Racial Origins of Doctrines Limiting Prisoner Protest Speech
46 Pages Posted: 4 Apr 2017
Date Written: November 3, 2016
This Article examines the racial origins of two foundational cases governing prisoner protest speech to better understand their impact in light of the Black Lives Matter movement. Two Supreme Court cases provide the primary architecture for the regulation of prisoner or detainee speech. The first, Adderley v. Florida, is (mis)interpreted for the proposition that jails (and by analogy, prisons) are non-public spaces. Under First Amendment doctrine, non-public spaces are subject to heightened regulation and suppression of speech is authorized. The second, Jones v. North Carolina Prisoners’ Labor Union, Inc., amplifies the effect of Adderley and prohibits prisoner solicitation for union membership. Together, these two cases effectively provide broad discretion to prison administrators to punish prisoners and detainees for their protest speech. Neither Adderley nor Jones acknowledges its racial origins. Holdings in both cases relied on race-neutral rationales and analysis, and yet the underlying concerns in each case appear tied to racial concerns and fears. Thus, this Article is a continuation of a broader critical race praxis that reminds us that seemingly objective and neutral doctrines themselves may incorporate particular ideas and notions about race. Today’s protesters face a demonstrably different doctrinal landscape: should they protest within the prison or jail walls? While the content of speech by a Black Lives Matter activist may not change, the constitutional protection afforded to that speech will be radically different depending on where she speaks.
Keywords: Free Speech, Black Lives Matter, Prison Law, Adderly v Florida, Jones v. North Carolina Prisoner's Labor Union Inc.
Suggested Citation: Suggested Citation