iew
ed
ev
er
r

pe

Working Paper No. 2021-35
October 2021

ot

Outsider Speech: The PLRA, AEDPA,
and Adjudicative Expression

tn

William M. Carter, Jr.

rin

CASE WESTERN RESERVE UNIVERSITY LAW REVIEW (forthcoming)

Pr

ep

University of Pittsburgh School of Law
3900 Forbes Avenue
Pittsburgh, Pennsylvania 15260-6900
www.law.pitt.edu
Direct: 412.648.1401
E-mail: william.carter@pitt.edu

This paper can be downloaded without charge from the
Social Science Research Network Electronic Paper Collection:
http://ssrn.com/abstract=3952109

This preprint research paper has not been peer reviewed. Electronic copy available at: https://ssrn.com/abstract=3952109

iew
ed

Outsider Speech: The PLRA, AEDPA, and
Adjudicative Expression

ev

“By taking the right to speak from some and giving
it to others, the Government deprives the
disadvantaged person or class of the right to use
speech to strive to establish worth, standing, and
respect for the speaker’s voice.”

—Citizens United v. FEC, 558 U.S. 310, 340–41 (2010)
Introduction

er
r

I.

pe

The Prison Litigation Reform Act (“PLRA”)1 and the AntiTerrorism and Effective Death Penalty Act (“AEDPA”)2 imposed
sweeping new restrictions upon incarcerated persons’ access to and
use of the federal courts. The PLRA and AEDPA contain many
troubling specific provisions; this Essay, however, will focus
holistically upon the effects of these statutes in limiting incarcerated
persons’ access to the federal courts and cabining the claims that
incarcerated persons may assert in federal courts. Taken as a whole,
these statutes “were intended to, and did in fact, make it harder for
prisoners to advance constitutional claims in federal court.”3

rin

tn

ot

Federal laws that make it more difficult (or conversely,
easier) to assert certain claims in federal courts may not be
inherently bad or irregular. From the basic rules of practice and
procedure4 to more targeted provisions regulating perceived
excesses in litigation generally5 or certain types of litigation

1

42 U.S.C. § 1997e.
Pub. L. No. 104-132, 110 Stat. 1214 (1996).
3
Michael M. O’Hear, Not So Sweet: Questions Raised by Sixteen Years of the
PLRA and AEDPA, 24 FED. SENT. R. 223, 223 (2012) [hereinafter O’Hear, Sixteen
Years of the PLRA and AEDPA].
4
See, e.g., the Federal Rules of Criminal Procedure, the Federal Rules of
Evidence, and the Federal Rules of Civil Procedure.
5
See, e.g., 28 U.S.C. § 1927 (authorizing the imposition of financial sanctions
upon “[a]ny attorney or other person admitted to conduct cases in any court of the
United States” who “multiplies the proceedings in any case unreasonably and
vexatiously. . . .”).

Pr

ep

2

This preprint research paper has not been peer reviewed. Electronic copy available at: https://ssrn.com/abstract=3952109

Outsider Speech

Vol. __:__

iew
ed

Page 2

ev

specifically,6 legislation often regulates litigation and access to the
courts.7 Seldom, however, does legislation single out a specific class
of people—incarcerated persons, in the case of the PLRA and
AEDPA—and target them for restrictions upon their access to and
use of the courts that are both wholesale and sui generis to the class.8
Indeed, Human Rights Watch has noted that it is unaware “of any
other country in which national legislation singles out prisoners for
a unique set of barriers to vindicating their legal rights in court.”9

er
r

While such indiscriminate class-based legislation is unusual,
it is not unprecedented. Specifically, this Essay contends, similar
restrictions were imposed upon enslaved persons as well as free
blacks during the pre-Civil War legal regime.10 To be clear: this
6

Pr

ep

rin

tn

ot

pe

See, e.g., the Private Securities Litigation Reform Act, Pub. L. No. 104-67, 109
Stat. 737 (1995) (limiting securities fraud class action suits in various ways and
aiming to reduce frivolous securities litigation).
7
This is not to suggest that the examples of such regulations cited above are all
normatively desirable or justifiable, of course. See, e.g., Christopher J. Peters,
Adjudicative Speech and the First Amendment, 51 UCLA L. REV. 705 (2004)
[hereinafter Peters, Adjudicative Speech] (considering whether and how the
various restrictions on advocates’ courtroom speech, such as the Rules of
Evidence and restrictions upon citations to unpublished judicial opinions, can be
reconciled with free speech values); Jules Lobel, Courts as Forums for Protest,
52 UCLA L. REV. 477, 561 (2004) [hereinafter Lobel, Courts as Forums for
Protest] (arguing, inter alia, that “[b]ecause of the importance of encouraging
people to engage in discussion about current social issues, and because of the
implications for freedom of speech, courts should not allow sanctions under
Federal Rule of Civil Procedure 11 or other similar rules to stifle popular debate
stirred by lawsuits that may be considered ‘frivolous’ because they argue against
precedent or are viewed as losing cases”).
8
“Setting out to protect the federal courts against a presumed flood of [frivolous
prisoner litigation], the PLRA established an array of barriers to constitutional
litigation that apply to no litigants other than prisoners.” Susan N. Herman, Prison
Reform Litigation Acts, 24 FED. SENT. R. 263, 263 (2012) [hereinafter Herman,
Prison Reform].
9
Human Rights Watch, No Equal Justice: The Prison Litigation Reform Act in
the United States (June 15, 2009), https://www.hrw.org/report/2009/06/16/noequal-justice/prison-litigation-reform-act-united-states#_ftnref2
[hereinafter
Human Rights Watch, No Equal Justice].
10
Congress has also adopted wholesale and sue generis restrictions upon
procedural rights and court access in the various “war on terror” statutes enacted
in the wake of the September 11 attacks, such as the Detainee Treatment Act and
the Military Commissions Act. As with incarcerated persons, the outcast status of
persons accused of terrorist activity both motivated Congress to adopt and was
used by Congress to justify dramatic departures from the ordinary procedural
rights applicable to all other persons.

This preprint research paper has not been peer reviewed. Electronic copy available at: https://ssrn.com/abstract=3952109

Outsider Speech

Page 3

iew
ed

Vol. __:__

II.

The PLRA and AEDPA: Background

ev

Essay does not contend that incarcerated persons are slaves. Nor
does this Essay seek to analogize incarceration to enslavement or to
argue that the conditions that incarcerated persons face are the same
as those faced by enslaved persons.11 Rather, this Essay examines
the PLRA and AEDPA through the lens of the American slave
system’s limitations upon access to the courts by enslaved persons
and free blacks in order to illuminate the ways in which the former
replicates the latter for a similarly racialized12 and socially alienated
group deemed outcasts from civil society.

pe

er
r

Taken together, “PLRA and AEDPA both constitute
multipronged attacks on the ability of prisoners to secure relief from
federal courts for claimed violations of their constitutional rights.”13
As relevant to this Essay, these statutes constrain incarcerated

11

Pr

ep

rin

tn

ot

Many thoughtful scholars, observers, and formerly incarcerated persons have
made such arguments. This Essay simply takes no position on these analogies and
comparisons. Nor does this Essay address whether the treatment of enslaved
persons may in some case amount to slave-like conditions, such as through the
use of prison labor. See, e.g., Michele Goodwin, The Thirteenth Amendment:
Modern Slavery, Capitalism, and Mass Incarceration, 104 CORNELL L. REV. 899
(2019).
12
As is well known, America’s system of mass incarceration is highly
racialized. See, e.g., The Sentencing Project, The Color of Justice: Racial and
Ethnic Disparity in State Prisons (2016),
https://www.sentencingproject.org/publications/color-of-justice-racial-andethnic-disparity-in-state-prisons/ (June 14, 2016) (noting, inter alia, that as of
2016, African-Americans were incarcerated in state prisons at 5.1 times the rate
of whites on average, and in five states, at ten times the rate of whites); NAACP
Criminal Justice Fact Sheet, https://naacp.org/resources/criminal-justice-factsheet (stating that “56% of the US incarcerated population [is] represented
by African Americans and Hispanics,” although they comprise only 32%
of the total U.S. population); Katie Mettler, States Imprison Black People at
Five Times the Rate of Whites—A Sign of a Narrowing Yet Still-Wide Gap,
WASH. POST, Dec. 4, 2019, https://www.washingtonpost.com/crimelaw/2019/12/04/states-imprison-black-people-five-times-rate-whitessign-narrowing-yet-still-wide-gap/ (noting that among the federal prison
population, the black-to-white incarceration rate “fell from 8.4-to-1 to 7-to-1
between 2001 and 2017, and the ratio between white and Hispanic people
decreased from 7.3-to-1 to 4.6-to-1,” nonetheless remaining at very high levels
of disparity).
13
O’Hear, Sixteen Years of the PLRA and AEDPA, supra note 3, at 223.

