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Restricting the Right of Correspondence in the Prison Context: Thornburgh v. Abbott and its Progeny
4 Fordham Intell. Prop. Media & Ent. L. J. 891
  • Samuel J. Levine, Touro Law Center
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In Thornburgh v. Abbott, the Supreme Court upheld the constitutionality of regulations that allowed prison officials to reject certain publications sent by publishers to prisoners. Finding the regulations reasonably related to legitimate penological interests, the Court for the first time applied a reasonableness standard to restrictions that directly affected the First Amendment rights of nonprisoners. Part I of this Note briefly reviews the instrumental Supreme Court decisions addressing First Amendment rights in the prison context. This Part traces the development of the standard of review for prison regulations that restrict First Amendment freedoms for both prisoners and nonprisoners. It concludes with a general discussion of Thornburgh v. Abbott. Part II critiques the Abbott decision and analyzes the problems inherent in the Court's reasoning. Further, this Part discusses subsequent decisions of the lower courts that have applied Abbott to a variety of prison mail regulations and examines the split between the circuits regarding which standard of review should apply to restrictions on outgoing prisoner mail. This Note concludes with a call for courts to more carefully scrutinize prison regulations which affect the First Amendment rights of free citizens and, specifically, to adhere to the intermediate scrutiny standard of review for restrictions on outgoing prisoner mail.

Citation Information
4 Fordham Intell. Prop. Media & Ent. L. J. 891 (1993-1994)