Sarah Betsy Fuller, a clinical professor at the Cornell Law School devoted much of her life to combating unjust prison conditions. See here. At her funeral service in 2004, a close friend quoted her as saying that a society should be judged not by its artistic or scientific contributions, but by how it treats its prisoners. Even before Betsy’s death, the Prison Litigation Reform Act (PLRA) imposed burdensome restrictions on getting access to court to challenge unjust prison conditions.
As it stands today, a promising alternative to lawsuits is to get the media to shine a spotlight on prison practices. What stands in the way of this is an excessively restrictive interpretation of press rights under the First Amendment. Of course, it makes sense that there is no general public right of access to prisons to interview prisoners. But the public loses when the press does not have such a right. If the press had such a right, the public would have known about the barbaric abuses in Guantanamo and elsewhere long before they came to public attention. Yet for many years, it has been well established that the press has no right of access to prisons to investigate abuse. Well established though it may be, it is blind to what the rights of the press ought to be.
Alternatively, prisoners can send mail to members of the press. But prison officials commonly open such mail before it leaves the prison in the interests of “security.” All too often, this inspires fear of retaliation (if not, actual retaliation), and the fear of retaliation has a chilling effect on what prisoners say. To guard against this and to promote the possibility of petitioning for redress of grievances, Judge Wisdom ruled that prisoners’ letters to the media are essentially privileged and cannot be opened by prison officials. Taylor v. Sterret, 532 F.2d 462 (1976). The Seventh Circuit disagrees.
So in the Seventh Circuit and elsewhere, the right of the public to learn about abuses in prison is given short shrift and the First Amendment is enlisted in support of this deplorable outcome. This is simply shameful.