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A New Provision Threatens California Inmates' First Amendment Rights

A year after the hunger strike, some things have improved, but some things have gotten worse

Kevork Djansezian/Getty Images News

This month marks the one-year anniversary of the Pelican Bay hunger strike, the largest hunger strike in U.S. history. Beginning in the Security Housing Units—more popularly known as the “SHU”—at Pelican Bay, one of California’s most remote and formidable prisons, the strike eventually included over 30,000 inmates in 33 prisons. The protest was officially suspended last fall when the California Department of Corrections and Rehabilitation (CDCR) agreed to hold public hearings on some of the strikers’ core demands: the end of prolonged and indefinite solitary confinement, expanded privileges for SHU inmates, and changes to the CDCR’s gang-validation policy. But now, in the guise of further reform, the CDCR is poised to pass a major limitation of inmates’ first amendment rights.

Following the hunger strike, CDCR did attempt to address some of the concerns of the strikers. Most notably, they offered public hearings on changes in SHU policy and the release of some inmates from the SHU via the “Step Down” program. The CDCR also took action to further address complaints related to gang affiliation. Once an inmate has been labeled a gang associate, he may be held, sometimes indefinitely, in the SHU. Todd Ashker, for example, one of the leaders of the 2013 hunger strike, has been held in the SHU for over 23 years based on his alleged affiliation with the Aryan Brotherhood. (The CDCR’s latest report indicates that, as of February 2014, 2,832 inmates are considered gang affiliates, and Pelican Bay houses many more gang affiliates than any other California prison—over 1,000.) New rules proposed by the CDCR in 2012 provide for a gradual return of privileges if an inmate refrains from gang activity. Additional hearings were held in February regarding further proposed changes to the determination of gang affiliation.

But the CDCR’s anxiety over gangs has also resulted in a dramatic new proposal: a reform of the specific provisions of the California Code of Regulations that apply to “obscene” materials. Obscene materials could be pornography, but could also include “written material or photographs that indicate an association with a validated member or associate of a Security Threat Group,” according to the proposal. (The CDCR calls gangs “Security Threat Groups” or “STG.”) Such materials, the proposal states, indicate “an association with groups that are oppositional to authority and society.” Individuals possessing these types of written materials would be punished, which may include incarceration in SHU or other segregated housing. A legally required public hearing was held on June 17, but the CDCR has not responded to any objections. 

This definition of obscene materials is so wide that it might include an article from The New York Times or the or the San Francisco Bay View, which serves a primarily African American community and counts several inmates among its regular contributors, including Mutope Duguma, who has been held in the SHU for decades. According to the Bay View’s editor, Mary Ratcliff, more than 500 inmates currently receive the publication. The rule could also serve as a tool to censor inmate-run publications like San Quentin News. Because the CDCR has insisted that the Pelican Bay hunger strike was the result of gang activity, any material concerning the strike might be prohibited under this new rule. Bryan Cave, an attorney for the San Francisco Bay View, submitted a letter to the CDCR as part of the public hearing for the proposal pointing out that the regulations are vague and subject to overreach and misinterpretation. Most notably, the letter points out that the regulations “could serve as a pretext to limit prisoners’ access to informative news publications like the Bay View—publications that enjoy the full protection of the First Amendment.” 

In theory, inmates retain the same right to free speech as those on the outside. As Justice O’Connor wrote in Turner v. Safley (1987), “Prison walls do not form a barrier separating prison inmates from the protections of the Constitution.” But, in reality, that right is circumscribed. The Court held in Turner that prisoners retain free speech rights so long as they do not interfere with the penological interests of prisons. In other words, the CDCR is permitted to limit inmate speech and access to materials so long as they can demonstrate a penological objective, which is usually “security” and order. In practice, these regulations are always dependent on who is monitoring incoming mail. According to Allen Schlosser at the ACLU, the regulations are not only overly vague, they reflect a mindset that will err on the side of censorship. Jonathan Simon, a professor of law at Berkeley who has written extensively about the California prison systems says, "The logic of the regulation is potentially sweeping.  Virtually any writing associated with the Black power movement of the 1960s or the history of Mexico would be subject to banning." According to Lelia Knox, a First Amendment lawyer, the proposed regulation raises serious concerns about its vagueness. 

From the CDCR’s initial statement, it seems they believe that these rules might be a way to curtail the kinds of “disruption” and public scrutiny caused by the 2013 hunger strikes. Throughout the strike, the CDCR asserted that the strikes were simply the acts of powerful gang leaders, rather than expression of political dissent. By limiting access to written materials that may be critical of its policies, the CDCR gives itself the ability to clamp down on interactions between the press and inmates. The CDCR did not respond to inquiries for this article except to say that the regulations have not yet been finalized. 

These new regulations emphasize the state of emergency in California’s prisons, despite whatever concessions were made to prisoner concerns in the past year. Cutting off inmates’ access to information will, most likely, simply radicalize them more—it’s hard to imagine someone remaining compliant when they are confined to a solitary cell for 23 hours a day with little to no contact with the outside world. Information, for California’s inmates, may soon no longer be a means to educate, inform, or discuss; instead it is primarily a danger. And that is dangerous to us all.