Silence for the Sake of “Security”: BOP Regulations Stifle Incarcerated Journalism in Federal Prisons

Open PDF in Browser: Sydney Poppe,* Silence for the Sake of “Security”: BOP Regulations Stifle Incarcerated Journalism in Federal Prisons

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“While living inside prison walls, a journalist’s voice does not go away. Instead, it’s stored in an attic of legislation and bad regulation. But incarcerated journalists, like every other journalist, want the public to know the truth.”

— Aaron M. Kinzer^[1]

When the Federal Bureau of Prisons (BOP) announced proposed regulations in February 2024 that would effectively cut off federal prisoners’ social media access, incarcerated journalists spoke out in dissent. Social media, they attested, is a core outlet for prison journalism: It provides individuals in custody a readily accessible public platform to share firsthand reporting on prison conditions, injustices, and the realities of life on the inside. Furthermore, the loss of social media would serve a near‑fatal blow for federal prisoners’ incarcerated journalism. Journalism has a deep history in America’s carceral system, but federal prisoners have been largely underrepresented in the realm of prisoner‑produced journalism. This is because highly deferential legal precedents have enabled the BOP to enact stark limitations on prisoners’ First Amendment rights. Among the most impactful of these regulations is the BOP’s total ban on prisoner reporters. The exact contours of this prohibition’s scope are uncertain, but this blanket ban is the only of its kind and no state prison system enforces such a rule. Accompanying this explicit inmate-reporter ban is a comprehensive web of other correspondence regulations that further impede the free expression of individuals in federal custody. In turn, the BOP creates a hostile environment for incarcerated reporting. When communication regulations silence such highly valuable speech, this frustrates the interests of both federal prisoners and the public. Incarcerated individuals lose a core vehicle of self‑expression, rehabilitation, and reform, and the American public fails to learn what actually occurs inside the nation’s largest prison system. This Note examines what is at stake when the BOP continually limits prison journalism in federal facilities and ultimately advocates for heightened protections for incarcerated journalists’ speech.

Introduction

On February 1, 2024, within a wave of newly announced administrative crackdowns, the Federal Bureau of Prisons (BOP) proposed two specific codes—Code 194 and Code 294—that prescribed heightened disciplinary consequences for federal inmates’ social media use.^[2] The BOP tailored Code 194 to specifically prohibit the use of social media for “the purpose of committing or aiding in the commission” of crimes.^[3] Conversely, Code 294 contains no limitations related to purpose of use and would essentially create an all‑out ban on social media usage.^[4]

The proposed social media blackout under Code 294 is dual‑pronged. First, the regulation targets inmates’ direct usage of social media platforms. For example, this would include a federal prisoner personally logging into an account, typing out a status update, and posting it on their profile.^[5] Second, the regulation extends further to encompass third‑party actions by prohibiting people in federal custody from “directing others to establish or maintain social media accounts on the inmate’s behalf.”^[6] Therefore, if, per the prisoner’s request, a nonincarcerated person with typically unfettered social media access types out and posts that same status update on the federally incarcerated person’s social media account, Code 294’s repercussions could still apply to the prisoner. Such social media usage under Code 294 qualifies as “High Severity Level Prohibited Acts,”^[7] meaning the BOP places those social media posts in the same category of prohibited acts as extortion, fighting with others, stealing, and stalking. Federal prisoners who commit these acts may receive punishments such as disciplinary segregation, fines, loss of job, and recommendation of rescission or retardation of their parole date.^[8] Justifying this disciplinary crack down on social media, according to the BOP, is the promotion of “security of the prison institution and the protection of the community.”^[9]

With the publication of the proposed Code 294 came an eruption of public criticism and condemnation of the BOP’s move.^[10] Federal prisoners expressed concern over losing a medium of self‑expression;^[11] family and friends lamented over potentially losing a core mechanism of connection with their loved ones;^[12] and legal advocacy groups critiqued Code 294 for its First Amendment implications for federal prisoners, third parties who post social media messages on their behalf, and the public at large.^[13] Two leading civil liberties legal advocacy groups—the American Civil Liberties Union (ACLU) and the Knight First Amendment Institute at Columbia University (KFAI)—submitted public comments on the BOP’s proposed disciplinary measures to critique the legality of the social media bans and emphasize the magnitude of the consequences if so enforced.^[14] The ACLU argued that the BOP’s social media crackdown “prohibits a discrete category of political speech from reaching the public.”^[15] The regulations appear rather speculative and exaggerated and do nothing to further any legitimate penological interests regarding safety and security, asserted the ACLU.^[16] The organization wrote, “Social media is a commonly‑used platform to raise awareness of issues in our nation’s carceral facilities, and this blanket prohibition, as written, chills the free speech rights of persons and organizations such as the ACLU that shine a spotlight on conditions in federal prisons.”^[17] The KFAI’s comment mirrored the ACLU’s, raising concerns for keeping the public in the dark about the “grim realities of incarceration”^[18] and illustrating the various purposes and values of prisoners’ social media use, particularly regarding coverage of poor conditions behind bars.^[19] Despite the BOP’s assertion of security and safety concerns stemming from social media usage, the KFAI’s comment urged that prisons will become less, not more, safe with the social media crackdown because social media “has increased transparency into troubling conditions” within prisons.^[20]

At the forefront of such efforts to increase transparency of and dissent against the BOP’s proposed rules was a key subgroup of prisoners: incarcerated journalists^[21] who rely on social media to broadcast their reporting on prisons to the public.^[22] Journalists behind bars emphasized that the BOP’s social media crackdown would stop “real news stories in the name of security.”^[23] Modern news consumption gravitates toward social media postings,^[24] and incarcerated journalists silenced by threat of disciplinary action lose out on a core audience if they are unable to share their writings to the internet, either personally or through third parties.^[25] These concerns are heightened due to the continued existence of a 1979 BOP regulation that bars federal inmates from “act[ing] as reporter[s]” and effectively curbs the feasibility of wide‑spread circulation of prisoners’ journalistic coverage through traditional media publications.^[26] Therefore, prohibiting social media access would eliminate a forum of self‑publishing for federal prisoner newsgatherers and serve as a death knell for their journalistic advocacy.

In response to the BOP’s attempts to crack down on prisoner and third‑party social media use, this Note criticizes the constitutionality and implications of the BOP’s vast regulatory scheme that impedes incarcerated individuals’ speech. Specifically, this Note scrutinizes the effects of existing BOP regulations, legal precedents, and proposed rules on incarcerated journalism. It also argues that such regulations hide behind ambiguous allegations of “security” to silence prisoners trying to share their lived experiences, pursue government accountability, and achieve political reform. Ultimately, this Note advocates for heightened judicial scrutiny for regulations that chill federal prisoners’ journalistic speech to better advance the purposes of the First Amendment.

Part I first outlines the history of incarcerated journalism by detailing how prison journalists have and continue to cover correctional facilities and the experiences of incarcerated people. The Part ends by focusing on the specific lack of prison journalism in the federal carceral system. Then, Part II summarizes the legal precedents defining the scope of federal prisoners’ free speech rights and the constitutional framework for reviewing prison regulations.

Part III turns to the specific guidelines controlling speech within the BOP. Section III.A examines how the BOP limits press access behind bars to illustrate that the BOP leaves prisoners needing to fill the void with outgoing correspondence. Section III.B then looks at how the BOP directly limits prisoners’ journalistic speech. This Section starts by scrutinizing the constitutionality, legacy, and uncertainties of the BOP’s inmate-reporter ban. It then looks at the landscape of prisoner correspondence generally to analyze what options are realistically still available to incarcerated journalists in federal prisons amid the BOP’s vast communication restrictions.

Part IV explores what can be done to remedy the gap in federal prisoner‑produced incarcerated journalism. Specifically, this Part emphasizes that the BOP’s proposed social media ban and its other restrictive communication regulations threaten to silence a core type of journalistic speech that is nearly absent from the media landscape. First, Section IV.A reframes incarcerated journalism through the lens of the various First Amendment purposes to emphasize the high value of prison journalism and why it must receive heightened protection. Then, this Note concludes by advocating for two solutions that will better protect incarcerated journalism within federal prisons. Section IV.B outlines a policy proposal that works within the BOP’s existing regulatory framework and First Amendment precedents. Specifically, this Note argues that federal prisoners’ and third parties’ social media access should be protected because online platforms exist as valuable avenues for incarcerated journalism that do not offend existing correspondence regulations or penological concerns. Finally, Section IV.C advocates for a change in First Amendment doctrine. Particularly, the Section advocates for a heightened, Martinez‑like^[27] scrutiny for restrictions of prisoners’ journalistic speech. Both proposed solutions will further core First Amendment purposes and remedy the near blackout of journalism from behind federal prison walls.

Journalism within the American Carceral System

The birth of American incarcerated journalism occurred in 1800 with the publication of Forlorn Hope.^[28] Penned by an attorney serving time in New York’s debtors’ jail, the prison newspaper advocated for the eradication of debtors’ prisons and overall carceral reform.^[29] While the publication lasted only six months, the advent of prison newspapers—donned the “prison press”—boomed in the nineteenth century, with over a dozen states having established prison newspapers in at least one of their carceral facilities by the end of the 1890s.^[30] One of those states was Minnesota, which began publishing the longest still‑running prison newspaper, The Prison Mirror, out of Stillwater State Prison in 1887.^[31] For in‑house publications like the Mirror, prison journalists “walk[ed] a tightrope between opposing expectations”: yielding to administrators’ interests in presenting only positive images versus exposing the true conditions of their confinement in the name of reform advocacy.^[32] Prison journalists continued to balance on that tightrope, and the incarcerated press steadily grew through the mid‑twentieth century with its peak in the 1960s and 1970s.^[33]

Amid such growth, journalism industry professionals began to acknowledge the worth and quality of prison reporting. In 1965, Southern Illinois University journalism professor Charles C. Clayton created the annual Penal Press Awards, known as the “Pulitzers of prison journalism.”^[34] The awards brought public awareness to carceral issues “at a time when the public still viewed prisoners as redeemable and prisons as places not only for punishment but also for rehabilitation.”^[35] Highlighting incarcerated journalism in this manner allowed prisoners to sustain connections and work for reform with not only fellow prisoners but with outsiders,^[36] ranging from academics to political leaders to average citizens.^[37]

During the height of prison journalism, incarcerated reporting actualized reform. For example, articles in The Angolite,^[38] the most famed and award‑winning prison publication published out of the Louisiana State Penitentiary, were fundamental in convincing the state in the 1990s to cease use of the electric chair in executions.^[39] In the fall of 1990, The Angolite published jarring post‑electric chair execution photos of Robert Wayne Williams, including one of his badly burned head, along with interviews from medical experts and a comprehensive history of the execution method.^[40] Less than a year later, Louisiana passed a new law ridding the use of the electric chair and mandating that by mid‑September of 1991, the state would administer lethal injections for all capital punishment.^[41] By bringing attention to the issue and making the execution method less palatable to the public, The Angolite editors helped pass the new law.^[42]

However, the once‑flourishing prison journalism industry nosedived in the tough‑on‑crime era of the 1990s.^[43] Rising crime rates, overpopulated prisons, strained budgets, and increased public hostility toward prisoners^[44] all led to fewer programs devoted to rehabilitation and incentivization of good behavior, meaning, as collateral, less prison journalism.^[45] In his comprehensive history of the prison press industry, Jailhouse Journalism, James McGrath Morris wrote that “overcrowding and the mounting violence . . . put many of the nation’s prisons into virtually . . . perpetual lockdown, preventing any inmate‑journalists from doing their work. And even if security did not prevent inmates from publishing . . . , the overcrowding ha[d] caused budgetary problems that usually made it a futile hope.”^[46] By 1998, only six prisons circulated publications in the prison press.^[47] These few remaining publications experienced a shift in independence and coverage; the once uncensored Angolite and Mirror now operated under the restraint of administrative review by prison officials.^[48] By the end of the twentieth century, Morris declared that “prison journalism [was] no longer a central institution of prison culture. It ha[d] become, for all intents and purposes, an artifact of penal history.”^[49]

Nearly three decades after Morris’s declaration, prison journalism’s prognosis is less dire. The penal press has moderately regrown in the twenty‑first century, and as of 2024, over twenty prison publications—including The Prison Mirror and The Angolite—were operating across twelve states.^[50] The advent of the prison press’ revitalization may speak to how public attitudes have shifted regarding the American carceral system since the tough‑on‑crime era of the 1990s.^[51] With this shift, rehabilitative opportunities have expanded, with outside organizations and volunteers also stepping up to help prisoners fulfill expressed interests in starting publications.^[52]

Even before this era of prison publication regrowth, however, stopping the prison presses did not stop prisoners from reaching for the pen. Freelance journalism entered the picture amid a lack of prison‑run publications.^[53] Among the most famed incarcerated journalists to take their reporting beyond the prison walls is Mumia Abu‑Jamal.^[54] Abu‑Jamal, who worked as a professional journalist and activist before his incarceration, has written articles and books and given radio commentaries throughout the over forty years he has spent imprisoned.^[55] Though many media outlets remain unreceptive to incarcerated journalists seeking publication,^[56] several mainstream news outlets and magazines have welcomed the work of prisoner reporters. One such journalist is John J. Lennon.^[57] After becoming incarcerated, Lennon turned to freelance journalism, and The Atlantic published his first essay in 2013.^[58] Lennon’s coverage spans across a diverse range of issues affecting prison conditions and criminal justice reform, such as the implementation of surveillance cameras in Attica Prison,^[59] suicide behind bars,^[60] failures in prison education,^[61] and the struggle to find housing post‑release.^[62]

As “[i]ncarcerated freelancers have replaced the prison press,”^[63] several organizations including the Prison Journalism Project (PJP)^[64] and Empowerment Avenue (EA)^[65] emerged in the 2020s. The organizations seek to uplift incarcerated voices by connecting prisoners with outside editors, providing educational training to aspiring incarcerated writers, and navigating the complicated web of restrictions on prisoner communications, as discussed in more detail in Part III.^[66] With such support, the work of freelance journalists can reach the eyes and ears of the public. After receiving public exposure, incarcerated journalism can serve as an integral jumping‑off point for reform advocacy efforts and can even be used as evidence in legal investigations.^[67] And increasing incarcerated journalists’ publication opportunities actualizes change:

After Raymond Williams published an op‑ed in The Seattle Times urging the Washington Department of Corrections to restore valuable prison programs, it did. Following Kwaneta Harris’s reporting about life‑threatening heat inside her solitary confinement unit, the Texas Department of Criminal Justice installed air‑conditioning . . . . Juan Haines produced impactful investigative reporting and editorials throughout the pandemic, was named editor in chief by Solitary Watch, and now oversees an initiative funding other incarcerated journalists to produce investigative work.^[68]

However, among the various incarcerated individuals who have found platforms in recent years, a core group of voices are missing: federal prisoners. As of September 2025, nearly 142,000 individuals are federal inmates incarcerated in BOP facilities,^[69] but only a very small fraction of the thousands of prisoner‑penned articles published by organizations like PJP come from federal prisoners.^[70] Specifically, as of July 31, 2025, PJP works with 826 writers formerly or currently incarcerated in 261 prisons across forty‑four states.^[71] Of those writers, PJP’s reported numbers indicate that less than 3 percent were from BOP facilities.^[72] On the inside, prisoner‑created publications also lack federal prisoner representation, with only one out of the over 120 federal prisons^[73] publishing a prison newspaper as of August 2024.^[74] What caused this gap in incarcerated journalism? According to those working to promote prison journalism, the blame lies with the BOP and its wide authority to impede federal prisoners’ First Amendment liberties via restrictive regulations, namely the explicit inmate-reporter ban.^[75]

Regulating Prisoner Speech: A Framework for First Amendment Claims^[76]

Congress authorizes the BOP to “provide for the protection, instruction, and discipline of” individuals incarcerated in federal prisons.^[77] For both federal and state facilities, prison regulations are not limitless: “Prison walls do not form a barrier separating prison inmates from the protections of the Constitution.”^[78] However, when transforming from a private, free citizen to convicted prisoner, “[l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.”^[79] Put differently, the Constitution still protects prisoners, but prisons may peel back some of those protections to advance penological interests.^[80]

Accordingly, in Pell v. Procunier, the Supreme Court determined that prisons may place rights derived from the First Amendment on the chopping block.^[81] There, the Court held that prisoners retain some First Amendment rights, but not all.^[82] In fact, certain rights are ripe for “necessary withdrawal or limitation.”^[83] Upon entering through the prison gates and living life behind bars, only First Amendment rights “not inconsistent” with a person’s “status as prisoner or with the legitimate penological objectives of the corrections system” remain.^[84] Prison officials’ determinations of what is inconsistent or what qualifies as a legitimate penological goal for the purpose of promulgating regulations receive great judicial deference.^[85] That means that courts will normally defer to the prison administration’s decision unless substantial evidence supports the conclusion that the prison officials’ actions were an exaggerated response to penological considerations.^[86]

Building upon the general contours of Pell, the Court decided a series of three cases—Martinez,^[87] Turner,^[88] and Thornburgh v. Abbott^[89]—which shed light on how this commitment to judicial deference applies to different types of prisoner speech claims. These cases instructed courts reviewing a prisoner communication regulation to place the affected speech into one of two categories: prisoners’ purely outgoing speech or all other speech. If a regulation targets prisoners’ purely outgoing speech (i.e., messages prisoners send to individuals on the outside), then a reviewing court will hold prison officials’ feet to the fire by subjecting the regulation to the heightened judicial scrutiny outlined in Martinez.^[90] If the regulation targets any other type of speech—for example, incoming communications, internal correspondence between prisoners, outgoing messages that may also reach individuals on the inside, and so on—courts relax their standard of review and apply the reasonable relationship test from Turner.^[91] Thus, to precede Part III’s examination into how this framework has guided the BOP in developing specific communication regulations, this Part covers the evolution of the Court’s prisoner speech jurisprudence. The following Section II.A starts just as the Court did in the three‑case series: with what would later become the exception to a general rule. This Section details the two‑step Martinez test for outgoing speech and why the Court grants a special form of scrutiny for purely outgoing communications. Then, Section II.B outlines the Court’s move to reduce judicial interference with BOP prisoner speech policies with the widely applied and highly deferential Turner rule for non‑outgoing speech and its rationale.

