Akron Law Review
Volume 53
Issue 2 Nineteenth Amendment Issue

Article 1

2019

Suffragist Prisoners and the Importance of Protecting Prisoner
Protests
Nicole B. Godfrey

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Godfrey, Nicole B. (2019) "Suffragist Prisoners and the Importance of Protecting Prisoner Protests,"
Akron Law Review: Vol. 53 : Iss. 2 , Article 1.
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Godfrey: Suffragist Prisoners

SUFFRAGIST PRISONERS AND THE IMPORTANCE OF
PROTECTING PRISONER PROTESTS
Nicole B. Godfrey*

I.
II.

III.

IV.

V.

Introduction ............................................................... 280
The Silent Sentinels ................................................... 284
A. The Occoquan Workhouse in Virginia and the
District Jail .......................................................... 287
B. The Silent Sentinels’ In-Prison Protests ............. 289
C. Official Responses to the Suffragists’ Protests ... 293
The First Amendment and Prison .............................. 295
A. Turner v. Safley and Deference to Prison
Officials............................................................... 296
B. Criticisms of Turner’s Deference ....................... 300
Importance of Protecting Prisoner Protest ................. 303
A. First Amendment Values and the Silent Sentinels’
In-Prison Protest.................................................. 304
1. Checking Power and Promoting Democratic
Values ............................................................ 305
2. Expanding the Marketplace of Ideas ............. 307
3. Advancing
Individual
Identity
and
Autonomy ...................................................... 308
B. Modern Prisoner Protest ..................................... 309
Conclusion ................................................................. 311

279

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I. INTRODUCTION
For the last several years, criminal justice reform has been a pressing
political topic, and radical proposals to overhaul the criminal justice
system have gained traction. 1 Nearly all of the candidates in the crowded
2020 Democratic presidential primary field introduced comprehensive
proposals to curb (or even eliminate) mass incarceration. 2 The reasons for
this new-found political interest in dramatic criminal justice reform are
varied and complex, but we can be certain shifting public opinion on the
cause and consequences of mass incarceration played some part.3 But why
has the public’s view of mass incarceration so dramatically shifted?
Undoubtedly, public information campaigns and social justice
movements have provided the average American more information about
the historical and present-day realities of the American criminal justice
system. 4 Studies have found that the more information provided to the
average American citizen, the more likely they are to support reforms. 5
But despite this growing interest in criminal justice reform, prisons
remain “the black boxes of our society,” 6 leaving the public struggling to
understand what exactly goes on behind prison walls. Intrepid journalists
seeking to shed some light on what goes on behind the walls of the
thousands of prisons dotting the American landscape have published
important exposés in recent years, 7 but the voices of incarcerated persons
*Visiting Assistant Professor, University of Denver Sturm College of Law. Special thanks to Ciara
Anderson, J.D. ‘20, for her invaluable research assistance.
1. See, e.g., Timothy Williams & Thomas Kaplan, The Criminal Justice Debate Has Changed
Drastically. Here’s Why., N.Y. TIMES (Aug. 20, 2019), https://www.nytimes.com/2019/08/20/us/po
litics/criminal-justice-reform-sanders-warren.html [https://perma.cc/5KU8-BVB4].
2. Id.
3. Id.
4. Examples of such public information campaigns and movements include: Stop Solitary
Campaign, ACLU, https://www.aclu.org/other/stop-solitary-advocacy-campaign-tools [https://
perma.cc/69PT-ZHKT]; Prison Gerrymandering Project, PRISON POL’Y INITIATIVE,
https://www.prisonersofthecensus.org/, [https://perma.cc/HR7N-JT6A]; Prison Phone Justice, HUM.
RIGHTS DEFENSE CTR., http://www.prisonphonejustice.org [https://perma.cc/ED39-KCD2]; PRISON
POL’Y INITIATIVE, https://www.prisonpolicy.org/blog/2015/09/29/state-reform-phones/)
[https://perma.cc/FBE3-QGXU]; The State of Justice Reform 2018, VERA,
https://www.vera.org/state-of-justice-reform/2018/the-state-of-bail [https://perma.cc/N2SB-8EKE].
5. Memorandum from Danny Franklin & Benenson Strategy Group on Criminal Justice
System Survey Results to Interested Parties, (Nov. 13, 2017), https://www.aclu.org/report/smartjustice-campaign-polling-americans-attitudes-criminal-justice-topline-memo
[https://perma.cc/E57Z-AB9H].
6. Shaila Dewan, Inside America’s Black Box: A Rare Look at the Violence of Incarceration,
N.Y. TIMES (Mar. 30, 2019), https://www.nytimes.com/2019/03/30/us/inside-americas-blackbox.html?smid=nytcore-ios-share [https://perma.cc/5J52-SYNA].
7. See, e.g., Aviva Stahl, Force-Feeding Is Cruel, Painful, and Degrading—and American
Prisons Won’t Stop, NATION (June 4, 2019), https://www.thenation.com/article/force-feeding-prison-

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can often be lost in the conversation. 8 Recognizing this loss, certain
journalistic outlets have made a concerted effort in recent years to publish
pieces written by those living inside the walls. 9 Hearing the voices and
stories of those living inside the system is crucially important to
understanding the flaws of the criminal justice system and exposing illegal
conditions of confinement. 10 This is particularly true for those institutions
that are either notoriously opaque 11 or infamously brutal. 12 But despite the
supermax-torture/ [https://perma.cc/7Q4G-7YMH] (describing the force-feeding tactics utilized on
prisoners engaging in hunger strikes at the nation’s federal supermax); Jennifer Gonnerman, Do Jails
Kill People?, NEW YORKER (Feb. 20, 2019), https://www.newyorker.com/books/under-review/dojails-kill-people [https://perma.cc/GW6Z-6ZC6] (noting that the well-known New York City jail on
Rikers Island “has long been notorious for its culture of brutality”); Annie Correal, No Heat for Days
at a Jail in Brooklyn Where Hundreds of Inmates Are Sick and ‘Frantic’, N.Y. TIMES (Feb. 1, 2019),
https://www.nytimes.com/2019/02/01/nyregion/mdc-brooklyn-jail-heat.html
[https://perma.cc/4RVN-RQP8] (recounting the experience of federal detainees “stuck in freezing
cells” with little to no power or heat for at least a week); German Lopez, America’s prisoners are
going on strike in at least 17 states, VOX (Aug. 22, 2018), https://www.vox.com/2018/8/17/176640
48/national-prison-strike-2018 [https://perma.cc/TE5R-7BCM] (describing the work and hunger
strike planned by prisoners across the country from August 21 to September 9, 2018); Shane Bauer,
My Four Months as a Private Prison Guard: A Mother Jones Investigation, MOTHER JONES
(July/August 2016), https://www.motherjones.com/politics/2016/06/cca-private-prisons-correctionscorporation-inmates-investigation-bauer/ [https://perma.cc/NW9K-EMQZ] (describing cells that
look like tombs, guards using force on a prisoner who just had open-heart surgery as “all part of the
bid’ness,” and the reporter’s own priorities changing as “[s]triving to treat everyone as human takes
too much energy.”); Mark Binelli, Inside America’s Toughest Federal Prison, N.Y. TIMES MAG.
(Mar. 26, 2015), https://www.nytimes.com/2015/03/29/magazine/inside-americas-toughest-federalprison.html [https://perma.cc/S4EB-ZB38] (recounting tales of self-mutilation, psychosis, and suicide
at the federal supermax prison, where all prisoners are held in solitary confinement).
8. This lack of input from the persons living inside prison can often be attributed to lack of
media access to prisoners.
9. See, e.g., Life Inside, MARSHALL PROJECT, https://www.themarshallproject.org/tag/lifeinside [https://perma.cc/CJ5Y-Z336] (a weekly newsletter delivering “first-person essays from those
who work or live in the criminal justice system,” including prisoners); Voices from Solitary,
SOLITARY WATCH, https://solitarywatch.org/category/voices/ [https://perma.cc/S6HR-P6KB]
(featuring first-person pieces from those suffering in solitary confinement in the nation’s prisons and
jails).
10. See generally Laura Rovner, On Litigating Constitutional Challenges to the Federal
Supermax: Improving Conditions and Shining a Light, 95 DENV. L. REV. 457, 460–64 (discussing the
invisibility of prisons as compared to the other aspects of the criminal justice system); Andrea
Armstrong, No Prisoner Left Behind? Enhancing Public Transparency of Penal Institutions, 25 STAN.
J.L. & POL’Y 435, 462–66 (2014) (discussing the lack of transparency of penal institutions).
11. See, e.g., Jeanne Theoharis, I Tried to Tell the World About Epstein’s Jail. No One Wanted
to Listen, ATLANTIC (Aug. 16, 2019), https://www.theatlantic.com/ideas/archive/2019/08/realscandal-mcc/596257/?utm_source=atl&utm_medium=email&utm_campaign=share
[https://perma.cc/H5EA-2QEP] (discussing the “hidden in plain sight” horrors of the federal prison
system and the difficulty of investigating those conditions); Rovner, supra note 10, at 464 (discussing
the invisibility of the federal supermax-the United States Penitentiary-Administrative Maximum
(ADX)).
12. Shaila Dewan, Inside America’s Black Box: A Rare Look at the Violence of Incarceration,
N.Y. TIMES (Mar. 30, 2019), https://www.nytimes.com/2019/03/30/us/inside-americas-black-

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effort to feature incarcerated voices by some news organizations, the 2.2
million people currently confined to American prisons and jails are largely
out of sight and mind for most of the public. 13
This lack of visibility is purposeful and is perpetuated by a lack of
independent monitoring of prisons and jails 14 and by the leniency afforded
to prison systems by the federal courts. 15 In 2006, the Commission on
Safety and Abuse in America’s Prisons released a report documenting
troubling conditions in the nation’s prisons and jails and calling for an
independent, external monitor of prison systems in order to increase
transparency and accountability in the nation’s carceral institutions. 16
Every public institution—hospitals, schools, police departments, and
prisons and jails—needs and benefits from strong oversight. Perhaps
more than other institutions, correctional facilities require vigorous scrutiny: They are uniquely powerful institutions, depriving millions of people each year of liberty and taking responsibility for their security, yet
are walled off from the public. 17

