WASHINGTON JOURNAL OF LAW, TECHNOLOGY & ARTS
VOLUME 11, ISSUE 4 WINTER 2016

JAIL (E)MAIL: FREE SPEECH IMPLICATIONS OF GRANTING
INMATES ACCESS TO ELECTRONIC MESSAGING SERVICES
Brennen J. Johnson*
© Brennen J. Johnson

Cite as: 11 Wash. J.L. Tech. & Arts 285 (2016)
http://digital.lib.washington.edu/dspace-law/handle/1773.1/1557

ABSTRACT
The First Amendment protects not only our right to
share ideas, but also to some extent, our right to choose the
specific method by which we share them. Generally
speaking, these protections apply to inmates’ rights to
communicate with those outside of prison. However, the
protection of those rights must be balanced with the
penological interests of prisons and jails. Electronic
messaging has now become a standard form of
communication within most American homes and
businesses. Accordingly, the Federal Bureau of Prisons has
implemented the TRULINCS program, a program which
allows inmates to communicate with those outside of prison
through electronic messaging. The Washington State
Department of Corrections has installed JPay kiosks in
state-operated facilities that allow inmates to send and
receive electronic messages. However, most state prison
systems and county jails currently do not offer inmates the
option of receiving or sending electronic messages. The
Supreme Court of the United States has indicated that
prisoners have a constitutional right to send and receive
mail, and some circuit courts have extended that right to
telephone use. This Article examines the foundational
aspects of free speech in prison settings and how the
*

Brennen J. Johnson, University of Washington School of Law, Class of
2016. Special thanks to Theodore Myhre for his guidance and tutelage. The
thoughts and views expressed in this Article solely reflect those of the Author.

286 WASHINGTON JOURNAL OF LAW, TECHNOLOGY & ARTS [VOL. 11:4

evolution of communication might affect the breadth of an
inmate’s free speech rights. This Article argues that, in
certain situations, the First Amendment should protect
inmates’ interests in sending and receiving emails.

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TABLE OF CONTENTS
Introduction ..................................................................................288
I. Email and the Free Speech Framework ................................290
A. Applying
the
First
Amendment
to
Email
Communications .............................................................290
B. Applying the Appropriate Level of Scrutiny to Restrictions
on Free Speech ...............................................................292
II. The Free Speech Framework in a Prison Context ................294
A. Guiding Principles Regarding Constitutional Rights
of Prisoners ...................................................................294
B. The Framework for Free Speech Challenges in Prison ..295
C. What Happened to the Limited Power to Regulate Time,
Place, or Manner? ...........................................................297
III. Does Failure to Provide Email in Prison Implicate First
Amendment Rights? .............................................................298
A. Comparing the Right to Telephone Use .........................299
B. A Lack of Direct Persuasive Precedent ..........................300
C. Inmate Email Access in the Context of the Right to Select
an Avenue of Speech ......................................................302
IV. The Positive Obligation Hurdle ............................................302
V. Evaluating the Lack of Email Access in Prison Under
Currently Existing Standards ................................................304
A. Failure to Provide Email under the Turner Standard .....304
1. Restricting Email Use Has No Rational Relation to a
Legitimate and Neutral Governmental Objective ....304
2. Alternative Avenues Exist to Exercise the Basic Right
of Communicating, but May Not Offer Many of the
Benefits that Might Lead an Inmate to Choose Email
Over Postage ............................................................306
3. The Impact on Staff, Prisoners, and Prison Resources
is Minimal, if Not Beneficial ...................................306
4. The Easy and Obvious Alternative of Implementing
an Email Service Indicates that Prison Practices are
Overly Restrictive ....................................................307
B. Failure to Provide Email Access Under the Martinez or
Thornburgh Standard ......................................................308
Conclusion ...................................................................................309
Practice Pointers...........................................................................310

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INTRODUCTION
Times have changed drastically since Tom Hanks and Meg
Ryan sat anxiously at their computers awaiting that famously
infectious chime, “You’ve got mail.” Email has since developed
into an everyday staple of communication. On average, 182.9
billion emails are sent worldwide every day.1 In 2013, the number
of email accounts existing was approximately 3.9 billion.2 That
number is expected to rise to 4.9 billion by the end of 2017.3
Despite the prolific use of email in everyday communications,
email has only recently started being used in prisons. It was not
until 2006 that prisoners in eleven federal facilities gained access
to a limited electronic messaging service through the Trust Fund
Limited Inmate Communication System pilot program.4 By early
2009, the system was accessible in over thirty federal prisons 5 and
was renamed the Trust Fund Limited Inmate Computer System
(“TRULINCS”)6. Today, the Federal Bureau of Prisons (“BOP”)
can boast that all BOP operated facilities enjoy access to electronic
messaging through TRULINCS.7
While electronic messaging remains unavailable to almost all
prisoners in state and county custody, a small number of state
prison systems have begun to provide electronic messaging
1

Reno v. ACLU, 521 U.S. 844, 870 (1997).
THE RADICATI GROUP, EMAIL STATISTICS REPORT 2013–2017 —
EXECUTIVE SUMMARY 2 (Sara Radicati ed., 2013), http://www.radicati.com/wp/
wp-content/uploads/2013/04/Email-Statistics-Report-2013-2017-ExecutiveSummary.pdf.
3
Id.
4
OFFICE OF THE INSPECTOR GENERAL, EVALUATION AND INSPECTIONS
REPORT NO. I-2006-009, FEDERAL BUREAU OF PRISONS’ MONITORING OF MAIL
FOR HIGH-RISK INMATES app. IV (2006).
5
Douglas Galbi, Email for Prisoners Highly Successful, PURPLE MOTES
(Sept. 11, 2011), http://purplemotes.net/2011/09/11/email-for-prisoners-highlysuccessful/.
6
FEDERAL BUREAU OF PRISONS, U.S. DEP’T OF JUSTICE, PROGRAM
STATEMENT NO. P5265.13, TRUST FUND LIMITED INMATE COMPUTER SYSTEM
(TRULINCS) - ELECTRONIC MESSAGING (2009).
7
TRULINCS Topics, FEDERAL BUREAU OF PRISONS, http://www.bop.gov/
inmates/trulincs.jsp (last visited Jan. 12, 2015).
2