Pure Outgoing Speech: Martinez’s Heightened Scrutiny

In Procunier v. Martinez, the Court considered the correct level of deference to afford regulations implicating prisoners’ communications with individuals on the outside.^[92] There, prisoners sued the California Department of Corrections for monitoring and censoring personal correspondence between prisoners and nonincarcerated individuals.^[93] Specifically, officials screened for a variety of communications including letters where prisoners “unduly complain” or “magnify grievances,” messages pertaining to “inflammatory” views or beliefs, or messages with “inappropriate” content.^[94] The Court ultimately held that the proper test for evaluating regulations of these outgoing communications involves two steps.^[95] First, “the regulation or practice in question must further an important or substantial governmental interest unrelated to the suppression of expression,” namely, “security, order, and rehabilitation.”^[96] Second, this limitation on expression cannot be “greater than is necessary or essential” to protect that substantial government interest.^[97] In other words, reviewing courts must consider the reach of a regulation, thus indicating that prison officials need to carefully tailor their regulation so it does not sweep too broadly. If the regulation meets both requirements, it can stay, and the free speech infringement remains legally valid. But failure at either step means the regulation must go.^[98] That said, the court will not require officials to show “with certainty” that the communication in question will yield the asserted consequences, but any regulation impeding prisoners’ free speech “must be generally necessary to protect one or more of the legitimate governmental interests.”^[99]

In determining this standard, the Court elucidated how, based on the specific way letter correspondence derives value, the California Department of Corrections implicated in its restrictions third‑party, nonincarcerated individuals’ interests^[100] Letter mail fulfills its purposes only after a recipient perceives and reads its content.^[101] As such, outsiders receiving outgoing communications possess their own First Amendment interests in the prisoners’ expressions.^[102] The Court clarified:

We do not deal here with difficult questions of the so‑called ‘right to hear’ and third‑party standing but with a particular means of communication in which the interests of both parties are inextricably meshed. The wife of a prison inmate who is not permitted to read all that her husband wanted to say to her has suffered an abridgment of her interest in communicating with him as plain as that which results from censorship of her letter to him. In either event, censorship of prisoner mail works a consequential restriction on the First and Fourteenth Amendments rights of those who are not prisoners.^[103]

Guided by those considerations in applying the two‑step test, the Court held that the regulations of personal prisoner correspondence unconstitutionally impeded upon prisoners’ First Amendment rights because the regulations failed both prongs.^[104] For the first step, not only did the California Department of Corrections fail to assert that the regulations furthered any penological interest, but the regulations invited prison officials to show prejudice toward unfavorable messages.^[105] As for the second step, language falling within the regulations’ scope expanded beyond communications directly implicating legitimate penological interests, such as the safety and security of facilities.^[106] As the Court concluded, “[T]he Department’s regulations authorized censorship of prisoner mail far broader than any legitimate interest of penal administration demands . . . .”^[107]

In Martinez, the Court for the first time recognized that the interest of nonincarcerated outsiders can both factor into constitutionality considerations and weigh against affording broad discretion to officials’ regulations.^[108] It was in this same case, however, that the Court also made clear that courts will, in fact, subject challenged efforts that impede prisoners’ speech to a less demanding standard than what courts generally apply to government actions impacting free citizens’ communications.^[109] Even so, the Martinez test serves as a “fairly rigorous standard” and indicates a step in the right direction toward protecting incarcerated individuals’ speech.^[110] However, the promise of such rigorous review is narrowly confined. Each case following Martinez stripped back its applicability to only the narrowest of circumstances.

Regulating All Other Speech: The Four Turner Factors

Thirteen years after Martinez, the Court in Turner v. Safley clarified that the two‑step test was the exception, not the general rule, when analyzing infringements on prisoners’ free speech.^[111] Turner concerned a First Amendment challenge to the Missouri Department of Corrections’ regulation of inmate correspondence.^[112] Notably, the regulation pertained to correspondence between prisoners at different institutions, not between prisoners and nonincarcerated third parties.^[113] While prisoners could send letters to immediate family members who were also incarcerated and between other prisoners if the communications “concern[ed] legal matters,” officials permitted all other inmate‑to‑inmate correspondence only if officials determined the communications served prisoners’ best interests, which was very strictly considered in practice.^[114]

The Court expressed concern that less deferential standards, such as the two‑step test adopted in Martinez, would rid prison officials of necessary breathing room to make judgments concerning core institutional issues, such as prisoner‑to‑prisoner communications:

Subjecting the day‑to‑day judgments of prison officials to an inflexible strict scrutiny analysis would seriously hamper their ability to anticipate security problems and to adopt innovative solutions to the intractable problems of prison administration. The rule would also distort the decisionmaking process, for every administrative judgment would be subject to the possibility that some court somewhere would conclude that it had a less restrictive way of solving the problem at hand. Courts inevitably would become the primary arbiters of what constitutes the best solution to every administrative problem, thereby “unnecessarily perpetuat[ing] the involvement of the federal courts in affairs of prison administration.”^[115]

To grant greater discretion to prison officials’ policing of internal communications, the Court laid out its own, highly deferential formulation for regulation review: “[W]hen a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.”^[116]

Courts reviewing a prison regulation under this standard shall consider four factors. First, there must be a “valid, rational connection” between the prison regulation and the identified legitimate government interest.^[117] The Court clarified that the interest must be neutral, and it will take note if the imposed restriction operates in a neutral fashion or serves as a means of silencing certain content.^[118] Second, courts must consider if there exists “alternative means of exercising the right that remain open to prison inmates.”^[119] Put differently, if the prisoner still has the option of exercising the implicated right through alternative means, the court is more likely to find the regulation as reasonable. For example, a regulation prohibiting prisoners from communicating with other prisoners via online messaging is more likely to receive judicial deference if letter correspondence is still permitted. Third, courts shall consider “the impact [that] accommodation of the asserted constitutional right” will have on prison officials, prisoners, and the general allocation of prison resources.^[120] Essentially, the court is asked to gauge for significant “ripple effects,” and the Court instructs that “courts should be particularly deferential to the informed discretion of corrections officials.”^[121] Lastly, the Court declares that “the absence of ready alternatives is evidence of the reasonableness of a prison regulation” and, while the Court clarifies “[t]his is not a ‘least restrictive alternative’ test,” the availability of easy, obvious alternatives can be evidence of unreasonableness and exaggerated response.^[122] Unlike the second factor that emphasizes what is already available to prisoners, the fourth factor instructs the court to consider what prisons could adopt “at de minimis cost . . . [to] meet the prison’s interests without sacrificing” prisoners’ free speech.^[123]

In the immediate aftermath of Turner, it appeared that the Supreme Court created two categories of prisoner free speech claims with two different deferential standards: Martinez would govern communications between prisoners and nonincarcerated outsiders, whereas Turner would govern when only the rights of prisoners were under review.^[124] Deference determinations seemingly turned on the identities of the parties in communication. If nonincarcerated persons were on one end, prison officials needed to better justify their facilities’ First Amendment infringements. However, the Court quickly dispelled of that interpretation two years later in Thornburgh v. Abbott.^[125] In Thornburgh, the Court clearly limited the application of Martinez solely to cases involving outgoing correspondence to the outside world.^[126] Therefore, the inquiry for determining appropriate deference was not just “Is a nonincarcerated person a party in the communication?” but also “If so, are they sending or receiving the message?” Only if the outside third party is a recipient shall a heightened scrutiny apply. This means that courts will show a higher degree of deference to a prison’s decision to restrict correspondence from outsiders to prisoners.

According to the Thornburgh Court, the basis for limiting the application of heightened scrutiny lies in “[t]he implications of outgoing correspondence for prison security [being] of a categorically lesser magnitude than the implications of incoming materials.”^[127] Therefore, Thornburgh’s reasoning departed from Martinez’s emphasis on third-party First Amendment interests implicated in outgoing correspondence. Rather, the Court based its rationale on the minimal threat of danger posed by outgoing communications because “dangerous outgoing correspondence is more likely to fall within readily identifiable categories,” such as “escape plans, plans relating to ongoing criminal activity, and threats of blackmail or extortion.”^[128]

Read together, Martinez, Turner, and Thornburgh reveal that for most prisoner correspondence claims, Turner generally prevails as the standard of review of the constitutionality of prison regulations. Under this Turner reasonable relationship standard, courts shall conduct a rational basis‑like review that considers four specific factors: (1) the connection between the asserted penological purpose and the regulation, (2) the ability for prisoners to still exercise the implicated right through alternative means, (3) the potential ripple effects on guards, other prisoners, and resources that would result from accommodating the asserted right, and (4) the availability or absence of alternative solutions. The Court roots the basis of such regulatory authority in the threats incoming messages pose on prison security, whether those messages are sent internally, prisoner‑to‑prisoner like in Turner or from third parties outside the prison walls like in Thornburgh. The sole carveout for Turner review emerges in cases concerning incarcerated individuals’ communications to outsiders: When incarcerated individuals send outgoing messages, security concerns are minimal and outsiders’ First Amendment interests come into play. As such, the two‑step Martinez test applies in these circumstances to afford greater speech protections for prisoners.^[129] As explored in Part III, however, the contours of such rules and when to apply them are a bit muddied, particularly when journalistic speech is implicated.

Keeping Reporters Out, Prohibiting Reporting Within: BOP Regulations on Incarcerated Communications

Constrained only by the Turner standard and the limitedly applicable Martinez test, the BOP possesses wide latitude to regulate various facets of prisoner communications. Furthermore, these legal precedents embolden the BOP not only to enact restrictions on federal prisoners’ own speech and actions, but to also place restraints on nonincarcerated citizens’ access to people behind bars.^[130] As a result, the BOP has enacted comprehensive communication regulations that affect the flow of speech in and out of prisons.^[131] These rules in effect limit the amount of journalistic reporting in federal prisons that reaches the public. Before addressing prisoners’ own communications, Section III.A illustrates the barriers that members of the news media face when attempting to access federal prisons and report what is behind bars to outside audiences. Section III.B then turns to the BOP’s imposed constraints on prisoners’ various outgoing communications. First, Section III.B.1 examines the scope and extent of the BOP’s inmate‑reporter ban. Second, Section III.B.2 illustrates that beyond that explicit ban, prisoner correspondence regulations generally frustrate meaningful attempts to share journalistic findings to outsiders.

 No Right In: Media Access to Federal Prisoners

When considering the ability of prison‑centered news to reach outside audiences, obvious questions emerge: What about outside journalists? If the BOP possesses such wide authority to impede prisoners’ free speech, why not put the onus on outside news media members to bridge the gap in prison coverage? Putting aside valid criticisms advanced by prisoners and journalists that replacing incarcerated journalism with outside media’s reporting is a flawed and problematic suggestion,^[132] such a “solution” is likely unfeasible. With nearly as much latitude as it possesses to regulate prisoner correspondence, the BOP can limit how news media members may gain access to individuals incarcerated in federal prisons. The scope of the BOP’s authority to restrict journalists’ access to federal facilities stems from two 1974 cases.

In the first of these cases, Pell v. Procunier, the Supreme Court considered a California Department of Correction Manual rule that required media representatives to name specific prisoners in their interview requests.^[133] There, prison officials denied three journalists’ requests for face‑to‑face interviews with four specific prisoners.^[134] Both the journalists and the prisoners then sued to enjoin the enforcement of the regulation, with the prisoners raising free speech concerns and the journalists asserting the regulation unconstitutionally infringed upon their newsgathering activity protected by the Free Press Clause of the First Amendment.^[135]

The Court rejected the prisoners’ free speech claim, holding that since the regulation was content neutral, the availability of alternative methods of communication—such as written mail correspondence and the ability to receive limited visits from people including friends, family, attorneys, and religious leaders—still allowed for prisoners’ communications to reach outsiders.^[136] Therefore, the Court also rejected the journalists’ free press claim.^[137] The Court explained that the challenged regulation did not adversely treat the press compared to how other members of the public were treated when the Department granted or denied prisoner access.^[138] Though this regulation departed from the Department’s former, less‑restrictive policy^[139] and thus made newsgathering harder, the Court acknowledged that prisons had a valid interest in implementing the restriction on press access.^[140] In practice, the earlier policy led to the press concentrating its attention on a small number of specific inmates who then gained notoriety and influence as “virtual ‘public figures.’”^[141] Emboldened by this heightened social status, these prisoners then became a source of various disciplinary incidents.^[142] Thus, the implementation of the in‑person interview limitations was a peeling back of special privileges that frustrated penological interests. Furthermore, even if the peeling back of privileges lacked such sound reasoning, the Court reminded that “newsmen have no constitutional right to access prisons or their inmates beyond that afforded the general public.”^[143] In other words, while the Department may choose to give press members special treatment if it so desires, the Constitution only mandates equal treatment and access to information for journalists and the public. Therefore, the Court emphasized that holding the Department’s interview restriction as unconstitutional would “impose[] upon [the] government the affirmative duty” to give special treatment to journalists.^[144]

On the same day it decided Pell, the Court once more decided against journalist and prisoner plaintiffs in a second press prison‑access case, Saxbe v. Washington Post Co.^[145] The situation in the second case closely mirrored Pell, except in Saxbe, journalists challenged the constitutionality of the highly restrictive BOP Policy Statement 1220.1A^[146] when officials denied their requests to interview specific federal prisoners.^[147] In short, the Court found the journalists’ situation in Saxbe “constitutionally indistinguishable” than that of the journalists in Pell and rejected all First Amendment claims.^[148] Furthermore, the Court noted that, unlike state policies such as the California Department of Corrections’s rule in Pell that simply placed journalists and the general public on an equal playing field, the BOP actually granted members of the press greater access to federal prisons than members of the public.^[149] In all, Saxbe reinforced one of Pell’s core holdings: Just because the BOP enacts a limitation on press members’ access to prisoners does not mean the First Amendment is violated. Restrictions cannot be considered in isolation; press members must consider if their access is at least comparable with the access granted to members of the general public.