Without an external system of checking their power, prison systems
across the country are free to operate with little transparency and
accountability. 18 This lack of external accountability allows prison
systems to become “a place that is so foreign to the culture of the real
box.html?smid=nytcore-ios-share [https://perma.cc/8EWZ-WPKQ] (describing photographs
received by the New York Times of weapons and bloody crime scenes inside the St. Clair Correctional
Facility in Alabama); Gonnerman, supra note 7 (noting that the well-known New York City jail on
Rikers Island “has long been notorious for its culture of brutality.”); Matthew Teague, ‘It’s a
bloodbath’: staff describe life inside America’s most violent prison, GUARDIAN (Oct. 21, 2016),
https://www.theguardian.com/us-news/2016/oct/21/holman-prison-alabama-guard-speaks-out
[https://perma.cc/6AX6-FEWF] (describing “[t]he horrors of Holman penitentiary in southern
Alabama—the stabbings, riots, fires, abuse—[that] have earned it a reputation as the most violent
prison in the United States.”).
13. Dewan, supra note 12.
14. Human Rights Watch, No Equal Justice: The Prison Litigation Reform Act in the United
States, at 3 (Jun. 2009), https://www.hrw.org/sites/default/files/reports/us0609web.pdf [https://
perma.cc/AH4E-PKBZ] (“Unlike many other democracies, the United States has no independent
national agency that monitors conditions in prisons, jails, and juvenile facilities and enforces minimal
standards of health, safety, and humane treatment.”).
15. See, e.g., Turner v. Safley, 482 U.S. 78, 89 (1987) (announcing reasonable relationship
standard as governing all challenges to prison regulations).
16. Vera Institute of Justice, Confronting Confinement: A Report of the Commission on Safety
and Abuse in America’s Prisons, at 15–16, 21–22 (2006), https://storage.googleapis.com/vera-webassets/downloads/Publications/confrontingconfinement/legacy_downloads/Confronting_Confinement.pdf [https://perma.cc/LN6R-6VFT]
(“Corrections leaders work hard to oversee their own institutions and hold themselves accountable,
but their vital efforts are not sufficient and cannot substitute for external forms of oversight.”).
17. Id. at 77.
18. Id. at 16.

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world” that any attempts to self-police flatly fail, and prison officials are
placed under extreme pressure to “keep quiet” about any obvious
problems. 19
Without appropriate external oversight, public accountability of
prison systems often occurs only in those rare instances where a prisoner
successfully challenges a condition of his incarceration in federal court. 20
But a 1987 Supreme Court decision severely limits the First Amendment
rights of prisoners. 21 In Turner v. Safley, the Supreme Court embedded
into prisoner First Amendment jurisprudence a requirement that federal
courts defer to the professional judgment of prison officials when
considering whether a prison regulation violates a prisoner’s
constitutional rights. 22 In theory, this deference should not be absolute,
but, in practice, Turner deference has allowed prison officials to abuse the
discretion afforded them under the doctrine. 23 Therefore, prisoner speech
is subjected to a high-level of censorship that limits the ability of prisoners
to protest or otherwise expose inhumane conditions of confinement.
Indeed, those prisoners who engage in such protected activity are often
subjected to retaliation, which further chills their willingness to speak out
against the abusive practices of their jailers.
This Article argues for increased protections for prisoners who
choose to protest the conditions of their incarceration. By strengthening
the protections afforded to prisoner protests, I submit that federal courts
can increase the accountability of prison officials and further the
democratic and societal values embedded in the First Amendment’s free
speech protections. To advance this argument, I’ve chosen to use the acts
of protest utilized by the Silent Sentinels—the women jailed because of
their protest activities in support of the Nineteenth Amendment—as an
example demonstrating why in-prison protest is worthy of robust
constitutional protections.
The Article proceeds in three parts. First, I provide the historical
background necessary to understand the utility of the Silent Sentinels
19. Id. at 79, 82.
20. Id. at 22.
21. See generally Turner, 482 U.S. 78.
22. Id. at 84–85 (“Running a prison is an inordinately difficult undertaking that requires
expertise, planning, and the commitment of resources, all of which are peculiarly within the province
of the legislative and executive branches of government. Prison administration is, moreover, a task
that has been committed to the responsibility of those branches, and separation of powers concerns
counsel a policy of judicial restraint. Where a state penal system is involved, federal courts have . . .
additional reason to accord deference to the appropriate prison authorities.”).
23. David M. Shapiro, Lenient in Theory, Dumb in Fact: Prison, Speech, and Scrutiny, 84
GEO. WASH. L. REV. 972, 995 (2016) (recounting how “corrections officials abuse, with some
frequency, the discretion granted to them by Turner and its progeny”).

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example. This discussion includes a description of the conditions of the
prison in which the Silent Sentinels were incarcerated, an account of the
type of protest speech utilized by the Silent Sentinels from within prison,
and an explanation of the consequences of the women’s protest activity.
From there, Part II provides an analysis of the law governing prisoner
protest activity when viewed through the lens of free speech, including a
thorough discussion of the Turner standard and the limitations placed on
prisoner protest activities because of that standard. Part II then examines
the compelling critiques of the Turner standard articulated by other
scholars and introduces the argument that more robust protections of
prisoner protest activities are both possible and necessary. Finally, the
Article argues that the example of the Silent Sentinels provides a
compelling lens through which one can examine the utility of protecting
prisoner protest rights. Part III begins by critically analyzing the utility of
the Silent Sentinels example and cataloguing anticipated critiques to using
this lens through which to argue for change in the current criminal justice
system. By examining how the Silent Sentinels’ in-prison protest
furthered critical First Amendment values, Part III concludes by
comparing the Silent Sentinels’ protest to modern prisoner protest
activities and arguing that the Silent Sentinels’ experience demonstrates
why we should support robust protections of prisoner protest rights.
II. THE SILENT SENTINELS
On January 10, 1917, a group of women organized by Alice Paul,
Lucy Burns, and the National Woman’s Party (NWP) began a two-and-ahalf-year protest in support of women’s suffrage. 24 The first group of
American citizens to picket the White House, a dozen women gathered
outside the White House gates on that January day, carrying purple, white,
and gold banners. 25 Some of the banners read, “Mr. President, what will
you do for women’s suffrage?,” while others stated “How long must
women wait for liberty?” 26 Causing a “profound stir” on that first day, the
picketers returned to protest six days a week for the next several months
and then more sporadically until June 4, 1919, when Congress passed the
Nineteenth Amendment to the United States Constitution. 27

24. DORIS STEVENS, JAILED FOR FREEDOM: AMERICAN WOMEN WIN THE VOTE 21 (Carol
O’Hare, ed., 1995).
25. Id. at 59.
26. Id.
27. Id.

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The picketing women became known as “Silent Sentinels” because,
while the women held “banners with provocative political slogans or
demanding the right to vote,” 28 they stood in peaceful silence. 29 While the
New York Times initially called the picketers “unladylike and ‘silly,’”
most other news organizations lauded the women’s efforts. 30 “Taking a
shift as a sentinel was much harder work than it might appear. The pickets
stood outside no matter what the weather, feet frozen and hands numb
from holding the heavy banners, subject to taunts from young boys and
bemused stares from passerby.” 31 While the taunts and stares may have
been uncomfortable for the picketers, the protests remained largely
peaceful for the first several months. 32 In fact, President Wilson initially
seemed “amused and interested” at the women posted outside the White
House. 33
But the President’s toleration of the picketers quickly changed after
the United States entered World War I in April 1917. 34 The suffragist
members of the NWP resolved to continue their work despite the war
effort, “being unalterably convinced that in so doing the organization
serves the highest interests of the country.” 35 The decision to continue
picketing despite the United States’ entry into the war cost the NWP a
sizable portion of its membership, but the strategy “succeeded in keeping
the suffrage cause at the center of public debate.”36
The picketers remained determined to underscore the hypocrisy of
President Wilson’s championing of democracy around the world while
denying democratic participation to half of the American citizenry. 37 To
28. Id. at 21.
29. Rivera Sun, Silent Sentinels Start Suffrage Protest on Jan 10th, 1917, RIVERA SUN (Jan. 8,
2016), http://www.riverasun.com/silent-sentinels-start-suffrage-protest-on-jan-10th-1917/
[https://perma.cc/7ZWK-R8HL].
30. Lynda G. Dodd, Parades, Pickets, and Prison: Alice Paul and the Virtues of Unruly
Constitutional Citizenship, 24 J.L. & POL. 339, 398 (2008) (quoting Editorial, Silent, Silly, Offensive,
N.Y. TIMES, Jan. 11, 1917, at 4) (other citations omitted).
31. SUSAN WARE, WHY THEY MARCHED: UNTOLD STORIES OF THE WOMEN WHO FOUGHT
FOR THE RIGHT TO VOTE 242 (2019).
32. STEVENS, supra note 24, at 59–66.
33. Id. at 61 (“Perhaps he thought it a trifling incident staged by a minority of the radical
suffragists and anticipated no popular support for it. When he saw their persistence through a cruel
winter his sympathy was touched. He ordered the guards to invite them for a cup of hot coffee, which
they declined. He raised his hat to them as he drove through the line. Sometimes he smiled. As yet he
was not irritated. He was confident in his national power.”).
34. Id. at 67.
35. Dodd, supra note 30, at 398 (quoting CHRISTINE A. LUNARDINI, FROM EQUAL SUFFRAGE
TO EQUAL RIGHTS: ALICE PAUL AND THE NATIONAL WOMAN’S PARTY, 1910–1928, at 111–12
(1991)).
36. Dodd, supra note 30, at 401 n. 264.
37. Id. at 400.

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this end, the suffragists created banners meant to embarrass the Wilson
administration whenever it hosted a foreign envoy at the White House.38
This embarrassment reached a tipping point in June 1917, when a Russian
envoy visited the White House. 39 Seeking to harken on the sentiments of
the Russian Revolution, 40 the suffragists arrived at the White House on
June 20, 1917 with a banner stating:
To the Russian Envoys, we the women of America tell you that America
is not a democracy. Twenty million American women are denied the
right to vote. President Wilson is the chief opponent of their national
enfranchisement. Help us make this nation really free. Tell our government it must liberate its people before it can claim free Russia as an
ally. 41

An angry passerby tore down this banner, and the next day a group of boys
destroyed a second, similar banner. 42 On each occasion, police looked on
without interference. 43 The peaceful nature of the White House protest
thereafter changed, and “the local police, apparently with the tacit support
of the Wilson administration, started arresting and jailing picketers for
disorderly conduct and obstructing sidewalk traffic, even though they
were doing nothing differently than they had for the past six months.” 44
Local police made the first arrests on June 22, 1917, arresting Lucy
Burns and Katherine Morey. 45 The next day brought more arrests, but
officials in the District of Columbia dismissed each of the cases arising
from these initial arrests, and the women were never tried. 46 On June 26,
1917, however, local officials arrested six women for “obstructing the
traffic,” tried them, and sentenced them to a 25 dollar fine. 47 After the
women refused to pay the fine, the court sentenced them to three days in
jail. 48 Several arrests followed a similar pattern, and “by October 1917,
seventy women were arrested, six of them for terms as long as six

38. Id. (“In one of Wilson’s speeches, often quoted on suffrage banners, Wilson declared: ‘We
shall fight for the things which we have always held nearest our hearts—for democracy, for the right
of those who submit to authority to have a voice in their own governments.’”); see also STEVENS,
supra note 24, at 74.
39. Id. at 73.
40. WARE, supra note 31, at 244.
41. STEVENS, supra note 24, at 74.
42. Id.; WARE, supra note 31, at 244.
43. STEVENS, supra note 24, at 74.
44. WARE, supra note 31, at 244.
45. STEVENS, supra note 24, at 76; Dodd, supra note 30, at 404.
46. STEVENS, supra note 24, at 76.
47. Id.
48. Dodd, supra note 30, at 404.

