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July 19, 2011

Are there First Amendment problems with California officials blocking media access to all hunger-striking prisoners?

The question in the title of this post is prompted by this new Los Angeles Times piece headlined "Prisoners' hunger strike in its third week."  Here is the parts of this report prompting my inquiry:

More than 400 inmates at four California prisons are in the third week of a hunger strike to protest long, punitive stays in isolation cells.

Prison officials, who refuse to allow reporters into the institutions to interview the strikers, said 49 inmates who have lost at least 10 pounds each are "being monitored closely," including seven at Pelican Bay, the maximum-security prison near the Oregon border where the hunger strike began.

An inmate at the state prison in Tehachapi in Central California has lost 29 pounds, according to Nancy Kincaid, spokeswoman for the court-appointed receiver in charge of prison healthcare.

Inmate advocates say thousands of inmates have joined the strike, which began July 1. Many are beginning to show dramatic weight loss and collapse with the early signs of starvation, they say. Dozens have been sent to prison infirmaries because of irregular heartbeats and fainting, according to a statement issued Monday by a group calling itself California Prison Hunger Strike Solidarity, which represents attorneys and family members of inmates. "Most have lost 20-35 pounds," the statement said....

Despite repeated assurances that the situation is under control, the California Department of Corrections and Rehabilitation refused The Times' request to visit and interview striking inmates.

"At this time, we are not allowing media into the prison due to security and safety issues," prison spokesman Oscar Hidalgo said in an email.  "This hunger strike signifies a disruption in normal operation of Pelican Bay and our operations staff are focused completely on resolving this issue."...

The inmates are protesting lengthy stays in Security Housing Units, known as prisons within the prison, where they are sent for violating rules.  They are typically kept alone in their cells for 22 hours a day, allowed out for medical visits and for exercise in individual wire cages on the prison yard.

I know that the Supreme Court has repeatedly said that prisoners First Amendment rights are have significantly limited while they are behind bars, but these rights are not completely extinguished.  In addition, I would think the traditional media might be able to assert some of its own First Amendment rights to try to get access to at least a few of the hunger-striking prisoners.  Legitimate safety and security issues likely do not justify restricting access to every one of the hundreds of prisoners involved in this hunger strike.

Any free speech experts out there have any wisdom on this front?

Recent related posts concerning this hunger strike in California prisons: 

July 19, 2011 at 10:40 AM | Permalink


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It's not my area of law but the media has a First amendment right to interview convicted inmates in their institution? There is a case that holds that? Interesting.

Posted by: Steve Prof | Jul 19, 2011 12:49:27 PM

Whatever the existing precedent, those decisions were from an era that predated our current reality of mass incarceration, incredibly long sentences, three-strikes laws, torture-like conditions at many prisons, and the like.

We incarcerate more people than any society in human history and 5-8 times more than any other civilized nation. Any presumption about prisoners not having basic rights needs to be called into question when our citizens are turned into prisoners so easily and in such massive numbers.

In other words, existing law regarding the First Amendment rights of prisoners needs to be revisited, and the rights of these particular hunger strikers would seem to present a good test case.

Posted by: james | Jul 19, 2011 1:14:47 PM

And the purpose of these interviews? Why to assist the criminals with their hunger strike and return them to gen pop. And why do they want to be in gen pop? Why to continue their criminal activity. More phone calls to co-conspirators on the outside; more contact with fellow gang members, etc. It is clear that you don't like supermax and want more lenient treatment of these criminals. And you will create a new right, to be interviewed by the press, to obtain that end.

Posted by: Federale | Jul 19, 2011 2:59:12 PM

Whether more are incarcerated or not would not impact the constitutional issues involved. The rulings would still be valid.

Posted by: MikeinCT | Jul 19, 2011 4:34:44 PM

Gandhi once said , in regard to fasting/hunger strikes: "You can only fast against someone who cares about you." Are there enough people who care what happens to prisoners becomes the question.

Posted by: tim rudisill | Jul 20, 2011 4:05:45 AM

@tim rudisill
Given how little media attention has been devoted to this hunger strike, as opposed to cases like that of Bobby Sands, I would say the wider world hasn't noticed and probably won't care if one of them dies.

Posted by: MikeinCT | Jul 20, 2011 10:43:53 AM

The purpose of interviews, federale, would be to learn, in the prisoners' own words, why they are starving themselves. If reporters relied only on official accounts, their jobs would be easier but society wouldn't be as well informed.

As a retired newspaper editor, I'm naturally skeptical when officials trot out the all-purpose "safety and security" restriction to keep reporters at bay. Going to dangerous places to gather information is part of the job of being a reporter.

If the prisoners were shanking guards and burning cell blocks that would be one thing. In a hunger strike it looks more like a bureaucratic dodge to avoid embarrassment and criticism.

Allowing reporters to thoroughly report on events is (was) one of the advantages of living in America.

Of course I realize, federale, that a sizable number of angry cynics in our society don't allow for the possibility prisoners might actually have legitimate reasons to conduct such a protest. Still, I'm curious to know what they have to say.

I'm also curious to know how bureaucrats presumably acting on my behalf are treating the human beings who are at their mercy.

Posted by: John K | Jul 20, 2011 11:07:19 AM

The U.S. Supreme Court ruled in the 1970s that the news media have no greater right than other members of the public to enter prisons and interview inmates. The premise was that reporters have alternative means of access to information from and about prisoners -- via mail, phone calls, interviews with lawyers and family members, etc. Of course none of these options can give a vivid sense of the effect of a hunger strike on the strikers, so maybe there might be a basis for seeking a court order for some kind of visit to see them. The big question is whether there are any news media who care enough to spend the money for this kind of litigation; they don't sue for access to anything nearly as often as they once did.

Posted by: Terry Francke, General Counsel, Californians Aware | Jul 21, 2011 2:14:00 PM

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