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systems to inmates. For instance, the Washington Department of
Corrections (“WDOC”) has become the only prison system in the
Ninth Circuit to provide incoming and outgoing email services to
inmates by partnering with a service called “JPay” and installing
commercial email kiosks in most WDOC operated facilities.8
Likewise, the Michigan State Department of Corrections has
installed JPay kiosks in all of its facilities.9 Apart from Washington
and Michigan, a total of five other state prison systems provide
email access to inmates in at least some of their facilities—
Virginia,10 Louisiana,11 North Dakota,12 Ohio,13 and Maryland.14
Some facilities in the Washington, Louisiana, North Dakota, and
Virginia prisons systems have even implemented special tablets
with limited functions to make email services more accessible to
inmates.15
Whether in federal or state prison, email access comes to
prisoners at a price. To send and receive messages through
8

JPay Communication System (Email), WASH. STATE DEP’T OF CORR.,
http://www.doc.wa.gov/family/jpay.asp (last visited Jan. 12, 2015).
9
Electronic Messages – Sending to Prisoners, MICH. DEP’T OF
CORRECTIONS,
http://www.michigan.gov/corrections/0,4551,7-119-68854_
68856_63694-201925--,00.html (last visited Jan. 12, 2015).
10
Virginia Department of Corrections, JPAY, http://www.jpay.com/
Agency-Details/Virginia-Department-of-Corrections.aspx (last visited Jan. 12,
2015).
11
Louisiana Department of Corrections, JPAY, http://www.jpay.com/
Agency-Details/Louisiana-Department-of-Corrections.aspx (last visited Jan. 12,
2015).
12
North Dakota State Penitentiary, JPAY, http://www.jpay.com/
Facility-Details/North-Dakota-Department-of-Corrections/North-Dakota-StatePenitentiary.aspx (last visited Jan. 12, 2015).
13
Ohio Department of Rehabilitation and Correction, JPAY,
http://www.jpay.com/Agency-Details/Ohio-Department-of-Rehabilitation-andCorrection.aspx (last visited Jan. 12, 2015).
14
Maryland Correctional Institution – Women, MD. DEP’T OF PUB. SAFETY
&
CORRECTIONAL
SERVICES,
http://www.dpscs.state.md.us/locations/
mciw.shtml (last visited Jan. 12, 2015). It should be noted that Maryland is
implementing electronic messaging on a trial basis, and only in one women’s
correctional facility.
15
Mini-tablet for Prisons Now Available in Louisiana, Virginia,
Washington and N. Dakota!, JPAY BLOG, http://blog.jpay.com/mini-tablet-forprisons-now-available-in-louisiana-and-virginia/ (last visited Jan. 12, 2015).

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TRULINCS, JPay, or some other state implemented service,
inmates and their loved ones must pay between seventeen and sixty
cents per email.16 As the BOP states: “No taxpayer dollars are used
for this service. Funding is provided entirely by the Inmate Trust
Fund, which is maintained by profits from inmate purchases of
commissary products, telephone services, and the fees inmates pay
for using TRULINCS.”17
The First Amendment states that “Congress shall make no law
. . . abridging the freedom of speech.”18 This prohibition applies
equally to the several states that have incorporated this system
through the Fourteenth Amendment’s Due Process Clause.19 In an
era when technology has significantly increased the channels of
communication available to the public, changing times have forced
courts to evaluate the First Amendment guarantee of free speech in
increasingly complex scenarios. This Article examines the
intersection of free speech protections and access to electronic
messaging in prison.
I. EMAIL AND THE FREE SPEECH FRAMEWORK
To understand how free speech protections interact with an
inmate’s access to electronic messaging systems, it is necessary to
recognize (1) how the First Amendment might interact with email
communications and (2) what level of scrutiny applies to various
restrictions on free speech rights.
A. Applying the First Amendment to Email Communications
Internet communications, such as emails, presumptively fall
within the ambit of free speech protections.20 In assessing an
16

Derek Gilna, Prison Systems Increasingly Provide Email - For a Price,
PRISON LEGAL NEWS, Nov. 2015, at 35.
17
TRULINCS Topics, FEDERAL BUREAU OF PRISONS, http://www.bop.gov/
inmates/trulincs.jsp (last visited Jan. 12, 2015).
18
U.S. CONST. amend. I.
19
U.S. CONST. amend. XIV, § 1; see also Murdock v. Pennsylvania, 319
U.S. 105, 108 (1943) (incorporating the First Amendment’s free speech clause
into the Fourteenth Amendment’s due process clause).
20
See Clement v. Cal. Dep’t of Corr., 364 F.3d 1148, 1151 (9th Cir. 2004).