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months.” 49 The District of Columbia sent the women to the Occoquan
Workhouse in Virginia and the District Jail to serve their sentences. Once
incarcerated, the women courageously continued their protests from
behind prison walls, calling attention not just to the unjust nature of their
imprisonment, but also the squalid and miserable conditions of the
prisons.
A.

The Occoquan Workhouse in Virginia and the District Jail

Workhouses arose as a place of punishment in Europe in the late
sixteenth century. 50 The workhouse regime revolved around forced labor,
wherein prisoners worked ten-to-twelve hour days (with Sundays reserved
for religious worship) and produced a certain fixed output of product. 51
By the Victorian era in England, workhouses had transformed into places
for the destitute rather than for felons. 52 These workhouses were
institutions of “strict control” and imposed a “harsh disciplinary
regime,” 53 with conditions meant to deter inhabitants from returning (e.g.,
unpalatable food provided in only minimal amounts, hard labor, shameful
uniforms, and boards rather than beds for sleep). 54
Built in 1910, the Occoquan Workhouse reflected a more
rehabilitative, rather than deterrent, ideal than its European counterparts.55
In contrast to their counterparts confined in the penitentiary, prisoners in
the workhouse worked in trades meant to further their reform. 56 The
Women’s Workhouse at Occoquan opened in 1912; it confined “poor
women of color, imprisoned for crimes such as disorderly conduct and
49. WARE, supra note 31, at 245. There are conflicting accounts as to how many women were
arrested as a result of the picketing movement. See, e.g., JOHANNA NEUMAN, GILDED SUFFRAGISTS:
THE NEW YORK SOCIALITES WHO FOUGHT FOR WOMEN’S RIGHT TO VOTE 129 (2017) (“By the time
all were released in November, by one estimate 2,000 American women had joined the protest line,
500 had been arrested, and 170 have been jailed for demanding the right to vote.”).
50. Pieter Spierenburg, The Body and the State: Early Modern Europe, in THE OXFORD
HISTORY OF THE PRISON: THE PRACTICE OF PUNISHMENT IN WESTERN SOCIETY 45, 61 (Norval
Morris & David J. Rothman eds., 1995).
51. Id. at 64.
52. Seán McConville, The Victoria Prison: England, 1865–1965, in THE OXFORD HISTORY OF
THE PRISON: THE PRACTICE OF PUNISHMENT IN WESTERN SOCIETY 117 (Norval Morris & David J.
Rothman eds., 1995).
53. Patricia O’Brien, The Prison on the Continent, Europe, 1865-1965, in THE OXFORD
HISTORY OF THE PRISON: THE PRACTICE OF PUNISHMENT IN WESTERN SOCIETY 178, 182 (Norval
Morris & David J. Rothman, eds., 1995).
54. McConville, supra note 52, at 28.
55. Wilson Korges, The Lasting Legacy of Suffragists at the Lorton Women’s Workhouse,
FOLKLIFE (Mar. 21, 2018), https://folklife.si.edu/magazine/lasting-legacy-of-suffragists-at-lortonoccoquan-womens-workhouse [https://perma.cc/2RYX-LY8X].
56. Id.

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prostitution. The women of the workhouse did laundry for the facility,
while others worked in the gardens.” 57
In contrast to its rehabilitative ideal, the actual conditions of the
Occoquan Workhouse likened to the conditions of the Victorian-era
workhouses in England: the women confined there “were subjected to
inedible food, humiliating treatment, lack of communication with the
outside world, and—especially on the infamous ‘Night of Terror’ on
November 15, 1917—physical intimidation and violence from prison
authorities.” 58 Prison officials withheld the prisoners’ mail from them, fed
them food with worms in it, and gave them blankets that had not been
washed or cleaned for a year. 59
The Occoquan prison officials also subjected the women confined
there to ruthless forms of punishment. 60 The prison superintendent and his
son beat the women, and prison officials punished certain prisoners by
limiting their food to only bread and water. 61 Prison officials exploited
pre-existing racial tensions by forcing women of one race to brutally
attack women of another race, threatening punishment to those who
refused. 62 Women who disobeyed prison rules often were subjected to a
form of punishment known as “the greasy pole:” 63
This method of punishment consisted of strapping girls with their hands
tied behind them to a greasy pole from which they were partly suspended. Unable to keep themselves in an upright position, because of
the grease on the pole, they slipped almost to the floor, with their arms
all but severed from the arm sockets, suffering intense pain for long periods of time. 64

The conditions at the District Jail where some prisoners would spend
some or all of their sentences were not much better than those at
Occoquan. While the workhouse—aside from the solitary confinement
cells—consisted mostly of open barracks, the District Jail, built in the
1870s, held conventional cells that measured six-by-nine feet, such that
the women could touch each side with their fingertips with their arms
outstretched. 65 Frequently, the jail officials confined the women two to a
57. Id.
58. WARE, supra note 31, at 246. The “Night of Terror” is described in more detail below. See
infra at I.B.
59. STEVENS, supra note 24, at 96.
60. Id.
61. Id.
62. Id. at 99.
63. Id.
64. Id.
65. J.D. ZHANISER & AMELIA R. FRY, ALICE PAUL: CLAIMING POWER 282 (2014).

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cell, and prison officials responded to the slightest disobedience by
placing the women in solitary confinement. 66 The tiny cells were infested
with vermin, including rats and bed bugs, and each cell contained an open
toilet, which, when combined with the prison’s practice of closing the
workhouse windows from late afternoon until morning, created a stifling
environment. 67
Despite these conditions and the risk of further torturous
punishments, the conviction of the Silent Sentinels did not waiver, and
they continued their protests from within prison walls.
B.

The Silent Sentinels’ In-Prison Protests

The very fact of the first sentences to Occoquan caused quite a stir,
and one should not underestimate how the imprisonment of sixteen
“leading suffragists and very well-connected women” helped garner
immediate public support for the women and their cause. 68 There can be
no doubt that the arrests’ efficacy in furthering the suffrage movement is
tied to the wealth and elite status of the women suddenly labelled
prisoners. 69 Indeed, the wealth and status of the prisoners’ husbands
certainly furthered the outrage that followed the initial arrests, and
President Wilson’s quick pardon of the first group of women sentenced
was in part driven by racist news coverage heralding the women’s courage
in coping with Occoquan’s integrated environment. 70
But, no matter their social status and background, the introduction to
Occoquan’s conditions did little to stem the conviction of the picketers,
and by August 17, 1917, more picketers were arrested and sentenced to
Occoquan. 71 No pardon followed these arrests or the others that ensued in
the forthcoming weeks. 72 Garnering no special treatment at the prison, the
suffragist prisoners lived in and with conditions of “poor sanitation,
infested food, and dreadful facilities:” 73
At first, the suffragist prisoners abide[d] by the routine of the institution,

66. Id. at 282–83.
67. Id.
68. Dodd, supra note 30, at 405.
69. Id. (“One was a daughter of a former ambassador and secretary of state. Another was the
wife of a Progressive Party leader. Others were noted society figures, relatives of politicians, and
high-ranking members of the NWP.”).
70. Id. at 407 n.299.
71. Id. at 408.
72. Id.
73. Id. at 411.

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disagreeable and unreasonable as it was. They performed the tasks assigned to them. They ate the prison food without protest. They wore the
coarse prison clothes. But at the end of the first week of detention they
became so weak from the shockingly bad food that they began to wonder
if they could endure a diet of sour bread, half-cooked vegetables, and
rancid soup with worms in it. 74

As it became clear that the arrested suffragists would face longer and
longer terms of imprisonment, the women moved the protest inside the
prison walls.
Claiming to be political prisoners, the women sought to intensify the
pressure the picketing placed on the Wilson Administration by
highlighting the injustice of their plight. 75 Lucy Burns began “quietly
organizing within Occoquan for several weeks to circulate a petition
among the imprisoned suffragists.” 76 Learning of her activities, the
Occoquan officials placed Miss Burns in solitary confinement. 77 But her
fellow suffragist prisoners carried on, completing the petition as their first
in-prison protest action; the petition announced a prison work strike and
requested that prison officials treat the women as political prisoners,
making it “the first organized group action ever made in America to
establish the status of political prisoners.” 78
In addition to the strike announcement and the request to be treated
as political prisoners, the petition listed several other demands: (1) that
the suffragists be allowed to congregate together and that Lucy Burns be
released from solitary confinement; (2) that the suffragists be afforded the
opportunity to meet with their lawyers; (3) that the suffragists be allowed
to receive food from the outside; and (4) that the suffragists be provided
writing materials and books, letters, and newspapers. 79 The petition also
explained that the suffragists did not immediately create the petition
“because on entering the workhouse [they] found conditions so very bad
that before we could ask the suffragists be treated as political prisoners, it
was necessary to make a stand for the ordinary rights of human beings for
all the [prisoners].” 80 After garnering signatures, the suffragists smuggled
the petition out to the district commissioners. 81

74.
75.
76.
77.
78.
79.
80.
81.

STEVENS, supra note 24, at 95.
Id. at 105.
Dodd, supra note 30, at 411.
STEVENS, supra note 24, at 107.
Id.
Id. at 107–08.
Id. at 108.
Dodd, supra note 30, at 411.