Over five decades after the Saxbe decision, the BOP continues to provide some special privileges to journalists,^[150] though their access remains far from unfettered. Today, journalists must first submit a written application to the prison’s warden that contains an expression of awareness of, and promise to comply with, the BOP’s media regulations before receiving authorization to visit or interview at a federal prison.^[151] Such authorization is conditioned upon journalists recognizing “a professional responsibility to make reasonable attempts to verify any allegations regarding” either inmates, institutional staff, or the prison itself.^[152] Press members granted access must also allow the BOP to respond to any allegations potentially published,^[153] and they may only obtain information from direct sources, not from prisoners willing to talk about other prisoners unwilling to be interviewed.^[154]

Upon a grant of authorization for institutional visits, members of the press may then schedule a visit during which they can observe and photograph inmates engaged in particular facility programs or activities and may even meet with the participating inmates so long as prisoners consent to such coverage.^[155] The path for journalists to receive authorization for interviews, however, is less straightforward and, once granted, less lax than institutional visits. Although the BOP allows either party, prisoner or journalist, to initiate requests for interviews, the warden may deny interview requests on seven different grounds, the broadest being that “the interview, in the opinion of the Warden, would endanger the health or safety of the interviewer, or would probably cause serious unrest or disturb the good order of the institution.”^[156] The warden’s discretion for denials is not unlimited,^[157] but such regulations need only to bear a rational relationship with security concerns given they concern incoming communications and internal facility operations.^[158] Once journalists receive access, the warden still maintains a level of control over the logistics of the interview.^[159] For example, the warden may: (1) move the interview from the institution visiting room to a different location; (2) limit the duration of the interview “if the Warden determines that the interviews are imposing a serious drain on staff or use of the facilities”; (3) limit prisoners in “segregation, restricted, holdover, control unit, or hospital status” to only one, one‑hour interview a month with news media “if required by special security, custodial, or supervisory needs”; or (4) limit the amount of audio or video equipment or media personnel entering the institution out of concern for disruption within the prison.^[160]

Many criticisms surrounding the Court’s refusal to extend prison access rights to journalists and Pell’s legacy of granting the BOP wide latitude in prescribing restrictions on journalists wishing to speak to those prisoners mirror the concerns aired by the dissenting Justices in Saxbe.^[161] At the crux of their argument is the need to acknowledge, and protect, the public’s immense interest in knowing what really occurs behind bars in these public institutions.^[162] As Justice Powell emphasized, “The administration of these institutions, the effectiveness of their rehabilitative programs, the conditions of confinement that they maintain, and the experiences of the individuals incarcerated therein are all matters of legitimate societal interest and concern.”^[163] The press performs a “crucial function” in uncovering information of high public value and disseminating their findings to the general public so that the United States’s democratic self‑governance is truly intelligent.^[164]

Limiting What Goes Out: BOP Restrictions on Inmate Correspondence

As Section III.A explained, outsider journalists’ access to federal carceral facilities is not specially protected or even plainly guaranteed. Though the BOP cannot treat journalists differently than ordinary citizens, the various restrictions federal facilities impose on reporters trying to gain access to happenings on the inside further emphasize the importance of ensuring prisoners’ voices are able to reach the outside. Newsgathering that occurs within prisons relies just as much, if not more, on prisoners’ ability to communicate with those on the outside compared to journalists’ ability to skillfully navigate the BOP’s media access regulations. And in some instances, the hurdles federal prisoners must overcome to fill the void in prison news coverage are insurmountable. The following Section III.B.1 discusses the evolving contours and understanding of the BOP’s long‑enacted and unparalleled ban on inmates “acting as reporters.” Section IV.B.2 then outlines the uphill battle federal prisoners face when navigating various general correspondence regulations to share newsworthy information to outsiders.

“Acting as Reporter”: The BOP’s Longstanding Ban on Incarcerated Reporting

The BOP’s restrictions on news media access keeps journalists from getting in, but the BOP also regulates the flow of information sent out to members of the press.^[165] While journalists may send prisoners correspondence subject to inspection and evaluation of media credentials and intentions,^[166] prisoners can also initiate communication with media representatives themselves.^[167] However, a federal prisoner must be cautious when communicating with members of the press about newsworthy topics because “[t]he inmate may not receive compensation or anything of value^[168] for correspondence with the news media . . . [and t]he inmate may not act as a reporter.”^[169] Written in rather vague terms, the true scope of this reporter prohibition is both ill‑defined and rarely explicitly challenged. However, given its ambiguous language, many, especially incarcerated journalism and prison‑reform organizations, read the regulation broadly to demand an outright ban on any and all expressions of incarcerated journalism.^[170] This Section explores the nuances behind this rule, including the few judicial inquiries into its reach and legitimacy. Ultimately, it concludes that the regulation’s public perception and silencing potential is cause for alarm, no matter the scope of its actual meaning and application.

The origins of the inmate‑reporter ban stem back to the 1970s, an era when the government worried about the rise of influential prisoner‑activists.^[171] As one historian at the University of Michigan explained:

With increasing determination after World War II, and in conjunction with the rise of the black freedom struggle nationally, prisoners became particularly active in the 1960s and 1970s. On the one hand their demands very much mirrored those of activists on city streets—they spoke out against racism, against the violence directed at them by officers of the state, for better living and working conditions, for greater access to education, and for better medical care.^[172]

Highly publicized events such as the Attica prison uprising^[173] and writings of imprisoned Black liberation activists^[174] led to currently and formerly incarcerated individuals developing a fairly “strong voice in the forums of public opinion” during the 1970s.^[175]

In 1979, the BOP implemented a new rule explicitly prohibiting federal prisoners from “act[ing] as a reporter or publish[ing] under a byline.”^[176] Officials cited security concerns to rationalize this deprivation of prisoners’ First Amendment rights.^[177] Specifically, the BOP wrote that “experience has shown that such activities often result in an inmate’s gaining a disproportionate prominence and influence among other prisoners which can pose a serious threat to the order of the institution.”^[178] In other words, the BOP feared that publication of a reporter’s work to an outside audience would bolster their in‑custody celebrity and alter social dynamics between prisoners.^[179] Despite being enacted nearly fifty years ago, neither the Supreme Court nor even circuit courts have heard First Amendment challenges to the BOP inmate‑reporter ban, and only two federal district courts have conducted substantive analysis of its validity as applied to incarcerated journalists.^[180]

In the first district court case, Martin v. Rison, federal prisoner Dannie M. Martin challenged the outright ban on inmate reporters over a decade after the regulation’s initial promulgation.^[181] Martin—“often considered to be the last visible freelance prison journalist” incarcerated in a federal prison^[182]—had published several written articles in The San Francisco Chronicle while serving time in the U.S. Penitentiary in Lompoc, California.^[183] Primarily discussing prison life with criticism of prison authorities, approximately eighteen of Martin’s articles made it to print without any BOP intervention.^[184] The Chronicle printed Martin’s byline alongside his articles, just as the publication would for any other featured writers, and compensated Martin for his work through payment sent to his attorney.^[185] The BOP’s practice of turning a blind eye to Martin’s reporting endeavors ceased in June 1988 after the publication of “The Gulag Mentality,” an article in which Martin examined unrest in the prison following his warden’s newly implemented protocols.^[186] BOP officials found that Martin violated both the ban on prisoners directing businesses and the ban on behind‑bars reporting.^[187]

Using the deferential Turner test,^[188] the district court upheld the constitutionality of the BOP’s inmate‑reporter ban, both facially and as applied to Martin, and agreed with the BOP’s asserted security concerns in finding that the regulation was reasonably related to promoting that interest.^[189] The court cited factors such as fellow prisoners potentially retaliating against prisoner reporters for being identified in print, adverse effects on staff‑to‑prisoner reporters communications, and shifts in loyalties from prison authorities to the newspaper.^[190] The court also saw credence in the “big wheel” problem cited in the BOP’s rationale for the inmate‑reporter ban, which theorizes that “[t]he press often concentrates on a small number of inmates, who as a result become virtual public figures within the prison society and gain a disproportionate degree of notoriety and influence among their fellow inmates.”^[191] Furthermore, the court re‑emphasized an interest in restricting prisoner compensations as a legitimate penological interest because incoming cash flow risks the same issues of social notoriety and influence at play in the “big wheel” scenario.^[192] Thus, despite the court’s praise for Martin’s writing prowess and acknowledgment of public interest in the subject matter,^[193] the BOP’s crackdown on incarcerated journalism remained.^[194] “I committed bank robbery and they put me in prison, and that was right,” later wrote Martin of the case.^[195] “Then I committed journalism, and they put me in the hole. And that was wrong.”^[196]

The second constitutional challenge to the BOP’s inmate‑reporter and byline regulation—Jordan v. Pugh—fared better for the incarcerated plaintiff.^[197] Jordan was a prisoner at the Administrative Maximum United in Florence, Colorado (“ADX‑Florence”), who officials said violated the inmate‑reporter ban by publishing two different essays about his experiences at federal prison in Off! magazine, a university periodical.^[198] Jordan sued in the District of Colorado, and, following a bench trial before District Judge Marcia S. Krieger, the court held that the regulation’s byline prohibition violated Jordan’s First Amendment rights.^[199] The court then enjoined the BOP to remove the language—that an inmate cannot “publish under byline”—from the regulation.^[200]

Jordan shed necessary light on how, at the time, the BOP and its facilities actually understood the reasoning behind and contours of the inmate‑reporter ban. First, testimony from federal wardens emphasized that prisoners’ writings in news media outlets are particularly ripe for security concerns compared to other forms of published writings, like manuscripts.^[201] Specifically, ADX‑Florence’s warden indicated that news publications are considered “purveyor[s] of truth” or “conduit[s] of legitimate information,” and another warden pointed out that “news media articles are published more quickly, have greater credibility and are not subject to prior staff review.”^[202] The court noted, however, that the government failed to admit any historical evidence proving such contentions over security concerns.^[203]

Second, for litigation purposes, ADX‑Florence and the BOP supplied policy statements that outlined their respective understandings of what behaviors the regulation targets.^[204] In an institutional supplement promulgated in July 2005, ADX‑Florence provided that “[a] column or article published under a byline alone is not prohibited conduct. Staff shall examine the relationship between the prisoner’s activities and the prisoner’s contacts with the news media.”^[205] Therefore, when coupled with a prisoner’s byline, prohibited activities include (but are not limited to): (1) publishing a news article or column on a regularly occurring basis (i.e., how often the outlet publishes their reporting); (2) entering into a contractual agreement to provide a news outlet a column or article on a regularly occurring basis; and (3) “when the inmate undertakes regularly occurring article or column ‘job’ assignments with the news media,” with “regularly occurring” meaning the assignments are so often occurring that they indicate “a relationship or affiliation with that news media.”^[206] As for the BOP’s interpretation of the inmate‑reporter ban, its director issued a 2006 memorandum that stated disciplinary action was appropriate for conduct that “indicates an inappropriate relationship with news media representatives, or that indicates inappropriate business activity in the community.”^[207] The BOP then laid out four non‑exhaustive factors for consideration, including the prisoner:

• Receiving compensation or anything of value for correspondence with a news media representative
• Acting as a reporter on a regular or repeated basis . . .
• Entering into a contractual, or other, agreement with a news media representative for regularly published material; or
• Contacting or corresponding with news media representatives in a manner that indicates an attempt to facilitate or maintain business activities in the community . . . .^[208]

Read together, the statements indicate that federal officials read the scope of the inmate‑reporter ban narrower than its actual language requires. Instead of a blanket ban on all journalistic activity, the inmate‑reporter ban only seems to prohibit (1) relationships that prisoners cultivate with news media representatives and, often a manifestation of such relationships, (2) multiple publications with a particular news outlet. Notably, the court revealed that prison officials did not provide these two pieces of binding guidance on BOP staff’s interpretation to federal inmates other than Jordan.^[209] Furthermore, the text of the inmate‑reporter ban remained unaltered by the issued guidance, and despite testimony that the BOP intended to implement language of the 2006 memorandum into a revised version of the inmate‑reporter ban, no such revision ever occurred.^[210] All to say, the broad language of the regulation remained, and other prisoners were not given the helpful information to understand what specific journalistic activities would land them in trouble.

As for its assessment of the regulation’s validity, the court found that the byline regulation was overbroad because it discouraged “all outgoing news media correspondence, even that which could, but never does, result in a publication or a publication under a byline,” and not every article submitted for publication implicates the security interests the BOP asserted to rationalize the regulation.^[211] In effect, the broad applicability of the byline provision chills the speech of the hundreds of thousands of prisoners incarcerated in BOP facilities because “[t]he only way for any inmate to be certain to avoid punishment is to not submit an article to the news media for publication.”^[212] Finding that the “primary effect” of the byline provision was aimed at outgoing prisoner correspondence to news media, the court determined that the less‑deferential Martinez test provided the appropriate standard of review.^[213] The court rejected the government’s position that publishing under a byline implicated any asserted security concerns. While assuming that the government has a legitimate penological interest in preventing prisoners from conducting business behind bars, such an interest lacked any logical connection to the specific byline provision.^[214] The court noted, however, that the BOP’s interest in prohibiting business conduct would “carry more weight” had the plaintiffs also been challenging the regulation against acting as a reporter.^[215] While prisoners like Jordan who infrequently publish under a byline pose a “much more remote” danger of conducting business, let alone any other danger to prison security, “[t]he role of a reporter envisions a relationship between the news media and the inmate, for which the inmate is compensated.”^[216]

It took the BOP five years after Jordan to officially amend the inmate‑reporter regulation to remove the byline‑prohibition language.^[217] The amended regulation reads that a federal prisoner “may not receive compensation or anything of value for correspondence with the news media. The inmate may not act as reporter.”^[218] Thus, the byline language was gone, but the inmate‑reporter ban remained. The explicit ban on reporting appears again in the BOP’s regulation regarding news media visits to prisons.^[219] In its rationale, the BOP pointed to the court’s distinction between the issues presented in the two provisions, emphasizing the distinction between “regular, repeated, compensated activity as a reporter” that “signifies that the inmate is conducting a business” versus one‑time publications under a byline.^[220]

After the byline provision elimination, specific information on how the BOP currently understands and implements the inmate‑reporter ban runs dry. If the policy of the mid‑2000s remains intact, the BOP seemingly defines “reporters” not by what they do (newsgathering and reporting), but by what they receive (money and a relationship) and from whom (media outlets).^[221] Such an interpretation is less concerning for the overall livelihood of incarcerated journalism in federal prisons, as it would permit publication so long as prisoners varied with whom and with what frequency they published, avoided payment, and generally kept their distance from news media professionals to avoid developing a “relationship.” But this reading of the regulation runs afoul to guidance from journalism organizations that encourage journalists to build relationships with prisoners.^[222] Notably, as indicated in the following Section, developing relationships is key in facilitating effective correspondence within BOP facilities. Furthermore, this interpretation leaves more questions than it answers. How many publications with a specific outlet is too many? In the eyes of BOP officials, at what point (and how) does a prisoner develop an improper relationship with a news outlet? Lastly, is compensation really what determines whether prison officials will punish incarcerated journalists’ actions?^[223]

Still, it is unclear if this reporter‑as‑relationship/payment interpretation remains, and the regulation’s language leaves open the possibility of broader interpretation and enforcement. There is also a core question of prisoners’ knowledge of the regulation and, if they are aware, how they have interpreted its language—especially because the BOP and its facilities may not readily circulate their policies to prisoners.^[224] Even so, various advocacy groups assert the regulation is a categorical ban on incarcerated journalism,^[225] and when considering the minimal presence of incarcerated journalists in federal facilities, such proclamations are arguably warranted. In all, while the scope of this federal regulation remains uncertain, no other state prison system in the United States implements such a wide‑sweeping ban on prisoner reporting.^[226]

Limited (and Inadequate) Options: The BOP’s Comprehensive Correspondence Regulations

Despite the express ban on acting as reporters, prisoner newsgathering is not outright impossible. Rather, prisoners must navigate the complex scheme of rules dictating general correspondence to the public in order to place valuable, newsworthy information into the hands of the public. These individuals must only avoid the official title and procedure associated with the BOP’s view of “reporting.” This availability of alternative channels for sharing newsworthy information was, notably, at the core of the Court’s upholding of the prisoner interview policy in Pell.^[227] However, there are barriers to accessibility and feasibility issues when prisoners attempt such modes of communication. As a result, the BOP grants prisoners in federal facilities little‑to‑no real choices in how they can communicate to the public. This Section precedes by outlining the BOP’s regulations pertaining to three core modes of communication: written correspondence, telephone calls, and electronic messaging.

