This Article proceeds in three Parts. Part I describes the deferential Turner standard that governs First Amendment claims brought by prisoners. Virtually every word uttered or written to a prisoner and virtually every word uttered or written by a prisoner receives extremely limited legal protection. Largely as a result of this legal regime, senseless censorship is all too common in American prisons. Jailers and prison officials seem to have received the message that they can ban speech with impunity.
Part II argues that the combination of Turner deference and mass incarceration divests prisoners of expressive power, thereby distorting public discourse. Not only do people in American prisons and jails comprise a significant portion of the population—some 2.2 million men and women—but the people locked up are poorer, blacker, and browner than the population at large. The combination of mass incarceration and prison censorship skews public debate in favor of wealthier, whiter, nonincarcerated participants. The same combination prevents some of the most relevant speakers from engaging in public discourse on prison-related topics such as solitary confinement and mass incarceration: prisoners themselves.
Part III demonstrates that under the leading theories of free expression, prison speech matters. It matters from the standpoint of the marketplace of ideas, democracy legitimation, the checking value of free speech, and self-fulfillment. Under all of these theories, prison speech is of consequence and deserves more protection than it now receives.