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In response, the commissioners quickly transferred Lucy Burns and
the other signatories to the district jail, placing all of them in solitary
confinement. 82 The cells in which the women were confined had no fresh
air—the windows were locked tight, and any woman who attempted to
open one was physically thrown into a solitary cell. 83 The jail served food
no better than the food provided at Occoquan, and the women existed on
bread, water, and occasionally molasses. 84 On November 5, 1917, Alice
Paul began a hunger strike to protest the women’s treatment. 85 To Paul
and those who joined her, the hunger strike was “the ultimate form of
protest left.” 86 Rather than heed the demands of the suffragists, however,
the jail administrators began force-feeding the hunger strikers. 87
In response to the force-feeding, suffragists on the outside increased
the number of picketers at the White House, leading to their arrest and
eventual sentence to Occoquan.88 On November 11, 1917, “[f]orty-one
woman suffragists from fifteen [s]tates were arrested . . . for picketing
outside the White House.” 89 The women arrived at Occoquan on
November 15, 1917, and their arrival ushered in what suffragists would
later call the “Night of Terror” at the prison, “during which most suffered
physical injuries as a result of the beatings and rough treatment by the
Occoquan guards.” 90
From the moment the women arrived at Occoquan, the guards manhandled them, throwing them into dark, dirty cells with iron beds and open
toilets that flushed only from outside the cell.91 The women were not
provided food for nearly 24 hours. 92 Neither the women’s attorney nor
their family members were allowed visitation with the incarcerated
suffragists. 93 Many women began a hunger strike. 94 In an effort to break
the will and morale of the hunger strikers, the Occoquan officials isolated
them from one another, interrogated them, informed them that no one

82. STEVENS, supra note 24, at 108.
83. Id. at 113.
84. Id. at 114.
85. Dodd, supra note 30, at 411.
86. STEVENS, supra note 24, at 115.
87. Id. at 118–19.
88. Dodd, supra note 30, at 413.
89. SALLY ROESCH WAGNER, THE WOMEN’S SUFFRAGE MOVEMENT 461 (2019).
90. Dodd, supra note 30, at 413. See also WAGNER, supra note 89, at 339 (noting conditions
of “forced stripping, physical violence, shackling with manacles to prison bars, and threatened use of
straightjackets and gags.”) (citing Accuse Jailors of Suffragists, N.Y. TIMES, Nov. 17, 1917, at 1).
91. STEVENS, supra note 24, at 122–23.
92. Id. at 124.
93. Id.
94. Id. at 124–26.

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from the outside was paying any attention to them, lied to them by stating
their attorney was no longer fighting the case, and instructed them that
each of their compatriots had given up the fight. 95 The women “suspected
the lies and remained strong in their resistance.” 96
The women soon filed a writ of habeas corpus, arguing that their
confinement to Occoquan was illegal because they were serving sentences
imposed by the District of Columbia outside the confines of the district
and the sentencing papers authorizing their imprisonment indicated they
should be committed to the District Jail. 97 On November 23, 1917, Judge
Edmund Waddill of the United States District Court for the Eastern
District of Virginia held a hearing on the prisoners’ writ.98 The women
filed into the courtroom, “haggard, red-eyed, sick,” some too weak to
walk to their seats, and some bearing “the marks of the attack on the ‘night
of terror.’” 99 Judge Waddill “felt alarmed by the writ’s description of the
women’s treatment, calling it ‘bloodcurdling’ if true.” 100 Ultimately, the
judge found “that the suffragists had been illegally imprisoned at
Occoquan (rather than the District Jail) and that they could be paroled on
bail or finish their terms at the District Jail.” 101 Twenty-two women chose
to finish their sentences at the jail, and upon arrival, the women joined the
collective hunger strike begun by the others already confined to the jail. 102
Faced with thirty hunger-striking women, the jail decided to release all of
the women on November 27 and 28, 1917. 103 Upon release, the women
brought suit against the district commissioners, the warden of the District
of Columbia jail, the superintendent of Occoquan, and a workhouse guard,
requesting $800,000 in damages for the brutality they suffered during
their terms of imprisonment, particularly on the “night of terror.” 104
Thereafter, as Congressional movement began on the Nineteenth
Amendment, the women paused their picketing protests for a time. 105
When it became clear that the Senate would stall the Amendment’s
passage, the women once again gathered at Lafayette Monument, directly
across from the White House, with their banners in tow. 106 District
95.
96.
97.
98.
99.
100.
101.
102.
103.
104.
105.
106.

Id. at 126.
Id.
Id. at 127, 130.
Id. at 128.
Id. at 129.
ZHANISER & FRY, supra note 65, at 294.
Dodd, supra note 30, at 415 n.346.
STEVENS, supra note 24, at 130.
Id. at 129.
Id. at 131.
Id. at 137–40.
Id. at 141.

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officials arrested 48 women at the protest, charged them with and
convicted them of “holding a meeting in public grounds” and “climbing
on a statue,” and sentenced them to 10 (for holding a public meeting) or
15 (for climbing on a statue) days imprisonment. 107
To serve these sentences, district officials transported 26 women to
an abandoned building that used to serve as a men’s workhouse until it
“had been declared unfit for human habitation:” 108
This place was the worst the women had experienced. Hideous aspects
which had not been encountered in the workhouse and jail were encountered here. The cells were damp and cold. The doors were partly of solid
steel with only a small section grating, so that a very tiny amount of light
penetrated the cells. The cots were of iron, without any spring and with
only a thin straw pallet to lie upon. So frightful were the nauseating
odors which permeated the place, and so terrible was the drinking water
from the disused pipes, that one prisoner after another became violently
ill. 109

All but two very elderly women declared a hunger strike upon arrival.110
Within five days, district officials released the women. 111
In the months that followed, the women’s protests continued, and the
district police made periodic arrests.112 With each arrest, conviction, and
sentence, the women continued their practice of hunger striking in
protest. 113
C.

Official Responses to the Suffragists’ Protests

Undoubtedly, the suffragists’ protest activities—both in and out of
prison—helped advance the passage of the Nineteenth Amendment. The
National Woman’s Party experienced a dramatic increase in donations
after the 1918 arrests and consequent exposure to the conditions in the
Occoquan workhouse and the District of Columbia jail. On September 14,
1917, a month after the second large set of suffragist prisoners arrived at
Occoquan, Senator Andrieus A. Jones, the Chair of the Senate Committee
on Woman Suffrage, visited Occoquan. 114 The next day, the House of
Representatives reported the Nineteenth Amendment out of committee,
107.
108.
109.
110.
111.
112.
113.
114.

Id. at 129.
Id.
Id. at 144.
Id.
Id.
See, e.g., id. at 162, 168, 172–73, 179.
Id. at 162.
Dodd, supra note 30, at 411.

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and by September 24, 1917, the House “created a standing committee on
suffrage.” 115 By January 10, 1918, “exactly forty years to a day from the
time the suffrage amendment was first introduced into Congress and
exactly one year to a day from the time the first picket banner appeared at
the gate of the White House,” the House of Representative passed the
Amendment. 116 While the fight to push the Amendment through the
Senate lasted an additional year-and-a-half, officials never questioned the
will of the suffragists to continue their protest strategy. By March 4, 1918,
the D.C. Court of Appeals invalidated the picketers’ convictions. 117
The consequences of the suffragists’ staunch resistance to their
unjust convictions and confinement extended beyond just advancing their
cause. By evading Occoquan’s censorship, and later the District Jail’s
controls, the suffragists’ surreptitious messages about life in the
workhouse garnered press coverage 118 and eventually led to a
Congressional investigation into the conditions at Occoquan. 119 Even the
Wilson White House requested an inquiry into Occoquan’s conditions
“after receiving one too many protest letters about the imprisoned
suffragists’ plight.” 120 While the President’s secretary and right-hand man
confirmed the women’s poor treatment, the President rejected this
opinion, instead tasking a district commissioner with the assignment of
preparing an investigative report on prison conditions. 121 The
commissioner “did little more than interview the prison officials,” and the
report ultimately kowtowed to political pressure, but the inquiry
nonetheless brought a small amount of transparency to the prison that had
theretofore been lacking. 122

115. Id.
116. STEVENS, supra note 24, at 137–40.
117. Hunter v. Dist. of Columbia, 47 App. D.C. 406, 410 (1918).
118. ZHANISER & FRY, supra note 65, at 370 (noting that a New York Tribune reporter called
for an impartial investigation related to the treatment).
119. STEVENS, supra note 24, at 98.
120. ZHANISER & FRY, supra note 65, at 288.
121. Id.
122. Dodd, supra note 30, at 413–14; see also ZHANISER & FRY, supra note 65, at 288.

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III. THE FIRST AMENDMENT AND PRISON 123
Ostensibly, there is no barrier separating prisoners from the
protections afforded by the Constitution. 124 However, prisoners’ First
Amendment rights are limited while incarcerated because, once behind
the prison walls, a prisoner holds only “‘those First Amendment rights
that are not inconsistent with his status as a prisoner or with the legitimate
penal objectives of the correctional system.’” 125 While the constitutional
test that governs restrictions on prisoners’ First Amendment rights (the
Turner standard) is not meant to be toothless, “regulations founded on
flimsy rationales get upheld frequently enough, and the reasoning is often
poor enough” that scholars and litigants are left wondering whether the
standard has any bite. 126 “[Prisoners] are denied reading material deemed
objectionable by their captors, exposed to retaliation for expressing
opinions at odds with those of their jailers, refused access to the news
media, punished for possessing ‘radical’ views, and rewarded for
renouncing them.” 127 “Even a prisoner who has no desire to obtain,
distribute, or even discuss anything objectionable faces grave
impediments in pursuing his or her own intellectual star, however
123. In this section, I focus on how the Supreme Court has analyzed First Amendment claims
brought under a free speech theory. In so doing, I purposefully limit my analysis of prisoner protest
activities to activities undertaken by individuals, not as part of a larger, organized group. Prisoners’
associational rights have been significantly curtailed by the Supreme Court’s 1977 decision in Jones
v. N.C. Prisoners’ Labor Union, Inc.. Jones v. N.C. Prisoners’ Labor Union, Inc., 433 U.S. 119 (1977).
In Jones, the Supreme Court upheld a North Carolina prison policy that prohibited prisoners from
joining the North Carolina prisoners’ union, holding union meetings, and restricted correspondence
related to union activities. Id. at 122. The union sought to improve prison conditions and “to serve as
a vehicle for the presentation and resolution of [prisoner] grievances.” Id. The Court held that the
prison policy was a legitimate restriction on prisoners’ First Amendment right to association and
chastised the lower court for failing to give appropriate deference to prison officials’ beliefs about the
dangers arising from the union’s existence. Id. at 125–26, 130. This holding provided a preview for
the built-in deference to prison officials that would later embody First Amendment jurisprudence
regarding prisoners, as discussed below. There are many criticisms that can be made of the Jones
case, but such criticisms are largely outside the purview of this piece. See, e.g., Andrea C. Armstrong,
Racial Origins of Doctrines Limiting Prisoner Protest Speech, 60 HOW. L.J. 221, 248–60 (2016). In
a forthcoming piece, I turn my focus to Jones to examine how the historical example of the Silent
Sentinels’ in-prison protests supports a reexamination of the deference afforded prison officials in
relation to prisoners’ associational and petition rights. See Nicole B. Godfrey, ‘Inciting a Riot’: Silent
Sentinels, Group Protests, and Prisoners’ Petition and Associational Rights, 43 SEATTLE U. L.
REV. __ (forthcoming Nov. 2020).
124. Thornburgh v. Abbott, 490 U.S. 401, 407 (1989) (quoting Turner v. Safley, 482 U.S. 78,
84 (1987)) (“Prison walls do not form a barrier separating prison inmates from the protections of the
Constitution.”).
125. Armstrong, supra note 123, at 223 (quoting Pell v. Procunier, 417 U.S. 817, 822 (1974)).
126. Shapiro, supra note 23, at 988.
127. Ronald L. Kuby & William M. Kunstler, Silencing the Oppressed: No Freedom of Speech
for Those Behind the Walls, 26 CREIGHTON L. REV. 1005, 1005 (1993).