As mentioned in the discussion of journalists’ access to prisoners, prisoners may send outgoing correspondence to news media representatives “specified by name or title” through special mail.^[228] Unlike general correspondence, special mail may be sealed and sent out of prisons without inspection. The BOP clarifies that special mail‑qualifying media representatives include those “whose principal employment is to gather or report news for” a general circulation^[229] newspaper, a nationally circulated news magazine, national or international news services, or radio or television news programs for stations holding a Federal Communications Commission (FCC) license.^[230] This list for qualifying news media representatives is distinctly underinclusive of members of the press who would qualify as acting journalists. On a cursory glance, two predominant players in the modern news media landscape—(1) freelance reporters who employ themselves and commission their work to various publications and (2) online‑based, independent news websites—would not qualify for special mail privileges.^[231] So how do prison officials handle outgoing letters to these non‑special‑mail qualifying media sources? What about letters sent to organizations like Empowerment Avenue or the Prison Journalism Project that mix advocacy with publication opportunities for prisoners?

While all incoming general correspondence is subject to official oversight and review before delivery to a prisoner,^[232] officials may open outgoing mail from prisoners in minimum or low‑security institutions for inspection when, among other exceptions, “there is reason to believe that it would interfere with the orderly running of the institution.”^[233] Prisoners in medium or high security level institutions, however, lack any sort of privacy: They cannot seal their letters, and staff may read or inspect their correspondence without noted reason.^[234] Therefore, prisoners sending correspondence to family, friends, advocacy organizations, or media representatives that fall outside the BOP’s classification for special mail status have no guarantee of privacy from individuals who may be the very subject of the prisoners’ scrutiny. After inspecting the letter’s contents, the warden may reject the letter for eight enumerated reasons, though the list of reasons is inexhaustive.^[235] Notably, the BOP indicates that the warden may reject a letter if its content “depicts, describes, or encourages activities which may lead to the use of physical violence or group disruption.”^[236]

Furthermore, the scope of permitted prisoner correspondence narrows considerably if the warden places a prisoner on “restricted general correspondence” for misconduct, which includes attempting to send correspondence that is rejected by the warden.^[237] Once classified as “restricted general correspondence,” prisoners may only correspond with family members and former business associates.^[238] What if they wish to communicate beyond that limited group of outsiders? Per prisoner request, the warden must investigate, evaluate, and approve other individuals before placing them on an approved correspondence list.^[239] In some instances, the warden may permit communication with someone not on the approved list “when the correspondence is shown to be necessary and does not require an addition to the mailing list because it is not of an ongoing nature.”^[240]

Instead of navigating the various protocols regulating written correspondence, prisoners may contact people on the outside through telephone communications. Like mail correspondence, the BOP grants wardens authority to oversee inmates’ use of telephones and enact necessary limitations out of “security and good order.”^[241] However, unlike mail correspondence, the scope of contact is limited: Federal prisoners may only call numbers on a prepared list, and the list may contain only up to thirty numbers unless the warden grants special authorization for additional numbers.^[242] If the prisoner wishes to add, for example, a journalist or PJP employee’s number to their list, the associate warden has the authority to grant or deny the addition of the number for security and order concerns.^[243] With space on the call list a sparse commodity, however, the addition of these outsiders’ numbers all but necessitates a prisoner establishing some sort of communicative relationship with a reporter or advocate on the outside before adding telephone calls into the mix.

Even after a number is added, concerns for incarcerated journalists persist. First, unlike the privileged special mail correspondence to media representatives, all inmate telephone calls except ones to attorneys receive official monitoring.^[244] Surveillance of this manner infringes upon journalistic privacy and could have a chilling effect on inmates’ ability to truly and wholly elaborate upon their experiences and reported findings of ongoings behind bars.^[245] The “costs” of such speech do not end there, literally, because prisoners must personally bear the expenses of each phone call.^[246] While a recent order by the FCC has issued caps on what had previously been exorbitant rates for phone calls,^[247] the BOP in October 2024 announced its decision to stop its COVID‑19‑era program that provided free phone calls to prisoners and will instead provide 300 free phone call minutes a month only to individuals participating in First Step Act (FSA) Evidence‑Based Recidivism Reduction (EBRR) programs.^[248] Furthermore, even if the prisoner qualifies for the free calls, there is a limit of thirty minutes per day each monthly cycle,^[249] and an individual’s call can last no more than fifteen minutes.^[250] Not only must prisoners boil down often detailed and complex discussions of journalistic findings to fit within a short fifteen‑minute period, but with every call, they directly reduce the amount of time they can devote to connecting with friends and family members. Therefore, the trifecta of burdens that telephone calls within federal prisons impose upon prisoners—cost, surveillance, and time—reduce the attractiveness of telephone correspondence for incarcerated journalists in federal custody.

As modern communication has generally moved online, the BOP has adapted to expand prisoner communication mediums into internet messaging with the Trust Fund Limited Inmate Computer System (TRULINCS).^[251] Funded solely through the Inmate Trust Fund that grows via an inmate’s personal purchases of telephone calls, commissary products, and use fees, TRULINCS allows prisoners to send monitored virtual messages, without actual internet access, to a list of officially approved persons who too must consent to receive prisoners’ messages.^[252] Additionally, the service screens every message “for content that could jeopardize the public or the safety, security, or orderly operation of the facility.”^[253] While the BOP labels TRULINCS as “e‑mail” correspondence, the service imposes various restrictions upon messengers, both those incarcerated and on the outside, making the e‑messaging service notably “worse” than standard e‑mail.^[254] Specifically, TRULINCS messages cannot contain any attachments, and the service limits messages to 13,000 characters.^[255] Another concern for incarcerated journalists arises from the e‑messaging system prohibiting prisoners and those on the outside from asserting ownership over their personal messages.^[256] The Prison Policy Initiative illustrated the impact of this feature:

[I]magine if, instead of writing his “Letter from Birmingham Jail” on paper, Dr. Martin Luther King Jr. sent it via e‑message. Under the terms of many system contracts, the correctional facility that he sent it from could attempt to assert ownership over the text, potentially stopping its spread and impact in the wider world.^[257]

Therefore, while the convenience and familiarity of e‑messaging for many prisoners may be more attractive than traditional written mail correspondence, the service frustrates many goals of incarcerated journalism the moment it extends beyond sheer, closely monitored information sharing.

Speech Worth Protecting: Lower the Hurdles and Heighten the Scrutiny for Incarcerated Journalism

The current landscape of correspondence regulations places burdens on incarcerated journalists in their efforts to effectively communicate with outside journalists or advocacy groups about information of public importance.^[258] With the inmate‑reporter ban in place,^[259] incarcerated journalists are backed into a corner with almost no way out. What little breathing room there is for federally incarcerated journalists exists primarily in the option to not directly report by themselves, but rather to hand off the information to outside journalists either through stilted correspondence or agreeing to warden‑approved interviews. Aside from logistical complications, this resulting phenomenon poses its own unique concerns. Filmmaker and former prisoner Adamu Chan argues that outsider journalists filter prisoners’ lived experiences through their reporting, thus distorting and sanitizing perspectives that only firsthand reporting can provide.^[260] Chan elaborates:

We should be wary of defaulting into historical patterns in which we allow people who lack lived experience with the carceral system to dictate the discourse around incarceration and those impacted by it. We must be vigilant of all that is lost, fragmented, and distorted in that process, and the people who are harmed as a result. The reality is that most who are directly impacted by incarceration are not positioned in a way where we have access to telling our own stories. They are most often told by outsiders who lack an understanding of the nuanced but very real stakes for incarcerated people who go public with their stories, lacking regard or commitment to their safety and liberation, while being able to position themselves as experts or neutral translators nonetheless. Their commitment is to the story, not to the people.^[261]

Whereas there are potential harms that come with outside journalists trying to reflect on what occurs behind bars, firsthand reporting by prisoners yields two major benefits.^[262] One benefit flows toward the public, with incarcerated journalism providing readers intimate, firsthand accounts of life behind bars.^[263] This reporting thus allows the masses—who will likely never experience life behind bars—an understanding of incarcerated people as actualized humans.^[264] The other benefit flows to the prisoner, with writing and reporting serving as a reminder of their autonomy and ability to find a meaningful life behind bars.^[265] Writing and reporting can also enable prisoners to obtain and foster new rehabilitative skills, both practical and interpersonal.^[266]

This Part begins by outlining why incarcerated journalism deserves great protections. In advancing this claim, Section IV.A emphasizes the high value of incarcerated journalists’ speech by connecting incarcerated journalism to three core First Amendment purposes. After concluding that First Amendment values warrant greater protection for incarcerated journalism, the final two sections advance alternative responses to the current state of federal incarcerated journalism that will actualize the benefits of prisoner‑produced journalistic content. Section IV.B contends that social media access, and particularly third‑party postings, provides the most effective means of incarcerated journalism dissemination without majorly disrupting BOP correspondence regulations or the existing First Amendment framework for restrictions on prisoner communications. Therefore, efforts such as proposed Code 294 must be challenged and eliminated. Section IV.C goes further and advocates for a doctrinal change. The Section proposes that when dealing with prison regulations that impede incarcerated journalism, a less deferential, Martinez‑like scrutiny should govern.

Incarcerated Journalism and First Amendment Purposes

Up to this point, this Note has outlined how and why, under certain circumstances, the BOP possesses the legal authority to infringe upon federal prisoners’ free speech. The various documented challenges to these regulations illustrate several pieces of incarcerated journalism that have been the target of punishment. Now, the focus turns to the speech stifled through exercises of authority and why the First Amendment urges against suppression of this journalistic expression. As such, the following Section highlights three of the most prominent First Amendment purposes that incarcerated journalism promotes: self‑governance, negative theory, and autonomy. Viewing incarcerated journalism through the lens of each purpose illuminates the high value of incarcerated journalists’ speech.

 Incarcerated Journalism and Democratic Self‑Governance

Under the theory of democratic self‑governance, the Free Speech Clause of the First Amendment advances the idea that “a healthy democracy depends on free expression and dissent,” particularly when the discussions concern evaluation of the government’s performance and dialogue regarding policy and issues of public concern.^[267] Though incarcerated people are far from a political monolith, prisoners make up a sizeable, unique demographic within the American political system whose living conditions and experiences are inextricably the result of political decisions.^[268] Considering the fact that only two states—Maine and Vermont—and the District of Columbia grant felons currently in custody voting rights,^[269] incarcerated journalism may be the closest thing to political participation many prisoners can experience behind bars. Recall The Angolite’s poignant coverage of Louisiana’s use of electric chairs in state executions and its influence in the passing of anti‑electric chair legislation.^[270] Prohibited from direct political participation, incarcerated journalists can spur or contribute to movements centering prison reform through fostering public discourse about issues in the federal prison system.

Furthermore, with an annual budget of over $8 billion—and recent investment of $5 billion following the passage of the One Big Beautiful Bill Act^[271]—how and on what the BOP spends its budget is of great political concern. In 2025, news of BOP budget concerns leading to program cuts, staffing issues, and pay cuts received considerable media attention.^[272] Amid such financial crises, understanding the true impact of these budgetary decisions calls for a platforming of federal prisoners on the direct receiving end of these major changes. To echo the assertions of incarcerated journalist Chris Blackwell and Empowerment Avenue organizer Emily Nonko, “[t]he American public—most of whom acknowledge that we simply incarcerate too many people—should not accept” that the thousands of prisoners in the federal carceral institutions “are held in a system with little oversight or accountability, with too few avenues to hear and see how the system works, and purportedly keeps us safe.”^[273]

Incarcerated Journalism and Negative Theory

Working hand in hand with self‑governance interests, the negative First Amendment theory “urges that we understand the Free Speech Clause to protect us from the government’s capacity to abuse its power by preventing the government from regulating speech in settings where it is self‑interested, intolerant, or clumsy.”^[274] Thus, this purpose of the First Amendment is not rooted in a celebration or inherent valuing of speech. Rather, negative theory proposes that the First Amendment is an outgrowth of American citizens’ fear of their government’s power and control.^[275]

To put it bluntly, fear of the BOP’s authority over individuals in federal custody is well-founded. From systemic sexual assault in a women’s prison in Dublin, California,^[276] to withholding of necessary medical treatment leading to a large frequency of preventable deaths,^[277] to pervasive cultures of both physical and mental abuse,^[278] federal prisons are breeding grounds for mass mismanagement and inhumane conditions. Additionally, journalistic reports of such abuse can often precede formal investigations and reports by government officials. Take, for instance, a 2022–2024 investigative series by the National Public Radio and The Marshall Project that exposed federal prisons’ inhumane, and occasionally deadly, use of restraints on prisoners.^[279] In July 2025, the Justice Department’s Office of the Inspector General published a report mirroring many of the journalists’ findings.^[280]

In all, these numerous journalistic reports have uncovered that the BOP possesses a powerful incentive to try and silence its vocal dissidents. On the state level, incarcerated journalists have alleged the incentive to keep injustices hidden causes some officials to resort to intimidation tactics in order to dissuade from speaking out.^[281] And, as discussed in Part III, given the major hurdles faced by both journalists seeking access to prisoners and federal inmates trying to communicate to the outside, the public must wonder what else is going on behind closed doors and what federal incarcerated journalists could expose to the American public if less restrained by the BOP’s regulations. As an incarcerated journalist in California state prison reflected, “In my nearly three decades behind bars, I have found that state motives are often self‑serving, intended to protect its officials’ corruption inside.”^[282] Therefore, losing out on the voices of incarcerated journalists means it is even easier for the BOP to spread misinformation and potential “propaganda.”^[283]

Incarcerated Journalism and Individual Autonomy

Lastly, under the theory of individual autonomy, the First Amendment protects speech because it is valuable “in and of itself . . . because expression is central to each individual’s autonomy and self‑fulfillment.”^[284] Therefore, the value of speech comes not from its external impact, but rather how it impacts the actual speaker. At the core of this theory lies an understanding and valuing of the speaker’s own personhood.^[285]

A feeling of personhood is difficult to maintain on the inside.^[286] As a prisoner in Pennsylvania explained, “None of us are living; we’re merely existing.”^[287] Beyond shedding light on hidden injustices and promoting structural change, incarcerated reporting also provides inmates an outlet for expressing their humanity and finding meaning for their lives within the carceral system. An incarcerated journalist in a California state prison shared the experience of “encounter[ing] incarcerated individuals on the verge of giving up who have found meaning, purpose, and a reason to not give up by discovering their voice in writing and reporting.”^[288] Finding a creative and productive outlet amid the monotony while also knowing that their voices are reaching ears on the outside enables prisoners to feel human within an innately dehumanizing system.^[289] In turn, not only is prison journalism an “invaluable conduit between the incarcerated and the public,” but it also serves as “a practical tool of rehabilitation . . . [and] a way for prisoners to occupy themselves on the inside,” according to journalist and prison researcher Leah Caldwell.^[290] Put simply, the humanizing powers of journalism flow not just to the outside audiences, but also inwards, to the prisoners themselves. For that reason, the value of incarcerated journalism does not start and stop at the public’s response; the sense of personal autonomy incarcerated journalism instills in individuals is enough to recognize the importance of its protection.

In all, reframing the importance of incarcerated journalists’ speech through the lens of the specific First Amendment purposes emphasizes what is at stake when the BOP effectively silences incarcerated journalists within the federal prison system. To avoid the loss of such journalism, this high‑value speech needs increased protection. The following sections propose two solutions—one policy proposal in Section IV.B and one doctrinal change in Section IV.C—to limit further intrusion into the free speech interests of incarcerated journalists.