This preprint research paper has not been peer reviewed. Electronic copy available at: https://ssrn.com/abstract=3952109

Outsider Speech

Vol. __:__

iew
ed

Page 4

pe

er
r

ev

persons’14 access to the courts by, inter alia: requiring the payment
of court filing fees even in cases brought by indigent persons;15
imposing a new limitations period of one year for habeas corpus
claims;16 strictly limiting the filing of multiple habeas petitions;17
imposing new statutory limitations upon federal court habeas review
of state court decisions;18 and capping attorney’s fees in a manner
likely to diminish the willingness of counsel to represent
incarcerated persons and/or to affect the quality of representation by
those attorneys who do so.19 In addition to their instrumental effects
in making litigation by incarcerated persons more difficult, thereby
deterring such litigation (including litigation that may well be fully
meritorious), scholars have argued that these statutes also have the
effect—and perhaps the intent—of serving as an additional form of
punishment by demeaning and degrading the individual’s worth by
subjecting them to a different set of rules conveying their lesser
status as members of society. Under this view, the process is itself
punishment, amounting to “a separate but unequal system of court
access that applies only to prisoners.”20

It is notable that the PLRA’s restrictions apply “not only to persons who have
been convicted of crime, but also to pretrial detainees who have not yet been tried
and are presumed innocent.” Human Rights Watch, No Equal Justice, supra note
9.
15
O’Hear, Sixteen Years of the PLRA and AEDPA, supra note 3, at 224.
16
Id.
17
Id.
18
See 28 U.S.C. § 2254(d)(2) (providing that federal habeas review shall not be
granted unless the state court’s judgment was contrary to U.S. Supreme Court
decisions or is determined to have been an “unreasonable determination of the
facts in light of the evidence presented in the State court proceeding”).
19
Robert L. Tsai, Conceptualizing Constitutional Litigation as Anti-Government
Expression: A Speech-Centered Theory of Court Access, 51 AM. U. L. REV. 835,
890 (2002) [hereinafter Tsai, A Speech-Centered Theory of Court Access]
(arguing that, by restricting “the recovery of fees to no greater than 150 percent
of the hourly rate established for payment of court-appointed counsel,” and
capping any attorney’s fees at 150 percent of the judgment in those cases where
monetary damages are obtained, the PLRA “discourages attorneys from taking on
prisoners as clients, and creates disincentives to perform the work competently
when representation is undertaken”) (internal quotation marks and ellipsis
omitted).
20
David C. Fahti, The Prison Litigation Reform Act: A Threat to Civil Rights, 24
FED. SENT. R. 260, 260 (2012). Cf. MALCOLM M. FEELEY, THE PROCESS IS THE
PUNISHMENT: HANDLING CASES IN A LOWER CRIMINAL COURT (1979).

Pr

ep

rin

tn

ot

14

This preprint research paper has not been peer reviewed. Electronic copy available at: https://ssrn.com/abstract=3952109

Outsider Speech

Page 5

iew
ed

Vol. __:__

III.

Litigation as Expression

er
r

ev

The PLRA’s and AEDPA’s limits upon incarcerated persons
use of the courts may well have led to meritorious claims of serious
constitutional violations or personal injuries going unredressed.21
But even assuming for the sake of argument that all of the claims
disallowed, restricted, or otherwise burdened by these statutes
would have been unsuccessful (a highly unlikely scenario), this
Essay suggests that something has been lost nonetheless: namely,
the ability of incarcerated persons to be treated with equal worth and
dignity in seeking to utilize the courts to redress their perceived
grievances and to communicate those grievances to the government
and the public through the courts.22 The next section of this Essay
examines the literature regarding litigation as a form of expression.

pe

The American constitutional tradition values freedom of
expression for several independent reasons, two of which are
especially pertinent to adjudicative speech. The first relates to the
democratic process. In Justice Brandeis’s famous formulation:

ot

[The Framers] believed that freedom to think as you
will and to speak as you think are means
indispensable to the discovery and spread of political
truth; that without free speech and assembly
21

Pr

ep

rin

tn

See, e.g., Nancy King, Non-Capital Habeas Cases after Appellate Review: An
Empirical Analysis, 24 FED. SENT. R. 308 (2012) (analyzing a data set of 2,188
non-capital habeas cases in 2003 and 2004 and finding a 20% decrease in the rate
at which habeas review was granted as compared to the pre-AEDPA rate). To be
sure, the overall grant rate in raw numbers was very low both pre-AEDPA and
post-AEDPA during the period studied (1 percent versus 0.8%); further, there may
have been causes other than AEDPA that led to the decline. Whatever the effect
of AEDPA on habeas grant rates, however, it seems clear that prisoner litigation
overall has seen a sharp decline post-PLRA. See, e.g., Maggie Filler & Daniel
Greenfield, A Wrong Without a Right? Overcoming the Prison Litigation Reform
Act’s Physical Injury Requirement in Solitary Confinement Cases, 115 NW. U. L.
REV. 257, 258 (2020) (stating that “in the years since the PLRA was enacted,
prisoner lawsuits have slowed to a comparative trickle,” citing, inter alia, Margo
Schlanger, Inmate Litigation, 116 HARV. L. REV. 1555, 1694 (2003) (“The
[PLRA] has been highly successful in reducing litigation, triggering a forty-three
percent decline over five years, notwithstanding the simultaneous twenty-three
percent increase in the incarcerated population.”)).
22
To be clear, I am speaking here of claims that are colorable but would ultimately
be found unsuccessful on the merits, not claims that are legally frivolous.

This preprint research paper has not been peer reviewed. Electronic copy available at: https://ssrn.com/abstract=3952109

Outsider Speech

Vol. __:__

iew
ed

Page 6

discussion would be futile; that with them,
discussion affords ordinarily adequate protection
against the dissemination of noxious doctrine; 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.23

pe

er
r

ev

Adjudicative speech can relate to the democratic process in
several ways: among them, it can serve as a form of dissent against
the government;24 as a means to galvanize political change through
“persistent and persuasive appeals to the public consciousness”;25 as
a way to “focus the government’s attention on the claims of the
government when no other mechanism could”;26 and, in the case of
collective litigation, allowing like-minded persons to amplify their
voices through association, in a manner akin to a political party. 27
Indeed, the Supreme Court’s pre-PLRA jurisprudence explicitly
recognized that incarcerated persons’ adjudicative speech can be an
alternate form of participation in the political process, stating that
“[b]ecause a prisoner ordinarily is divested of the privilege to vote,
the right to file a court action might be said to be his remaining most
fundamental political right, [preservative] of all rights.”28

23

tn

ot

Freedom of expression is also valued as an aspect of the
individual’s dignity and autonomy. Protecting speech for its own
sake, separate from any instrumental value that it may have, “sees

Whitney v. California, 274 U.S. 357, 375 (1927).
Kathryn A. Sabbeth, Towards an Understanding of Litigation as Expression:
Lessons from Guantanamo, 44 U.C. DAVIS L. REV. 1487, 1525 (2011) [hereinafter
Sabbeth, Lessons from Guantanamo] (“courts [can] provide . . . an amplified
platform for attracting public attention for expressions of dissent against
government policies”).
25
Id., quoting Vincent Blasi, The Checking Value in First Amendment Theory, 3
A.B.A. FOUND. RES. J. 521, 550 (1977) (internal quotation marks omitted).
26
Tsai, A Speech-Centered Theory of Court Access, supra note 19, at 853–54
(quoting Gregory A. Mark, The Vestigial Constitution: The History and
Significance of the Right to Petition, 66 FORDHAM L. REV. 2153, 2157 (1998)
(internal quotation marks omitted).
27
See NAACP v. Button, 371 U.S. 415 (1963). Button is discussed in greater
detail below.
28
McCarthy v. Madigan, 503 U.S. 140, 153 (1992). McCarthy was superseded by
the PLRA.