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innocuous. A plethora of prison regulations, designed to facilitate prison
administration, impose formidable restrictions of a prisoner’s access to
ideas and information.” 128
The Supreme Court announced the standard governing a prisoner’s
First Amendment free speech claim in the 1987 Supreme Court decision
Turner v. Safley. 129 In this section, I explain and examine the Turner
standard before turning to the well-documented criticisms of Turner’s
application in the three-plus decades since the decision. After gaining an
understanding of the First Amendment’s application in prison, we’ll turn
back to the example of the Silent Sentinels to add to the chorus of
criticisms against Turner, focusing particularly on the importance of
protecting prisoner protest and curbing some of the deference afforded
prison officials under the Turner test.
A.

Turner v. Safley and Deference to Prison Officials

For more than a century after the adoption of the Bill of Rights,
federal courts refused to entertain claims challenging prison conditions.130
Unwilling to disturb internal prison management, the federal courts took
a “hands-off” approach to the nation’s prisons and jails. 131 With the dawn
of the civil rights movement and its concerted efforts on effectuating
change through the judicial system, the federal courts began recognizing
federal remedies for constitutional violations challenged under 42 U.S.C.
§ 1983. 132 With this recognition, federal courts also began allowing
prisoners to sue prison officials for unconstitutional prison conditions. 133
While the prison walls do not separate prisoners from constitutional
protections, the Supreme Court has always reminded prisoners that they
retain limited constitutional rights once they enter the prison gates.134
Nevertheless, for many years, the federal courts subjected certain First
Amendment violations by prison officials (e.g., those related to

128.
129.
130.
131.

Id. at 1018–19.
Turner v. Safley, 482 U.S. 78, 89 (1987).
Nicole B. Godfrey, Institutional Indifference, 98 OR. L. REV. 151, 165 (2019).
Id. (citing Edgardo Rotman, The Failure of Reform: United States, 1865–1965, in THE
OXFORD HISTORY OF THE PRISON: THE PRACTICE OF PUNISHMENT IN WESTERN SOCIETY (Norval
Morris & David J. Rothman eds., 1995)).
132. Id. See also Nicole B. Godfrey, Holding Federal Prison Officials Accountable: The Case
for Recognizing a Damages Remedy for Federal Prisoners’ Free Exercise Claims, 96 NEB. L. REV.
924, 931–32 (2018).
133. See, e.g., Cooper v. Pate, 378 U.S. 546, 546 (1964) (allowing a Muslim prisoner to
challenge prison policies restricting his access to religious leaders of his faith).
134. Pell v. Procunier, 417 U.S. 817, 822 (1974).

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restrictions on correspondence) to a more exacting standard of review.135
But, as the prison population exploded in the late 1970s and early 1980s,
the federal courts began seeing an increasing number of lawsuits
challenging prison conditions. 136 This increase in prisoner suits—even
unsuccessful cases—caused prison officials to focus on how “to avoid
judicial intrusions into their domain.” 137
In Turner, prison officials successfully argued that prison officials
should be afforded substantial deference by the federal courts when
considering whether prison policies violate prisoners’ constitutional
rights. 138 Turner involved Leonard Safley’s challenge to two prison
regulations promulgated by the Missouri Department of Corrections. 139 In
the early 1980s, Mr. Safley lived in the Renz Correctional Institution in
Cedar City, Missouri, a prison that confined both male and female
prisoners. 140 Mr. Safley fell in love with a female prisoner named P. J.
Watson, and the two developed a romantic relationship. 141 When the
prison officials at Renz learned about the relationship, they transferred
Mr. Safley to another prison pursuant to policy. 142 After his transfer, Mr.
Safley attempted to send letters to Ms. Watson, who remained at Renz,
and the two requested to marry one another. 143 The superintendent at
Renz, however, instituted policies that (1) prohibited correspondence
between prisoners at other institutions unless the prisoners were related or
involved in the same legal matter and (2) discouraged marriages between
two prisoners. 144 Mr. Safley sued Bill Turner, Renz’s superintendent, and
135. See, e.g., Procunier v. Martinez, 416 U.S. 396, 412–13 (1974) (requiring that the regulation
or practice “further a substantial governmental interest unrelated to the suppression of expression”
and “the limitation of First Amendment freedoms . . . be no greater than necessary or essential to the
protection of the particular governmental interest involved.”).
136. Cf. William Bennett Turner, When Prisoners Sue: A Study of Prisoner Section 1983 Suits
in the Federal Courts, 92 HARV. L. REV. 610, 626–27 (1979) (noting the increase in prison population
but concluding that prison population is “by no means determinative” of the volume of prisoner
lawsuits).
137. Id. at 639.
138. Brief for Petitioners, Turner v. Safley, 482 U.S. 78 (1987) (No. 85-1384), 1988 WL
1026291, at *30 (arguing that the district court’s use of the least restrictive alternatives test failed to
“give the appropriate deference to the decisions made by the correctional officers in light of their
legitimate security and rehabilitation concerns.”).
139. David L. Hudson, Jr., Turner v. Safley: High Drama, Enduring Precedent, FREEDOM F.
INST. (May 1, 2008), https://www.freedomforuminstitute.org/2008/05/01/turner-v-safley-highdrama-enduring-precedent/ [https://perma.cc/562L-W8EA].
140. Id. at 139.
141. Id.
142. Id. (“Prison policy provided that when a male and female [prisoner] entered into a close or
physical relationship one of the two [prisoners] would be transferred.”).
143. Id.
144. Id.

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other prison officials, claiming that the correspondence and marriage
policies violated his First Amendment rights. 145
After Mr. Safley filed suit, a lawyer entered the case on his behalf,
and amended the complaint to seek class certification on behalf of Mr.
Safley and similarly situated prisoners. 146 The district court, after an
evidentiary hearing, entered detailed findings of fact and conclusions of
law invalidating both policies as infringing the constitutional rights of the
prisoner class. 147 The Eighth Circuit affirmed, concluding that
correspondence between prisoners “is not presumptively dangerous nor
inherently inconsistent with legitimate penological objectives” and that
the marriage rule as applied by Superintendent Turner was
unconstitutional on its face because it provided no alternative means of
exercising the right to marry. 148 The Supreme Court affirmed in part and
reversed in part and, in so doing, announced a new test through which
federal courts should examine First Amendment claims brought by
prisoners. 149
The new test announced by the Turner Court includes four factors. 150
The first factor, which Professor David Shapiro aptly dubbed the “heart”
of the Turner standard, 151 requires the court to examine whether there is a
“‘valid, rational connection’ between the prison regulation and the
legitimate government interest put forward to justify it.”152 Oftentimes,
this factor alone is dispositive in Turner cases—if the prison system can
come forward with any legitimate government interest to justify the
regulation, even if that interest is not the actual reason the prison system
enacted the policy, the prisoner loses. 153 The second factor requires a
federal court to examine whether there are alternative means for the
prisoner to exercise the right at issue, and the third factor compels the
court to assess how accommodating the right at issue might impact prison

145. Id.
146. Id.
147. Safley v. Turner, 586 F. Supp. 589, 590–96 (W.D. Mo. 1984).
148. Safley v. Turner, 777 F.2d 1307, 1313–14 (8th Cir. 1985).
149. Turner v. Safley, 482 U.S. 78, 89–91, 93, 99 (1987).
150. Id. at 89–91.
151. Shapiro, supra note 23, at 982.
152. Turner, 482 U.S. at 89 (quoting Block v. Rutherford, 468 U.S. 576, 586 (1984)).
153. See, e.g., Beard v. Banks, 548 U.S. 521, 532–33 (2006) (acknowledging that the Court was
not balancing the Turner factors in this particular instance, but instead focusing on whether the prison
officials “show[] more than simply a logical relation, that is, whether [they] show a reasonable
relation.”). Nonetheless, “[w]hile the first factor is widely recognized as the most important,” some
appellate courts have criticized lower courts for not considering all four factors at summary judgment.
Aref v. Lynch, 833 F.3d 242, 259 n.12 (D.C. Cir. 2016) (citing Lindell v. Frank, 377 F.3d 655, 657
(7th Cir. 2004) and Jacklovich v. Simmons, 392 F.3d 420, 427 (10th Cir. 2004)).