Social Media: A Solution Within the Current Regulatory Framework

In a penal system that explicitly prohibits prisoner reporters,^[291] social media emerges as the most direct, workable mechanism for engaging in incarcerated journalism and evading violation of the BOP’s restrictive correspondence regulations. Incarcerated journalists across the country have actively seized what online platforms provide: the opportunity to share newsworthy information without an actual publisher and gain the attention of the masses.^[292] Incarcerated journalists do not need direct access to the internet to seize the opportunities offered by social media. Rather, they only need a third‑party connection on the outside to serve as a liaison for disseminating their work to the public. For example, one formally incarcerated journalist, Seth Ferranti, recounted sending hard‑copy letters of his writings to his wife, who would then upload the work to social media platforms.^[293] Incarcerated journalist John J. Lennon indirectly uses his own social media accounts^[294] through his publicist who reshares his work and posts daily messages in Lennon’s own voice, much like how journalists on the outside utilize their own social media accounts.^[295]

For prisoners who lack the experience, credentials, and the existing media ties of formerly and currently incarcerated journalists like Ferranti and Lennon, however, the promise of social media is even more crucial. Through third‑party dissemination of their writings, inmates can assume a citizen‑journalist role^[296] from behind bars, thus fulfilling the watchdog function of the press by acting as a behind‑bars observer to federal carceral institutions. A recent instance of this occurred in 2022 when the family of Kastellio Vaughan, a prisoner at an Alabama state prison, took to social media to expose the Alabama Department of Corrections for severe medical neglect.^[297] After an emergency surgery performed by prison doctors, Vaughan’s weight plummeted seventy‑five pounds due to neglectful medical care.^[298] An inmate in the same facility shared shocking images of Vaughan’s emaciated body with Vaughan’s family who then posted the images to social media.^[299] The post went viral with thousands of users sharing the images, and the public outcry led to the Alabama Department of Corrections publicly addressing Vaughan’s condition and promptly providing him the needed medical care.^[300] An attorney for Vaughan emphasized the importance of the social media circulation, stating, “If it wasn’t for these pictures, the media spotlight and the resulting uproar, we might never have known about the neglect and Mr. Vaughan would have died before the public knew anything was happening.”^[301] Therefore, while the public awareness campaign for Vaughn’s condition may not have been intentionally journalistic in nature, the success of using social media to expose horrific truths of prison conditions is instructive for how aspiring incarcerated journalists may utilize third parties to share their reporting on online platforms.

Prisoners’ journalistic use of social media was perhaps most robust during COVID‑19 when assuming a watchdog‑journalist role became an imperative for many incarcerated persons.^[302] Through social media, prisoners provided the masses with an awareness of occurrences behind bars and pushed prison officials in many jurisdictions to actively reform unsafe, unlivable conditions. For example, a prisoner in a Texas state prison utilized social media through a cellmate’s contraband cellphone to expose prison conditions to outsiders and generate a public awareness campaign, #AllEyesOnTDCJ.^[303] Through the campaign, Busby posted on Facebook stats on the number of COVID‑related prisoner and staff deaths and threads on Twitter about lacking sanitation and health supplies.^[304] While Busby faced twenty‑two months of solitary confinement for his postings, the exposure pushed Texas prison officials to respond by issuing adequate resources and adopting the CDC’s official COVID‑19 protocol.^[305]

Finally, incarcerated journalists’ social media use, particularly third‑party postings, evades the penological concerns the BOP advances in its correspondence regulations and inmate‑reporter ban.^[306] Social media platforms allow third parties to post inmates’ reporting for free without direct ties to media outlets. Therefore, the BOP cannot validly assert its interests in both regulating inmate business compensation and preventing prisoner‑news media working relationships.^[307] Furthermore, no added “security” benefit emerges from striking down dissemination of information because the BOP already screens and vets the majority of prisoner communications.^[308]

As of September 2025, the fate of the BOP’s social media regulations remains uncertain as it is still only a proposed rule.^[309] Ideally, the BOP would heed to its critics and refrain from imposing yet another stark limitation on prisoners’, and third parties’, First Amendment rights. However, if Code 294’s proposed blanket ban on social media is to become final, one of the last viable options for incarcerated journalists in federal facilities goes dark. It is beyond the scope of this Note to conduct a prospective, full legal analysis on how a First Amendment challenge to such a regulation would fare under the current constitutional framework, especially with no indication of how federal facilities would interpret the provision.^[310] What this Note does proclaim is that as a matter of interests—those asserted by the BOP in promulgating the rule, those held by prisoners, namely incarcerated journalists, wishing to share their voices on social media, and those stated by third parties wishing to post on a federal inmate’s behalf—everything points toward keeping some form of social media access intact.

To effectively remedy the drought of incarcerated journalism coming out of federal carceral facilities, however, providing social media access alone will not adequately fix the problem.^[311] As such, protecting and promoting incarcerated journalism requires more. In the final Section, this Note argues that the framework for prisoners’ First Amendment protections must change to demand more from prison officials when regulations impede incarcerated journalists’ speech.

A Stricter Standard for Incarcerated Journalism Regulation

To reiterate, even if the BOP refrains from enacting the all‑out social media ban for inmates and third parties proposed in Code 294, the state of incarcerated journalism within the federal prison system will remain far from optimal. Notably, courts continue to provide mixed results on what standard of judicial review—the deferential Turner four‑factor standard or the more demanding Martinez two‑step test—applies to regulations implicating incarcerated journalists, especially for the ban on “act[ing] as [a] reporter.”^[312] The two district courts that have substantively analyzed the constitutionality of the provision have come out on different sides. In Martin, the Northern District of California judge determined that the Turner standard governed because the published article was redistributed back into the prison and therefore not an exclusively outgoing communication.^[313] However, the district court in Jordan found regulations regarding aspects of publication like bylines to be outgoing in nature, thus deserving Martinez scrutiny.^[314] Post‑Jordan, the integrity of the general provision of section 540.20(b)—barring an inmate from “act[ing] as reporter”—remains intact without any circuit court or Supreme Court guidance on whether Turner or Martinez should apply. Furthermore, as Part III illustrated, even when incarcerated journalists evade the prohibition on “act[ing] as reporter,” a comprehensive scheme of regulatory restrictions binds prisoners to limited channels of effective communication for journalistic information dissemination. While some communications may arguably yield Martinez scrutiny,^[315] many avenues of communication, including some social media usage, require dialogue between prisoners and their outside contacts that would trigger Turner deference.^[316] Put all together, not only are the contours of what true authority the BOP has under the current constitutional framework unclear, but the highly deferential Turner standard emerges as the clearly applicable rule governing core aspects of journalistic speech.

To that effect and given how the BOP has wielded its authority under the current framework to enact regulations that create a gap in incarcerated journalism from federal prisons,^[317] a heightened standard for regulations stifling incarcerated journalists’ reporting is necessary. Going forward, First Amendment doctrine should shift to adopt a standard akin to the two‑step Martinez framework when considering challenges to regulations affecting any incarcerated journalists’ communications. A doctrinal change would not only be logically sound, but it would better advance core First Amendment purposes.^[318]

First, journalism is, by definition, created for public consumption,^[319] and most incarcerated journalists primarily seek to have their work reach people on the outside via outgoing communication.^[320] Thus, the reporting that incarcerated journalists communicate to individuals outside the prison walls is most comparable to the outgoing letters at issue in Martinez. To borrow the words of the Supreme Court, journalism “is not accomplished by the act of writing. Rather, it is effected only when . . . [it] is read” by the public.^[321] Put differently, when the voices of incarcerated journalists reach the nonincarcerated public, the intentions and purpose of incarcerated journalism are most realized. The interests of the public in receiving reporting from the inside also deserve recognition and should factor into review. As much as incarcerated journalists and prisoners want outsiders to hear their stories and reporting so they can achieve reform and seek relief for suffered injustices, incarcerated journalism “provide[s] the public with a window into an otherwise extremely opaque place and population” and thus advances the public’s interest in knowing what occurs behind prison walls.^[322] Beyond general concern and curiosity, consumers of incarcerated journalism also have a vested interest in understanding how their tax dollars directly impact prison conditions.^[323] In all, whether the public uses a piece of incarcerated journalism as evidence when advocating for reform or its publication helps humanize those behind prison walls,^[324] prison journalism is public facing and speaks to much of the same considerations outlined in Martinez.

Second, as outlined in Section IV.A, incarcerated journalism strongly advances core First Amendment purposes, thus characterizing it as high‑value speech. Put simply, the higher a speech’s value, the greater the incentive to protect it from government infringement. To consider incarcerated journalism’s plethora of benefits—facilitating both prisoners’ and the general public’s democratic engagement,^[325] exposing the injustices perpetuated by those in power,^[326] and cultivating prisoners’ sense of personhood^[327]—and then grant it such limited protection with a highly deferential standard of review is untenable. Requiring courts to subject regulations that implicate incarcerated journalism to a higher level of scrutiny, such as the Court did in Martinez, better reflects incarcerated journalism’s high value. Making it more difficult for the BOP and federal carceral facilities to pass such restrictions ensures less silenced speech and better fulfills the First Amendment’s purposes.

Conclusion

“Prison walls do not form a barrier separating prison inmates from the protections of the Constitution,” proclaimed the Supreme Court in Turner. But a long‑standing framework of judicial deference emboldens the BOP to cite “legitimate penological interests” to implement a restrictive regime of communication regulations. This comprehensive web of regulations has impeded incarcerated journalism within federal prisons, thus causing a near‑total prison journalism blackout from individuals housed in BOP facilities. As a result, prisoners and the public alike suffer from a deficit of important insight into the realities of the federal carceral system. We lose vital stories—those illuminating institutional deficiencies, suffered injustices, and glimpses of incarcerated individuals’ humanity—when prison journalism goes dark.

This calls for heightened judicial scrutiny of BOP regulations hindering prisoners’ reporting from reaching outside audiences. Adopting a Martinez‑like standard for evaluating the constitutionality of rules implicating incarcerated journalism will address immediate concerns regarding proposed social media regulations and construct a more protective framework for incarcerated journalists. This stricter, intermediate scrutiny‑adjacent test is both logically sound and beneficial in protecting speech that furthers core First Amendment purposes, namely, democratic self‑governance, negative theory, and individual autonomy. If not implemented, and if the suppression of incarcerated journalism continues under the current deferential review framework, the BOP will effectively silence an indispensable group of speakers, and the public will lose meaningful awareness of the realities of the federal prison system—America’s most extensive and restrictive carceral system.

 

 

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* Executive Editor, University of Colorado Law Review, Volume 97; JD Candidate, University of Colorado Law School, Class of 2026; Bachelor of Journalism and BA in Psychology from the University of Missouri. I extend the deepest appreciation to Volume 97’s Editorial Board, particularly Ashlyn Dickmeyer and Ryan Monahan, for leading the team of editors who helped shape and refine my piece for publication. I also greatly thank Professor Helen Norton for providing vital feedback and the many reporters and news editors I have worked with over the years who first sparked and then fostered my passion for journalism. Finally, I thank the incarcerated individuals sharing their stories with the outside and keeping prison journalism alive.