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alleged violation of free speech, the initial consideration regarding
any claim is whether a limitation implicates any free speech rights.
These rights are not limited by form. Courts have found that
Internet communications deserve the same protections as other
more traditional forms of speech.21
Generally, communication enjoys a presumptive implication of
First Amendment protection.22 As iterated by the Supreme Court,
“[m]ost of what we say to one another lacks religious, political,
scientific, educational, journalistic, historical, or artistic value (let
alone serious value), but it is still sheltered from government
regulation.”23 As such, when government action limits the
communicative use of words, free speech protections are
implicated.
In the context of Internet communications, courts have
determined that the First Amendment “protects material
disseminated over the internet as well as by the means of
communication devices used prior to the high-tech era.”24
Accordingly, attempts to communicate over the Internet, which
incorporate linguistic elements,25 such as most emails,
presumptively fall within the First Amendment’s scope; the
presumption is rebuttable only if there is an established tradition of
exclusion.26

21

See id.; see also Reno v. ACLU, 521 U.S. 844, 868 (1997).
See Charles W. Rhodes, The First Amendment Structure for Speakers and
Speech, 44 SETON HALL L. REV. 395, 404 (2014).
23
United States v. Stevens, 559 U.S. 460, 479 (2010) (internal quotation
marks omitted).
24
Clement, 364 F.3d at 1151; see also Reno, 521 U.S. at 868.
25
See Rhodes, supra note 22 (“The use of words or language to attempt to
communicate any assertion, idea, perception, emotion, or thought—or any
attempt to receive such words or language—is presumptively covered by the
First Amendment.”).
26
See Rhodes, supra note 22. See this article for a discussion of the types of
exclusions that are common or may apply to free speech rights. Although many
communications that are sent via the Internet could trigger such exclusions, they
are irrelevant to the more general discussion of email access in a prison setting.
Because such a discussion focuses on the initial ability to access email rather
than the content of a particular inmate’s communications, there is no context
here in which to address these exclusions.
22

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B. Applying the Appropriate Level of Scrutiny to Restrictions on
Free Speech
Once a government action has been shown to implicate free
speech protections, the inquiry becomes whether the action
imposes restrictions that are “content-neutral.” A regulation is
content-neutral if its applicability to a given expression does not
turn on the content of the speech.27 Here, “[t]he government’s
purpose is the controlling consideration. A regulation that serves
purposes unrelated to the content of expression is deemed neutral .
. . . ”28 In contrast, “[r]ules are generally considered content-based
when the regulating party must examine the speech to determine if
it is acceptable.”29
If the action is not content-neutral, then the action will be
examined under strict scrutiny, which means it violates the First
Amendment unless shown to be “the least restrictive means of
achieving a compelling state interest.”30 However, if the action is
content-neutral, then it is subject to intermediate scrutiny, which
means that the court will determine if the action is “narrowly
tailored to serve a significant governmental interest, and . . .
leave[s] open ample alternative channels for communication of the
information.”31 The application of intermediate scrutiny in the
context of content-neutral governmental action is based on the
premise that “the government may impose reasonable restrictions
on the time, place, or manner of protected speech.”32
Although the government may create reasonable time, place, or

27

See Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984);
Ward v. Rock Against Racism, 491 U.S. 781, 790–91 (1989).
28
Ward, 491 U.S. at 791.
29
United Bhd. of Carpenters & Joiners of Am. Local 586 v. NLRB, 540
F.3d 957, 964 (9th Cir. 2008); see also Clark, 468 U.S. at 293 (“[R]estrictions of
this kind are valid provided that they are justified without reference to the
content of the regulated speech, that they are narrowly tailored to serve a
significant governmental interest, and that they leave open ample alternative
channels for communication of the information.”).
30
McCullen v. Coakley, 134 S. Ct. 2518, 2530 (2014).
31
Clark, 468 U.S. at 293.
32
Ward, 491 U.S. at 791.

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manner restrictions in public forums,33 the foreclosure of an entire
avenue of speech should be subject to strict scrutiny. The Ninth
Circuit has recognized that, in addition to the right to communicate
the content of a message, “free speech protections extend to the
‘right to choose a particular means or avenue of speech . . . in lieu
of other avenues.’”34 Accordingly, the “[g]overnment may regulate
the manner of speech in a content-neutral way but may not infringe
on an individual’s right to select the means of speech.”35 The total
foreclosure of an avenue of speech, even while alternative avenues
remain open, acts as the total abrogation of a protected
constitutional right.
For example, in Meyer v. Grant,36 the Supreme Court
determined that a prohibition on paid petition circulators violated
the First Amendment when it foreclosed the opportunity for the
petitioner to communicate its message through the “most effective,
fundamental, and perhaps economical avenue of political
discourse, direct one-on-one communication.”37 Specifically, the
Court held that such actions by the government “involved a
limitation on . . . expression subject to exacting scrutiny.”38
Applying strict scrutiny, the Court concluded that the government
action violated the First Amendment, even though multiple other
avenues of expression remained open to the petitioner.39 In
reaching its conclusion, the Court determined that the First
Amendment protects not only the right to communicate a message,
“but also to select what [one] believe[s] to be the most effective
means for so doing.”40 This protection of the First Amendment
may be applicable to the selection of email services to convey
protected communications, especially when email has become such
an efficient, fundamental, and economically advantageous avenue
of discourse.
33

Clark, 468 U.S. at 293.
United Bhd. of Carpenters, 540 F.3d at 969 (quoting Foti v. City of
Menlo Park, 146 F.3d 629, 641 (9th Cir. 1998)).
35
Foti, 146 F.3d at 641–42.
36
Meyer v. Grant, 486 U.S. 414 (1988).
37
Id. at 424.
38
Id. at 420.
39
Id. at 424.
40
Id.
34

