In February, the American Civil Liberties Union (ACLU) of South Carolina filed a federal lawsuit challenging a South Carolina Department of Corrections (SCDC) policy that the organization claims violates its First Amendment right to receive and publish the speech of incarcerated people.
The lawsuit, which was dismissed last month by U.S. District Judge Jacquelyn D. Austin, challenged a 2013 policy that prohibits “personal contact interviews with any SCDC inmate, untried county safekeeper, or death row inmate by anyone,” and prohibits “news and non-news media representatives” from “taking identifiable photographs and/or audio/video recordings of any inmate.” Despite the dismissal of the case, the ACLU of South Carolina is appealing to the U.S. Court of Appeals for the Fourth Circuit, which granted the organization’s motion to expedite on Sept. 24 with their opening brief due Oct. 4.
The ACLU of South Carolina currently represents two people in SCDC custody, and hoped to record interviews with each of them to share publicly, but the 2013 policy bars such action. One proposed interview sought to feature Sofia Cano, who has been diagnosed with gender dysphoria and allegedly is not receiving the proper medical care. Another hoped to share Marion Bowman’s story, who is on death row and has exhausted his appeals and is petitioning for executive clemency. His execution date has been scheduled for Nov. 29.
The February lawsuit was filed as a result of the earlier punishment of Richard Alexander “Alex” Murdaugh, who is currently incarcerated at SCDC. According to the complaint, Murdaugh lost his phone and tablet privileges after he participated in a recorded interview with his lawyer, Jim Griffin, who then provided the interview to the media. Murdaugh’s case was highly publicized as it was the centerpiece of a Netflix docuseries and dozens of news articles and reports. In an August 2023 press release, SCDC states that interviews are barred in the interest of protecting victims, and that “inmates lose the privilege of speaking to the news media when they enter SCDC.”
The ACLU argued in its complaint that because the policy threatens punishment of incarcerated people and those who aid in the publishing of their speech that it “chills the First Amendment rights of all incarcerated people” and “impedes [the ACLU’s] right to receive and publish information under the First Amendment.”
“By suppressing the speech of incarcerated people and [the ACLU’s] access to that speech, the Challenged Policy intentionally stifles the public’s access to information on matters of deep political concern,” the complaint states.
In an interview with First Amendment Watch, ACLU of South Carolina’s Legal Director Allen Chaney discusses the organization’s case. Chaney described the First Amendment issues entangled in the SCDC’s policy, the importance of incarcerated people having the ability to share their own stories, and expressed concern over Judge Austin’s dismissal of the case.
Editor’s note: This interview has been edited and condensed for length and clarity.
FAW: Do incarcerated people have the same First Amendment rights as anyone?
AC: Constitutional rights survive sentences to incarceration, but First Amendment rights do look a little bit differently in prison than they do for folks who are not behind bars. The Supreme Court has ruled that “prison walls do not form a barrier separating prison inmates from the protections of the Constitution,” but they do provide, in some circumstances, for prisons and prison systems to impose restrictions on First Amendment rights that might not be permissible in normal, free society.
FAW: In 1974 and 1978, the cases Pell v. Procunier and Houchins v. KQED, respectively, established a precedent for media inquiries into incarcerated people and prisons. In Pell, which was applied in Houchins, the court found that limiting incarcerated peoples’ communication with the press “does not constitute a violation of their rights of free speech” — so long as those incarcerated continue to have “alternative means of communication” — and that the court had never “intimated a First Amendment guarantee of a right of access to all information within government control.” How is the situation outlined by the ACLU different from the ones posed by these two cases?
AC: They’re very different contexts. Pell and then Houchins are really part of a trilogy of cases where the Supreme Court kept making the same fairly narrow holding. Each one of those cases involved members of the press trying to assert a right to physically enter a prison facility for the purposes of conducting some sort of investigation or interview. And in each case, the Supreme Court said that first, the press don’t have a special right of access to prisons that is different from other members of society. So it was answering the question, does the press as an entity have some sort of special access? And the answer to that question was ‘no’ in those cases. And then they turn to the more acute question, which was, in these contexts, could the prison deny physical entry to their facilities to members of the press under the context in which those cases arose, which included wanting to bring video cameras in. And the court said the prison could reject those requests without violating the First Amendment. And in Pell, for example, the Supreme Court talks about what the policy in question there didn’t do, and so it talked about all of the other people that did have access to prisoners, including prisoners’ lawyers, their family members, their clergy and that those alternative means for communication remained open, and that’s not true here. We, for example, at the ACLU of South Carolina, are not being denied physical access to our clients. We can speak to our clients on the phone, we can have a video call, we can visit them in person. What the policy is doing is keeping us from engaging in protected First Amendment activities that are occurring during and after those visits. So we can call our clients on the phone and then ask them whatever questions we want and then share the answers to those questions with the press. We can’t, however, record their answers and publish their answers ourselves, and that’s a distinction that really brings the policy well outside the interests that the prisons were asserting in Pell and those other cases. There isn’t a security interest implicated about what we’re trying to do here. There’s not a rehabilitation or interest in prison order that’s being vindicated here. This is really just about suppressing the speech of prisoners from entering the public discourse. And we know that’s the issue here because the director of prisons said so himself. Bryan Stirling has repeatedly asserted — in the public, in the press and in recorded interviews — that the purpose of their policy of silencing prisoner speech in the media is to keep crime victims from engaging in prisoner’s speech that they might find upsetting. So it’s a very hypothetical situation that they’re guarding against, and they’re trying to vindicate that interest with a sweeping, categorical ban. The denial of access in South Carolina is the most aggressive, egregious suppression of speech of any present prison system in the country. And so the fact that all 49 other state prison facilities and the federal prison system can all protect their own interests in prison, security and rehabilitation and order without categorically suppressing prisoner speech in the media, is pretty good evidence that it’s not necessary here either.
