Ex press, is always open to submissions by
incarcerated poets and writers.
This article was originally published in Mule Creek Post out of Mule Creek State Prison. It won third place for Best Opinion in the 2026 American Penal Press Contest.
The rise of mass incarceration in the U.S. amplifies the need for an aggressive defense of free speech in prisons. The vast number of Americans incarcerated — 2.2 million, with poor and people of color suffering disproportionate rates of imprisonment — means prison censorship affects marginalized groups the most, reducing their ability to take part in the public forum. This results in those most impacted by mass incarceration having the least say in the discussion.
Free expression rationales featured in U.S. Supreme Court law support the claim that prison speech is an important function of the First Amendment. These are the rationales: the marketplace of ideas, democracy legitimation, the checking value of free speech, and self-fulfillment. The marketplace of ideas does not operate as it should when the government prevents prisoners from joining in public discourse, particularly in matters relating to criminal justice and mass incarceration.
Black Americans are incarcerated at five times the rate of whites, and Latinos at 1.4 times the rate of whites. As mass incarceration issues such as harsh sentencing practices, the over-policing of urban areas, and inequity in penal policies along racial and class lines become important matters for public debate, those impacted the most are the least heard in the discussion. Race and class often correlate with opinions on social issues, particularly social justice issues centered on mass incarceration. Excluding prisoners’ voices from the conversation warps and constricts public discourse on these issues that impact marginalized populations the most.
The “marketplace of ideas” theory states that unrestricted debate results in the revelation of truth, and is generally adopted by the U.S. Supreme Court in its decisions, continuing to impact law and scholarship. Conversely, censorship prevents the finding of truth by repressing free discussion. If the intent of the marketplace of ideas is to discover truth, then the voices of the incarcerated are among the most vital views to consider when debating incarceration-related issues. The “checking value of free speech” theory holds that the First Amendment’s main function is to “protect the press when it exposes governmental abuses of power.” Because one of the most important aspects of prisoners’ speech is to address conditions of confinement and reveal prison maltreatment — an important matter of social concern — suppression of these concerns prevents open dialogue and hampers discovery of truth. Stifling criticism impedes fair and open discussion and leaves the public in the dark regarding issues such as overcrowding, violence, rape and sexual assault, inadequate healthcare, and exposure to toxic environments.
“Democratic legitimation” theory contends that free discourse is necessary for a democratic government to function, and is entitled to staunch First Amendment safeguards. Justice Brandeis wrote in the 1927 Whitney v. California decision that “The greatest menace to freedom is an inert people, that public discussion is a political duty; and that this should be a fundamental principle of the American government.” The U.S. Supreme Court recognizes Brandeis’ opinion as “classic formation” of democratic legitimation theory.
The “self-fulfillment theory” aspect of free speech protects individual expression — the realization of a person’s character and possibilities. In the process of developing opinions and beliefs, molding character, and realizing one’s human potential, freedom from censorship remains a foundational requirement. Justice Marshall wrote in Procunier v. Martinez: “The First Amendment serves not only the needs of the polity but also those of the human spirit — a spirit that demands self-expression. Such expression is an integral part of the development of ideas and a sense of identity. To suppress expression is to reject the basic human desire for recognition and affront the individual’s worth and dignity.”
Eliminating the voices of the confined from public debate threatens the legitimacy of our system of free expression by imposing insurmountable obstacles to free speech, especially those voices most needed to be heard regarding mass incarceration issues. With California’s push to implement the new California Model, a more humane prison model, perhaps the hope for progress remains alive. However, without participation and thorough listening to the voices from within the walls of the state’s and the nation’s penitentiaries, the brutality and inequity of mass incarceration will persist.
Sources: “Locked Up, Shut Up: Why Speech in Prison Matters,” St. John’s Law Review, 2018; Turner v. Safley, 482 U.S. pp. 78, 84-85 (1987); Nicole B. Godfrey, “Suffragist Prisoners and the Importance of Protecting Prisoner Protests,” Idea Exchange