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II. THE FREE SPEECH FRAMEWORK IN A PRISON CONTEXT
Prisons and jails can be dangerous places, and some of the
people inside can pose a serious threat to other prisoners and the
outside world if their communications are not limited.
Accordingly, to protect both the public and prisoners alike, free
speech protections must be analyzed with greater caution in a
prison context. Understanding how free speech protections might
work in a prison setting requires examining: (1) the general
principles behind the constitutional rights of prisoners, (2) the
historical framework for free speech challenges in prison settings,
and (3) the government’s traditionally limited power to regulate
time, place, or manner of free speech.
A. Guiding Principles Regarding Constitutional Rights of
Prisoners
The analysis of the constitutional rights of prisoners is guided
primarily by two often-conflicting principles: an inmate’s retention
of constitutional rights, and deference to prison authorities. When
these two principles come into tension, courts must balance the
“traditional policy of judicial restraint regarding prisoner
complaints and the need to protect constitutional rights.”41
Incarceration does not deprive inmates of their constitutional
rights and protections. The Court in Turner v. Safley exemplifies
this principle, stating that “[p]rison walls do not form a barrier
separating prison inmates from the protections of the
Constitution.”42 This principle applies wherever a prisoner in
government custody asserts constitutional protections.43
However, in the context of prison administration, courts should

41

Procunier v. Martinez, 416 U.S. 396, 406 (1974), abrogated by
Thornburgh v. Abbott, 490 U.S. 401 (1989).
42
Turner v. Safley, 482 U.S. 78, 84 (1987).
43
See, e.g., Wolff v. McDonnell, 418 U.S. 539, 556 (1974) (applying due
process protections); Johnson v. Avery, 393 U.S. 483, 485–86 (1969)
(protecting the right to petition the government); Lee v. Washington, 390 U.S.
333, 333 (1968) (applying Equal Protection Clause).

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“accord deference to the appropriate prison authorities.”44 Because
the expertise, planning, and commitment of resources involved
with running a prison fall “peculiarly within the province of the
legislative and executive branches of government,” separation of
power concerns support a policy of judicial restraint on questions
that would affect these issues.45
It is easy to see how deference to prison administrators might
conflict with an inmate’s assertion of his or her retained
constitutional protections. These principles are supposed to be
“balanced” against the other when they conflict. However, the
analysis in Turner suggests that the Court favors deference to
prison authorities.
B. The Framework for Free Speech Challenges in Prison
Separate standards govern the evaluation of incoming and
outgoing correspondence restrictions. The historical framework of
free speech challenges in a prison context suggests that
“heightened scrutiny” will be applied to restrictions on outgoing
communications while a more deferential “reasonableness test”
will be applied to limitations on incoming communications.
The Supreme Court’s first major articulation of a standard of
review for prison regulations on free speech occurred in Procunier
v. Martinez.46 The Court required that such regulations “further an
important or substantial governmental interest unrelated to the
suppression of expression” and do not impinge on First
Amendment protections more “than is necessary or essential to the
protection of the particular governmental interest involved.”47
Although this test largely mirrors the effective language of a
heightened—or even strict—scrutiny standard, subsequent cases
obscured this standard and it devolved into a vague test based on
the “reasonableness” of prison regulations.48
44

Turner, 482 U.S. at 85.
Id.
46
Procunier v. Martinez, 416 U.S. 396 (1974).
47
Id. at 413.
48
See Block v. Rutherford, 468 U.S. 576, 586 (1984); Bell v. Wolfish, 441
U.S. 520, 550 (1979); Jones v. N.C. Prisoners’ Labor Union, Inc., 433 U.S. 119,
45

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Thirteen years after its decision in Martinez, the Court in
Turner explicitly set forth a “reasonableness” standard for
evaluating prison regulations that dealt with incoming
correspondence.49 There, the Court stated that prison regulations
are “valid if [they are] reasonably related to legitimate penological
interests.”50 To evaluate the reasonableness of a regulation, the
Court provided four factors to consider:
(1) [W]hether the regulation is rationally related to a
legitimate and neutral governmental objective, (2)
whether there are alternative avenues that remain
open . . . to exercise the right, (3) the impact that
accommodating the asserted right will have on other
guards and prisoners, and on the allocation of prison
resources; and (4) whether the existence of easy and
obvious alternatives indicates that the regulation is
an exaggerated response by prison officials.51
Two years later, in Thornburgh v. Abbott,52 after recognizing
that the “implications of outgoing correspondence for prison
security are of a categorically lesser magnitude than the
implications of incoming materials,”53 the Court clarified that the
reasonableness standard applied subsequent to Martinez, and
articulated in Turner, applied specifically to incoming
correspondence. Pursuant to this conclusion, the Court explicitly
overruled the standard of Martinez as it only applies to incoming
correspondence. However, while the more deferential standard of
Turner applies to incoming correspondence, it appears that the
heightened scrutiny standard of Martinez remains in force for
outgoing correspondence. Accordingly, it appears that separate
standards govern the evaluation of incoming and outgoing
correspondence restrictions: the Martinez heightened scrutiny test
131 (1977); Pell v. Procunier, 417 U.S. 817, 822 (1974).
49
Turner v. Safley, 482 U.S. 78 (1987).
50
Id. at 89.
51
Prison Legal News v. Lehman, 397 F.3d 692, 699 (9th Cir. 2005) (citing
Turner, 482 U.S. at 89).
52
Thornburgh v. Abbott, 490 U.S. 401 (1989).
53
Id. at 413.