FAW: Stirling, the executive director of SCDC, argues in his motion to dismiss, which was granted by U.S. District Judge Jacquelyn D. Austin on Aug. 30, that the policy is important because it “supports a number of legitimate security and institutional concerns,” including the concerns of coded messaging to further criminal acts being publicized by the press. What do you think of this? Would you consider it a legitimate concern? Did Judge Austin clarify on what grounds she granted the dismissal of the case?
AC: Yeah, a few responses to that kind of laundry list that we saw in the motion to dismiss. The first is that if you’re going to suppress First Amendment rights, you can’t come up with your justification for doing so after the fact. It’s really clear that in the courts, the courts are evaluating the actual motivations for state conduct, and not those that were concocted in response to litigation. And so insofar as all of the justification that they put forward in court, aside from the victim’s rights interest, there was no evidence of it until they were sued over the policy. The court should look askance at those justifications. But even setting that aside, you mentioned, for example, the coded messages. Think about how the policy applies generally. The SCDC says that prisoners can send letters, so presumably coded messages can be sent in letters just as well as over the phone or in person. Additionally, there aren’t restrictions on family members, attorneys, and members of the clergy that have ready access to prisoners, from sharing the information that they learn. So for example, if an incarcerated person meets with their brother in person or over the phone, and communicates in code to the brother some nefarious information, that’s going to happen. The information that has been conveyed to the brother, who can then do anything that the brother wants to do with the information. The only thing that the policy is doing is preventing the brother from recording the speech of the prisoner and then publishing the speech of the prisoner. So if the interest is suppressing coded messages, it’s very unclear to me how you can draw a line from that interest to how the policy is actually being enforced in practice. It’s both over- and under-inclusive. And with respect to that interest, it’s over-inclusive in the sense that it prohibits lots of things that are unlikely to result in the passing of coded messages, also under-inclusive in the sense that it doesn’t prohibit lots of things that are likely to include the passing of the coded messages. The test under the First Amendment isn’t “can the government come up with interests that are legitimate interests in the abstract,” they have to draw a line from those interests to the policy that they’re trying to justify under that interest. Once again, it’s really notable, I think, that the policy in South Carolina is so much more aggressive and categorical than any of the other policies around the country. Once again I think that’s pretty persuasive evidence that the interests unique to prison administration do not require the sort of categorical approach to the suppression of speech that the South Carolina Department of Corrections has chosen to take here.
I think one of the things wrong with the order we got from Judge Austin is that she agreed that our First Amendment rights were injured by the policy, but then didn’t decide what level of scrutiny applies, or apply any level of scrutiny. And so aside from the question of whether we ultimately win or lose, that’s just a legal error. So First Amendment cases, whether they’re involving prisons or not, kind of play out in the same fashion in each context. So plaintiffs have an initial burden to show that the law or policy that they’re complaining about actually implicates a right that’s protected by the First Amendment, and if they’re able to carry that burden, it then becomes the court’s decision of what level of scrutiny to apply, and then to evaluate whether or not the defendant had met whatever level of scrutiny that is. And so in our briefing, we argue for Martinez and a standard of scrutiny that applies there. But then also say we would also win under Turner, and the district court here, Judge Austin, just didn’t apply any scrutiny, and however our case ultimately plays out, that can’t be the answer. She walked through why our conduct was protected by the First Amendment, that the policy infringed on our First Amendment rights. But then she says that what we’re really asking for is special access, and special access isn’t available under Pell and Saxbe and Houchins, therefore they lose and I don’t have to apply any level of scrutiny. And that’s just legally incorrect. If the First Amendment applies then some level of scrutiny also applies, and then you have to test the justifications brought forward by the defendant to see if they survive whatever level scrutiny that is. And she didn’t do that. So at minimum, we would expect the Fourth Circuit to engage with the question of what level of scrutiny applies and actually apply the scrutiny.