1. Aaron M. Kinzer, Guest Opinion: Prison Social Media Bans Silence Important Voices, Freedom Press Found. (July 2, 2024), https://freedom.press/issues/guest-opinion-prison-social-media-bans-silence-important-voices [https://perma.cc/RCZ7-JV9F]. ↑
2. Inmate Discipline Program: Disciplinary Segregation and Prohibited Act Code Changes, 89 Fed. Reg. 6455, 6457–58, 6461 (proposed Feb. 1, 2024) (to be codified at 28 C.F.R. pt. 541). ↑
3. Id. at 6457. ↑
4. Id. at 6461. ↑
5. Code 294 prohibits inmates from “accessing, using, or maintaining social media” through platforms such as Facebook, Twitter, Instagram, Snapchat, and TikTok. Id. ↑
6. Id. ↑
7. Id. at 6467–68. ↑
8. 28 C.F.R. § 541.3 (2025). ↑
9. This rationale accompanies the proposed text of Code 194. Inmate Discipline Program: Disciplinary Segregation and Prohibited Act Code Changes, 89 Fed. Reg. at 6457. Notably, the BOP offers no rationale in the text accompanying proposed Code 294. Id. at 6461. ↑
10. While some critique encompassed the proposal of both Code 194 and Code 294, the majority of criticism and outcry was specifically directed to the broad sweeping prohibitions in Code 294. See Jerry Iannelli, Civil Rights Groups Decry Proposed Federal Social Media Crackdown, Appeal (Apr. 4, 2024), https://theappeal.org/rights-groups-decry-proposed-federal-prison-social-media-crackdown [https://perma.cc/CN62-QY3E]; Sarah N. Lynch, Civil Rights Groups Decry Efforts to Punish US Federal Inmates for Social Media Use, Reuters (Apr. 1, 2024, at 9:59 AM), https://www.reuters.com/world/us/civil-rights-groups-decry-effort-punish-us-federal-inmates-social-media-use-2024-04-01 [https://perma.cc/B4X7-TYQP]; Jennifer Jones & Stephanie Krent, The Thwarted Promise of Digital Communication Behind Bars, Knight First Amend. Inst.: Deep Dive (Aug. 22, 2024), https://knightcolumbia.org/blog/the-thwarted-promise-of-digital-communication-behind-bars [https://perma.cc/8BNP-QX7N]. ↑
11. The convicted creator and operator of the dark web marketplace Silk Road used the popular social media platform, X, to express his concerns. Ross Ulbricht (@RealRossU), X, I may lose my voice soon. (Apr. 30, 2024, at 11:55 AM), https://x.com/RealRossU/status/1785367506821292542 [https://perma.cc/QWS5-T94P]; see also Olivia Empson, The US Might Restrict Social Media in Prisons and Inmates Are Worried: ‘I May Lose My Voice Soon,’ Guardian (May 28, 2024, at 7:00 AM), https://www.theguardian.com/us-news/article/2024/may/28/prisons-prisoners-social-media-law [https://perma.cc/TF38-3SSH]. ↑
12. Calling the proposed social media ban “devastating,” one mother of a federal prisoner in Arkansas worried about the potential loss of connectivity with her son. Empson, supra note 11. She had managed his social media accounts for over two decades to keep him connected with other family and friends. Id. “It gives me so much joy when he says, Mom, I got the pictures; who is this, and we get to talk . . . . [T]his gives us a sense of being together,” she told The Guardian. Id. ↑
13. Lynch, supra note 10; Jones & Krent, supra note 10. ↑
14. American Civil Liberties Union, Comments to Proposed Rule: Inmate Discipline Program: Disciplinary Segregation and Prohibited Act Code Changes (Apr. 1, 2024) [hereinafter ACLU], https://assets.aclu.org/live/uploads/2024/04/24.04.01-NPP-Comments-on-BOP-Reg-Changes-FINAL.pdf [https://perma.cc/A45T-U7CT]; Jennifer Jones et al., Knight First Amendment Inst., Comment to Proposed Rule Regarding Inmate Discipline Program: Disciplinary Segregation and Prohibited Act Code Changes (Apr. 1, 2024), https://knightcolumbia.org/documents/tzhr37z52n [https://perma.cc/9CYZ-GP68]. ↑
15. ACLU, supra note 14, at 2. ↑
16. Id. at 3. ↑
17. Id. at 3–4. ↑
18. Jones et al., supra note 14, at 2–5. ↑
19. Id. at 2–3. ↑
20. Id. at 6. ↑
21. Especially in the modern media landscape where the internet and social media obviate the need to seek publication through established news outlets, “[d]efining a journalist and journalism is both elusive and problematic.” Gregg Leslie, Who Is a “Journalist?”, News Media & L., Fall 2009, at 4. This Note adopts a functional definition of “journalist,” defining them not by proclaimed title, employment, or association, but rather by what they do: journalism. See William F. Woo, Defining a Journalist’s Function, Nieman Reps. (Dec. 15, 2005), https://niemanreports.org/defining-a-journalists-function [https://perma.cc/A527-A975]. The Note thus embraces a rather broad definition of journalism based on three elements identified by Woo in his functional definition approach: (1) “[T]here is a story . . . that is being pursued” or shared; (2) “the work product or story is aimed at an audience,” meaning there’s an intent to be read, seen, or heard by a third party; and (3) there is a level of public benefit derived from the reported story. Id. ↑
22. See, e.g., Jeremy Busby, Incarcerating the Internet: Social Media Bans Censor Journalists in Prison, Freedom Press Found. (July 19, 2024), https://freedom.press/news/incarcerating-the-internet-social-media-bans-censor-journalists-in-prison [https://perma.cc/63NJ-PC8W]. ↑
23. Id. ↑
24. See Social Media and News Fact Sheet, Pew Rsch. Ctr. (Sep. 17, 2024), https://www.pewresearch.org/journalism/fact-sheet/social-media-and-news-fact-sheet [https://perma.cc/BS6T-D6V6]. ↑
25. See Kinzer, supra note 1. ↑
26. “The inmate may not receive compensation or anything of value for correspondence with the news media. The inmate may not act as reporter.” 28 C.F.R. § 540.20(b) (2025). ↑
27. Procunier v. Martinez, 416 U.S. 396, 405 (1974); see infra Section IV.C. ↑
28. See James McGrath Morris, Jailhouse Journalism: The Fourth Estate Behind Bars 19–22 (2017). ↑
29. Id. ↑
30. Id. at 20–29, 47; see also Prison Journalism Project, Prison Journalism Project, https://prisonjournalismproject.org/prison-newspaper-project [https://perma.cc/7GTX-6BSG]. ↑
31. See Meg Anderson, This Prison Newspaper Has Been Publishing for More than a Century, NPR (June 12, 2024, 5:51 AM), https://www.npr.org/2024/06/12/nx-s1-4947579/prison-newspapers-growth-journalism-inmates [https://perma.cc/3MDA-ZYWY]. ↑
32. Wilbert Rideau & Linda Labranche, Can a Free Press Flourish Behind Bars?, Nation (June 25, 2014), https://www.thenation.com/article/archive/can-free-press-flourish-behind-bars [https://perma.cc/TVW7-6KQP]. ↑
33. Kate McQueen, Introducing American Prison Newspapers, 1800-2020: Voices from the Inside, JSTOR Daily (Sep. 22, 2021), https://daily.jstor.org/introducing-the-american-prison-newspapers-collection [https://perma.cc/KX8W-Y5QL]. ↑
34. Rideau & Labranche, supra note 32. ↑
35. Id. ↑
36. Christopher Blackwell & Emily Nonko, Why We Need Prison Journalism More than Ever, Nation (Oct. 25, 2024), https://www.thenation.com/article/society/why-we-need-prison-journalism-more-than-ever [https://perma.cc/J275-XSXB]. ↑
37. McQueen, supra note 33. ↑
38. Rideau & Labranche, supra note 32. The Angolite received acclaim among the mainstream press, receiving seven nominations for the National Magazine Awards. See John J. Lennon, The Prisoner and the Pen, Esquire (Sep. 29, 2023), https://www.esquire.com/news-politics/a45191144/prison-free-writing-laws [https://perma.cc/ELB3-CDC2]. ↑
39. Prison Journalism Project, supra note 30. ↑
40. Wendell Smith, Cruel and Unusual? Prison Editors Help Pull the Plug on an Electric Chair, Colum. Journalism Rev, Sep./Oct. 1991, at 13. ↑
41. Id. ↑
42. “Some observers credit the passage of the law outlawing electrocution to the backing of prosecuting attorneys, who wanted a less objectionable form of execution in order to win more death-penalty verdicts from juries. But the editors of the Angolite—Wikberg and Wilbert Rideau—also get credit.” Id. ↑
43. See McQueen, supra note 33 (“Such moments of connection between inside and outside peaked in the 1960s and 1970s, and faded almost entirely in the 1990s, as prison newspapers all around the country closed shop.”); Rideau & Labranche, supra note 32. ↑
44. See Rideau & Labranche, supra note 32; McQueen, supra note 33. “Instead of concerning themselves with the original purpose of the institution, prison officials [were] forced to focus almost exclusively on simply keeping control over their wards. It has produced a de facto surrender of all spheres of prison life . . . .” Morris, supra note 28, at 8–9. ↑
45. Lennon, supra note 38. ↑
46. Morris, supra note 28, at 188. ↑
47. Prison Journalism Project, supra note 30. ↑
48. Rideau & Labranche, supra note 32. ↑
49. Morris, supra note 28, at 187. ↑
50. As of August 2024, Prison Journalist Project (PJP) listed twenty-one active prison publications. Prison Journalism Project, supra note 30. The organization acknowledges, however, that this list is “almost certainly incomplete, given the closed nature of prisons and that most prison publications are not distributed outside of their facilities.” Id. Thus, PJP’s list only includes publications predominately produced by incarcerated people, and the publications must have either (1) been in existence for at least one year or (2) “be[en] supported by an outside organization, prison administration or with an organizational structure that suggests their long‑term viability.” Id. Also, the list only includes publications that have circulation to at least one hundred readers. Id. In October 2024, reporters for The Daily Yonder stated that “at least 25 prison newspapers in 12 states are currently published.” Claire Carlson & Anya Petrone Slepyan, A Prison Newspaper Hopes to Bridge ‘Inside’ and ‘Outside’ Worlds in Rural California, Daily Yonder (Oct. 15, 2024), https://dailyyonder.com/a-prison-newspaper-hopes-to-bridge-inside-and-outside-worlds-in-rural-california/2024/10/15 [https://perma.cc/Y45S-66J4]. ↑
51. Carlson & Slepyan, supra note 50. ↑
52. See id.; Blackwell & Nonko, supra note 36. ↑
53. Lennon, supra note 38. ↑
54. Abu-Jamal remains incarcerated, though has maintained his innocence. Id. ↑
55. Id.; see also Kevin D. Sawyer, Journalism in Prison Is Risky and Constantly Under Threat, Prison Journalism Project (July 8, 2024), https://prisonjournalismproject.org/2024/07/08/being-prison-journalist-hard-dangerous [https://perma.cc/268G-D25Y] (highlighting Abu-Jamal’s various communications with the outside during his incarceration). When the Third Circuit considered the first of Abu-Jamal’s First Amendment lawsuits in 1998, the court noted, “Approximately forty publications carried articles under Jamal’s byline on a regular basis while he was incarcerated at S.C.I. Huntingdon.” Abu-Jamal v. Price, 154 F.3d 128, 131 (3d Cir. 1998). ↑
56. Brian Nam-Sonenstein, Breaking News from Inside: How Prisons Suppress Prison Journalism, Prison Pol’y Initiative (June 15, 2023), https://www.prisonpolicy.org/blog/2023/06/15/prison_journalism [https://perma.cc/E3J3-7P3Z]. ↑
57. Publications including The New York Times Magazine, The Washington Post Magazine, The New York Review of Books, The Atlantic, Esquire, and Sports Illustrated have all circulated articles written by Lennon. About, John J. Lennon (2024), https://johnjlennon.net/about [https://perma.cc/X2FR-H7U3]. Lennon serves as a contributing editor to Esquire and contributes as a writer to the Marshall Project. Id. ↑
58. Lennon, supra note 38; see John J. Lennon, A Convicted Murderer’s Case for Gun Control, Atlantic (Aug. 21, 2013), https://www.theatlantic.com/politics/archive/2013/08/a-convicted-murderers-case-for-gun-control/278824 [https://perma.cc/4PH5-C69K]. ↑
59. John J. Lennon, Spying on Attica, Marshall Project (Apr. 9, 2018), https://www.themarshallproject.org/2018/04/09/spying-on-attica [https://perma.cc/BZ7V-5BBT]. ↑
60. John J. Lennon, Jeffrey Epstein’s Jailhouse Suicide Is More Feasible Than You Think, Esquire (Aug. 15, 2019, at 7:30 AM), https://www.esquire.com/news-politics/a28702430/jeffrey-epstein-jail-suicide-essay [https://perma.cc/LMJ9-2L9Z]. ↑
61. John J. Lennon, How Biden Killed Prison Education, Atlantic (Nov. 15, 2019), https://www.theatlantic.com/politics/archive/2019/11/how-biden-killed-educational-opportunity-prisons/601120 [https://perma.cc/5EW4-6MVP]. ↑
62. John J. Lennon, How Do People Released from Prison Find Housing?, N.Y. Times: Real Est. (Mar 31, 2023), https://www.nytimes.com/2023/03/20/realestate/prison-parole-housing-shelters.html [https://perma.cc/NE27-H8MX]. ↑
63. Lennon, supra note 38. ↑
64. Prison Journalism Project, https://prisonjournalismproject.org [https://perma.cc/852B-6P3N]. ↑
65. Empowerment Avenue, https://www.empowermentave.org [https://perma.cc/QLT3-J87F]. ↑
66. Lennon, supra note 38. ↑
67. See Nam-Sonenstein, supra note 56. ↑
68. Blackwell & Nonko, supra note 36 (internal citations omitted). ↑
69. Population Statistics, Fed. Bureau of Prisons (Sep. 25, 2025), https://www.bop.gov/about/statistics/population_statistics.jsp [https://perma.cc/NE2N-3FDH]. ↑
70. Lennon, supra note 38. When Esquire published his article in 2023, Lennon wrote that federal prisoners made up only a handful of the 650 incarcerated writers PJP published, none of the twenty-one prisoners in the Pen America’s Incarcerated Writers Bureau were in federal prison, and only one of EA’s thirty writers was a federal inmate. Id. ↑
71. Our Writers, Prison Journalism Project (July 31, 2025), https://prisonjournalismproject.org/our-writers [https://perma.cc/Z93G-FBLM]. ↑
72. Id. PJP does not provide its own breakdown of the demographics of its prisoner reporters in regard to what type of prison they are incarcerated in. Therefore, PJP does not explicitly state how many federal prisoners it works with. Rather, PJP’s website includes an interactive map marking the various locations of its reporters. To determine the number of federal prisoners working PJP, I looked at every location on the interactive map and noted how many writers were at federal facilities. Through this, I determined that PJP works with 24 total writers at BOP facilities. I then divided this number of federal prisoners (24) by the total number of writers working with PJP (826) to calculate what percentage of writers are at federal facilities. ↑
73. In 2024, the BOP had 122 locations. Our Locations, Fed. Bureau of Prisons (2024), https://www.bop.gov/locations [https://perma.cc/S4BZ-9SDL]. As of September 2025, that number has grown to 130. Our Locations, Fed. Bureau of Prisons (2025), https://www.bop.gov/locations/list.jsp [https://perma.cc/RYG7-UJRF]. ↑
74. Prison Journalism Project, supra note 30. ↑
75. See Lennon, supra note 38. ↑
76. As the Supreme Court’s interpretation of the First Amendment is binding on both the federal government and the states, the following framework is applicable to all courts reviewing First Amendment cases concerning prisoners. See Gitlow v. New York, 268 U.S. 652, 666 (1925) (“[W]e may and do assume that freedom of speech and of the press—which are protected by the First Amendment from abridgment by Congress—are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States.”). Thus, though the following cases concern First Amendment challenges of both federal and state prison regulations, all are binding on the BOP. ↑
77. 18 U.S.C. § 4042(a)(3) (2025). As a point of clarification, the BOP only oversees the operations and policies of federal prisons, whereas each state’s department of corrections regulates the operations of state prison facilities. U.S. Dep’t of Just., Correctional Institutions, Bureau of Just. Stat., https://bjs.ojp.gov/topics/corrections/correctional-institutions [https://perma.cc/9GE3-VWGB] ↑
78. Turner v. Safley, 482 U.S. 78, 84 (1987). ↑
79. Price v. Johnson, 334 U.S. 266, 285 (1948). ↑
80. As defined by the Second Circuit, penological interests refer to “interests that relate to the treatment (including punishment, deterrence, rehabilitation, etc. . . .) of persons convicted of crimes.” Benjamin v. Fraser, 264 F.3d 175, 187 n.10 (2d Cir. 2001). ↑
81. See Pell v. Procunier, 417 U.S. 817 (1974). ↑
82. Id. at 822. ↑
83. Id. ↑
84. Id. ↑
85. Jones v. N.C. Prisoners’ Lab Union, Inc., 433 U.S. 119, 126 (1977); see also Procunier v. Martinez, 416 U.S. 396, 405 (1974) (“[C]ourts are ill equipped to deal with the increasingly urgent problems of prison administration and reform. Judicial recognition of the facts reflects no more than a healthy sense of realism.”). ↑
86. Jones, 433 U.S. at 128 (quoting Pell, 417 U.S. at 827). ↑
87. Martinez, 416 U.S. at 396. ↑