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for outgoing communications and the Turner reasonableness test
for incoming communications.
Although “[l]awful incarceration brings about the necessary . . .
limitation of many privileges and rights, a retraction justified by
the considerations underlying our penal system,”54 neither the
Martinez nor the Turner standard turn on an individual’s status as
an inmate. The only policy consideration supporting a lower
standard of scrutiny for communications inside and outside of
prisons is the deference that is due to the executive officers
responsible for prison management. The evaluation of a prison
regulation that implicates free speech rights is logically connected
to the legitimate or substantial security concerns of running a
prison, not a lessened value imputed to the constitutional rights of
inmates. It is thus irrelevant whether the regulations implicate the
free speech protections of inmates or of the free citizens who seek
to communicate with them.
C. What Happened to the Limited Power to Regulate Time, Place,
or Manner?
While the Turner standard attempts to balance conflicting
policies by applying a “reasonableness” standard to prison
regulations, it fails to account for the government’s limited power
to regulate the time, place, or manner of free speech.55
Many prison practices may designate limitations on speech
such as the number of correspondences sent and received each day,
the volume of single messages, or the manner of packaging written
communications. These types of limitations would fall squarely
within the power of the government to reasonably limit the time,
place, or manner of speech. However, in establishing the Turner
standard, the Court failed to account for government actions that
go beyond the mere regulation of time, place, or manner. In doing
so, it overlooked longstanding checks on the power to regulate
54

O’Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987) (alteration in
original) (quoting Price v. Johnston, 334 U.S. 266, 285 (1948)) (internal
quotation marks omitted).
55
See “Applying the Appropriate Level of Scrutiny to Restrictions on Free
Speech,” supra at p. 7.

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speech and instituted a standard that evaluates the reasonableness
of abrogating a constitutional right by deferring to the executive
authority of local prison administrators.
This viewpoint overlooks the risk of restrictions that go beyond
the government’s traditional power to regulate the time, place, and
manner of speech and applies a “reasonableness” test to
regulations that entirely abrogate certain First Amendment rights,
such as the right of free citizens or inmates to select a particular
means to communicate with one another. In any other context,
such a significant abrogation of a constitutional right would be
evaluated under the strict scrutiny standard. Nonetheless, modern
courts reviewing a restriction that completely abrogates certain
means of communication (such as written letters, phone calls,
postcards, or emails) might evaluate such restrictions under the
Turner reasonableness test when such sweeping regulations should
be evaluated under a standard of strict, or at least heightened
scrutiny. Otherwise, courts run the great risk that such regulations
will unnecessarily violate constitutional rights. A standard of strict
scrutiny is far more stringent than the Turner test, but it is not
necessarily fatal to government regulations. Prisons would still be
permitted to apply the least restrictive means available to achieve
legitimate and compelling administrative interests.
III. DOES FAILURE TO PROVIDE EMAIL IN PRISON IMPLICATE FIRST
AMENDMENT RIGHTS?
Although socially controversial, it is settled law that prison
walls neither sever inmates from their constitutional rights nor “bar
free citizens from exercising their own constitutional rights by
reaching out to those on the inside.”56 As stated earlier, the
threshold inquiry of any claim to free speech protections is whether
or not the limitation at issue actually infringes on any free speech
rights.
In the context of inmate email access, it is helpful to recognize:
56

Thornburgh, 490 U.S. at 407 (citing Turner, 482 U.S. at 94–99; Bell v.
Wolfish, 441 U.S. 520 (1979); Jones v. N.C. Prisoners’ Labor Union, Inc., 433
U.S. 119 (1977); Pell v. Procunier, 417 U.S. 817 (1974)) (internal quotation
marks omitted).

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(1) the cases that address access to other modern communication
systems like telephones, (2) the lack of direct persuasive authority
in the context of email, and (3) the fact that courts dealing with
prisoner communications seem to have overlooked the right to
choose a particular avenue of communication over another.
A. Comparing the Right to Telephone Use
There is a strong similarity between the uses of telephonic and
of electronic messaging in the context of prisons. Both involve an
inmate’s access to a means of communication provided by modern
technology and consequently implicate similar free speech
considerations. But where email access for inmates is a novel
issue, several circuit courts have directly addressed the assertion of
telephone access as an inmate’s constitutional right. Therefore,
cases involving inmate assertions of a right to telephone use
provide a helpful comparison for determining whether or not the
assertion of a right to email access would implicate protected free
speech rights. Currently, there is a pronounced circuit split on the
issue of whether or not inmates possess a constitutional right to
telephone access. This split illustrates that the success of asserting
rights to email may depend on the jurisdiction in which the claim is
brought.
The Ninth Circuit has held that “prisoners have a First
Amendment right to telephone access,” though this right remains
“subject to reasonable limitations arising from the legitimate
penological and administrative interests of the prison system.”57
Additionally, the Sixth Circuit has held that prisoners have a First
Amendment right to limited telephone access,58 while the Eighth
Circuit has recognized that the First Amendment may include a
right to prisoner telephone access.59
Conversely, in Arsberry v. Illinois, the Seventh Circuit held
that prisoners in Illinois have no First Amendment right to use the
57

Johnson v. State of Cal., 207 F.3d 650, 656 (9th Cir. 2000) (citing
Strandberg v. City of Helena, 791 F.2d 744, 747 (9th Cir.1986)).
58
Washington v. Reno, 35 F.3d 1093, 1100 (6th Cir. 1994).
59
Benzel v. Grammer, 869 F.2d 1105, 1108 (8th Cir. 1989).

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telephone.60 Focusing solely on the general content of inmate
communications, Judge Posner stated:
Although the telephone can be used to convey
communications that are protected by the First
Amendment, that it is not its primary use and it is
extremely rare for inmates and their callers to use
the telephone for this purpose. Not to allow them
access to a telephone might be questionable on
other grounds, but to suppose that it would infringe
the First Amendment would be doctrinaire in the
extreme.61
Although only in dictum, the First Circuit has agreed with the court
in Arsberry, stating that inmates have “no per se constitutional
right to use a telephone.”62 However, the First Circuit has also
affirmed at least one district court order that required jail officials
to provide inmates with access to telephones.63
While claims asserting a right to email access may succeed in
jurisdictions like the Ninth Circuit, where access to telephone use
is considered a constitutional right, they seem highly unlikely to
succeed in jurisdictions like the First and Seventh Circuit.
B. A Lack of Direct Persuasive Precedent
The issue of whether inmates have a constitutional right to
email access is a novel question. As of yet, it has only arisen in a
few unpublished district court cases. These cases occurred in the
Fourth Circuit,64 the Sixth Circuit,65 and the Tenth Circuit.66 In
60