Pr

ep

rin

24

This preprint research paper has not been peer reviewed. Electronic copy available at: https://ssrn.com/abstract=3952109

Outsider Speech

Page 7

iew
ed

Vol. __:__

er
r

ev

expression as intrinsically important”29 to all persons, and especially
to persons belonging to subordinated groups whose voices tend to
be undervalued. This view was noted in Justice Marshall’s
concurrence in Procunier v. Martinez.30 Procunier involved a First
Amendment challenge to a prison policy that incarcerated persons’
incoming and outgoing mail would be screened by prison staff for
prohibited content, such as letters in which a prisoner was deemed
to “‘unduly complain’ or ‘magnify grievances . . . ,’” or letters
deemed to be “contraband writings ‘expressing inflammatory
political, racial, religious or other views or beliefs . . . .’”31 In
deeming the policy unconstitutional, the majority opinion focused
on the First Amendment rights of non-incarcerated persons,
reasoning that:

ot

pe

[C]ensorship of prisoner mail works a consequential
restriction on the First and Fourteenth Amendments
rights of those who are not prisoners . . . . [T]he First
Amendment liberties of free citizens are implicated
in censorship of prisoner mail. We therefore turn for
guidance, not to cases involving questions of
“prisoners’ rights,” but to decisions of this Court
dealing with the general problem of incidental
restrictions on First Amendment liberties imposed in
furtherance of legitimate governmental activities.32

ep

rin

tn

The majority opinion therefore strongly indicated that it might have
viewed the issue differently were it framed in terms of the
incarcerated person’s rights. Justice Marshall, by contrast, writing
for himself and Justice Brennan, called for a different
understanding, one grounded in the dignity and autonomy of
incarcerated person themselves. Justice Marshall noted that
“[a]lthough the issue of the First Amendment rights of inmates is
explicitly reserved by the Court, I would reach that issue and hold
that prison authorities may not read inmate mail as a matter of
course.”33

29

ERWIN CHEMERINSKY, CONSTITUTIONAL LAW 1183 (6th ed. 2020).
416 U.S. 396 (1974), overruled by Thornburgh v. Abbott, 490 U.S. 401 (1989).
31
Id. at 399.
32
Id. at 409 (emphasis added).
33
Id. at 422 (Marshall, J., concurring).

Pr

30

This preprint research paper has not been peer reviewed. Electronic copy available at: https://ssrn.com/abstract=3952109

Outsider Speech

Justice Marshall reasoned that:

Vol. __:__

iew
ed

Page 8

er
r

ev

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. When the prison
gates slam behind an inmate, he does not lose his
human quality; his mind does not become closed to
ideas; his intellect does not cease to feed on a free
and open interchange of opinions; his yearning for
self-respect does not end; nor is his quest for selfrealization concluded. If anything, the needs for
identity and self-respect are more compelling in the
dehumanizing prison environment.34

pe

Justice Douglas joined in the operative portion of Justice Marshall’s
opinion, making three Justices who would have invalidated the
policy based upon the incarcerated person’s First Amendment
rights, grounded in the idea that the status of incarceration does not
remove the constitutional protections applicable to all other persons.

rin

tn

ot

If one accepts that the democratic self-governance and
dignity rationales for protecting freedom of expression apply to
incarcerated persons’ expressive activities, the question then
becomes whether the PLRA and AEDPA’s limitations on litigation
implicate free speech values. This Essay contends that they do. It is
generally recognized that litigation can have a significant expressive
component in addition to its instrumental value as a means of
resolving private disputes and for the vindicating public rights.

ep

The Supreme Court has long recognized that the First
Amendment embraces a “right to advocate” which, as a necessary
condition, includes a right to engage in “effective advocacy of both
public and private points of view.”35 In the realm of litigation
specifically, the Court has recognized that advocacy through
34

Id. at 427–28 (internal citations omitted).
NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 461, 460 (1958) (emphasis
added).

Pr

35

This preprint research paper has not been peer reviewed. Electronic copy available at: https://ssrn.com/abstract=3952109

Outsider Speech

Page 9

iew
ed

Vol. __:__

er
r

ev

litigation can serve as a means of expression protected by the First
Amendment. In NAACP v. Button,36 for example, the Court held that
Virginia’s broadened restrictions upon solicitation of clients for
legal services as applied to the NAACP violated the First
Amendment because it “infringe[d] the right of the NAACP and its
members and lawyers to associate for the purpose of assisting
persons who seek legal redress for infringements of their
constitutionally guaranteed and other rights.”37 Given the posture of
the case—i.e., restrictions upon lawyers’ expressive activities as
part of a collective entity like the NAACP—much of Button’s
reasoning focuses upon freedom of association and litigation. The
Court, however, also elaborated upon how litigation can have
expressive value generally:

tn

ot

pe

[A]bstract discussion is not the only species of
communication which the Constitution protects; the
First Amendment also protects vigorous
advocacy . . . . In the context of NAACP objectives,
litigation is not a technique of resolving private
differences; it is a means for achieving the lawful
objectives of equality of treatment . . . . It is thus a
form of political expression. Groups which find
themselves unable to achieve their objectives
through the ballot frequently turn to the courts . . . .
[U]nder the conditions of modern government,
litigation may well be the sole practicable avenue
open to a minority to petition for redress of
grievances.38

ep

rin

The NAACP’s litigation, the Court reasoned, “while serving to
vindicate the legal rights of members of the American Negro
community, at the same time and perhaps more importantly, makes
possible the distinctive contribution of a minority group to the ideas
and beliefs of our society.”39 Scholars have similarly recognized the

36

371 U.S. 415 (1963).
Id. at 428.
38
Id. at 431.
39
Id.

Pr

37

This preprint research paper has not been peer reviewed. Electronic copy available at: https://ssrn.com/abstract=3952109

Outsider Speech

Vol. __:__

iew
ed

Page 10

expressive component of litigation as being of equal (or even higher)
importance to its instrumental goals in certain contexts.40

er
r

ev

Some scholarly examinations have focused upon limitations
on litigation specifically through the lens of the First Amendment’s
Petition Clause,41 while others have examined such restrictions more
broadly via the Speech Clause or from the perspective of free speech
values generally. By the same token, some scholars and courts have
focused upon the expressive component of litigation in terms of the
lawyer’s own free speech interest42 or the client’s interest by proxy;43
others directly upon the client’s interest;44 still others upon society’s
interest.45 While the doctrinal basis is subject to debate, it is widely
40

