by Marc J. Randazza
The Michigan Department of Corrections is banning Spanish or Swahili dictionaries. Michigan Dep’t of Corrections spokesman, Chris Gautz, claims that it is a matter of public safety.
“If certain prisoners all decided to learn a very obscure language, they would be able to then speak freely in front of staff and others about introducing contraband or assaulting staff or assaulting another prisoner,” he is quoted as saying. “When it’s in a language that we don’t have the ability to read ourselves and understand exactly what it is that we’re looking for, we’re not able to allow it in.” (source).
Is this Constitutional? I think not. The First Amendment protects even a prisoner’s right to read books.
Not to put too dull of an edge on it, but prisons can basically do what they please to inmates – but they still maintain some First Amendment rights. In First Amendment cases, there are typically three levels of scrutiny — strict scrutiny, which is required in clear free speech cases where there is a content-based restriction, intermediate scrutiny which applies usually to commercial speech, non public forum speech and many content-neutral restrictions, and rational basis review, which applies to regulations that have nothing to do with the content. (This is really dumbing it down, but I don’t want to lose your attention span here).
Courts review a prison’s limitation on inmates Constitutional rights under the rule laid down in Turner v. Safley, 42 U.S. 78 (1987) and as modified by Thornburgh v. Abbott, 490 U.S. 401 (1989). The regulation is valid if it is reasonably related to legitimate penological interests. The Court pointed to four factors to determine if the regulation is “reasonable.”
- There must be a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it. It must be legitimate and neutral.
- Whether there are alternative means of exercising the right that remain open to prison inmates.
- The impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally.
- The absence of ready alternatives is evidence of the reasonableness of a prison regulation. By the same token, the existence of obvious, easy alternatives may be evidence that the regulation is not reasonable, but is an ‘exaggerated response’ to prison concerns.
Looking at this standard, I am confident this regulation could be struck down as violating prisoners’ First Amendment rights.
Prong one – Is the Governmental Objective legitimate, neutral, and rational?
Is the government objective legitimate? The stated objective here is to prevent prisoners conspiring to break the rules, hurt guards, and engage in other forms of mischief. While this sounds like bullshit, I think most courts would take the prison system at its word that this was its objective.
Is it neutral? Here I am more skeptical. Would they ban “A Clockwork Orange” for its use of Nadsat? Or 1984 for use of Newspeak? Are they banning the use of AAVE or other non-standard forms of English, which could be just as unintelligible to a prison guard as Spanish. (For example, Jamaican Creole). Also, while the story only discusses Spanish and Swahili, I question whether they’ve also banned French or Latin or Italian? If so, that might tend to support the government’s claim of neutrality. But, it seems to me that the neutrality here is questionable.
Is the ban rationally related to the prison’s stated objective? I think not, but “rational” is open to interpretation, and if you have a judge who either doesn’t give a shit about prisoners or the First Amendment, I could see a judge calling it “rationally related.” On the other hand, it seems that given the fact that Spanish is the second most spoken language in the world, banning books for learning Spanish doesn’t seem very “rational” when part of the rationale includes a fear of prisoners learning an “obscure” language. Even Swahili is hardly “obscure.” Query whether say Papiamento (a language I am studying right now) or Romansch (a language I can understand a lot of, because I speak Italian) would be a different story. Further, let’s query whether it is rational to keep a Spanish-English dictionary from a prisoner who is trying to learn English rather than the other way around.
Further, I would question whether it is rational to ban books in order to try to prevent prisoners from learning a language as opposed to banning them from using the language in certain ways.
There are a number of cases that do deal with the use of foreign languages in prison — and they recognize that a prison has a legitimate penological interest that could sustain the banning of the use of foreign languages in prison.
In Ortiz v. Fort Dodge Corr. Facility, 368 F.3d 1024 (8th Cir. 2004) the 8th Circuit upheld a prison’s limitation on written communication in a foreign language, if the prisoner could communicate in any other language. Even though Ortiz preferred to write to his sister in Spanish, because that was her first language, the prison had a right to screen incoming and outgoing mail, and doing so in a language other than English was an undue burden on the prison.
In Thongvanh v. Thalacker, 17 F.3d 256 (8th Cir. 1994) however, a Laotian prisoner was denied the right to communicate with non-inmates in Lao, even though Spanish and German prisoners had both the opportunity to communicate in their native languages and there was a translation service offered to them to translate their letters into English. A jury found that failing to offer similar accommodations to a Lao speaker was a First Amendment violation and the verdict was upheld on appeal.
