First Amendment Rights for Publishers and the Distribution of Unsolicited Magazines to Inmates

Abstract

This Article discusses whether inmates have a First Amendment interest in receiving unsolicited publications, and whether a publisher has a First Amendment interest in distributing unsolicited publications. Part II will discuss the history of prisoners’ First Amendment rights, specifically in relation to publications and communications, and how the standard for First Amendment violations of prisoner rights has evolved over time. Part III will focus on the Supreme Court case Turner v. Safley and how the test articulated in Turner applied to cases that followed. Part IV will address whether the Turner standard was the appropriate test to apply to whether publishers, and not inmates, have a First Amendment interest in distributing unsolicited publications specifically in reference to the Ninth Circuit case Hrdlicka v. Reniff. The Supreme Court specifically stated that the Turner test was created “to formulate a standard of review for prisoners’ constitutional claims . . . .” In Hrdlicka, the publishers of CJA, and not the prisoners, commenced the action, and thus the Turner test should not apply. Furthermore, a substantial issue of material fact does not exist in Hrdlicka, and the Ninth Circuit should have affirmed summary judgment. The last section of Part IV will discuss the standard that should have been applied in Hrdlicka.