Pr

ep

rin

tn

ot

pe

See, e.g., Sabbeth, Lessons from Guantanamo, supra note 24, at 1507 (arguing
for a “a public law conception of litigation as an essential means of disseminating
a message to government actors and to larger society” in certain kinds of cases);
Lobel, Courts as Forums for Protest, supra note 7, at 477 (stating that “courts not
only function as adjudicators of private disputes, or institutions that implement
social reforms, but as arenas where political and social movements agitate for, and
communicate, their legal and political agenda”).
41
Compare Carol Rice Andrews, Motive Restrictions on Court Access: A First
Amendment Challenge, 61 OHIO ST. L.J. 665 (2000) [hereinafter Andrews, Motive
Restrictions] with Tsai, A Speech-Centered Theory of Court Access (the latter
arguing that “[t]heories of court access that are moored too tightly to the Petition
Clause . . . are unsatisfactory in that they are not based upon a foundation that
draws together other elements of the First Amendment. Under this admittedly
constricted view of the right of access, only rules that explicitly bar individuals
from lodging winning lawsuits or penalize individuals directly for doing so would
raise First Amendment problems.”).
42
See Sabbeth, Lessons from Guantanamo, supra note 24, at 1507 (noting that
“[t]he high water mark of protection for lawyers’ speech in support of litigation
with a political purpose was In re Primus, [which] identified First Amendment
protection for a lawyer separate and apart from any right held by a client”).
43
See, e.g., Legal Services Corp. v. Velazquez, 531 U.S. 533 (2001) (holding that
restrictions upon LSC-funded lawyers’ ability to challenge federal welfare law
violated the First Amendment and were not saved by the government speech
doctrine because “an LSC-funded attorney speaks on the behalf of the client in a
claim against the government for welfare benefits. The lawyer is not the
government’s speaker.”).
44
See, e.g., Tsai, A Speech-Centered Theory of Court Access, supra note 19, at
841–42 (arguing that “[t]reating the pursue of redress as [a form of antigovernment] dissent marks its role as the gateway to the political-legal order by
linking familiar, time-honored free speech concepts with a rich understanding of
the civil rights plaintiff’s role in constitutional discourse”).
45
See, e.g., Andrews, Motive Restrictions, supra note 41, at 768 (stating that “[t]he
First Amendment protects petitions for the further reason that they inform the
government and thus create the potential for advancement of the law and cure of

This preprint research paper has not been peer reviewed. Electronic copy available at: https://ssrn.com/abstract=3952109

Outsider Speech

Page 11

iew
ed

Vol. __:__

accepted that litigation can have a substantial expressive
component.

IV.

er
r

ev

The PLRA’s and AEDPA’s limitations upon such
expression in cases brought by incarcerated persons therefore raised
issues under the First Amendment; they also raise issues under the
Equal Protection Clause since those statutes create a classification
between persons who are incarcerated and those who are not. This
Essay, however, does not engage in a detailed First Amendment or
equal protection doctrinal analysis. Rather, this Essay brings the
insights of free speech and equal protection theory as well as the
history of similar restrictions upon adjudicative expression during
the slave regime to bear in analyzing the PLRA and AEDPA.
History’s Echoes: Enslaved Persons’ Adjudicative Speech

tn

ot

pe

The history of American slavery suggests that great concern
is warranted whenever we see legal rules that categorically limit
outcast groups’ access to and use of the judicial system. Slavery was
characterized by the “civil death” of those subject to it—and in many
states, also of free blacks—whereby a single trait (i.e., blackness)
defined “one’s status before the law for all time, with no possibility
of redemption as a member of civil society.”46 As Orlando Patterson
noted in his seminal book Slavery and Social Death,47 among the
key distinguishing features of American slavery as relevant here
were procedural and substantive legal rules excluding enslaved
person from invoking the judicial system, thereby leaving them at
the mercy of their enslavers.48 The American Slave Codes
“permit[ed] and immuniz[ed] from prosecution or civil recourse the
[slaveowners’] violence and coercion necessary to compel [forced

Pr

ep

rin

societal problems. These aims are achieved by the filing of a winning claim, no
matter what the plaintiff thinks. Indeed, society might be deprived of important
changes if the right to go to court were limited by the plaintiff’s motive.”).
46
William M. Carter, Jr., Class as Caste: The Thirteenth Amendment’s
Applicability to Class-Based Subordination, 39 SEATTLE L. REV. 813, 826 (2016)
[hereinafter Carter, Class as Caste].
47
See generally ORLANDO PATTERSON, SLAVERY AND SOCIAL DEATH: A
COMPARATIVE STUDY (1982).
48
The generally accepted baseline in the slave states was that “the slave was
outside the protection of the common law.” Thomas D. Morris, Slaves and the
Rules of Evidence in Criminal Trials, 68 CHI.-KENT L. REV. 1209, 1209 (1993)
[hereinafter Morris, Slaves and the Rules of Evidence].

This preprint research paper has not been peer reviewed. Electronic copy available at: https://ssrn.com/abstract=3952109

Outsider Speech

Vol. __:__

iew
ed

Page 12

labor]”;49 prohibited slaves (and often also free blacks) from forming
binding judicially-enforceable contracts;50 and barred slaves from
testifying in court against white persons.51 These provisions served
to control enslaved persons by limiting their ability to assert claims
of freedom or to demand other legal redress, but they also served the
expressive purposes of inflicting terror and denoting enslaved
persons’ lesser status as outcasts from civil society.52

ev

The Slave Codes also specifically targeted “blacks’ freedom
of speech and speech about black freedom”:53

er
r

Provisions of various states’ slave codes expressly
targeted freedom of speech. Mississippi’s Slave
Code, for example, authorized a sentence ranging
from imprisonment at hard labor for up to twentyone years to the death penalty upon conviction of
49

Carter, Class as Caste, supra note 46, at 817.
William M. Carter, Jr., A Thirteenth Amendment Framework for Combating
Racial Profiling, 39 HARV. C.R.-C.L. L. REV. 17, 51 (2004) (quoting Senator
Lyman Trumbull’s statement during the congressional Reconstruction debates
that “[w]hen slavery was abolished, slave codes in its support were abolished also.
Those laws that prevented the colored man from going from home, that did not
allow him to buy or to sell, or to make contracts; that did not allow him to own
property; that did not allow him to enforce rights; that did not allow him to be
educated, were all badges of servitude made in the interest of slavery and as a part
of slavery.”) (emphasis added).
51
Morris, Slaves and the Rules of Evidence, supra note 48, at 1209 (noting that,
under the Slave Codes, “slaves could not testify against whites”) (but also noting
that the evidentiary rules became more nuanced during later phases of the slave
regime).
52
Carter, Class as Caste, supra note 46, at 817–18 (arguing that the denial of “[a]s
slavery became fully entrenched . . . , the panoply of laws and customs [under the
Slave Codes] continued to serve their original instrumental purposes, [but] they
also served the expressive purpose of dehumanizing slaves (and by extension, all
blacks) as completely undeserving of either civil rights or moral empathy”). Cf.
Brown v. Bd. of Education, 347 U.S. 483, 494 (1954) (stating that “[t]he impact
of [school segregation] is greater when it has the sanction of the law; for the policy
of separating the races is usually interpreted as denoting the inferiority of the
negro group”) (internal quotation marks omitted); Cass R. Sunstein, On the
Expressive Function of Law, 144 U. PA. L. REV. 2021, 2051 (1996) (“There can
be no doubt that law, like action in general, has an expressive function. . . . Many
debates over the appropriate content of law are really debates over the statement
that law makes, independent of its (direct) consequences.”).
53
William M. Carter, Jr., The Second Founding and the First Amendment, 99 TEX.
L. REV. 1065, 1084 (2021) [hereinafter Carter, The Second Founding].