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guards, other prisoners, and the general allocation of prison resources. 154
Finally, the final factor forces the court to look at whether “obvious, easy
alternatives” exist that allow for the exercise of the right at issue while
still protecting the governmental interest asserted. 155
In articulating this test, the Turner Court emphasized that the test was
driven by a perceived need to grant deference to prison officials:
Running a prison is an inordinately difficult undertaking that requires
expertise, planning, and the commitment of resources, all of which are
peculiarly within the province of the legislative and executive branches
of government. Prison administration is, moreover, a task that has been
committed to the responsibility of those branches, and separation of
powers concerns counsel a policy of judicial restraint. Where a state penal system is involved, federal courts have . . . additional reason to accord deference to the appropriate prison authorities. 156

After Turner, the Supreme Court has never found a prison policy to violate
a prisoner’s First Amendment rights, and any prisoner seeking to
challenge a prison regulation on First Amendment grounds certainly faces
an uphill battle. 157 Despite the lack of successful challenges to prison
policies under the First Amendment, the Supreme Court has long
maintained that Turner’s “reasonableness standard is not toothless.” 158 It
may be that the Court does not mean Turner to be toothless, but as many
commentators have recognized, “decisions by the lower federal courts
sometimes render it so.” 159

154. Turner, 482 U.S. at 90.
155. Id. at 90–91.
156. Id. at 84–85.
157. See, e.g., O’Lone v. Estate of Shabazz, 482 U.S. 342, 347, 349–50 (1987) (upholding New
Jersey prison policy forbidding prisoners with outside work assignments from returning to prison for
Jumu’ah services on Fridays); Thornburgh v. Abbott, 490 U.S. 401, 403–04 (upholding Federal
Bureau of Prisons’ policy that allowed the warden to refuse to deliver a publication received in the
mail to a prisoner if the warden determined the publication was “detrimental to the security, good
order, or discipline of the institution, or if it might facilitate criminal activity.”); Overton v. Bazzetta,
539 U.S. 126, 128–131, 133–34, 137 (2003) (upholding Michigan prison policies that banned contact
visits for prisoners considered the most dangerous, banned visits from children who were not
immediate family members, and banned all visitors except for attorneys and clergy for prisoners with
multiple substance abuse violations); Beard v. Banks, 548 U.S. 521, 525–26, 530–32 (upholding
Pennsylvania policy that prohibited phone calls (except in emergencies), visits (except one each
month), and newspapers and magazines for prisoners confined to the Long Term Segregation Unit,
meant to hold approximately forty prisoners deemed the “most incorrigible, recalcitrant” prisoners in
the state).
158. Johnson v. California, 543 U.S. 499, 524, 547 (2005) (Thomas, J., dissenting) (quoting
Thornburgh, 490 U.S. at 414).
159. Shapiro, supra note 23, at 988.

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Criticisms of Turner’s Deference

Since the Supreme Court announced its decision in Turner, the
decision has been appropriately criticized in student notes and
comments 160 and by legal scholars. 161 The central theme found in almost
all criticisms levied against the Turner standard is that the deference
afforded prison officials goes too far.
Professor Erwin Chemerinsky turns the Court’s assumption that it
must defer to prison officials on its head, arguing that authoritarian
institutions like prisons “are the places where aggressive judicial review
is most essential.” 162 Chemerinsky provides two interrelated reasons for
this argument: (1) prisons and other authoritarian institutions are, by their
160. See, e.g., Owen Rarric, Kirsh v. Wisconsin Department of Corrections: Will the Supreme
Court Say “Hands Off” Again?, 35 AKRON L. REV. 305, 319 (2002) (arguing that Turner deference
“results in a manipulated application” of the standard “because it allows courts to find a ‘reasonable
security concern’ based upon mere speculation.”) (quoting Roth, infra note 160, at 686); Cheryl Dunn
Giles, Turner v. Safley and its Progeny: A Gradual Retreat to the “Hands-off” Doctrine, 35 ARIZ. L.
REV. 219, 236 (1993) (criticizing Turner for failing to give sufficient weight to clearly identified
alternatives to the regulation at issue); William Mark Roth, Turner v. Safley: The Supreme Court
Further Confuses Prisoners’ Constitutional Rights, 22 LOY. L.A. L. REV. 667, 714 (1989) (criticizing
Turner’s deference for allowing “evidence based on mere speculation”); Lorijean Golichowski Dei,
The New Standard of Review for Prisoners’ Rights: A “Turner” for the Worse?, 33 VILL. L. REV.
393, 436 (1988) (arguing that Turner’s focus on deference robs the standard “of most of its bite.”);
Matthew P. Blishcak, O’Lone v. Estate of Shabazz: The State of Prisoners’ Religious Free Exercise
Rights, 37 AM. U. L. REV. 453, 486 (1988) (criticizing the Court’s extension of Turner to free exercise
claims, thereby creating a constitutional standard for those claims “that relies heavily on the discretion
of prison administrators.”).
161. See, e.g., Evan Bianchi & David Shapiro, Locked Up, Shut Up: Why Speech in Prison
Matters, 92 ST. JOHN’S L. REV. 1, 28 (2018) (arguing that the costs of deference are severe because
unfettered deference takes prisoner speech out of the discourse of American ideas, a result contrary
to the values inherent to the First Amendment); Shapiro, supra note 23, at 988–1005 (arguing that the
need for deference is overstated and a higher standard of review could still adequately protect the
interests of prison officials); Clay Calvert & Kara Carnley Murrhee, Big Censorship in the Big
House—A Quarter-Century After Turner v. Safley: Muting Movies, Music & Books Behind Bars, 7
NW. J.L. & SOC. POL’Y 257, 269 (2012) (arguing that “fears of violence and disruption of security
within prisons largely fuel the deference granted prison officials when it comes to protecting the First
Amendment free speech rights of prisoners.”); Scott A. Moss, Students and Workers and Prisoners—
Oh, My! A Cautionary Note About Excessive Institutional Tailoring of First Amendment Doctrine, 54
UCLA L. REV. 1635, 1666–68 (2007) (arguing that the premise that courts should defer to the
professional judgment of prison officials “proves too much” and is “inconsistent with the heightened
scrutiny typically applicable to government restrictions on individual rights.”); Erwin Chemerinsky,
The Constitution in Authoritarian Institutions, 32 SUFFOLK U. L. REV. 441, 458 (1999); Kuby &
Kunstler, supra note 127, at 1010 (arguing the idea that prison officials should be afforded deference
on questions of free speech in prison is the equivalent of allowing the governor to silence the
governed); Alphonse A. Gerhardstein, False Teeth? Thornburg’s Claim That Turner’s Standard for
Determining a Prisoner’s First Amendment Rights Is Not “Toothless”, 17 N. KY. L. REV. 527, 543
(1990) (arguing that as applied challenges to prison regulations should be accorded less deference
than facial challenges).
162. Chemerinsky, supra note 161, at 458.

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very nature, the “places where serious abuses of power and violations of
rights are likely to occur;” 163 and (2) prisoners, who are “routinely and
permanently disenfranchised,” lack the political power to effectuate
change to their circumstances through other democratic means. 164
Moreover, Professor Chemerinsky argues that deference to prisons is not
absolutely necessary. 165
Radical lawyers Ronald Kuby and William Kunstler similarly take
issue with the idea that authoritarian institutions should be able to police
speech levied against them. 166 To Kuby and Kunstler:
The notion that the judgments of prison administrators are entitled to
wide-ranging deference is a concept utterly alien and antithetical to the
rest of First Amendment jurisprudence. Prison administrators are the
persons who are least likely to be trusted with the power to censor [prisoners]. It is they who feel the lash of prisoners’ freedom of speech most
keenly; it is they who are called to task when corruption and brutality
are exposed. The idea that governors, by virtue of their role as governors, should have the power to silence the governed is absurd in any
other context but penal institutions. 167

They point out that “[p]rison administrators differ widely in background,
education, skills, and social attitudes,” and, therefore, prison officials do
not have “some mysterious expertise that requires deference from the
federal courts.” 168
Professor Scott Moss agrees. He argues that deference to prisons
(like deference to public schools and employers’ decisions in employment
discrimination cases) fails to account for the expertise judges have in the
criminal justice system, the limited scope of judicial review in any case,
and the incentives for parties to fully develop their litigation position to
ensure a full and fair adjudication of the merits of constitutional claims. 169
In furtherance of Moss’ idea that federal courts should value a full
and fair adjudication of the merits of constitutional claims, Professor
David Shapiro argues that it is time for the Supreme Court to revisit
Turner in light of the lessons learned by its application over the past 30plus years. 170 In particular, Shapiro argues that the Supreme Court should

163.
164.
165.
166.
167.
168.
169.
170.

Id.
Id. at 458–60.
Id. at 460–61.
Kuby & Kunstler, supra note 127, at 1024.
Id.
Id. at 1023.
Moss, supra note 161, at 1666–67.
Shapiro, supra note 23, at 1026.

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remodel judicial review of prisoner speech claims in light of the
substantial success achieved by the Religious Freedom Restoration Act
and the Religious Land Use and Institutionalized Persons Act “in
expanding protection of prisoners’ expression without compromising
institutional safety.” 171 Indeed, Shapiro points to the spotty record of the
lower federal courts in Turner cases and calls on the Supreme Court to
make clear “that deference does not mean the abandonment of review.” 172
Such a call is supported by the research of Professor Clay Calvert
and Kara Carnley Murrhee, who analyzed eight federal court decisions
issued between 2010 and 2011 that impacted prisoners’ access to
media. 173 From this exhaustive analysis, Calvert and Murrhee conclude
that Turner’s deference is often fueled and expanded by judicial fear, not
by rigorous application of the standard to actual proof of harm caused by
the speech at issue. 174 Calvert and Murrhee take particular issue with the
burden-shifting result of Turner:
Furthermore, under the Turner framework, judicial “deference not only
lightens the government’s burden of justifying a speech restriction, but
actually shifts the burden back to the speech plaintiff. On the question
of proof of harm allegedly caused by speech, this burden shifting has the
rather perverse result of requiring [a prisoner] to demonstrate lack of
causation while assuming that the speech prison officials seek to censor
causes harm. Put more bluntly, the burden on the plaintiff-[prisoner] is
to prove a negative. How a plaintiff behind bars might accomplish this
task boggles the mind, even if he or she was a social scientist capable of
designing and performing experiments behind bars. 175

According to Calvert and Murrhee, then, the standard has been rendered
“toothless,” and “unless a [prisoner’s] case involves particularly
outrageous facts or happens to be assigned to a pro-free speech jurist who
refuses to grant expansive deference to prison officials, there is very little
hope of a First Amendment triumph under Turner today.” 176
This lack of judicial oversight of prisoner speech undercuts the
values upon which First Amendment jurisprudence has developed. 177
Thus, “the costs of deference are quite severe.” 178 By failing to protect

171.
172.
173.
174.
175.
176.
177.
178.

Id. at 1027.
Id. at 1026.
Calvert & Murrhee, supra note 161, at 269–93.
Id. at 295.
Id. at 294; see Moss, supra note 161, at 1659 (emphasis added).
Calvert & Murrhee, supra note 161, at 296.
Bianchi & Shapiro, supra note 161, at 28.
Id.