Kikimura v. Turner, 28 F.3d 592 (7th Cir. 1994) struck down a prison policy of summarily rejecting foreign language publications without an attempt to translate or screen the materials. And in Boriboune v. Litscher, 91 F. App’x 498 (7th Cir. 2003) the court distinguished Kikumura and upheld a prison requirement that a prisoner first obtain approval before communicating on the telephone in a foreign language).
However, I have found no cases that support the proposition that it is permissible to stop a prisoner from merely learning a language.
To help in the analysis, there is another context where First Amendment rights are severely curtailed, but not extinct — schools. Nebraska once had a state law that prohibited teaching of languages other than English to children who had not passed the eighth grade. The Supreme Court held that the statute was arbitrary and without reasonable relation to any legitimate State goal. Meyer v. Nebraska, 262 U.S. 390 (1923). And in another case, a law that prohibited keeping business records in other than specified languages violated Chinese businessmen’s equal protection rights. Yu Cong Eng v. Trinidad, 271 U.S. 500 (1926). Further, at least one case cites the Meyer case for the proposition that the Due Process Clause protects the right “to acquire useful knowledge.” Epperson v. Ark., 393 U.S. 97, 105 (1968) citing Meyer v. Nebraska.
Accordingly, I would find that this regulation fails this prong.
Prong two — Are there alternative means for the prisoners to exercise their rights?
I think the government has even more of a hard time here. There are still First Amendment rights in prison, despite their limitations. There is a right to receive information — in the form of foreign language books. There is at least some right to learn a foreign language, and to acquire knowledge. See Epperson v. Arkansas, supra.
I suppose the prison could claim that if you want to learn Spanish, you can learn it from your cellmate, if he speaks Spanish? I really can’t see any alternative means for a prisoner to either learn Swahili, Hebrew, etc. (And the thought of this impacting religious study creates an even greater problem — how can you practice Judaism in prison without learning Hebrew?) There really does not seem to be any alternative means other than bringing in tutors – but the issue here is that the prison system seems to simply wish to prohibit prisoners from using or knowing languages other than English – it isn’t the books themselves, but the spread of knowledge, and then the fear that this knowledge will be used nefariously.
But ultimately, it does not seem that there are any alternate means for prisoners to learn foreign languages. I could see a reasonable alternative for the inverse — if a Spanish speaker wishes to learn English, then the prison could offer English classes. But, without books to learn it, I can not rationally see a way that prisoners could learn other languages, other than the prison offering courses in them. But then that cuts against the stated purpose — the Bureau of Prisons does not seem to be as concerned about prisoners knowing foreign languages, but rather how they would be used. As discussed below, limitations on using what you learn from a foreign language text might be limited, but I think simply depriving prisoners of the ability to learn them would be a different analysis.
Prong 3 – The impact on guards and other inmates
As discussed in the cases above, prisons can regulate the use of foreign languages for some pretty
legitimate reasons. As discussed above, the prison can (and probably should) screen letters and phone calls in and out of the prison. We do not want gangsters running their enterprise from inside the prison by simply using another language. Use of “obscure” languages has a proven track record of being a great way to keep a code unbroken. See, e.g., Navajo Code Talkers in World War II.
However, I can’t see that there is an impact on guards and other inmates inherent in prisoners simply learning another language while in prison.
Prong 4 – Alternatives
It does seem that the prisons could control the issue they are concerned about by requiring that prisoners only communicate in English. “This is America, speak English only” would be constitutionally intolerable in other circumstances, but in the prison context, the BOP’s regulation could make sense. Limiting foreign language use as a means of controlling the prison population and ensuring that prison officials can both govern inside the prison as well as governing how prisoners communicate with the outside world is legitimate and would be upheld. Therefore, the existence of ready and obvious alternatives seems to cut against the reasonableness of the regulation.
In the context of jury selection, foreign language use has been held to be a proxy for racial discrimination. Further, I think there are significant equal protection and First Amendment problems here, over and above the issue of whether prisoners have an inherent right to learn a foreign language. As I alluded to above, how could a prisoner either convert to, or practice Judaism while being prohibited from learning Hebrew? I am no expert on Third Wave American (or “Native” if you’re into that term) religious practices, but I presume that there are spirits who would rather be spoken to in Navajo rather than English. When it comes to endangered languages, I have an even greater concern — some Third Wave languages are nearing extinction, as is Texas German or even the aforementioned Romansch. If some prisoner wants to spend their time learning such an obscure language, they could wind up becoming a very valuable resource for the preservation of that language.
Ultimately, this regulation seems steeped in over-reaction, prejudice, and irrationality. I’d find that it should be struck down as violating the prisoners’ First Amendment rights, and let the prison deal with its concerns by limiting how foreign languages can be used, not simply depriving prisoners of the opportunity to learn them at all.