Pr

ep

rin

tn

ot

pe

50

This preprint research paper has not been peer reviewed. Electronic copy available at: https://ssrn.com/abstract=3952109

Outsider Speech

Page 13

iew
ed

Vol. __:__

‘using language having a tendency to promote
discontent among free colored people or
insubordination among slaves.’54

er
r

ev

Similar examples abound. North Carolina, for example, in 1830
adopted an act “suppressing expression with a tendency to cause
slaves to rebel. [In] 1836, Virginia passed a comprehensive act
aimed at antislavery agitation.”55 In Kansas, “[t]he proslavery
government of the territory enacted a slave code[,] [which] made
expressing antislavery opinions a crime . . . .”56 Indeed, “with the
exception of Kentucky, every Southern state eventually passed laws
exercising loose to rigid control of speech, press, and discussion.”57

rin

tn

ot

pe

In addition to suppressing traditional forms of verbal,
written, and associative expression, the states’ Slave Codes and the
federal Fugitive Slave Acts specifically limited slaves’ adjudicative
expression in terms of access to or use of the courts. The slave states’
rules of evidence in criminal cases either excluded the testimony of
slaves entirely in cases involving whites or otherwise discounted or
limited it.58 In Mississippi, for example, although enslaved persons’
testimony was inadmissible in cases against whites, the state’s rules
of evidence provided that “any negro or mulatto, bond or free, shall
be a good witness in pleas of the state, for or against negroes or
mulattoes, bond or free, or in civil pleas where free negroes or
mulattoes shall alone be parties, and in no other cases whatever.”59
Similarly, in Pennsylvania during the colonial era, because of a
special judicial system of “Negro courts” separate from the regular
courts, “[o]ne can surmise that after 1700 blacks could not be
witnesses against whites in the regular courts, since this right was

54

Id.
Michael Kent Curtis, Free Speech, Slavery, and Some Light on the Meaning of
the First Section of the Fourteenth Amendment, 68 CHI.-KENT L. REV. 1113, 1133
(1992) [hereinafter Curtis, Free Speech, Slavery].
56
Id. at 1129.
57
RUSSEL B. NYE, FETTERED FREEDOM: CIVIL LIBERTIES AND THE SLAVERY
CONTROVERSY 1830–1860, at 140 (Michigan State College Press 1949).
58
Morris, Slaves and the Rules of Evidence, supra note 48, at 1209 (noting that
“in the American South[,] [t]he wholesale exclusion [of slaves’ testimony against
whites] remained in force to the end of slavery”).
59
Id. at 1210.

Pr

ep

55

This preprint research paper has not been peer reviewed. Electronic copy available at: https://ssrn.com/abstract=3952109

Outsider Speech

Vol. __:__

iew
ed

Page 14

not affirmatively given to free blacks until 1780 and to slaves until
1847.”60

ev

The federal Fugitive Slave Acts also operated to limit
adjudicative expression by alleged slaves. In Frederick Douglas’s
speech commonly known as What to the Slave is the Fourth of
July?,61 Douglas described how the Fugitive Slave Act expressly
silenced the adjudicative speech of the person claimed to be a slave
while privileging the adjudicative speech of the putative
slaveowner. Douglas noted that under the Act:

pe

er
r

The oath of any two villains is sufficient . . . to send
the most pious and exemplary black man into the
remorseless jaws of slavery! His own testimony is
nothing. He can bring no witnesses for himself. The
minister of American justice is bound by the law to
hear but one side; and that side is the side of the
oppressor.62

tn

ot

Douglas was speaking specifically of the Fugitive Slave Act of
1850, which expressly provided that “[i]n no trial or hearing under
this act shall the testimony of [the] alleged fugitive [slave] be
admitted in evidence,”63 whereas any legally “satisfactory proof”64
by the alleged slaveowner sufficed for the court to decide the claim
summarily in his favor. Similar concerns pertained to the Fugitive
Slave Act of 1793. Unlike the 1850 Act, the 1793 Act did not
specifically bar the testimony of the person alleged to be a slave.
However:

rin

[While] [t]he terms of the Act did not prohibit the
judicial official from either conducting a hearing if
the fugitive lodged a competing claim of freedom or
[from] taking the testimony of the captured person on
such a claim[,] [t]here was no explicit provision in

60

Pr

ep

A. LEON HIGGINBOTHAM, JR., IN THE MATTER OF COLOR: RACE AND THE
AMERICAN LEGAL PROCESS: THE COLONIAL PERIOD 282 (1978).
61
Frederick Douglas, The Meaning of July Fourth for the Negro (1852),
https://masshumanities.org/wp-content/uploads/2019/10/speech_complete.pdf.
62
Id. at 11.
63
Fugitive Slave Act of 1850 § 6,
https://www.loc.gov/resource/rbpe.33700200/?st=text.
64
Id.

This preprint research paper has not been peer reviewed. Electronic copy available at: https://ssrn.com/abstract=3952109

Outsider Speech

Page 15

iew
ed

Vol. __:__

the Act [encouraging] the official to do either. Nor
did the Act contain any other procedural protections
for an alleged runaway who disputed the validity of
the claim. Thus, the Act appeared to provide no more
than a summary ministerial proceeding . . . .65

er
r

ev

If the claimant was able, by oral testimony or
affidavit, to satisfy the judge or justice of the peace
that the seized person was the claimant’s slave, then
the official [granted a] certificate authorizing the
claimant to remove the person from the state. The
certificate served as conclusive proof against any
claim to freedom by the captured person.

65

tn

ot

pe

The Fugitive Slave Acts’ disallowance (in the 1850 Act) or
disregard (in the 1793 Act) of testimony by persons arguing they
were unlawfully detained as alleged slaves rings hauntingly close to
AEDPA’s restrictions upon the habeas claims of incarcerated
persons seeking to establish their entitlement to freedom from
incarceration. Both scenarios entail distortions of the adjudicative
process by truncating exploration on the merits of the detainee’s
claims and utilizing substantive standards tilted heavily against the
detainee.66 There are, of course, many important differences
between AEDPA and the Fugitive Slave Acts. Most importantly:
under AEDPA, unlike under the Fugitive Slave Acts, an initial
adjudication of the person’s status through the regular criminal
process with full procedural due process protections precedes the
Barbara Holden-Smith, Lords of Lash, Loom, and Law: Justice Story, Slavery,
and Prigg v. Pennsylvania, 78 CORNELL L. REV. 1086, 1118–19 (1993).
66
See 28 U.S.C. § 2254(d)(2), providing that:

Pr

ep

rin

An application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall not be
granted with respect to any claim that was adjudicated on the
merits in State court proceedings unless the adjudication of the
claim—
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding.

This preprint research paper has not been peer reviewed. Electronic copy available at: https://ssrn.com/abstract=3952109

Outsider Speech

Vol. __:__

iew
ed

Page 16

V.

pe

er
r

ev

determination of that status; and subsequent full review of the
legality of the detention remains available outside of the truncated
AEDPA framework, i.e., via state courts or (in theory) via an
original habeas action in the U.S. Supreme Court. This Section
therefore does not contend that AEDPA is analogous to the Fugitive
Slave Acts in terms of their details. This Essay does contend,
however, that AEDPA and the PLRA create a framework that
diminishes the ability of incarcerated persons’ ability to fully have
their claims heard due to their civil status, which historically has
been a signal that the law operates differently both because of and
in order to reinforce the group’s alienated and despised status.67 This
same self-reinforcing cycle—othering, civil alienation, lesser
substantive and procedural legal protections, which then contribute
to the group’s further othering and invisibility, which renders them
yet more distant from civil society and therefore presumed to be
entitled to lesser legal protections, etc.—operated with regard to
enslaved persons and operates today with regard to incarcerated
persons, a highly racialized population.68
A Doctrinal Detour: The PLRA and AEDPA Through a First
Amendment Lens

rin

tn

ot

This Essay has thus far examined PLRA and AEDPA’s
limitations on incarcerated persons’ adjudicative speech as a matter
of free speech and equal protection policy rather than doctrine. This
Section sketches the contours of a First Amendment challenge to
these limitations. It does so not to make the case that such a
challenge would necessarily be successful, but rather to illustrate
how such limitations would be assessed but for the fact that they
involve incarcerated persons’ rights—and by implication, to
illustrate how little our legal system values incarcerated persons’
rights.

ep

Under traditional First Amendment doctrine, various
provisions of the PLRA and AEDPA would amount to content,

Pr

67

See, e.g., Morris, Slaves and the Rules of Evidence, supra note 48, at 1239
(arguing that during slavery, “[r]ules of evidence—rules fashioned to control
juries and lawyers—were also constructed to assure the property interests of
slave-owners, and the domination of whites over blacks”).
68
See supra note ___ and accompanying text (discussing the racial disparities in
mass incarceration).

This preprint research paper has not been peer reviewed. Electronic copy available at: https://ssrn.com/abstract=3952109

Outsider Speech

Page 17

iew
ed

Vol. __:__

viewpoint, and speaker-based restrictions on expression. As such, if
applied outside of the context of incarceration, they would be
presumptively unconstitutional.
1.

