March 16, 2018

Court OKs Prison Book Ban, But Unsolicited Senders Have Standing to Sue

The Fifth Circuit ruled that Texas prisons didn’t violate inmates’ First Amendment rights by banning books that “graphically describe” rape, child abuse and race relations in the prison system, according to the Courthouse News Service, affirming the summary judgment in favor of the defendants that was granted by the district court.

Prison Legal News (PLN), a nonprofit inmate rights group, brought the lawsuit over five books banned by the Texas Department of Criminal Justice (TDCJ): Lockdown America: Police and Prisons in the Age of Crisis, Soledad Brother: The Prison Letters of George Jackson, Women Behind Bars: The Crisis of Women in the U.S. Prison System, Prison Masculinities, and The Perpetual Prison Machine: How America Profits from Crime.

The court held that Prison Legal News’s challenge failed because the nonprofit did not demonstrate that the exclusions “bear no reasonable relation to valid penological objectives.” The court concluded that the deference to prison administrators required by Supreme Court precedents “must be at its zenith in the context of challenges to individualized decisions implementing a facially constitutional policy.” (Both parties to the suit agree that the department’s book review policy is constitutional.)

Though this particular case involved books sent through the mail, such rules often impact the content of prison libraries as well, such as Connecticut’s 2010 decision to remove violent content, as reported by American Libraries. According to the Huffington Post, who attributed the information to a report from the Prison Book Program, similar restrictions on legal and medical content, and even all fiction, exist in prisons in Mississippi, Virginia, and elsewhere. There’s even a prison in South Carolina which bans all books except the Bible.

Despite the books’ continued exclusion, there is some good news for free speech advocates to be found in the opinion. While the first federal judge had dismissed claims for two of the titles because no prisoner had requested them in the relevant time period, the appeals court made clear that Prison Legal News has standing to sue when unsolicited materials are challenged, not just solicited ones. “PLN’s interest in distributing books to TDCJ’s inmates—which is precisely the type of interest at the core of First Amendment protections—is more than sufficient,” the opinion says.

The court also rejected the department’s contention that prisoners don’t have a right to receive unsolicited mail. “TDCJ’s argument would carve away a large chunk of the First Amendment’s protections even without so much as an assertion that those protections are in conflict with legitimate penological interests,” the decision reads. “[…] We decline to go beyond the limitations imposed by TDCJ’s regulations and deny prisoners rights that TDCJ has not found it necessary to curtail.”

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Meredith Schwartz ( is Executive Editor of Library Journal.