
There are not many cases that deal with the medium in which prisoners can write, but the right to write extends to the publication of articles, blog posts and books, whether in an electronic format or in print. Publication in an online format and communications with those who post such writings has been deemed protected by the First Amendment. Canadian Coalition against the Death Penalty v. Ryan, 269 F. Supp. 2d 1199, 1202-03 (D. Ariz. 2003). The reason for the general lack of cases (and promulgated prison policies) concerning online and/or electronic publication is that the advent of the internet is relatively new, considering the broader timeline of publication of the written word from behind bars.
There is relatively recent case law concerning writing under a byline (i.e., a prisoner writing under their own name). Prior to 2007, inmates in the Federal Bureau of Prisons were not allowed to write under their own name. The Bureau’s logic was that an inmate could become a “big wheel,” an inmate that staff would be afraid of and fellow prisoners would follow. But in 2007, this regulation was struck down as unconstitutional. Jordan v. Pugh, 504 F. Supp. 2d 1109, 1119-20 (D.Colo. 2007). Federal prisoners are now allowed to write under their own names.
The Intersection of Prison Policies and Federal Law
All of the above concerns federal law, which is often misunderstood by the prison guard or administrator. For this reason, a good place to start understanding an inmate’s right to write is with the prison system’s governing policy. In the federal system, this policy can be found in what are known as “program statements.”
Prison systems generally have policy or program statements which govern all manner of prison operations, from pay for inmate work assignments to visitation procedures and protocols to chapel operations. Most, if not all, prison systems also have a program statement which concerns inmate writing activities. This is true elsewhere as it is in the Federal Bureau of Prisons.
BOP Program Statement 5350.27, Inmate Manuscripts, and 28 C.F.R. § 551.80-82 govern inmate writing activities in federal prison. The primary provisions are as follows:
– “As used in this rule, ‘manuscript’ means fiction, nonfiction, poetry, music and lyrics, drawings and cartoons, and other writings of a similar nature.” 28 C.F.R. § 551.80; PS 5350.27 at § 6.
– “An inmate may prepare a manuscript for private use or for publication while in custody without staff approval. The inmate may use only non-work time to prepare a manuscript.” 28 C.F.R. § 551.81; PS 5350.27 at § 7.
– “An inmate may mail a manuscript as general correspondence, in accordance with [28 C.F.R.] Part 540, Subpart B of this chapter. An inmate may not circulate his [or her] manuscript within the institution.” 28 C.F.R. § 551.82; PS 5350.27 at § 8.
– “The Warden may limit, for housekeeping, fire-prevention or security reasons, the amount of accumulated inmate manuscript material.” 28 C.F.R. § 551.83; PS 5350.27 at § 9.
As can be seen from this very limited policy, inmates in the Federal Bureau of Prisons are permitted to write “manuscripts” for “private use or for publication.” While this does not specifically discuss online or electronic publication, federal prisoners regularly publish writings online and in an electronic format. This program statement also does not discuss what methods inmates can use to publish their writings (e.g., the TRULINCS Public Messaging service other than to say that inmates can mail their manuscripts as “general correspondence.” However, inmates do, in fact, email out writings using TRULINCS Public Messaging/Corrlinks.com and their family members do copy and paste their writings and publish those writings on blogs and websites that inmates can’t control because they lack access to the internet.
The Mechanics of Writing from Prison
While whole books can (and are) penned concerning how to write from prison, there are some basic tenets that successful prison writers tend to employ. They are presented below to help educate those who are interested in writing from prison:
- Articles, blog posts, and even books can be handwritten or typed on a typewriter and mailed for an outside contact to put into an electronic format. However, a faster and often less expensive, method is to use any applicable prison email system where the inmate can draft and email their writings and their outside contact can copy and paste those writings into an electronic file. Alternatively, the outside contact can type or scan the writing into a computer.
- In this day and age, there are a plethora of free blogging solutions. Blogger.com is one such solution. All an outside contact needs to do is set up a free blogging account and then post the inmate’s writings through this account. An inmate can easily blog from prison in this way.
- Those outside of prison can also take articles or blog posts written by their incarcerated loved one and submit them to third-party websites or publications. For example, I often write for The Huffington Post and Prison Legal News. This requires my outside contact to submit my emailed writings to the respective outlet on my behalf. Joining an existing website or publication is often a much easier way to gain visibility than creating a blog or website from scratch, and is far less expensive.
- The same process can be used to write an entire book. However, when dealing with a larger work, it can be more cost-effective to type the manuscript on a typewriter, mail it out, and then have an outside contact scan the manuscript into a computer. Writing a book is hard work and requires several rounds of revisions. As such, when the manuscript is in an electronic format, the outside contact will need to print it and mail it back to their incarcerated loved one for them to red-line. Then the process starts over until the manuscript is ready for either submission or publication.
- The single hardest part of writing from prison (other than personal determination and dedicated outside contact required) is finding research. This has been the single most significant barrier to my writing success. An easy way to handle this is for the incarcerated writer to use the tools at their disposal. This could mean newspaper and magazine articles, the law library, and other materials around the prison. Another answer, although more time intensive for the outside contact, is to sign up for Google Alerts on a particular topic. These can then be printed and mailed to the incarcerated writer for their use. Likewise, if the incarcerated writer wants to write on a particular topic, they can make specific research requests to their outside contact.
For Further Reading on Prisoners’ Rights
For more information about prisoners’ rights, I highly recommend that you buy a copy of the Prisoners’ Self-Help Litigation Manual (4th Edition) by John Boston and Daniel Manville (Oxford University Press, 2010) and a copy of Protecting Your Health and Safety (2nd Edition) by Robert E. Toone and edited by Dan Manville (Southern Poverty Law Center, 2009). These books are perhaps the best general use books on prisoners’ rights.
My independently published book, the Federal Prison Handbook, garnered an Indie Reader Discovery Award this year. To read my interview with Indie Reader, click here.
About Christopher Zoukis
Christopher Zoukis is an outspoken prisoner rights and correctional education advocate who is incarcerated at FCI Petersburg Medium in Virginia. He is an award-winning writer whose work has been published widely in major publications such as The Huffington Post, Prison Legal News, New York Daily News and various other print and online publications. Learn more about Christopher Zoukis at christopherzoukis.com and prisoneducation.com.