Voices of the Incarcerated: The Right to Freedom of Expression in Prison

“When prison gates slam behind an inmate he does not lose his human quality; his mind does not close to ideas; his intellect does not cease to feed on a free and open interchange of opinions... If anything, the need for identity and self-respect are more compelling in the dehumanizing prison environment.” 

-Justice Thurgood Marshall  

Should the state have the power to silence those who find themselves behind bars? What about their access to information? When someone commits a crime, it is well understood that their freedom is surrendered upon incarceration. However, does this loss of liberty include the freedom of expression? To what extent, if any, should prisoners’ voices and ability to receive information persist when other liberties are removed?  

The freedom of expression has been navigated in different frameworks across jurisdictions, but maintains similar underlying themes, that of balancing the tensions between security concerns and fundamental rights when applied to the treatment of incarcerated individuals. Within the concrete walls of a prison, freedom of expression often refers to how prisoners stay connected with the outside world. This can entail communication with family and friends, communication with the public, and even the ability to receive information. As this right has various aspects, encompassing a wide range of circumstances, there is no uniform approach.  

The European Convention on Human Rights has been the key human rights framework in the UK since 1998. It contains absolute rights and qualified rights. Absolute rights include those such as Article 3 – the freedom from torture and inhuman or degrading treatment- and the state cannot take these away. Qualified rights, however, can and are often limited by the state and this includes Article 10 – the freedom of expression. As per Article 10, individuals can express their beliefs in various ways. This includes speaking one’s opinions, writing for a publication, speaking on television or the radio, writing a book, or making art.  

In the United States, the freedom of speech is protected by the First Amendment to the Constitution. This was also reaffirmed by the Supreme Court in Turner v. Safley (1987), where it was held that prison does “not form a barrier separating inmates from the protections of the Constitution.”  

Due to the size of the United States, this issue has gained considerable attention. In addition to the issue of mass incarceration. Mass incarceration has led to the U.S becoming home to the largest number of prisoners worldwide, at 1.8 million in the beginning of 2025. This is only part of a broader issue, as those imprisoned are predominantly of African American origin. This combination with prison censorship has been said to ‘skew public debate in favour of wealthier, whiter, nonincarcerated participants,’ because when the freedom of expression is restricted, it prevents the most relevant speakers from contributing to discourse on prison related topics, such as that of mass incarceration or prison conditions.  

The American Civil Liberties Union is an organisation that defends the constitutional rights of U.S. citizens. It receives reports and thus considers the effects of restrictive policies of prisons restricting communication, not only between inmates, but also their family and the public at large. This becomes more troubling considering the U.S is the only democracy with no independent authority to monitor the conditions in prisons. Therefore, the value of free speech as a checking power can be undermined when prison officials have the power to prevent complaints about their conduct and conditions of prison from reaching the public.  

Before discussing where this right has or has not been upheld, is important to consider the reasons for punishment as these can offer different conceptualisations of the freedom of expression. For example, if punishment is primarily about retribution, and having an offender pay for their crimes, silencing them may be justified. On the other hand, if rehabilitation is the focus of punishment, protecting the freedom of expression can contribute to this aim. For example, as seen with prison education programs such as the STEP2LAB project, funded by the European Union. This initiative seeks to promote rehabilitation, amidst research finding that ‘89% of those who return to prison are unemployed, highlighting education as a critical factor in reducing recidivism.’ Historically, tough retributive approaches, whilst politically popular have been neither a sufficient deterrent nor economically sustainable. More protections for the freedom of expression would enhance these education and vocational training programs, and therefore even have greater long-term societal impacts.  

Whilst initiatives such as education programs in prisons are valuable initiatives which support rehabilitation, certain limitations on the freedom of expression remain necessary to address legitimate security concerns. As the freedom of expression is such a broad right in what it encompasses- speech, access to information, political expression, and even voting, courts assess each case individually. It is a context dependent issue, and courts will apply different legal tests. In the EU context, the proportionality of the measure will be considered, whereas, in the U.S. the Turner v. Safley case will apply. This justifies restrictions on First Amendment rights if the regulation is reasonably related to legitimate prison security interests.  

Access to information in prisons in the U.S. remain a prominent concern, specifically around book censorship. For example, in 2022  Texas prison authorities banned the second edition of Merriam-Webster’s Visual Dictionary, due to containing an image of a weapon. This raised the number of books to 10,265 that were banned for those incarcerated in Texas and added more broadly to books banned across the country. For example, Beard v Banks (2006) a prison policy on book censorship was challenged on a breach of the First Amendment right but was upheld by the U.S. Supreme Court. Here, the Pennsylvania Department of Corrections restricted the reading materials of inmates and by the court’s 6-2 ruling, ‘continued a broad deference to prison officials,’ in light of constitutional rights. However, the ACLU, in its National Prison Project which has committed itself to defending this First Amendment right in prisons, sued a South Carolina jail and ended a policy which prevented most books, magazines and newspapers being sent to inmates. However, officials at the prison agreed to lift the ban as part of a settlement and although the case did not result in binding judicial precedent, the legal pressure that lifted the ban suggests some restrictions may exceed what courts would ultimately find justifiable. The outcomes of such prison policies therefore depend on their context.  

Closer to home, Bamber v United Kingdom confirmed a general right to free speech where a prisoner was disciplined for contacting the media, breaking prison rules. The European Commission accepted that the applicant, under Article 10, had a right to freedom of expression, which had been interfered with. Despite this, interestingly, the application was declared inadmissible as the interference was regarded as necessary in exercising control over media communications. On the other hand, the subsequent case of R (Hirst) v Secretary of State for the Home Department involved a prisoner’s participation in over the phone interviews regarding prison life. This was contrary to a prison service order, which he had applied for but was refused, on the grounds he could simply provide his information in written form. Here, the judge stressed that interference with the freedom of expression had to follow proportionality requirements. Here, the judge rejected the notion that restricting the prisoner’s right to context the media were part of his sentence, and the onus was placed on the Home Secretary and prison authorities to justify interferences. The decision rejected the view that prisoners lose a general right to freedom of expression upon incarceration.  

Evidently, given the broad scope of this area of human rights, courts assess each case individually. It is a basic consequence that after committing a crime, certain freedoms are forfeited. However, it has nonetheless been observed the freedom of expression is generally not part of these surrendered rights, unless justified for legitimate aims. It is essential that we remain aware of the issues surrounding this excessive censorship and how it can have wider impacts on rehabilitation as an aim of punishment.