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prisoners’ free speech rights, the federal courts enable prison systems to
undercut core First Amendment values and to curtail democratic
participation by the more than 2.2 million people incarcerated today. 179
The next section turns back to the example of the Silent Sentinels to
examine how the Silent Sentinels’ in-prison protest furthered the values
underlying the First Amendment and why the federal courts should reexamine Turner to ensure prisoners’ are afforded adequate protections for
protest speech.
IV. IMPORTANCE OF PROTECTING PRISONER PROTEST
As discussed in the introduction to this piece, the American prison
has become known as a place of unspeakable violence and inhumanity,
wherein prisoners are:
placed in cells with human waste and subjected to the screams of psychiatric patients; [] forced to sleep for two months, despite repeated
complaints, on a concrete floor in a cramped cell with a mentally ill
HIV-prisoner who urinates on [them]; [subjected to treatment like] urine
thrown at [them] by a guard which splashed on [their] face and shirt. 180

Despite these horrors occurring daily in the nation’s prisons and jails,
federal courts often largely defer to prison administrators in claims
alleging constitutional violations, thereby allowing rights’ violations to go
unchecked for decades. I submit that by strengthening the protections
afforded to prisoner speech, and particularly prisoner protest speech, we
can further the values enshrined in the First Amendment and allow
prisoners to join the current conversation about criminal justice reform—
reform that impacts their lives much more than the politicians and pundits
currently pushing or opposing such reform.
In this section, I use the example of the in-prison protests staged by
the Silent Sentinels to examine how those protests furthered three
interrelated First Amendment values. But before moving further into a
discussion of how the experience of the Silent Sentinels’ in-prison protest
provide a compelling example as to why prisoner protest should be
afforded greater protections than current First Amendment jurisprudence
allows, I must pause to comment on the limitations of this example. First,
the women arrested and jailed in connection with the picketing campaign
179. Id.
180. Jules Lobel, Prolonged Solitary Confinement and the Constitution, 11 U. PA. J. CONST. L.
115, 134 (2008) (citing Harper v. Showers, 174 F.3d 716, 717–20 (5th Cir. 1999); Watts v. Gatson,
No. 97-0114-CB-M, 1999 U.S. Dist. LEXIS 6593, at *6 (S.D. Ala. Apr. 1, 1999); Fackler v. Dillard,
No. 06-10466, 2006 WL 2404498, at *1 (E.D. Mich. July 7, 2006)).

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were white, wealthy, educated, and often married to men who were
politically and socially well-connected. Thus, the lived reality of these
women is starkly different than the lived reality of most of today’s
prisoners, who are largely non-white, poor, uneducated, and without
political or social connections. Therefore, the suffragist prisoners’ voices
garnered more empathy and credibility than most prisoners’ voices garner
today. Second, part of the outpouring of sympathy that accompanied the
initial arrests was grounded in the undoubtedly racist views that the
suffragist prisoners should not be forced to live in Occoquan’s
desegregated environment. 181 Finally, the suffragist prisoners were jailed
on what most people likely viewed as bogus charges, while many (but
certainly not all, or even most) prisoners incarcerated today are serving
time on more serious charges. While each of these limitations highlights
the stark differences between the suffragist prisoners and the men and
women incarcerated in our nation’s prisons and jails today, I submit the
example still provides utility in examining how First Amendment values
are honored by affording protection for prisoners’ individual protest
speech in the ways outlined below.
The First Amendment values I focus on in the remainder of this
section are: (1) the value of promoting democracy by checking the power
of the captors; (2) the value of expanding the marketplace of ideas by
highlighting the importance of democratic participation and fighting for
their voices to be heard both inside and outside the prison walls to promote
transparency of opaque institutions; and (3) the value of promoting
individual identity and autonomy by not allowing their status as prisoners
to distract them from their fundamental purpose: to secure the vote for all
women. From there, I turn to examples of modern prisoner protests,
highlighting both the risks inherent to engaging in such protest for the
prisoners involved and the rewards earned by those protests that garner
sufficient public attention to change the conditions inside the nation’s
prisons.
A.

First Amendment Values and the Silent Sentinels’ In-Prison Protest

“The fundamental purpose of the first amendment was to guarantee
the maintenance of an effective system of free expression” 182 for every
person. While scholars have grappled with why the freedoms enshrined in
the First Amendment merit special protection throughout the life of the
181. See, e.g., Dodd, supra note 30, at 407, n.299.
182. Thomas I. Emerson, Toward a General Theory of the First Amendment, 72 YALE L.J. 877,
878 (1963).

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republic, it seems clear that any justification for these particularized
constitutional protections is grounded in a view that values individual
participation in democratic governance. 183 Professor Marc O. DeGirolami
has distilled the justifications for the protections afforded in the First
Amendment into three overlapping purposes. First, the First Amendment
is meant to promote democratic values by holding government power in
check. 184 Second, allowing for contributions from all voices expands the
marketplace of ideas to further a societal quest for the truth. 185 Finally, the
protections afforded by the First Amendment allow for the promotion of
individual identity and autonomy. 186
1. Checking Power and Promoting Democratic Values
The first value highlighted by DeGirolami recognizes the importance
of “free discourse” to a healthy, limited, liberal democratic government. 187
Under this justification, First Amendment freedoms are necessary to hold
the government to account for abusive conduct and to limit the
government’s imposition of a certain morality on the polity: 188
Free speech rights are also cherished as a vaccination against tyranny
and abuse of government power. Underlying this ‘checking value’ is the
well-founded suspicion that every government has a natural tendency to
suppress the unpopular and maintain the status quo. Within a prison, the
hand of the government is far heavier and more frequently involved in
one’s daily affairs than outside the walls. The potential for abuse when
one has complete control over other people needs little explanation. 189

Because prison provides an environment ripe for unchecked abuse,
extending greater protection to prisoner speech necessarily furthers this
First Amendment purpose.
From the start, the suffragists clearly recognized the potential their
protests had to promote democratic values. “The rhetorical framing during
the picketing campaign . . . centered on very abstract but emotionally
183. Marc O. DeGirolami, Virtue, Freedom, and the First Amendment, 91 NOTRE DAME L. REV.
1465, 1470 (2016).
184. Id.
185. Id. at 1470–71.
186. Id. at 1472.
187. Id. (quoting KENT GREENWALT, FIGHTING WORDS: INDIVIDUALS, COMMUNITIES, AND
LIBERTIES OF SPEECH 6 (1995)).
188. DeGirolami, supra note 183, at 1470–71 (citing, inter alia, Vincent Blasi, The Checking
Value in First Amendment Theory, 2 AM. B. FOUND. RES. J. 521 (1977) and JAMES MADISON,
MEMORIAL AND REMONSTRANCE AGAINST RELIGIOUS ASSESSMENTS (1785), reprinted in RELIGION
AND THE CONSTITUTION 51, 51 (Michael. W. McConnell et al. eds., 2011)).
189. Kuby & Kunstler, supra note 127, at 1021.

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resonant ideals: democratic legitimacy, self-determination, and
liberty.” 190 The suffragists understood from the start of the picketing
campaign that by highlighting the hypocrisy of President Wilson’s
promotion of democratic values abroad while denying full democratic
participation at home, they could check the administration’s ability to
garner support for his war efforts. 191 By engaging in unruly constitutional
citizenship, the suffragists were able to highlight the injustice of their
plight once arrested.
Upon arrest, when prison officials began denying the suffragist
prisoners their most basic privileges, the women understood that they had
little power to change their plight on their own. But they also understood
they could harness the power of public opinion to force the hand of their
captors. 192 In this way, they used the tools available to them—the power
to petition—to garner publicity to “turn the wheel of public opinion.” 193
The suffragist prisoners obviously saw their in-prison protests as part
of their larger movement to become fully participating members of
democratic society through the right to vote.
Soon after her release on November 27, [Alice] Paul sent out a press
statement praising the picketing campaign: “How is it that people fail to
see our fight as part of the great American struggle for democracy, a
struggle since the days of the Pilgrims? We are bearing on the American
tradition, living up to the American spirit.” 194

Today, we punish people by not only depriving them of their liberty but
also—in almost every state—by disenfranchising them (sometimes
forever). By ensuring that prisoner protest rights are protected, we afford
prisoners a way to continue to participate in democracy—albeit in a much
more limited manner than by exercising the right to vote.

190. Dodd, supra note 30, at 407.
191. Id. at 400.
192. Id.
193. NEUMAN, supra note 49, at 150. To be clear, I do not mean to suggest that the suffragist
prisoners—in writing and circulating their petition—were acting within the confines of the proscribed
written rules. They certainly were not, as evidenced by the necessity of smuggling the petition out of
the Occoquan, supra at Part I.B., and the immediate and apparent retaliation the prisoners
experienced, id. Nor do I mean to suggest that the First Amendment jurisprudence at the time would
have given the prisoners legal cover for their actions—it would not. Nonetheless, the suffragist
prisoners’ activities provide a compelling example as to why prisoners should be afforded the
opportunity to engage in protest activities meant to draw attention to their in-prison plight.
194. Dodd, supra note 30, at 415.

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2. Expanding the Marketplace of Ideas
The second value protected by the First Amendment that Professor
DeGiorlami describes is the “Millian idea of rivalry among ideas as an
avenue to truth.” 195 This purpose views First Amendment protections as a
way to protect the “free trade in ideas” in order to steadily progress toward
ethical and political truths. 196
Prisoners have no lesser need for the truth than free citizens, nor is the
truth ascertained differently behind prison walls than across the street
from them. Indeed, if one proceeds from the assumption that persons are
in prison because they have erred in some way, then granting them the
same tools possessed by the rest of us to search for truth is an unquestionable penological good. 197

In this era of criminal justice reform, as the nation struggles to determine
how best to address the crisis of mass incarceration, it is critical that the
voices of those most affected by the crisis are heard. Extending greater
protection to prisoner speech would further these ends.
While the suffragist prisoners did not aim to reform the prisons in
which they were housed, they did inspire public officials to take a closer
look at what was happening inside the walls of Occoquan. For a brief
moment in time, then, the suffragist prisoners made the conditions of
Occoquan more transparent and exposed the truth of those conditions to
members of the public. In this way, the suffragists contributed to the
marketplace of ideas in two ways relevant to our inquiry. First, the
suffragist prisoners increased transparency. Second, this increase in
transparency opened the door for public officials to investigate and reform
prison conditions.
Ultimately, the investigations spurred by the suffragists in-prison
protests amounted to nothing more than pro forma reports not meant to
produce meaningful change, and the public quickly forgot the plight of
the prisoners still confined to Occoquan after the suffragists secured
release. But, the takeaway for today’s prisoners is two-fold. First, by
better protecting prisoners’ First Amendment rights, we can increase
195. DeGirolami, supra note 183, at 1471 (citing John Stuart Mill, On Liberty, in THE BASIC
WRITINGS OF JOHN STUART MILL 3, 35 (2002)) (“No one can be a great thinker who does not
recognize, that as a thinker it is his first duty to follow his intellect to whatever conclusions it may
lead. Truth gains more even by the errors of one who, with due study and preparation, thinks for
himself, than by the true opinions of those who only hold them because they do not suffer themselves
to think.”).
196. DeGirolami, supra note 183, at 1471–72 (quoting Abrams v. United States, 250 U.S. 616,
630 (1919) (Holmes, J., dissenting)).
197. Kuby & Kunstler, supra note 127, at 1021.