Content-based restrictions on expression

er
r

ev

Under the First Amendment, the government “has no power
to restrict expression because of its message, its ideas, its subject
matter, or its content”69 unless the government’s action satisfies
strict scrutiny. A law is content based, and therefore presumptively
unconstitutional, if it “applies to particular speech because of the
topic discussed or the idea or message expressed.”70 Content based
restrictions of expression strike at the heart of First Amendment
values:

ot

pe

Government action that stifles speech on account of
its message, or that requires the utterance of a
particular message favored by the Government,
contravenes [the] essential [First Amendment] right.
[Content based laws] pose the inherent risk that the
Government seeks not to advance a legitimate
regulatory goal, but to suppress unpopular ideas or
information or manipulate the public debate through
coercion rather than persuasion.71

rin

tn

Content based laws are therefore highly suspect, regardless of
whether the government professes neutral or even benign purposes.
“Innocent motives do not eliminate the danger of censorship
presented by a facially content-based statute, as future government
officials may one day wield such statutes to suppress disfavored
speech . . . . The vice of content-based legislation is not that it is
69

Pr

ep

Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015). See also R.A.V. v. St. Paul,
505 U.S. 377, 382 (1992) (“The First Amendment generally prevents government
from proscribing speech or even expressive conduct because of disapproval of the
ideas expressed. Content-based regulations are presumptively invalid.”) (internal
citations omitted).
70
Reed, 576 U.S. at 163. Reed held that a law will be deemed content based if it
either: (1) is content based on its face; or (2) “cannot be justified without reference
to the content of the regulated speech or [was] adopted by the government because
of disagreement with the message the speech conveys.” Id. at 163–64 (internal
citations omitted).
71
Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 641 (1994).

This preprint research paper has not been peer reviewed. Electronic copy available at: https://ssrn.com/abstract=3952109

Outsider Speech

Vol. __:__

iew
ed

Page 18

always used for invidious, thought-control purposes, but that it lends
itself to use for those purposes.”72

72
73

pe

er
r

ev

By these definitions, several provisions of the PLRA and
AEDPA would qualify as content-based restrictions on adjudicative
expression and therefore be subject to strict scrutiny (if traditional
First Amendment standards were applied). First, AEDPA’s
prohibition of the filing of “second or successive” habeas claims,
subject to only a few very strict statutory exceptions,73 is a contentbased restriction. As noted above, a speech restriction is content
based if it “applies to particular speech because of the topic
discussed or the idea or message expressed.”74 This provision of
AEDPA is content based on its face because it “defin[es] regulated
speech by particular subject matter,” i.e., whether it is a second or
successive habeas claim, in contrast with a second or successive
non-habeas claim. Under the same reasoning, the PLRA’s physical
injury requirement, which bars suits for emotional or mental harm
(or, at least bars compensatory damages for such) while in custody
absent a prior showing of physical injury,75 also operates as a

Reed, 576 U.S. at 167.
See 28 U.S.C. § 2244(b)(2):

ot

A claim presented in a second or successive habeas corpus
application under section 2254 that was not presented in a prior
application shall be dismissed unless:

tn

(A) the applicant shows that the claim relies on a new rule of
constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously unavailable;
or
(B)

ep

rin

(i) the factual predicate for the claim could not have been
discovered previously through the exercise of due diligence;
and
(ii) the facts underlying the claim, if proven and viewed in light
of the evidence as a whole, would be sufficient to establish by
clear and convincing evidence that, but for constitutional error,
no reasonable factfinder would have found the applicant guilty
of the underlying offense.

74

Reed, 576 U.S. at 163.
42 U.S.C. § 1997e(e) provides that “[n]o Federal civil action may be brought
by a prisoner confined in a jail, prison, or other correctional facility, for mental or

Pr

75

This preprint research paper has not been peer reviewed. Electronic copy available at: https://ssrn.com/abstract=3952109

Outsider Speech

Page 19

iew
ed

Vol. __:__

content-based restriction on speech. Adjudicative speech containing
the subject matter that Congress has specified (i.e., a prior showing
of physical injury) is permitted, whereas adjudicative speech that is
the same in all relevant detail but for the absence of the prescribed
content would be prohibited.76

er
r

ev

Even assuming that these restrictions were not motivated by
animus against incarcerated persons as a class—a dubious
assumption, given (a) the historic American conflation of race,
crime, fear, and the resulting subordination of people of color77 and
(b) the legislative history of the PLRA and AEDPA78—the Supreme
Court’s more recent First Amendment case would nonetheless
classify them as content based. The Court has made clear that a
neutral or benign underlying governmental purpose does not render
a facially content-based law content neutral:

Pr

ep

rin

tn

ot

pe

emotional injury suffered while in custody without a prior showing of physical
injury or the commission of a sexual act . . . .”
76
This provision of the PLRA is not the run-of-the-mill scenario where Congress
creates a cause of action and then specifies the elements of that cause of action
necessary to state a claim. This provision does not create a cause of action; rather,
it limits the ability to assert a cause of action arising from another source—
whether state tort law, other federal statutory law, or federal constitutional law—
based upon whether it contains content specified by the government. It would be
as if Congress passed a statute prohibiting federal court jurisdiction over
unreasonable searches and seizures unless the Fourth Amendment claim states
that the allegedly illegal search or seizure was preceded or accomplished by
physical harm.
77
See, e.g., Paul Finkelman, The Crime of Color, 67 TUL. L. REV. 2063, 2093
(1993) (“In colonial and early national America color became associated with
inherently criminal behavior in almost every area of law. Following Virginia’s
lead, most of the British mainland colonies began to create a legal system that
made race a prima facie indication of criminality.”); WINTHROP D. JORDAN,
WHITE OVER BLACK: AMERICAN ATTITUDES TOWARD THE NEGRO, 1550–1812,
at 109–10 (W.W. Norton & Co. 1977) (noting that the preamble to the South
Carolina Slave Code specifically sought to justify the slave code as necessary to
“tend[ing] to the safety and security of the [white] people of this Province and
their estates”).
78
See, e.g., Herman, Prison Reform, supra note 8, at 263 (stating that “[b]ecause
the PLRA found its way into law as a rider to an appropriations bill, Congress did
not hold full hearings to examine the truth about the causes, successes, and
challenges of prison litigation. Instead, the legislative debate was fueled by
anecdote, focusing on a few hand-picked cases mockingly described by four state
Attorneys General in a New York Times letter to the editor.”).

This preprint research paper has not been peer reviewed. Electronic copy available at: https://ssrn.com/abstract=3952109

Outsider Speech

Vol. __:__

iew
ed

Page 20

ev

A law that is content based on its face is subject to
strict scrutiny regardless of the government’s benign
motive, content-neutral justification, or lack of
animus toward the ideas contained in the regulated
speech. We have thus made clear that illicit
legislative intent is not the sine qua non of a violation
of the First Amendment, and a party opposing the
government need adduce no evidence of an improper
censorial motive . . . . In other words, an innocuous
justification cannot transform a facially contentbased law into one that is content neutral.79

2.

pe

er
r

Hence, whether these provisions were adopted by Congress to
discourage frivolous litigation, streamline court dockets,80 or
accomplish other purposes is immaterial: their facially differential
treatment of certain adjudicative expression based upon its subject
matter would, under traditional First Amendment principles, be
deemed a content-based restriction subject to strict scrutiny.
Viewpoint-based restrictions on expression

79

ot

First Amendment jurisprudence has long considered
viewpoint discrimination to be one of the most pernicious violations
of freedom of expression. Indeed, viewpoint discrimination is at
least de facto subject to a standard of judicial skepticism even higher
than strict scrutiny.81 The Supreme Court has characterized