Arsberry v. Illinois, 244 F.3d 558, 564–65 (7th Cir. 2001).
Id.
62
United States v. Footman, 215 F.3d 145, 155 (1st Cir. 2000).
63
Inmates of Suffolk Cnty. Jail v. Eisenstadt, 360 F. Supp. 676 (D. Mass.
1973), aff’d, 494 F.2d 1196 (1st Cir. 1974).
64
Grayson v. Fed. Bureau of Prisons, No. 5:11cv2, 2012 WL 380426, at *3
(N.D. W. Va. Feb. 6, 2012) (“[P]risoners have no First Amendment
constitutional right to access email.”).
65
Bristow v. Amber, No. 2:12-CV-412, 2012 WL 1963577, at *1 (S.D.
Ohio May 31, 2012).
66
Rueb v. Zavaras, No. 09–cv–02817, 2011 WL 839320, at *6 (D. Colo.
61

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each instance the district court determined that “inmates have no
established First Amendment right to access email.”67
Although this narrow selection of cases rejects the notion that
the First Amendment provides inmates with a right to email access,
the reasoning behind each case suffers from a substantial deficit. In
each case, the court based its decision on: (1) the lack of express
authority establishing a constitutional right to email access, and (2)
the precedent of one particular unpublished district court case from
the Eighth Circuit, which stated that the government is not
obligated to “provide telephones, videoconferencing, email, or any
of the other marvelous forms of technology that allow
instantaneous communication across geographical distances.”68
First, as a novel issue, the lack of express authority establishing
an inmate’s right to elect email access as an avenue of free speech
does not suggest that such a right does not exist. Because inmates
retain their constitutional rights during incarceration, limited only
by the legitimate security concerns of the prison administration,
precedent suggests that a complete limitation on the right to access
a communicative avenue such as an email or phone service
necessarily infringes upon the free speech interest of selecting the
means of one’s communication.
The second basis for these decisions is troubling, especially
where a district court within the Eighth Circuit relied upon the
limitations of the First Amendment to impose positive obligations
on a prison rather than the rights protected by the First
Amendment.69 Furthermore, if taken to mean that the First
Amendment fails per se to protect inmate access to telephones,
such a conclusion would directly contradict precedent from the
Court of Appeals for the Eighth Circuit stating that limitations on
telephone use may violate First Amendment protections.70

Mar. 7, 2011).
67
Id.
68
Holloway v. Magness, No. 5:07CV00088 JLH-BD, 2011 WL 204891, at
*7 (E.D. Ark. Jan. 21, 2011).
69
Id.
70
See Benzel v. Grammer, 869 F.2d 1105, 1108 (8th Cir. 1989).

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C. Inmate Email Access in the Context of the Right to Select an
Avenue of Speech
The conflicting guidance provided by cases dealing with phone
or email use in prison focus narrowly on the right to send
correspondence in and out of prison facilities. In doing so, they fail
to account for the right to select a particular avenue or means of
speech. It seems that a limitation that completely bars access to
email systems would implicate First Amendment protections. Such
a restriction would utterly eliminate an efficient, fundamental, and
economically advantageous avenue of discourse. By eliminating
the right to select email as a method of communication, prison
officials do more than limit prisoners’ right to send and receive
correspondence—they entirely abrogate their right to choose the
means of their speech.
IV. THE POSITIVE OBLIGATION HURDLE
In its traditional sense, the First Amendment acts as a security
of negative obligations, prohibiting government action (as opposed
to inaction) that violates certain protections. The failure of state
prison systems to provide inmates with email access is not the
same as a regulation barring access to email services that are
already in place. Accordingly, it would be difficult to enforce a
right to email access if prisons and jails state that they simply
cannot provide the resources to facilitate this particular form of
communication.
“[I]n those jurisdictions [such as the Ninth Circuit] where
courts exercise constitutional review of state omissions and not
only of state action, the guidelines for protecting social rights can
be used to enforce the positive dimension of . . . freedom of
expression.”71 Some district courts have applied this concept by
ordering prison or jail officials to provide access to telephones in
jurisdictions that have determined that inmates possess a First
Amendment right to access them.72 Such orders imply that a
71

Ivar A. Hartmann, A Right to Free Internet? On Internet Access and
Social Rights, 13 J. High Tech. L. 297, 370 (2013).
72
Owens-El v. Robinson, 442 F. Supp. 1368, 1386 (W.D. Pa. 1978) (citing

