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Closing Argument

A Battle Over First Amendment Rights in Prisons

New York state tried to limit writings and artistic works from prisoners — illustrating a growing issue across the country.

Three Black men sit in a chapel, next to a statue of Our Lady of Guadalupe. The man sitting in the middle wears glasses and a lime green polo over his dark green prison uniform. The two men sitting on either side of him hold a trombone and a saxophone, wearing jackets and slacks.
Shedrick Blackwell, middle, who is incarcerated at Woodbourne Correctional Facility in Woodbourne, New York, chats with trombonist Jeffrey Miller and saxophonist Jason Marshall from Carnegie Hall’s Musical Connections program, in February 2017.

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On Monday, The Marshall Project received a tip: New York state prisons were quietly adopting new rules to clamp down on writing, music, art and other creative work from people inside. Incarcerated artists and outside nonprofits, who wanted to publish the materials, would both have to submit it to internal reviewers first.

On Tuesday, New York Focus broke the news. Prisoners, First Amendment experts, and groups like PEN America, which mentors and publishes incarcerated writers, all parsed the directive’s vague language for clues. Would writing in one’s journal make the pages contraband? Would the rules apply to journalism by prisoners? (A state spokesperson told The Marshall Project that they would, if the prisoner was being paid.)

Facing a public backlash, the Department of Corrections and Community Supervision announced Wednesday that it was rescinding the directive entirely. “It was never our objective to limit free speech or creative endeavors,” spokesperson Rachel Connors wrote in an email, promising a revised policy with revisions that would “encourage creative arts projects, as originally intended.”

The reversal is a victory for incarcerated people in New York, and foreshadows free speech battles that are sure to emerge across the country, amid a broader renaissance of creative output from behind bars.

A growing number of outside organizations teach and publish journalism, essays, visual art, and music from prisons. The podcast Ear Hustle, produced out of San Quentin State Prison in California, has millions of listeners. This week, an opera by composer Joseph Wilson, who is incarcerated in New York state, was performed by musicians at Carnegie Hall. Federal prisoner Nico Walker wrote the 2018 novel “Cherry,” which was adapted into an Apple TV film starring Tom Holland. And two major New York museums are currently showing work by artists with prison experiences.

At the same time, New York state has a history as a leading prison censor. In the 1970s, the state was the first to ban people from making money in prison from the stories of their crimes; lawmakers ordered that such money go to victims and their families. Other states followed suit. These were called “Son of Sam” laws, borrowing the nickname of their original target, the serial murderer David Berkowitz, and their focus was famous prisoners who stood to make large sums based on their notorious crimes.

In 1991, the U.S. Supreme Court ruled that the New York law violated the First Amendment because it was too broad and vague, but the court did not close the door on restrictions. In the preceding decades, the court had ruled broadly in favor of prisoners’ rights to share their writing, and said that prisons could only impose limits on prisoners’ free expression if they could cite “legitimate penological concerns,” like security risks. These imprecise, decades-old legal standards have led to a complex, unpredictable landscape for prison writers and those who publish them — including The Marshall Project.

In explaining their restrictions, prison officials have cited sensitivity to victims or security concerns, like the potential to use writing to send a coded message or plan a crime. But prisons have also used such risks as pretexts for quashing the free flow of ideas.

Sometimes, as with Son of Sam laws, the battle is over money. Beyond the long history of producers and managers exploiting prison musicians — as with the folklorist Alan Lomax and his protégé Lead Belly — financial success from prison can make you a target. In the 1990s, Pennsylvania tried to use a rule against prisoners running businesses to censor the writing of Mumia Abu-Jamal, a prolific writer and speaker behind bars who claimed he’d been wrongly convicted of killing a police officer in 1981.

And a few years ago, Michigan demanded that prisoner Curtis Dawkins turn over most of his $150,000 book advance — which he had allocated to his children for their education. Dawkins told The Marshall Project that the state only ended up with $6,400, but a court ordered him to give up half of future proceeds from his writing. In a message from prison this week, he wrote about the chilling effect of that settlement. “Imagine if you are an agent or publisher. Would you want to risk publishing a novel by someone that they deem certain to get sued by an entire state?”

Some states require some prisoners to give their profits from creative work — and other sources — over to victims as restitution. (The directive New York rescinded would have done that.) The examples that make the news usually involve celebrities. After the singer R. Kelly was convicted of sex trafficking, one of his victims successfully gained access to his music royalties. A revised version of New York’s Son of Sam law was used to take Anna Delvey’s proceeds from “Inventing Anna,” the Netflix series based on her crimes.

But even when money isn’t on the table, officials have tried to censor based on the feelings of victims’ families. In 2014, Abu-Jamal’s fame prompted Pennsylvania legislators to pass a law letting victims prevent people who had harmed them from speaking publicly. The law was later struck down as unconstitutional.

Often when prisoners do get their work out, they face retaliation from corrections officers, officials, and even other prisoners. Last month, The Texas Observer reported on Jason Walker, a Texas prisoner who wrote about how officers were ignoring drug overdoses. Walker described threats to his life by other prisoners who accused him of snitching — which led to his being transferred more than 10 times and placed in isolation for long periods. He also accused officers of stealing from his accounts.

If New York state releases revised rules, it could prompt further legal battles. Mayze Teitler, an attorney with the Knight First Amendment Institute at Columbia University, said the directive could threaten the First Amendment right of people outside of prison to hear what incarcerated people have to say. “We all benefit from seeing and engaging with the artistic perspectives of people who are incarcerated,” Teitler said.

How Does This Issue Affect You?

The Marshall Project wants to understand the scope of censorship behind bars. Was your creative work censored? Are you connected to an incarcerated person who is fighting to be compensated or published? Use this form to tell your story, or share this article with someone with a story to tell.

Correction: An earlier version of the photo caption and the story incorrectly listed the New York locations where Shedrick Blackwell and Joseph Wilson are incarcerated. Blackwell is at Woodbourne Correctional Facility, and Wilson at Elmira Correctional Facility.

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Beth Schwartzapfel Twitter Email is a staff writer who often covers addiction and health, probation and parole, and LGBTQ+ issues. She is the reporter and host of Violation, a podcast examining an unthinkable crime, second chances, and who pulls the levers of power in the justice system.

Maurice Chammah Twitter Email is a staff writer and host of the podcast “Just Say You're Sorry,” as well as the author of “Let the Lord Sort Them: The Rise and Fall of the Death Penalty.” He writes narrative features on a range of criminal justice subjects, including the death penalty, forensics and art and music by incarcerated people.