88. Turner v. Safley, 482 U.S. 78 (1987). ↑
89. Thornburgh v. Abbott, 490 U.S. 401 (1989). ↑
90. Martinez, 416 U.S. at 413–14. ↑
91. “[T]he regulation is valid if it is reasonably related to legitimate penological interests.” Turner, 482 U.S. at 89; see infra Section II.B. ↑
92. Martinez, 416 U.S. at 398–99. ↑
93. Id. ↑
94. Id. at 399–400. ↑
95. Id. at 413–14. ↑
96. Id. at 413. ↑
97. Id. ↑
98. The Court says the regulation “must” meet each condition. Id. at 413–14. ↑
99. Id. at 414. ↑
100. Id. at 408–09. ↑
101. “Communication by letter is not accomplished by the act of writing words on paper. Rather, it is effected only when the letter is read by the addressee.” Id. at 408. ↑
102. Id. ↑
103. Id. at 409. ↑
104. Id. at 415–16. ↑
105. Id. ↑
106. Id. ↑
107. Id. at 416. ↑
108. Michael B. Mushlin, Rights of Prisoners § 6:3 (5th ed. 2024). ↑
109. Id. ↑
110. Id. ↑
111. Turner v. Safley, 482 U.S. 78, 85–86 (1987). ↑
112. Id. at 81–82. ↑
113. Id. ↑
114. Id. ↑
115. Id. at 89 (quoting Procunier v. Martinez, 416 U.S. 396, 407 (1974)). ↑
116. Id. ↑
117. Id. ↑
118. Id. at 89–90. ↑
119. Id. at 90. ↑
120. Id. ↑
121. Id. ↑
122. Id. ↑
123. Mushlin, supra note 108 at § 6:4. ↑
124. Id. ↑
125. Thornburgh v. Abbott, 490 U.S. 401 (1989). ↑
126. Id. at 413. ↑
127. Id. ↑
128. Id. at 412. ↑
129. Procunier v. Martinez, 416 U.S. 396, 413–14 (1974). ↑
130. “Free speech rights of outsiders are also governed by the Turner rule when those rights involve the right to send communications into the prison.” Mushlin, supra note 108, at § 6:8. ↑
131. 28 C.F.R. §§ 540.10–540.205 (2025). ↑
132. See infra Part IV. ↑
133. Pell v. Procunier, 417 U.S. 817, 819 (1974). ↑
134. Id. at 819­–20. ↑
135. Id. at 820. ↑
136. Id. at 824–28. ↑
137. Id. at 829–35. ↑
138. Id. at 830–31. ↑
139. Before the promulgation of the challenged Department regulation, a less‑restrictive policy was in place that granted the press special access to prisoners. Id. at 831. ↑
140. Id. at 831–32. ↑
141. Id. ↑
142. Id. at 832. Specifically, the Court pointed to an incident where “extensive press attention to an inmate who espoused a practice of noncooperation with prison regulations encouraged other inmates to follow suit, thus eroding the institutions’ ability to deal effectively with the inmates generally.” Id. The Court also highlighted another incident concerning a deadly escape attempt at San Quentine that officials blamed, in part, on “its liberal posture with regard to press interviews.” Id. ↑
143. Id. at 834; see also Branzburg v. Hayes, 408 U.S. 665, 684 (1972) (“It has generally been held that the First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally.”). ↑
144. Pell v. Procunier, 417 U.S. 817, 834 (1974). ↑
145. Saxbe v. Wash. Post Co., 417 U.S. 843 (1974). ↑
146. “Press representatives will not be permitted to interview individual inmates. This rule shall apply even where the inmate requests or seeks an interview. However, conversation may be permitted with inmates whose identity is not made public, if it is limited to the discussion of institutional facilities, programs, and activities.” Id. at 844 n.1. ↑
147. Id. at 844–45. ↑
148. Id. at 850. ↑
149. The Court explained that the BOP allowed journalists to tour and photograph within prisons and briefly interview prisoners they might encounter during such visits. Id. at 847. ↑
150. In outlining the purpose underlying the press-access regulations, the BOP indicates that it “recognizes the desirability of establishing a policy that affords the public information about its operations via the news media. Representatives of the news media . . . may visit institutions for the purpose of preparing reports about the institution, programs, and activities. It is not the intent of this rule to provide publicity for an inmate or specifical privileges for the news media, but rather to insure a better-informed public” while also considering privacy and safety concerns. 28 C.F.R. § 540.60 (2025). ↑
151. Id. § 540.61(a). ↑
152. Id. § 540.61(b). ↑
153. Id. § 540.61(c). ↑
154. Id. § 540.61(d). ↑
155. Id. § 540.62. ↑
156. Id. § 540.63(g)(4) (emphasis added). The other six reasons are: the journalists’ failure to comply with BOP’s required conditions for interviews; physical or mental inability for the prisoners to participate, which shall be supported with medical records; the inmate is under eighteen, and the parties have not received parental consent; the prisoner is involved in court actions, and the court has issued a gag order on interviews; the inmate is not yet convicted, or under competency commitment, and the court has not issued clearance for interviews; and the inmate is within witness protection and interviews would jeopardize their safety. Id. § 540.63(g)(1)–(7). ↑
157. See Wash. Post Co. v. Kleindienst, 357 F. Supp. 779, 782 (D.D.C. 1972) (noting the BOP “has an obligation to lay open its activities to searching public scrutiny except to the extent that it can affirmatively establish a compelling necessity to limit press access”). ↑
158. As the Eleventh Circuit outlined, regulations barring certain media members’ access must bear a rational relationship to the BOP’s “obvious need to maintain security and order within the prison, and the administrative need in implementing visitor regulations.” Jersawitz v. Hanberry, 783 F.2d 1532, 1534 (11th Cir. 1986) (quoting district court’s holding). ↑
159. § 540.63(h)(1)–(4). ↑
160. Id. ↑
161. See Saxbe v. Wash. Post Co., 417 U.S. 843, 850–75 (1974) (Powell, J., dissenting); see also Heather Ann Thompson, What’s Hidden Behind the Walls of America’s Prisons, Conversation (June 4, 2017, at 9:45 PM), https://theconversation.com/whats-hidden-behind-the-walls-of-americas-prisons-77282 [https://perma.cc/6UPJ-PQCZ]; Karina Piser & Marcia Brown, How Prison Officials Block Access to the Media, Am. Prospect (Aug. 31, 2020), https://prospect.org/justice/how-prison-officials-block-access-to-the-media [https://perma.cc/J6D6-QHF7]. ↑
162. Saxbe, 417 U.S. at 861 (Powell, J., dissenting). ↑
163. Id. ↑
164. Id. at 863–64. ↑
165. 28 C.F.R. § 540.20 (2025). ↑
166. Id. § 540.20(a), (c) (“Representatives of the news media may initiate correspondence with an inmate. Staff shall open incoming correspondence from representatives of the media and inspect for contraband, for its qualification as media correspondence, and for content which is likely to promote either illegal activity or conduct contrary to Bureau regulations.”). Oversight of prisoners’ communications with news media is majority practice across state prisons, with forty-six states censoring inmates’ correspondence with news media. Nam-Sonenstein, supra note 56. However, four states—Arkansas, Georgia, Michigan, and Texas—deem news media correspondence as “privileged materials” that cannot be opened or read by prison officials. Id. ↑
167. See infra Section III.B.2. ↑
168. Though prohibited from receiving compensation for reporting, federal prisoners are permitted to earn compensation for other work. The BOP requires sentenced prisoners to work if “they are medically able.” Work Programs, Fed. Bureau of Prisons, https://www.bop.gov/inmates/custody_and_care/work_programs.jsp [https://perma.cc/VS75-WEC7]. For institutional work assignments, individuals are paid between twelve cents to forty cents an hour. Id. Sometimes, the BOP permits prisoners to be released from their carceral facilities to work for pay in approved outside work programs. 18 U.S.C. § 3622(c). Furthermore, the BOP explicitly prohibits prisoners from “conducting a business” or “conducting or directing an investment transaction without staff authorization,” labeling such actions as “Moderate Severity Level Prohibited Acts.” 28 C.F.R. § 541.3 (2025). Put together, federal prisoners do earn compensation, but the BOP must approve paid work outside carceral facilities. ↑
169. 28 C.F.R. § 540.20(b) (2025). ↑
170. Nam-Sonenstein, supra note 56; Blackwell & Nonko, supra note 36. ↑
171. Lennon, supra note 38. ↑
172. OAH Blog, Organizing the Prisons in the 1960s and 1970s: Part One, Building Movements, Org. of Am. Historians: Process (Sep. 20, 2016), https://www.oah.org/process/prisoners-rights-1 [https://perma.cc/9XRT-CZL9]. ↑
173. See Dave Davies, How the Attica Prison Uprising Started — and Why It Still Resonates Today, NPR: Fresh Air (Oct. 27, 2021, at 1:57 PM), https://www.npr.org/2021/10/27/1049295683/attica-prison-documentary-stanley-nelson [https://perma.cc/ZV33-YW4F]. ↑
174. See, e.g., Joseph Shapiro, How One Inmate Changed The Prison System From the Inside, NPR: Code Switch (Apr. 14, 2017, at 11:59 PM), https://www.npr.org/sections/codeswitch/2017/04/14/507297469/how-one-inmate-changed-the-prison-system-from-the-inside [https://perma.cc/G4A5-J229] (documenting how prisoner Martin Sostre rose to prominence among prisoners and prison officials due to his activism in the 1960s and 1970s). ↑
175. OAH Blog, Organizing the Prisons in the 1960s and 1970s: Part Two, Hearing Prisoners’ Voices, Org. of Am. Historians: Process (Sep. 21, 2016), https://www.oah.org/process/prisoners-rights-2 [https://perma.cc/FQ7N-9XTK] (quoting panelist and scholar Tony Platt). ↑
176. Control, Custody, Care, Treatment, and Instruction of Inmates, 44 Fed. Reg. 38236, 38248 (June 29, 1979) (to be codified at 28 C.F.R. pt. 540(d)). To clarify, a byline is “a line at the beginning of a news story, magazine article, or book giving the writer’s name.” Byline, Merriam-Webster, https://www.merriam-webster.com/dictionary/byline [https://perma.cc/UX8R-WF59]. ↑
177. Control, Custody, Care, Treatment, and Instruction of Inmates, 44 Fed. Reg. at 38240 (addressing public comments to proposed regulations). ↑
178. Id. ↑
179. This penological concern mirrors the same “big wheel” effect asserted in Pell to uphold denials to journalists’ interview access to prisoners. Pell v. Procunier, 417 U.S. 817, 831–32 (1974). ↑
180. Looking at the citing references for section 540.20(b), Westlaw provides only fourteen cases. Of those fourteen, eleven are either the opinions or decisions from Martin and the original Jordan v. Pugh case, discussed and cited in full below. The remaining cases contain no substantive analysis of section 540.20(b)’s validity. Westlaw, “C.F.R. 540.20(b)”, 14 results (July 31, 2025) (on file with the University of Colorado Law Review) (filtered by “Citing References,” “Cases”). ↑
181. Martin v. Rison, 741 F. Supp. 1406 (N.D. Cal. 1990), vacated as moot sub nom., Chron. Pub. Co. v. Rison, 962 F.2d 959 (9th Cir. 1992). The newspaper that worked with Martin, The San Francisco Chronicle, also joined the lawsuit, alleging freedom of press violations. Id. ↑
182. Lennon, supra note 38. ↑
183. Martin, 741 F. Supp. at 1409. Martin developed a working relationship with The Chronicle after sending an unsolicited article to an editor at the paper. Laurence Zuckerman, Press: They Put Him in Writer’s Block, TIME (Aug. 29, 1988, at 12:00 AM), https://time.com/archive/6713144/press-they-put-him-in-writers-block [https://perma.cc/T8C9-9ZJ8]. The editor, impressed by Martin’s story that discussed the harrowing experiences of inmates suffering from AIDS, ran the story, and Martin then regularly contributed to the publication. Id. ↑
184. Martin, 741 F. Supp. at 1409. ↑
185. Id. ↑
186. Id. at 1409, 1414. In the article, Martin proposed that the warden had “increased tension at the prison by limiting access to the recreation yard and replacing the inmates’ individually decorated and highly prized chairs with plain gray folding chairs.” Zuckerman, supra note 183. ↑
187. Specifically, Martin was found to have violated 28 C.F.R. § 540.14(d)(4) (1988) (“An inmate . . . may not direct a business while confined.”) and 28 C.F.R. § 540.20(b) (1988) (“The inmate may not receive compensation or anything of value for correspondence with the news media. The inmate may not act as a reporter or publish under a byline.”). Martin, 741 F. Supp. at 1410. ↑
188. See supra Part II. The district court indicated Turner provided the appropriate standard of review because it was “not dealing exclusively with outgoing communications, as was Martinez. Here, the outgoing communications were newspaper articles which were then revised, published, and redistributed back into the prison. Indeed, the consequences of the writings were not created by sending them out, but by their publication and distribution back into the prison.” Martin, 741 F. Supp. at 1412–13. ↑
189. Martin, 741 F. Supp. at 1425. ↑
190. Id. at 1414–15. ↑
191. Id. at 1415. ↑
192. Id. ↑
193. Id. at 1410–11. ↑
194. The Chronicle appealed the district court’s decision as Martin continued writing for the publication without a byline. Lennon, supra note 38. However, the appeal never reached the Ninth Circuit due to Martin’s release rendering his case moot. Id. ↑
195. Dannie M. Martin & Peter Y. Sussman, Committing Journalism: The Prison Writings of Red Hog 9 (1995). ↑
196. Id. ↑
197. Jordan v. Pugh, 504 F. Supp. 2d 1109 (D. Colo. 2007). ↑
198. Id. at 1115. ↑
199. Id. at 1126. ↑
200. Id. ↑
201. Id. at 1112–13. ↑
202. Id. ↑
203. Id. at 1113. ↑
204. Id. at 1113–14. ↑
205. Id. at 1113. ↑
206. Id. at 1114. ↑
207. Id. (emphasis omitted). ↑
208. Id. ↑
209. Id. at 1114–15. ↑
210. Id. at 1114 n.14. The first amendment to section 540.20(b) was proposed as an interim rule in April 2010 and solely pertained to removing the byline provision. Inmate Communication with News Media: Removal of Byline Regulations, 75 Fed. Reg. 21163, 21163 (Apr. 23, 2010) (to be codified at 28 C.F.R. pt. 540). ↑
211. Jordan, 504 F. Supp. 2d at 1117. ↑
212. Id. at 1118. ↑
213. Id. at 1120. Deferring to the arguments of the parties, which both analyzed the issue under Turner, the court proceeded to analyze the issue under both Turner and Martinez, though reached the same result. Id. ↑
214. Id. at 1124–26. ↑
215. Id. at 1123. ↑
216. Id. ↑
217. Inmate Communication with News Media: Removal of Byline Regulations, 77 Fed. Reg. 19932 (Apr. 3, 2012) (to be codified at 28 C.F.R. pt. 540). Whether BOP facilities ceased enforcing the provision until then is uncertain, though no additional legal challenges popped up during that period. ↑
218. 28 C.F.R § 540.20(b) (2012). The amended language from 2012 remains current as of 2025. 28 C.F.R § 540.20(b) (2025). ↑
219. “An inmate currently confined in an institution may not be employed or act as a reporter.” 28 C.F.R § 540.62(d) (2025). ↑
220. Inmate Communications with News Media: Removal of Byline Regulations, 77 Fed. Reg. at 19932 (citing Jordan, 504 F. Supp. 2d at 1123). ↑
221. See Jordan, 504 F. Supp. 2d at 1113–14. ↑
222. See, e.g., Blackwell & Nonko, supra note 36 (“Editors and publications should build long-lasting and sustained relationships with incarcerated contributors, especially considering that they are at risk of retaliation after publication.”). ↑
223. The district court in Jordan envisioned that section 540.20(b) prohibited prisoners from developing a paid working relationship with news outlets. Jordan, 504 F. Supp. 2d at 1125. However, the policy statements and the text of the regulation do not explicitly require payment; “acting as a reporter” is banned in addition to reporting for compensation or receiving something valuable in return. Id. at 1113–14; 28 C.F.R. § 540.20(b) (2025). ↑
224. To reiterate, the BOP presented no evidence in Jordan that prisoners beside the plaintiff had knowledge of the policy statements. Jordan, 504 F. Supp. 2d at 1114–15. Even if knowledge of the regulation varies, the effect of the ban is seen. See, e.g., Lennon, supra note 38 (A federal prisoner who had written a few essays for PJP and the Marshall Project said “he wasn’t aware of the rule that said he couldn’t ‘act as a reporter.’ Then again, he’d never met anyone in the feds who called themselves a prison journalist.”). ↑
225. The Prison Policy Initiative wrote that the BOP has an “explicit ban on journalism.” Nam-Sonenstein, supra note 56. The directors of Empowerment Avenue liken the reporter ban that applies to the over 156,000 federal inmates to banning a population the size of Kansas City “from reporting on their community.” Blackwell & Nonko, supra note 36. ↑
226. Nam-Sonenstein, supra note 56. However, while not tied explicitly to incarcerated journalistic reporting, most states place limitations on any compensation stemming from reporting, with fourteen states completely banning any business and compensation and nineteen additional states partially banning business and compensation. Id. ↑
