Background

As mentioned in the April 1st blog, book challenging and banning is a serious and timely issue. As librarians, we take umbrage when we hear of books being pulled from shelves and librarians and educators being penalized. Working in a law library, we don’t have a lot, if any instances, of individuals attempting to challenge books. In fact, the American Library Association’s Office for Intellectual Freedom notes that roughly 96% of book challenges come from public libraries, K-12 school libraries, and schools [1]. This statistic makes sense as most book challenges, about 50%, are initiated by parents of children [1].

It’s important to keep in mind that those numbers mentioned are “reported” numbers. It’s just the tip of the iceberg as there’s most likely a large amount of book challenges and bans that go unreported. Prisons are an example of a setting in which many book challenges and bans occur and, in some cases, go under-reported [2]. The Human Rights Defense Center (HRDC), an organization that distributes criminal justice and legal self-help titles to prisons and jails, does an outstanding job with tracking litigation involving First Amendment cases against prisons and jails who use illegal mail policies to censor legal literature [3]. Such materials censored in prisons include the HRDC’s Prison Legal News and other published self-help legal book titles [4].

Additionally, it has been documented that many prisons have banned black culture and history books including The Color Purple by Alice Walker, 100 Years of Lynching by Ralph Ginzbureg, The Hate U Give by Angie Thomas, and The Bluest Eye by Toni Morrsion, while allowing books like Adolf Hitler’s Mein Kampf and other books written by former KKK member David Duke to be accessible [5, 6]. Books teaching various languages including Japanese, Arabic, and American Sign Language have also been seen to face censorship issues in Florida prisons [5].

Legality of Book Challenges/Bans

Legality of book bans and challenges typically involve one of three main laws including the First Amendment’s protection of free speech, the Fourteenth Amendment’s Equal Protection Clause, and 42 USCS Section 1983 (which gives parties the right to guarantee their rights under federal law where they feel they have been infringed upon by an official’s abuse of their position or under the “color of the law”). Seeking relief from book challenges and bans has typically revolved around one (or all three) of the mentioned laws. But regarding book censorship issues in prisons, how have the courts ruled?

Case Law

Looking at the case law that affects a prisoner’s right to read, the Supreme Court case Procunier v. Martinez 416 US 396 (1974) can be cited as one of the most prominent cases. In the case, Martinez and other prisoners in San Quentin, argued that the California Department of Corrections engaged in the censorship of mail and prohibited law students and paraprofessionals from conducting interviews with inmates. In a unanimous decision, the court held that “censorship of direct personal correspondence created incidental restrictions on the right to free speech for both prisoners and their correspondents”. It was in this case where the late Justice Thurgood Marshall gave one of his most known quotes stating, “When the prison gates slam behind an inmate, he does lose his human quality; his mind does not become closed to ideas; his intellect does not cease to feed on a free and open interchange of opinions; his yearning for self-respect does not end; nor is his quest for self-realization concluded. If anything, the needs for identity and self-respect are more compelling in the dehumanizing prison environment.”

Just three years later, following complaints from numerous inmates in the North Carolina Department of Corrections system, the Supreme Court would make a ruling in Bounds v. Smith 430 US 817 (1977) on the legal question, “Did the First and Fourteenth Amendments require the North Carolina Department of Corrections to assist inmates in the preparation and filing of legal papers by providing adequate law libraries or adequate legal assistance?” The Court ruled that yes, prisons are indeed required to provide inmates access to the courts in the form of providing adequate law libraries and legal assistance. This case is widely regarded as a landmark case regarding law libraries in prisons.     

The Courts have also ruled against a prisoners’ access to books and publications in Thornburgh v. Abbott 490 US 401 (1989). Where the Supreme Court decided that certain publications could be banned in prisons to protect “penological interests.” Book bans and challenges in prisons have been upheld and struck down by applying the ruling in Thornburgh.

In Beard v. Banks 548 US 521 (2006), the Supreme Court upheld a Pennsylvania Department of Corrections regulation that prohibited inmates in a high-security segregation unit from receiving any newspapers, photographs, or magazines. The Court ruled that the deprivation of those privileges as an incentive to improve the prisoners’ behavior was “reasonably related” to the “legitimate penological interest” of rehabilitation. 

As we can see, prison book challenges and bans are a complex issue with the courts concerned with “protecting the penological interest,” and advocates concerned with the disproportionality of book bans. However, many book challenges and bans in prisons remain somewhat of a “hidden issue,” meaning the issue rarely sees the light of day unless some form of reporting exposes it. What we’ve seen here is that book bans and challenges can happen in any type of environment (K-12 school, public library, academic libraries, prison libraries, etc.). Prisons might face a number close to or larger of book challenges and bans than school and public libraries. That exact number may never be known. With the growing number of challenges and bans, staying informed on the issue is important right now. Studies have consistently shown that inmate’s access to books and outside information reduces recidivism rates [7]. What will happen when that access gets smaller?      

References and further reading

[1] American Library Association (n.d.). Censorship by the Numbers Infographic https://www.rclawlibrary.org/wp-content/uploads/CensorshipbytheNumbers2020.pdf

[2] University of Cincinnati (n.d.). Prisoner Rights and Banned Books https://guides.libraries.uc.edu/c.php?g=1084786&p=7908920

[3] Human Rights Defense Center (n.d.). Litigation https://www.humanrightsdefensecenter.org/action/litigation/

[4] Human Rights Defense Center (n.d.). Articles about PLN Litigation https://www.prisonlegalnews.org/in-the-news/#articles-about-pln-litigation

[5] Gaines, L. (2020). Who Should Decide What Books are Allowed in Prisons? https://www.npr.org/2020/02/22/806966584/who-should-decide-what-books-are-allowed-in-prison

[6] Lyon, E. (2020). Prisons Banning Black Culture and History Books https://www.prisonlegalnews.org/news/2020/sep/1/prisons-banning-black-culture-and-history-books/ 

[7] Literature Locked Up: How Prison Book Restriction Policies Constitute the Nation’s Largest Book Ban

The Marshall Project: Banning Books in Prisons

The American Prison System’s War on Reading

Prisoners’ Right to Read: An Interpretation of the Bill of Rights

28 CFR Section 540.71(b) (Bureau of Prisons – Incoming Publications)

RCLL’s Lexis Digital Library (our digital library includes titles on racial justice and criminal justice reform)

Written by: Michael Van Aken, Library Technician