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transparency of the prisons and jails that confine more than 2.2 million
people in this country by listening to and investigating prisoners’
complaints about their conditions. Second, by amplifying and protecting
prisoners’ voices, we lend credibility to their stories and allow them to
participate meaningfully in the conversations about criminal justice
reform occurring today. Right now, we’re experiencing a moment where
politicians on both sides of the aisle are taking a critical look at criminal
justice reform. But often the voices of those impacted most by the criminal
justice system—those imprisoned within it who can describe its hard
truths—are not given full weight or even heard in the political process. By
providing greater protections for those voices, they can join the
conversation. Without those voices, “in the aggregate, people who are
richer, whiter, and not incarcerated, will enjoy greater access to the
marketplace of ideas,” resulting in “a distorted mixture of viewpoints in
public discourse because demographic factors correlate with viewpoints
on at least some matters of public concern, especially ones involving
criminal justice.” 198
3. Advancing Individual Identity and Autonomy
Finally, the third justification for the freedoms enshrined by the First
Amendment, as identified by DeGirolami, “focuses on the importance of
expressive and religious freedom for individual identity.” 199 This
justification “is canonical for the conventional account of the First
Amendment” 200 and speaks “to the essence of what it meant to be a human
person.” 201 By dehumanizing prisoners, we make it easier to ignore their
plight. The suffragist prisoners recognized this dehumanization and also
acknowledged the difficulties inherent to maintaining protest activities
when subjected to retaliation: “however gaily you start out in prison to
keep up a rebellious protest, it is nevertheless a terribly difficult thing to
do in the face of the constant cold and hunger of undernourishment.” 202
By strengthening prisoners’ ability to express themselves and demonstrate
their own identities, we can further this final First Amendment value.

198.
199.
200.
201.
202.

Bianchi & Shapiro, supra note 161, at 20.
DeGirolami, supra note 183, at 1472.
Id. at 1473.
Id.
ZHANISER & FRY, supra note 65, at 284.

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Modern Prisoner Protest

Despite the lack of protections afforded to them under the First
Amendment, many prisoners today still engage in forms of non-violent
protest meant to draw attention to their plight. 203 In recent years, prisoners
have engaged in silent protests, 204 work stoppages, 205 and hunger
strikes 206 as a means to protest unconstitutional prison conditions.
Oftentimes, the act of engaging in these forms of protest results in
disciplinary punishment, “which can affect everything from [prisoner]
classification to privileges to parole.” 207 Under Turner, drafting,
circulating, and signing petitions and engaging in work stoppages are not
necessarily protected speech. 208 Whether engaging in a hunger strike is
protected speech depends on where a prisoner is incarcerated: while the
Fifth Circuit has found that hunger strikes might “constitute protected
activity in certain circumstances,” a federal court in Illinois reached the
opposite conclusion. 209
Even protected speech is often meaningless under Turner. Prisoners
may describe unfavorable prison conditions to family and friends on the
outside, but without political capital or the resources to find help to rectify
those conditions, there is little those family and friends can do. 210
Prisoners may also attempt to challenge unconstitutional conditions in the
courts but will face a number of formidable barriers to doing so, largely
because of what David Shapiro calls “‘practical immunity’—effective
insulation from suit that flows partly from formal immunity doctrines
(such as absolute or qualified immunity) but primarily from other
obstacles that insulate potential defendants from suit.” 211 Such obstacles

203. Armstrong, supra note 123, at 226.
204. Id. at 228.
205. Id. at 226; see also German Lopez, America’s prisoners are going on strike in at least 17
states, VOX (Aug. 22, 2018), https://www.vox.com/2018/8/17/17664048/national-prison-strike-2018
[https://perma.cc/LQW5-AABK].
206. Aviva Stahl, Force-Feeding is Cruel, Painful, and Degrading—and American Prisons
Won’t Stop, NATION (Jun. 4, 2019), https://www.thenation.com/article/force-feeding-prisonsupermax-torture/ [https://perma.cc/A2CL-QEL5]; Josh Harkinson & Maggie Caldwell, 50 Days
Without Food: The California Prison Hunger Strike Explained, MOTHER JONES (Aug. 27, 2013),
https://www.motherjones.com/politics/2013/08/50-days-california-prisons-hunger-strike-explainer/
[https://perma.cc/E7D8-XJAT].
207. Armstrong, supra note 123, at 222.
208. Id. at 224.
209. Id. at 230 (citing Stefanoff v. Hays Cty., 154 F.3d 523, 527 (5th Cir. 1998); Birdo v. Dave
Gomez, No. 13-cv-6864, 2016 WL 6070173, at *6 (N.D. Ill. Oct. 17, 2016)).
210. Id. at 229–30.
211. Shapiro, supra note 23, at 1013.

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include a lack of access to counsel 212 and limitations imposed by the
Prison Litigation Reform Act. 213 Thus, while some prisoners choose to
engage in protest speech, they do so at tremendous risk of punishment and
with little options available for meaningful, legal protest activity.
Some prisoner protest activity, however, has eventually led to
meaningful reforms of prison conditions. For example, in 2011 and 2013,
thousands of prisoners confined in Special Housing Units (SHUs) in
California’s prisons engaged in hunger strikes demanding relief from the
brutal SHU conditions. 214 Garnering the attention of the Center for
Constitutional Rights, an organization “dedicated to advancing and
protecting the rights guaranteed by the United States Constitution and the
Universal Declaration of Human Rights,” the hunger-striking prisoners
eventually formed the class challenging indeterminate solitary
confinement in California. 215 The case settled in September 2015, but, in
January 2019, the United States District Court for the Northern District of
California determined that the constitutional violations continued and
ordered an additional year of monitoring. 216 While the case is ongoing,
large-scale reforms to the California SHUs have occurred, in large part
because of the initial in-prison protest.

212. Id. at 1013–19.
213. Armstrong, supra note 123, at 231; see also Margo Schlanger & Giovanna Shay,
Preserving the Rule of Law in America’s Jails and Prisons: The Case for Amending the Prison
Litigation Reform Act, 11 U. PA. J. CONST. L. 139, 139–40 (2008).
214. See Harkinson & Caldwell, supra note 206.
215. See Order Granting in Part Motion for Class Certification; Denying Motion to Intervene,
Ashker v. Governor of California, No. C 09–5796 CW, 2014 WL 2465191, (N.D. Cal. Jun. 02, 2014)
(No.
195,
233)
(available
at
https://ccrjustice.org/sites/default/files/assets/
6.2.14%20Order%20Granting%20Class%20Cert.pdf [https://perma.cc/K6KF-XHNL]).
216. See Order, Ashker v. Newsom, No. 09-cv-05796-CW (RMI), 2019 WL 330461 (N.D. Cal.
Jan. 25, 2019) (No. 905) (available at https://ccrjustice.org/sites/default/files/attach/
2019/01/1122%202019-0125%20Order%20Granting%20MTN%20to%20Extend%20SA%20for%2012%20Months.pdf
[https://perma.cc/BA6D-V5YD]).

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Godfrey: Suffragist Prisoners

2019]

SUFFRAGIST PRISONERS

311

V. CONCLUSION
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 need for identity and self-respect
are more compelling in the dehumanizing prison environment. Whether
an O. Henry writing his short stories in a jail cell or a frightened young
inmate writing his family, a prisoner needs a medium for selfexpression. It is the role of the First Amendment and this Court to
protect those precious personal rights by which we satisfy the basic
yearnings of the human spirit. 217
Despite the above flowery affirmation from the United States
Supreme Court almost 45 years ago, the federal courts, including the
Supreme Court, have largely spent the following decades narrowing the
First Amendment protections afforded to prisoners, as outlined in detail
above. 218 By refusing to afford prisoners robust protections under the First
Amendment, we are not only stripping prisoners of pieces of their identity,
but we are ignoring two key values enshrined in the First Amendment: the
ability of individual citizens to check the unadulterated power of their
government and the promotion of democratic values through democratic
participation. While prisoners, by virtue of their incarceration, are stripped
of the most fundamental way to participate in democracy—the exercise of
voting rights—prisoners are not stripped of their citizenship. Therefore,
as citizens, they should retain the right to protest the exercise of abusive
power in the opaquest of institutions: the American prison. Yet modern
First Amendment law as applied to prisoners fails to ensure the protection
of these basic values.
This failure amplifies the societal harms caused by mass
incarceration and the other abject miscarriages of justice that characterize
our criminal justice system. The harms of mass incarceration are more
acute when one accounts for the vastly disparate impact the criminal
justice system has on communities of color. 219

217. Procunier v. Martinez, 416 U.S. 396, 427–28 (1974).
218. See generally Shapiro, supra note 23 (describing how the Supreme Court’s 1987 decision
in Turner v. Safley gave lip-service to the idea that prisoners are not without constitutional protections
behind the prison gates but, in the end, gave prisoners virtually no First Amendment protections).
219. Lindsey Webb, Slave Narratives and the Sentencing Court, 42 N.Y.U. REV. L. & SOC.
CHANGE 125, 129 (2018).

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There is a dramatic racial disparity in the United States’ criminal justice
system, where African American people are incarcerated at 5.1 times the
rate of whites, and Latino people at 1.4 times the rate of whites at the
state level. In federal prisons, African American people constitute 38%
of the incarcerated population—a percentage that is almost triple the
proportion of African American people in the general population. 220

In addition to these racial disparities, the past quarter century has
witnessed a 750% increase in the number of incarcerated women. 221 Like
the broader criminal justice system, women of color are imprisoned at a
higher rate than white women. 222 Thus, strengthening the First
Amendment protections afforded to prisoners will not only have a net
positive impact on both the conditions inside our nation’s prisons and jail
but will also help ensure democratic participation for historically excluded
and silenced groups. As the Silent Sentinels taught us, the voices of these
groups must be heard.

220. Id. at 129–30.
221. The Sentencing Project, Fact Sheet: Incarcerated Women and Girls, at 1 (Jun. 06, 2019),
https://www.sentencingproject.org/publications/incarcerated-women-and-girls/
[https://perma.cc/7E55-PSNV].
222. Id. at 2.

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