227. See Pell v. Procunier, 417 U.S. 817 (1974). ↑
228. 28 C.F.R. § 540.20(a) (2025). ↑
229. “A key test to determine whether a newspaper qualifies as a ‘general circulation’ newspaper is to determine whether the paper qualifies for the purpose of publishing legal notices in the community in which it is located or the area to which it distributes.” Id. § 540.2(b)(1). ↑
230. Id. § 540.2(b)(1)–(4). ↑
231. See Jersawitz v. Hanberry, 783 F.2d 1532, 1533 (11th Cir. 1986) (holding that an independent journalist whose self-produced editorialized television show aired on a public access channel failed to meet BOP’s definition of media representative because he was never employed by anyone to be a news reporter). ↑
232. 28 C.F.R. § 540.14(a). Upon arrival at an institution, however, officials are to inform the inmate of the general correspondence review policy, and if the inmate does not want officials to open and read received general correspondence, the inmate may choose to have all delivered correspondence returned back to the postal service. Id. § 540.12. ↑
233. Id. § 540.14(c)(1)(i). ↑
234. Id. § 540.14(c)(2). ↑
235. Id. § 540.14(d)(1)–(8). ↑
236. Id. § 540.14(d)(2). A letter containing the contents of Martin’s “The Gulag Mentality” could arguably fall under this category, and his institution’s warden could have rejected his writings. See Martin v. Rison, 741 F. Supp. 1406 (N.D. Cal. 1990), vacated as moot sub nom., Chron. Pub. Co. v. Rison, 962 F.2d 959 (9th Cir. 1992). However, Martin sent his writings to The San Francisco Chronicle, which would qualify for special mail privileges as a news outlet. ↑
237. Id. § 540.15(a). ↑
238. Id. § 540.15(d)(1), (3). ↑
239. Id. § 540.15(d)(2). ↑
240. Id. § 540.15(e). ↑
241. Id. § 540.100. ↑
242. Id. § 540.101. ↑
243. Id. § 540.101(a)(3). ↑
244. Id. § 540.102 (2025). ↑
245. See Nam-Sonenstein, supra note 56. ↑
246. 28 C.F.R. § 540.105. Inmates lacking funds may receive one collect call each month. Id. ↑
247. Nazish Dholakia, The FCC Is Capping Outrageous Prison Phone Rates, but Companies Are Still Price Gouging, Vera (Sep. 4, 2024), https://www.vera.org/news/the-fcc-is-capping-outrageous-prison-phone-rates-but-companies-are-still-price-gouging [https://perma.cc/9XNA-ZURE] (“Historically . . . a 15-minute phone call could cost more than $12 . . . .”). ↑
248. FBOP Updates to Phone Call Policies and Time Credit System, Fed. Bureau of Prisons (Oct. 4, 2024, at 03:46 PM), https://www.bop.gov/resources/news/20241004-fbop-updates-to-phone-call-policies-and-time-credit-system.jsp [https://perma.cc/25M2-YDVX]. ↑
249. Walter Pavlo, Bureau of Prisons Starts New Year with Changes to Phone System, Forbes (Dec. 31. 2024, at 3:28 PM), https://www.forbes.com/sites/walterpavlo/2024/12/31/bureau-of-prisons-starts-new-year-with-changes-to-phone-system [https://perma.cc/54PK-QB9H]. ↑
250. Walter Pavlo, Federal Prisoner’s Dilemma, Cell Phone or Not, Forbes (June 9, 2024, at 12:42 PM), https://www.forbes.com/sites/walterpavlo/2024/06/07/federal-prisoners-dilemma-cell-phone-or-not [https://perma.cc/ND8H-3M9V]. ↑
251. Stay in Touch, Fed. Bureau of Prisons, https://www.bop.gov/inmates/communications.jsp [https://perma.cc/GM77-6EGM]; TRULINCS Topics, Fed. Bureau of Prisons, https://www.bop.gov/inmates/trulincs.jsp [https://perma.cc/P5EU-DA4E]. ↑
252. Id. ↑
253. Id. ↑
254. Mike Wessler, SMH: The Rapid & Unregulated Growth of E-Messaging in Prisons, Prison Pol’y Initiative (Mar. 2023), https://www.prisonpolicy.org/reports/emessaging.html#appendix [https://perma.cc/48QP-8VKH]. ↑
255. Stay in Touch, supra note 251. ↑
256. Wessler, supra note 254. ↑
257. Id. ↑
258. See supra Section III.B.2. ↑
259. See supra Section III.B.1. ↑
260. Adamu Chan, People, Not Stories: Pathways to Accountability in Prison Documentaries, Int’l Documentary Assoc. (Jan. 30, 2023), https://www.documentary.org/blog/people-not-stories-pathways-accountability-prison-documentaries [https://perma.cc/UD67-296B]. ↑
261. Id. ↑
262. See Olivia Heffernan, Why Prison Journalism Matters, Jacobin (Apr. 29, 2022), https://jacobin.com/2022/04/prison-journalism-newspapers-mass-incarceration-criminal-justice [https://perma.cc/MFR8-RXCH]. ↑
263. Id.; see also Blackwell & Nonko, supra note 36 (“And readers, we’ve found, are hungry for narratives that express the humanity of people behind bars and expose the conditions they’re forced to live under.”). ↑
264. See Blackwell & Nonko, supra note 36. ↑
265. See, e.g., Lennon, supra note 38 (“Without writing, I don’t know what would have become of me.”). ↑
266. Id. (“It’s the journalism part—communing and connecting with my subjects, analyzing their actions—that helps me better understand the pain in their lives and in mine . . . . It’s this kind of writing that helps me develop more of the thing that it seems I’ve always lacked: empathy.”); see also Heffernan, supra note 262 (indicating incarcerated journalism allows prisoners to obtain valuable skills that will assist them in life after release). ↑
267. Helen Norton, Advanced Introduction to US First Amendment Law 13 (2024). ↑
268. See Kwaneta Harris, ‘We the People’ Includes We the Incarcerated, Prison Journalism Project (Oct. 16, 2024), https://prisonjournalismproject.org/2024/10/16/why-people-in-prison-should-have-voting-rights [https://perma.cc/WM65-B4WU]. ↑
269. Nat’l Conf. State Legislatures, Restoration of Voting Rights for Felons (Aug. 19, 2025), https://www.ncsl.org/elections-and-campaigns/felon-voting-rights [https://perma.cc/V52J-P27N]. ↑
270. See supra Part I. ↑
271. See Walter Pavlo, Under Budget Pressure, Bureau of Prisons to Cut Halfway House Time, Forbes (Apr. 2, 2025, at 1:31 PM), https://www.forbes.com/sites/walterpavlo/2025/04/01/under-budget-pressure-bureau-of-prisons-to-cut-halfway-house-time [https://perma.cc/R4MC-3DH9]; One Big Beautiful Bill Act and the BOP, Fed. Bureau of Prisons (July 11, 2025), https://www.bop.gov/news/20250711-one-big-beautiful-bill-act-and-the-bop.jsp [https://perma.cc/4LRF-7HDR]. ↑
272. See Pavlo, supra note 271; Erich Wagner, 23,000 Federal Prison Workers Are Set to Take Pay Cuts Up to 25% Next Month, Gov’t Exec.: Pay & Benefits (Feb. 26. 2025), https://www.govexec.com/pay-benefits/2025/02/23000-federal-prison-workers-are-set-take-pay-cuts-25-next-month/403312 [https://perma.cc/Z7WY-XL46]; Drew Friedman, Days Ahead of Coming BOP Pay Cuts, Some Employees Already Resigning, Fed. News Network: Pay (Mar. 14. 2025, at 11:28 AM), https://federalnewsnetwork.com/pay/2025/03/days-ahead-of-coming-bop-pay-cuts-some-employees-already-resigning [https://perma.cc/7TLL-RJE7]. ↑
273. See Blackwell & Nonko, supra note 36. ↑
274. Norton, supra note 267, at 14. ↑
275. Id. ↑
276. Michael R. Sisak & Michael Balsamo, AP Investigation: Prison Boss Beat Inmates, Climbed Ranks, AP (Dec. 9, 2022, at 11:52 AM), https://apnews.com/article/prisons-us-department-of-justice-united-states-government-e68aaf2e4ead5c9bfb0659db46275405 [https://perma.cc/48L4-DDG8]. ↑
277. Meg Anderson, 1 in 4 Inmate Deaths Happen in the Same Federal Prison. Why?, NPR (Sep. 23, 2023, at 6:00 AM), https://www.npr.org/2023/09/23/1200626103/federal-prison-deaths-butner-medical-center-sick-inmates [https://perma.cc/5GZX-ZW8M]; see also Jaclyn Diaz, Lack of Staffing Led to ‘Deeply Concerning’ Conditions at Federal Prison in Oregon, NPR (May 22, 2024, at 12:25 PM), https://www.npr.org/2024/05/22/1252764293/sheridan-prison-staff-issues-doj-inspection [https://perma.cc/3CFY-K5FP]. ↑
278. Christie Thompson & Joseph Shapiro, ‘This is Major Trauma’: New Accounts of Abuse at Federal Prison Prompt Calls for Investigations, Marshall Project (July 6, 2023, at 12:22 PM), https://www.themarshallproject.org/2023/07/06/illinois-federal-prison-usp-thomson-abuse [https://perma.cc/WRR9-MW5V]. ↑
279. See generally USP Thomson, Marshall Project, https://www.themarshallproject.org/tag/usp-thomson [https://perma.cc/U7B5-P4LL] (documenting harmful forms of punishment and abuse in federal prisons through several articles in a multiyear investigative series). ↑
280. Joseph Shapiro, Shackled for Weeks: Federal Report Finds Abuse of Restraints in Prisons, NPR (July 14, 2025, at 7:15 AM), https://www.npr.org/2025/07/14/nx-s1-5463749/prison-abuse-shackles-restraints [https://perma.cc/7ZKL-BPFG]. ↑
281. D. “Razor” Babb, an incarcerated journalist in California state prison, said he “had the opportunity to experience intimidation, threats, bullying censorship, and oppression” related to his reporting. D. Razar Babb, Will Prison Journalism Save Democracy?, Objective (May 14, 2025), https://objectivejournalism.org/2025/05/will-prison-journalism-save-democracy [https://perma.cc/JEE8-J5KX]. Jeremy Busby, an incarcerated journalist in Texas state prison, reported facing “repeated acts of retaliation, including threats, solitary confinement, and surveillance” for his reporting on poor conditions in the Texas prison system. Theodore Amey & Seth Stern, The Harsh Reality of Being a Prison Journalist, Colum. Journalism Rev. (Mar. 18. 2025), https://www.cjr.org/first_person/jeremy-busby-texas-prison-journalism.php [https://perma.cc/NR43-B7HB]. ↑
282. Sawyer, supra note 55. ↑
283. Blackwell & Nonko, supra note 36. ↑
284. Norton, supra note 267, at 12. ↑
285. Id. ↑
286. “People who go through the criminal legal system often feel as if their humanity is being ignored. These feelings are more than justified. Dehumanization is not simply a side effect of incarceration: it is intentional and has been part of prisons in the United States since the first brick was laid.” Emmett Sanders, Advocacy Spotlight: The Humanization Project, Prison Pol’y Initiative (Dec. 2, 2024), https://www.prisonpolicy.org/blog/2024/12/02/humanization_project [https://perma.cc/LX3K-UEMU]. ↑
287. Jy’Aire Smith-Pennick, My Biggest Daily Challenge in Prison Isn’t Violence. It’s the Monotony, Marshall Project (Feb. 9, 2024, at 6:00 AM), https://www.themarshallproject.org/2024/02/09/prison-dehumanization-process-monotony-mental-health [https://perma.cc/8TB4-KQK6]. ↑
288. Babb, supra note 281. ↑
289. See Shaheen Pasha, Why We Need More Journalism Courses Taught in Prison, Nieman Reps. (Aug. 9, 2018), https://niemanreports.org/why-we-need-more-journalism-courses-taught-in-prison [https://perma.cc/GN3G-Y4EJ]. ↑
290. Heffernan, supra note 262. ↑
291. 28 C.F.R. § 540.20 (2025). ↑
292. See, e.g., Busby, supra note 22 (discussing his desire as an incarcerated journalist to reach the public directly through social media rather than solely relying on traditional news media platforms). ↑
293. Seth Ferranti, Why Prisons Should Let Inmates Use Social Media, Vice: Tech (June 17, 2016, at 10:00 PM), https://www.vice.com/en/article/why-prisons-should-give-inmates-access-to-social-media [https://perma.cc/ZUP7-UBGX]. ↑
294. See, e.g., John J. Lennon (@JohnJLennon1), X, https://x.com/JohnJLennon1 [https://perma.cc/CX8M-5N7S]. ↑
295. Empson, supra note 11. ↑
296. Unaffiliated and typically uncompensated, citizen journalism emerged through civilians monitoring, recording, and disseminating coverage of government officials’ unlawful abuses of power within communities. Matthew Prensky, Protecting First Amendment Citizen Journalists Is Becoming Increasing Critical as Newspapers Continue to Disappear, Inst. For Just. (Nov. 30, 2023), https://ij.org/protecting-first-amendment-citizen-journalists-is-becoming-increasingly-critical-as-newspapers-continue-to-disappear [https://perma.cc/P37N-NAKP]. ↑
297. Ashley Bowerman, Family Speaks Out After Images of Alabama Inmate Go Viral, WSFA 12 (Sep. 26, 2022), https://www.wsfa.com/2022/09/24/family-speaks-out-after-images-alabama-inmate-go-viral [https://perma.cc/XUN9-XBD2]; see also Jones et al., supra note 14 (highlighting Vaughan’s story in response to the BOP’s proposed social media regulations). ↑
298. Kendall Ross, Family of Alabama Inmate Fears for His Life, Alleges Neglect by Prison Officials, ABC News (Sep. 26, 2022, at 5:18 PM), https://abcnews.go.com/US/family-alabama-inmate-fears-life-alleges-neglect-prison/story?id=90396823 [https://perma.cc/Y7ET-T77C]. ↑
299. Id. ↑
300. Bowerman, supra note 297. ↑
301. Ross, supra note 298. ↑
302. The pandemic particularly ravaged federal prisons throughout the country. See Keri Blakinger & Keegan Hamilton, “I Begged Them To Let Me Die”: How Federal Prisons Became Coronavirus Death Traps, Marshall Project (June 18, 2020, at 7:00 AM), https://www.themarshallproject.org/2020/06/18/i-begged-them-to-let-me-die-how-federal-prisons-became-coronavirus-death-traps [https://perma.cc/89ZJ-GUDC]. ↑
303. See Busby, supra note 22. ↑
304. Id. ↑
305. Id. (“Texas prison officials responded by issuing bleach, masks, fresh fruit, and hot meals to prisoners, and adopting an official COVID-19 protocol from the Centers for Disease Control and Prevention. They also wrote me a disciplinary case and tossed me into solitary confinement for 22 months.”). ↑
306. See supra Part III. ↑
307. See supra Section III.B.1. ↑
308. Since the BOP screens many forms of outgoing speech, “prohibiting all indirect social media use seems like an exaggerated response to any legitimate security concerns the BOP may have.” Jones et al., supra note 14, at 5. Jordan’s rejection of the “big wheel” scenarios as a legally sufficient interest justifying bans on publications with bylines, see Jordan v. Pugh, 504 F. Supp. 2d 1109, 1120–22 (D. Colo. 2007), and Lennon’s rejection of the phenomenon on a practical level, Lennon, supra note 38 (“I find this whole ‘big wheel’ idea to be absurd. As I write this piece right now, my neighbor, who is the head shotcaller of a gang, has guys constantly stopping in front of his cell, paying him homage. Nobody stops by mine.”), further emphasize how limited of an impact social media postings have on the security of federal prisons. ↑
309. While the docket indicated a final decision date on May 2025, the BOP has provided no further news or updates on the status of the proposed rule. Inmate Discipline Program: Disciplinary Segregation and Prohibited Act Code Changes, 89 Fed. Reg. 6455 (proposed Feb. 2, 2024) (to be codified at 28 C.F.R. pt. 541). ↑
310. That said, this Note finds the assertions in the ACLU’s and Knight First Amendment Institute’s response letters compelling. ACLU, supra note 14; Jones et al., supra note 14. ↑
311. As Code 294 is only proposed and has never been actually enforced, the dire state of prison journalism in federal facilities really results from the inmate-reporter ban and the BOP’s other restrictive communication regulations. ↑
312. 28 C.F.R. § 540.20(b) (2025). ↑
313. Martin v. Rison, 741 F. Supp. 1406, 1412–13 (N.D. Cal 1990), vacated as moot sub nom., Chron. Pub. Co. v. Rison, 962 F.2d 959 (9th Cir. 1992). ↑
314. The court analyzed the regulation under Turner as well due to the parties focusing only upon the Turner test, and reached the same conclusion. Jordan v. Pugh, 504 F. Supp. 2d 1109, 1120 (D. Colo. 2007). ↑
315. The KFAI argues in its response to the BOP social media regulations that the ban on inmates “directing others” to post on their social media accounts should be governed by Martinez. See Jones et al., supra note 14. ↑
316. Incarcerated journalists emphasize the importance of incoming and outgoing communications from social media. See, e.g., Kinzer, supra note 1 (“For journalists in prison, access to social media is critically important to gathering information, communicating with sources, and sharing their work with the public.”). ↑
317. See supra Part II. ↑
318. See supra Section IV.A. ↑
319. See Woo, supra note 21. ↑
320. As discussed in Part I, however, this Note recognizes that some forms of prison journalism are equally, or even more so, internally focused. This would include prisoners writing for prison newspapers or writing for a news publication that will also circulate to fellow prisoners, such as the case in Martin. Martin v. Rison, 741 F. Supp. 1406, 1412–13 (N.D. Cal 1990), vacated as moot sub nom., Chron. Pub. Co. v. Rison, 962 F.2d 959 (9th Cir. 1992). ↑
321. See Procunier v. Martinez, 416 U.S. 396, 408 (1974). ↑
322. Heffernan, supra note 262. ↑
323. See supra Section IV.A.1. ↑
324. See Blackwell & Nonko, supra note 36. ↑
325. See supra Section IV.A.1. ↑
326. See supra Section IV.A.2. ↑
327. See supra Section IV.A.3. ↑