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positive obligation can exist to provide communication services
where inmates have a constitutional right to access. However,
other courts have determined that affirmative obligations on
prisons are limited to the protections guaranteed by the Eighth
Amendment, and that the First Amendment cannot give rise to
such duties.73
Accordingly, while the failure of state prison systems to
provide inmates with email access is not the same as a regulation
barring access to communication methods that are already in place,
administrators might still have a duty to install email services or
unlock certain features of an existing service where they are
affordable or already installed in a limited form. In prisons where
services have not yet been implemented, the inquiry becomes
whether courts may impose an affirmative duty on prison systems
to provide inmates with access to methods of communication. In
prisons where a service is already installed but the administrators
implement some features while not implementing others—such as
allowing money deposits or incoming messages but not outgoing
messages74—the question is whether such choices constitute
“limiting” the features of those services.
Whether or not the First Amendment can create positive
obligations on a prison is a complicated issue worthy of thorough
examination. This Article will not endeavor to take up that
immense discussion. Suffice it to say that this is a controversial
subject that is not resolved. While some jurisdictions have acted in
Dillard v. Pitchess, 399 F. Supp. 1225 (C.D. Cal. 1975); Inmates of Suffolk
Cnty. Jail v. Eisenstadt, 360 F. Supp. 676 (D. Mass. 1973), aff’d, 494 F.2d 1196
(1st Cir. 1974); Mitchell v. Untreiner, 421 F. Supp. 886 (N.D. Fla. 1976);
O’Bryan v. Cnty. of Saginaw, Mich., 437 F. Supp. 582 (E.D. Mich. 1977)).
73
Holloway, 2011 WL 204891, at *7.
74
For instance, in 2014, Nevada State Prison System had implemented JPay
email services, but only allowed incoming messages. The state has since stopped
implementing JPay systems all together, but still allows incoming emails to be
sent to the prison where they are printed by prison staff and then delivered in
paper format. Nevada Prisons Inmate, Family & Friends Share Page, Email from
JPay,
FACEBOOK,
https://www.facebook.com/NevadaPrisons/posts/
784982748258964 (last visited Jan. 23, 2015); Inmate Email Information, STATE
OF NEV. DEP’T OF CORRECTIONS, http://doc.nv.gov/Inmates/Inmate_Email
_Information/ (last visited Jan. 24, 2015).

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a manner suggesting that they may impose a positive obligation on
prisons to provide access to a particular means of communication,
others will refuse to recognize a positive dimension of First
Amendment protections.
V. EVALUATING THE LACK OF EMAIL ACCESS IN PRISON UNDER
CURRENTLY EXISTING STANDARDS
The “reasonableness test” of the Turner standard seemingly
rejects the need to apply strict scrutiny to sweeping limitations or
regulations that abrogate entire avenues of free speech, such as
email. Nonetheless, despite the potential pitfalls of such an
extremely deferential standard, courts evaluating the free speech
rights of inmates will analyze government limitations under the
existing framework for free speech rights in prison. As such, courts
faced with demands for email access in prisons will look to the
standard outlined in Turner for incoming message services and that
of Martinez for outgoing messages.
A. Failure to Provide Email Under the Turner Standard
Examining whether a regulation fails or passes the Turner
standard requires assessing: (1) if the limitation is rationally related
to a legitimate and neutral governmental objective; (2) if
alternative avenues remain to exercise the asserted right; (3) the
impact that accommodating the right will have on staff, prisoners,
and prison resources; and (4) if easy and obvious alternatives
indicate that prison practices are overly restrictive.75
1. Restricting Email Use Has No Rational Relation to a
Legitimate and Neutral Governmental Objective
The first Turner factor requires that a court determine (1) if the
governmental objective behind the policy is legitimate and neutral,
and (2) if a rational relationship exists between the asserted
75

Prison Legal News v. Lehman, 397 F.3d 692, 699 (9th Cir. 2005) (citing
Turner, 482 U.S. at 89).

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objective and the policy regulation.76 If a regulation lacks a
rational relationship to a legitimate objective under this first factor,
then it cannot be reasonably related to the motive behind judicial
deference to prison administrators, and “a court need not reach the
remaining three factors.”77
The burden of showing a rational relationship lies with prison
systems, and is initially satisfied by presenting an “intuitive,
common-sense connection” between the objective and the
regulation.78 If challengers to prison practices show sufficient
evidence refuting the connection, the prisons must additionally
present enough evidence to show that the connection is not “so
remote as to render the policy arbitrary or irrational.”79
Email in prisons has the power to drastically reduce the
potential of prisoners receiving contraband through postal mail.
Furthermore, prison email systems like TRULINCS have been
shown to be financially self-sustaining and even contributory to the
funding of other traditional means of communication and prison
maintenance. Although prison email could lead to an increase in
incoming correspondence, electronic messages are more readily
screened for dangerous or prohibited content. Any displacement of
incoming postage will likely result in an overall increase of prison
mail efficiency.
Perhaps more importantly on a social level, it has been
recognized that such communication with family and friends
“advances rather than retards the goal of rehabilitation.”80 It seems
unlikely that the failure to provide email access could be
considered rationally related to a legitimate governmental interest.
Although this factor is in itself not dispositive of the issue, it is of
value to consider the remaining three Turner factors.

76

Thornburgh v. Abbott, 490 U.S. 401, 414 (1989).
Prison Legal News, 397 F.3d at 699; see also Walker v. Sumner, 917
F.2d 382, 385 (9th Cir. 1990).
78
Frost v. Symington, 197 F.3d 348, 357 (9th Cir. 1999).
79
Turner, 482 U.S. at 89–90.
80
Procunier v. Martinez, 416 U.S. 396, 413 (1974).
77

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2. Alternative Avenues Exist to Exercise the Basic Right of
Communicating, But May Not Offer Many of the Benefits That
Might Lead an Inmate to Choose Email Over Postage
In order for a prison or jail regulation that implicates free
speech rights to be considered reasonable under the Turner
standard, the inmate must retain some avenue of exercising his
protected free speech. In evaluating this factor, “alternative means
need not be ideal,”81 but instead “need only be available.”82
Nonetheless, “the right in question must be viewed sensibly and
expansively.”83
Analysis of this factor depends largely on how the asserted
right is framed. If the right infringed by email limitations is viewed
as narrowly as the right to send or receive written communications,
it is obvious that alternative avenues remain available for sending
written correspondence, such as letters and postcards. Nonetheless,
the nature of handwritten postage differs greatly from that of
electronic messaging. Email is cost-effective, allows for rapid
response from those in correspondence with each other, is
protected from physical decay, and is recallable from multiple
locations due to its stored electronic form. It might be said that
these characteristics of email so differ from those of paper
correspondence that the loss of these enhanced features implicates
some other subtle right couched in free speech protection—the
most likely being the right to choose the means of communicating
in a form that retains similar protections offered by email services.
If the right infringed upon by email limitations is viewed
expansively as the right to select a particular means or avenue of
communication, it would appear that absolutely no alternative
avenue for exercising that right remains.
3. The Impact on Staff, Prisoners, and Prison Resources is
Minimal, if Not Beneficial
Assessing the appropriateness of a speech restriction under the
81

