Home » News » Federal magistrate upholds prison’s policy prohibiting gift publications to inmates

By David L. Hudson Jr., published on March 5, 2019

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(Prison photo, public domain, by Washington State Legislature)

Ohio correctional officials did not violate the First Amendment when they refused to deliver gift publications to a death-row inmate, a federal magistrate has ruled.


The magistrate reasoned that the policy was implemented to prevent the introduction of contraband into penal institutions, a legitimate security interest.


Robert Bethel, on death row at the Chilliclothe Correctional Institute, challenged the policy after learning in 2015 that four books were withheld from him, because they were not ordered from “approved vendors” and “initiated by the inmate.”


Employees in the prison mailroom informed Bethel that the books were withheld because they were not ordered by him. He later requested more than 200 titles for books, magazines, and publications to the institution’s librarian. He only received a few of these through library loan programs.


Bethel filed a grievance through the prison administrative system. When that failed, he filed a federal lawsuit, alleging a deprivation of his First Amendment right to receive information and ideas.


The prison warden modified the policy in 2017 to allow gift orders but still required all publications to be sent from vendors or publishers only.


U.S. Magistrate Judge Michael J. Newman for the U.S. District Judge for the Southern District of Ohio upheld the prison’s former policy and rejected Bethel’s First Amendment claim in his February 25, 2019, opinion in Bethel v. Jenkins.


Newman applied the four-part test developed by the U.S. Supreme Court in Turner v. Safley (1987) to evaluate prisoner First Amendment claims. Under this test, courts examine four factors:


  1. Whether there is a valid, rational connection between the prison’s regulation and the government’s interest advanced to justify the regulation;
  2. Whether there are alternative means for the inmate to exercise his First Amendment rights;
  3. Whether an accommodation of the inmate’s asserted constitutional rights will impact prison staff or other inmates;
  4. Whether there are alternatives that would accommodate the inmate’s rights at a minimal cost to the prison.


Regarding factor one, Newman determined that there was a valid and rational connection between the ban on gift publications and publisher-only rules, because of security concerns. Prison officials had testified that after rescinding its ban on gift publications, officials discovered two pieces of contraband – two cell phones – mailed to inmates in gift publications. Based on this evidence, Newman reasoned that the policy was not an exaggerated response to security concerns, but a valid one. Thus, he determined that factor one cut in favor of the prison officials.


Factor two – whether the inmate has alternative means of communication – also cut in favor of the policy. The magistrate reasoned that Bethel could have paid for the publications himself or family members could have placed money in his prison account so he could have ordered the materials. Thus, Judge Newman wrote that this factor “strong weighs in Defendants’ favor.”


Newman also determined that factor three – the impact on prison staff – also cut in favor of the defendants. Allowing gift publications required staff to take the time to review a lot more mail. According to the magistrate, this amounted to “the allocation of significant resources” rather than a de minimis cost.


Finally, the magistrate also determined that the fourth factor – whether there were alternative measures – also cut in favor of prison officials instead of Bethel. Here, the magistrate wrote that “wide-ranging deference” must be given to prison officials when it comes to implement policies related to institutional security.


The decision shows that many courts tend to defer rather broadly to the security concerns voiced by prison officials. A complete ban on gift publications and publisher-only policies appear to interfere with a prisoner’s right to receive information and ideas. However, many courts tend to side with prison officials in such disputes.


David L. Hudson, Jr., a Visiting Associate Professor of Legal Practice at Belmont University College of Law, is a First Amendment attorney and author who has written, co-written, or co-edited more than 40 books, including First Amendment: Freedom of Speech (Thomson Reuters, 2012) and Documents Decoded: Freedom of Speech (ABC-CLIO, 2017).







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