Pr

ep

rin

tn

Reed, 576 U.S. at 165–66.
Discouraging truly frivolous litigation and even managing the flow of prima
facie legitimate litigation to ensure that our court system and individual judges do
not become overwhelmed are certain important and worthy goals. As to the
former: frivolity can be screened for and dealt with in individual cases without
placing wholesale limits on categories of litigation. As to the latter: “One sensible
way to go about reducing the volume of prison litigation would be to reform the
prisons, giving prisoners less to complain about . . . . The number of non-frivolous
complaints could be reduced if the states were to ensure that prison conditions
were minimally humane instead of waiting to be sued.” Herman, Prison Reform,
supra note 8, at 263.
81
See Elena Kagan, Private Speech, Public Purpose: The Role of Governmental
Motive in First Amendment Doctrine, 63 U. CHI. L. REV. 413, 444 (1996)
(reviewing cases and explaining that “the [Supreme] Court often differentiates
between viewpoint-based restrictions and all other content-based restrictions . . . .
It is not so much that the Court formally uses two different standards for subject
matter and viewpoint regulation [but that in practice,] the Court almost always
80

This preprint research paper has not been peer reviewed. Electronic copy available at: https://ssrn.com/abstract=3952109

Outsider Speech

Page 21

iew
ed

Vol. __:__

er
r

ev

governmental suppression of or favoritism toward speech because
of its viewpoint as an especially “egregious form of content
discrimination.”82 Viewpoint discrimination is considered
particularly offensive to free speech values because “[t]he First
Amendment is concerned not only with the extent to which a law
reduces the total quantity of communication, but also—and perhaps
even more fundamentally—with the extent to which the law distorts
public debate.”83 Speech restrictions that are based upon the
speaker’s point of view distort public debate because they reduce
the amount of information available to the public regarding only one
side of a given public debate and therefore interfere with “the
thinking process of the community.”84

tn

ot

pe

Scholars have conceptualized constitutional litigation as a
form of anti-government expression. “[T]he act of suing a branch of
government or public official in court is an explicit, often multifaceted, challenge to the authority of the defendant-government in
the name of the public interest . . . . Whether a lawsuit demands
monetary damages or equitable relief, every civil rights plaintiff
seeks a formal, enforceable declaration that certain government
enactments, policies, or practices exceed the government’s lawful
authority.”85 Courts too have recognized litigation as a form of
dissent and protest.86 Under this view, litigation by incarcerated
persons challenging the legality or conditions of their detention
amount to speech expressing an anti-government viewpoint because
they argue in essence that the government lacks power over them at
all (contrary to the government’s position, as expressed by the act of
incarceration, that their detention is lawful) or that the government’s

Pr

ep

rin

rigorously reviews and then [simply] invalidates regulations based on viewpoint
[rather than applying strict scrutiny].”).
82
Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 829 (1995).
See also R.A.V. v. St. Paul, 505 U.S. at 392 (stating that “[the government] has
no such authority to license one side of a debate to fight freestyle, while requiring
the other to follow Marquis of Queensberry rules”).
83
Geoffrey R. Stone, Content Regulation and the First Amendment, 25 WM. &
MARY L. REV. 189, 199 (1983).
84
Id. (internal quotation marks omitted), quoting ALEXANDER MEIKLEJOHN, FREE
SPEECH AND ITS RELATION TO SELF-GOVERNMENT 25 (1948).
85
Tsai, A Speech-Centered Theory of Court Access, supra note 19, at 871.
86
See, e.g., Sabbeth, Lessons from Guantanamo, supra note 24, at 1508
(characterizing the Supreme Court’s decision in In re Primus, 436 U.S. 412 (1978)
as “embrac[ing] the notion of litigation as a mode of political expression and,
more specifically, as a particularly valuable means of voicing political dissent”).

This preprint research paper has not been peer reviewed. Electronic copy available at: https://ssrn.com/abstract=3952109

Outsider Speech

Vol. __:__

iew
ed

Page 22

er
r

ev

treatment of them is unlawful (contrary to the government’s
position, as evidenced by its act of allowing government officials to
engage in the treatment). Under this view, then, the PLRA’s and
AEDPA’s restrictions upon incarcerated persons’ anti-government
adjudicative expression seeking their freedom or raising claims
about their conditions of confinement would be classified as
viewpoint discrimination. These forms of adjudicative expression
are subject to greater restrictions and less favorable treatment than
other forms of adjudicative expression by incarcerated persons that
are pro-government in their viewpoints: e.g., written plea
agreements, in-court guilty pleas and allocutions, confessions
(whether written and submitted to the court or made orally in court),
etc.

Speaker-based restrictions on expression

tn

3.

ot

pe

If traditional First Amendment doctrine were applied to the
PLRA’s and AEDPA’s restrictions on incarcerated persons
adjudicative speech, the venues for such speech (i.e., courts) would
likely be classified as limited public forums.87 Although content
discrimination in a limited public forum in the sense of constraining
the forum to its originally intended purpose and/or audience is
permissible,88 viewpoint discrimination in such a forum is not. Even
in a limited public forum, “[t]he State’s power to restrict speech [is]
not without limits. The restriction must not discriminate against
speech on the basis of viewpoint and the restriction must be
reasonable in light of the purpose served by the forum.”89

rin

By singling out a class of potential speakers (here,
incarcerated persons) for restrictions upon their speech, the PLRA’s
and AEDPA’s limitations on adjudicative expression would, if
applied in any other context, also likely be classified as speakerbased restrictions under the Supreme Court’s most recent First
Amendment cases. Speaker-based laws, like content-based laws, are
87

Pr

ep

A limited public forum is a venue for expression that the government has
created “for a limited purpose such as use by certain groups or for the discussion
of certain subjects.” Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S.
37, 46 n.7 (1983).
88
Good News Club v. Milford Central School, 533 U.S. 98, 106 (2001) (stating
that “[w]hen the State establishes a limited public forum, the State is not required
to and does not allow persons to engage in every type of speech”).
89
Id. at 106–07 (internal citations and quotation marks omitted).

This preprint research paper has not been peer reviewed. Electronic copy available at: https://ssrn.com/abstract=3952109

Outsider Speech

Page 23

iew
ed

Vol. __:__

ev

subject to strict scrutiny because “[s]peaker-based laws run the risk
that the State has left unburdened those speakers whose messages
are in accord with [the State’s] own views.”90 The Court has
therefore made clear that its precedents are “deeply skeptical” of
speaker-based restrictions on speech.91 In Citizens United v. FEC,92
for example, the Court reasoned that restrictions upon electioneering
speech applicable only to certain speakers (i.e., corporations and
unions) violated the First Amendment. In addition to finding the
restrictions to be impermissibly content based, the Court also found
that the speaker-based nature of the restrictions independently
rendered them unconstitutional.93

ot

pe

er
r

In Sorrell v. IMS Health,94 the Supreme Court similarly
found a speaker-based restriction on speech to be unconstitutional.
Sorrell involved a state law prohibiting various persons and entities
from selling, using, or disclosing pharmacy records containing
information about doctors’ prescribing practices. The law further
provided that “[p]harmaceutical manufacturers and pharmaceutical
marketers shall not use prescriber-identifiable information for
marketing or promoting a prescription drug unless the prescriber
consents.”95 The Court found that “[t]he statute thus disfavors
marketing, that is, speech with a particular content. More than that,
the statute disfavors specific speakers, namely pharmaceutical
manufacturers.”96 The Court therefore applied heightened scrutiny
90

Pr

ep

rin

tn

National Institute of Family and Life Advocates (“NIFLA”) v. Becerra, 138 S.
Ct. 2361, 2378 (2018) (internal quotation marks omitted). See also Citizens
United v. Federal Election Comm’n, 558 U.S. 310, 340 (2010) (holding that the
First Amendment prohibits “restrictions distinguishing among different speakers,
allowing speech by some but not others. As instruments to censor, these categories
are interrelated: Speech restrictions based on the identity of the speaker are all too
often simply a means to control content”); Sorrell v. IMS Health, Inc., 564 U.S.
552, 565 (2011) (holding that “strict scrutiny applies to regulations reflecting
aversion to what disfavored speakers have to say”) (internal quotation marks
omitted).
91
Becerra, 138 S. Ct. at 2378.
92
558 U.S. 310 (2010).
93
Citizens United, 558 U.S. at 340 (stating that “[q]uite apart from the purpose
or effect of regulating content, moreover, the Government may commit a
constitutional wrong when by law it identifies certain preferred speakers”)
(emphasis added).
94
564 U.S. 552 (2011).
95
Id. at 559.
96
Id. at 564.

