A&A: Do Volunteers Working with CA Prisoners Have the Right to Publish Stories About The Experience?

Q: What are the rights of a prison volunteer in California who wishes to write about his or her experience of working with prisoners in the realm of education, particularly if the education has an activist component around mass incarceration?

California Code of Regulations Title 15, section 3261.1 specifies that the use of “facilities, staff, inmates” in the writing of books and magazine articles requires prior approval of the California Department of Corrections and Rehabilitation (CDCR) designee– all volunteers must sign paperwork to the effect that they have read the relevant section of the code, and understand these restrictions.

However, the CDCR is known to be notoriously protective about publicity/research, and many colleagues have informally advised that official approval will likely not be forthcoming, especially since the class being conducted has a subversive and anti-establishmentarian nature with respect to the prison system. What are the First Amendment rights of a prison volunteer to publish a book or article detailing their collaborative conversations with inmates around issues of nonviolent resistance to mass incarceration? The specific prison, the specific inmates, etc would not be named, ie. all identifying information would be anonymized. Meanwhile, the participating inmates would of course have to give full consent to having their views cited in such a project, although they would also be completely anonymized. What is the likelihood/precedent that legal action may be brought to bear on someone engaging in such writing/publication? Do First Amendment protections apply, or are they automatically trumped by Title 15 of the CCR? Are there instances of prison volunteers who have written about their experiences/conversations/collaborations with prisoners, without prison approval (but anonymizing the institution and the participants), and faced legal consequences?

A: The Supreme Court has held that the media has no special First Amendment right of access to prisons beyond that of the general public and, as a result, various regulations restricting media access to prisons have been upheld as constitutional. See  Houchins v. KQED, Inc., 438 U.S. 1, 16–17 (1978)(plurality opinion) (citing Pell v. Procunier, 417 U.S. 817 (1974).

I could find no First Amendment challenges to the specific regulation you cited and, unfortunately, an analysis of the constitutionality of the regulation goes beyond the scope of the of services we can provide through the hotline. I did, however, find the attached law review article that discusses the issue and hopefully you find it helpful.

We don’t know and cannot comment on the likelihood of a legal action being initiated against someone acting in contravention of the regulation, and I could not find any examples of lawsuits against prison volunteers writing about their experiences.  I came across the story of the Mother Jones reporter that went undercover as a prison guard. Apparently, after the story was published, the owner of the prison threatened litigation, but I could find no evidence that a lawsuit was ever filed.

Bryan Cave Leighton Paisner LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.  No attorney-client relationship has been formed by way of this response.

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