Overton v. Bazzetta, 539 U.S. 126, 135 (2003).
Id.
83
Mauro v. Arpaio, 188 F.3d 1054, 1061 (9th Cir. 1999).
82

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Turner standard also requires examining the impact that
accommodating the right will have on staff, prisoners, and prison
resources.84 Because of the high likelihood that even the smallest
changes will have some “ramification of the liberty of others or on
the use of the prison’s resources,” this third factor weighs most
heavily when “accommodation of an asserted right will have a
significant ‘ripple effect’ on fellow inmates and staff.”85 Also, “the
policies followed at other well-run institutions [are] relevant to a
determination of the need for a particular type of restriction.”86
As stated in regards to the first Turner factor, the economic
effects of email systems on prison resources are actually positive.
It requires less manpower to monitor than physical mail, does not
necessitate physical contact with mail, and can be reviewed by
computer systems. Furthermore, such systems are self-financing.
Looking to the policies of another well-run institution, the
universal implementation of TRULINCS by the Federal Bureau of
Prisons suggests that there is no need to arbitrarily restrict access
to email communications.
4. The Easy and Obvious Alternative of Implementing an Email
Service Indicates That Prison Practices are Overly Restrictive
Under the fourth Turner factor, courts consider whether easier
and obvious alternatives exist for meeting the government’s
interest in denying a privilege or implementing a regulation. If so,
this would suggest that the prison practice might be overly
restrictive. This factor should not be mistaken for a least restrictive
alternative analysis. Under the Turner standard, prisons do not
need to adopt the least restrictive alternative.87 However, courts
may consider “an alternative that fully accommodates the
[asserted] rights at de minimis cost to valid penological interests”
as evidence that the policy unreasonably infringes upon First

84

Prison Legal News v. Lehman, 397 F.3d 692, 699 (9th Cir. 2005) (citing
Turner, 482 U.S. at 89).
85
Turner, 482 U.S. at 90.
86
Morrison v. Hall, 261 F.3d 896, 905 (9th Cir. 2001).
87
See Turner, 482 U.S. at 90–91.

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Amendment rights.88 Under the fourth Turner factor, the
availability of easily implemented services like JPay, considered
together with the success of the TRULINCS program, suggest that
denying email access is unnecessarily restrictive.
The difficulty with this factor is determining what penological
interests are actually advanced by restricting email
communications. Fortunately, services like JPay have made
installing email access in prisons a simple process. Perhaps, the
theorized benefit to denying access to electronic communications
is found in the simple reduction in the volume of communications
that can enter and exit a prison. However, services like JPay can
limit how many emails each inmate may send in a given time
period. Additionally, any increase in the volume of
communications might be offset by the added security benefits that
accompany email services. Accordingly, the most reasonable
alternative to prevent too high a volume of communications would
be to limit the number of emails or letters allowed per day, but still
provide access to email and postal services.
B. Failure to Provide Email Access Under the Martinez or
Thornburgh Standard
If a prison practice does not satisfy the more deferential test of
the Turner standard, it will logically fail the scrutinizing Martinez
standard as well. Nonetheless, some prison systems offer incoming
email services to inmates, but do not allow outgoing emails. For
instance, in 2014, the Nevada State Prison System was using JPay
email services, but only allowed those functions that provided
inmates with incoming messages.89 It should be noted that under
the current framework for evaluating free speech rights in a prison
context, prisons engaging in this practice should be subject to the
more exacting scrutiny of Martinez. Once a prison implements
email services such as JPay, and establishes that such services are
available, limiting the service to incoming email should be
permitted only if it furthers an important or substantial prison
88
89

Id. at 91.
See supra note 74.

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interest and is no more restrictive than necessary to protect the
particular interest involved.90
CONCLUSION
Serious free speech concerns arise when prisons prevent
inmates from accessing email services. This is true even under the
currently accepted framework for assessing First Amendment
claims of inmates, despite the extreme deference shown to prison
administrators. Although actions eliminating an entire means of
communication should be examined under a heightened level of
scrutiny (prison setting or not), the more deferential Turner factors
still suggest that preventing inmates from accessing email systems
is unreasonable. Furthermore, the practice of implementing
services such as JPay for incoming email services but not outgoing
services should be evaluated under the even stricter standard of
Martinez.
In jurisdictions such as the Ninth Circuit, where courts have
imposed positive obligations on prisons in a First Amendment
context, the right to access communication systems such as
telephones suggests that free speech protections could likewise be
evolving towards inmates’ right to access email services.

90

See Procunier v. Martinez, 416 U.S. 396, 413 (1974), overruled on other
grounds by Thornburgh v. Abbott, 490 U.S. 401 (1989).

310 WASHINGTON JOURNAL OF LAW, TECHNOLOGY & ARTS [VOL. 11:4

PRACTICE POINTERS


Remember that separate standards typically apply to
ingoing and outgoing prison correspondence.



Keep in mind that the policy behind valid limitations on an
inmate’s constitutional rights is couched in the need to
promote prison security, not a degradation or reduction to
the constitutional rights of inmates.



Although intermediate scrutiny typically applies to contentneutral regulations on free speech, strict scrutiny might still
apply where the government completely restricts a means
or avenue of communication rather than its time, place, or
manner.