This preprint research paper has not been peer reviewed. Electronic copy available at: https://ssrn.com/abstract=3952109

Outsider Speech

Vol. __:__

iew
ed

Page 24

to the restrictions and found that they failed to satisfy the heavy
burden entailed.

pe

er
r

ev

Most recently, the Supreme Court in NIFLA v. Becerra,97
also found a speaker-based restriction to be unconstitutional. NIFLA
involved a California law mandating that pro-life pregnancy
counseling centers provide certain notices to their clientele,
including whether they were licensed by the state. The state’s
proffered justification was to avoid the risk of clients being misled
regarding or confused about whether such facilities were licensed
by the state. The Supreme Court found that this notice provision
amounted to “a government-scripted, speaker-based disclosure
requirement,”98 because the provision by its terms only applied to
those facilities that “primarily provide[d] ‘pregnancy-related’
services. Thus, a facility that advertises and provides pregnancy
tests is covered by the [notice requirement], but a facility across the
street that advertises and provides nonprescription contraceptives is
excluded—even though the latter is no less likely to make women
think it is licensed.” Hence, there being no relevant difference in the
Court’s view between the different classes of speakers, the provision
burdening the speech of only one class of speakers raised the specter
that the state chose to disadvantage those speakers because it
disliked their message.

rin

tn

ot

To be clear: there is much to criticize in Citizens United,
Sorrell, and NIFLA. Given that those cases are currently settled law,
however, this Essay contends that their principles and reasoning
regarding speaker-based restrictions would apply—as a matter of
policy if not strict doctrine—with at least equal force to incarcerated
persons as a class as they do to corporations, unions, pharmaceutical
companies, or anti-abortion counseling centers as a class. The
underlying principle is the same: the government may not limit or
disadvantage the expression of a class of speakers absent a truly
compelling government interest that could be achieved in no other
manner.

ep

Even accepting that the PLRA’s and AEDPA’s restrictions
upon incarcerated persons’ adjudicative expression amount to
speaker-based restrictions under the cases discussed above, the

Pr

97
98

138 S. Ct. 2361 (2018).
Id. at 2377.

This preprint research paper has not been peer reviewed. Electronic copy available at: https://ssrn.com/abstract=3952109

Outsider Speech

Page 25

iew
ed

Vol. __:__

er
r

ev

Supreme Court’s reasoning in cases like Jones v. North Carolina
Prisoners’ Labor Union99 could be used as evidence that such
restrictions serve a government interest that is sufficiently weighty
to outweigh the incarcerated person’s speech interest. In Jones, the
Court rejected First Amendment and equal protection challenges to
a prison policy barring solicitation, meetings, and mailings to and
from prisoners in connection with union organizing. The Court
reasoned that the policy was valid because “[l]awful incarceration
brings about the necessary withdrawal or limitation of many
privileges and rights, a retraction justified by the considerations
underlying our penal system.”100 Hence, the Court reasoned, “[i]n a
prison context, an inmate does not retain those First Amendment
rights that are inconsistent with his status as a prisoner or with the
legitimate penological objectives of the corrections system,”101 and
that deference should be extended to prison officials in making such
determinations.

rin

tn

ot

pe

Even if one accepts the reasoning of Jones on its facts, it is
inapplicable to the PLRA’s and AEDPA’s restrictions upon
incarcerated persons’ adjudicative speech. Jones clearly holds that
an incarcerated person retains all of their First Amendment rights
except those that are inconsistent with a person’s status as a prisoner
or legitimate penological interests.102 As to the latter: unlike in
Jones, where the person’s status as a prisoner and penological
interests were found to inherently entail constraints upon gatherings
by incarcerated persons and monitoring their communications with
persons outside of the prison system, no such objective pertains to
the PLRA’s and AEDPA’s wholesale limitations upon incarcerated
persons’ adjudicative speech. While there is presumably some
interest of the government in limiting incarcerated persons’ ability
to challenge the legality of their detention or conditions of
confinement, a mere government interest in limiting challenges to
its authority cannot by itself be a legitimate (let alone compelling)

99

ep

433 U.S. 119 (1977).
433 U.S. 119, 125 (1977) (alteration in original).
101
Id. (internal quotation marks omitted).
102
Jones held that “challenges to prison restrictions that are asserted to inhibit
First Amendment interests must be analyzed in terms of the legitimate policies
and goals of the corrections system, to whose custody and care the prisoner has
been committed in accordance with due process of law.” Id.

Pr

100

This preprint research paper has not been peer reviewed. Electronic copy available at: https://ssrn.com/abstract=3952109

Outsider Speech

Vol. __:__

iew
ed

Page 26

ev

government interest for purposes of the First Amendment103 (or the
Due Process Clause, for that matter). And to the extent that Jones’s
language regarding the permissibility of restricting First
Amendment rights based upon the person’s mere “status as a
prisoner,” it clearly runs afoul of the Court’s cases holding that “if
the constitutional conception of ‘equal protection of the laws’ means
anything, it must at the very least mean that a bare congressional
desire to harm a politically unpopular group cannot constitute a
legitimate governmental interest.”104

VI.

Conclusion

pe

er
r

For the reasons explained above, if the provisions of the
PLRA and AEDPA restricting, burdening, or disallowing
incarcerated persons’ adjudicative speech were to be analyzed under
traditional First Amendment doctrine, it is likely they would be
found to be unconstitutional as content, viewpoint, and/or speakerbased restrictions on expression. But, of course, courts have not so
analyzed them, which returns to the main theme of this Essay: why
does our legal system accept these restrictions upon incarcerated
persons’ fundamental freedoms when they would be rejected in
nearly any other context?

ot

“Prison walls serve not merely to restrain offenders
but also to isolate them.”105

103

tn

—Procunier v. Martinez (Justice Thurgood Marshall,
concurring)

Pr

ep

rin

See, e.g., Tinker v. Des Moines Independent Community Sch. Dist., 393 U.S.
503, 509 (1969) (stating that “[i]n order for [school officials] to justify prohibition
of a particular expression of opinion, it must be able to show that its action was
caused by something more than a mere desire to avoid the discomfort and
unpleasantness that always accompany an unpopular viewpoint”).
104
U.S. Dept. of Agriculture v. Moreno, 413 U.S. 528, 534 (1973). See also
Romer v. Evans, 517 U.S. 620, 635 (1996) (citing Moreno and holding that a state
constitutional amendment prohibiting localities from enacting laws prohibiting
discrimination of the basis of sexual orientation was a “status-based enactment
divorced from any factual context from which we could discern a relationship to
legitimate state interests; it is a classification of persons undertaken for its own
sake, something the Equal Protection Clause does not permit”).
105
416 U.S. 396 (1974) (Marshall, J., concurring), overruled by Thornburgh v.
Abbott, 490 U.S. 401 (1989).

This preprint research paper has not been peer reviewed. Electronic copy available at: https://ssrn.com/abstract=3952109

Outsider Speech

Page 27

iew
ed

Vol. __:__

Pr

ep

rin

tn

ot

pe

er
r

ev

This Essay suggests that the most likely answer to the
question at the end of the preceding section is an unspoken truth: our
legal system accepts sui generis deprivations of incarcerated
persons’ fundamental rights because we do. The status of
incarceration in our society operates to create a “large, racialized,
near-permanent underclass unable to overcome its alienation from
civil society.”106 The PLRA’s and AEDPA’s burdening and
silencing of incarcerated persons’ legal claims is but one of many
depredations and denials of dignity that we are willing to tolerate
being inflicted upon “them” but would never tolerate being inflicted
upon us.

106

Carter, Class as Caste, supra note 46, at 826.

This preprint research paper has not been peer reviewed. Electronic copy available at: https://ssrn.com/abstract=3952109

iew
ed
ev
er
r
pe
ot
tn
rin
ep
Pr
This preprint research paper has not been peer reviewed. Electronic copy available at: https://ssrn.com/abstract=3952109