The Weeknd's Music is Safe Enough for the Super Bowl, but Contraband in Prison
Incarcerated people do not lose their First Amendment rights while locked up. Yet correctional facilities across the country routinely restrict materials that prisoners can access using unconstitutional, arbitrary rules governing everything from the item’s . We’ve fought this fight before and will continue to do so. The latest case concerns Edward Lee Jones, Jr., a Black Muslim man denied access to the religious texts and music he has requested behind bars.
While incarcerated at the Arizona State Prison Complex in Eyman, Jones requested several rap and R&B CDs and books, but prison officials banned six of the CDs and two books. The CDs include works by The Weeknd and Kendrick Lamar, two prominent artists that are widely enjoyed and can even be found at the heart of the American mainstream. The two books are by Elijah Muhammad, the founder of the Nation of Islam, the religion Jones follows. The Arizona Department of Corrections (ADC) claims these books impermissibly espouse “racist ideas” and advocate “religious oppression,” and that the music contains sexually explicit and violent lyrics that violate ADC policies.
ADC’s policies are unconstitutional. The regulations are so overbroad they have been used to effectively ban entire musical genres and minority religious texts. Prison policies like these violate the Supreme Court precedent set in , which prohibits the censorship of any materials unless there is a “valid, rational connection between the prison regulation[s] and the legitimate government interest[s] put forward to justify [them.]” In other words, a policy banning content in prison is unconstitutional on its face unless prison officials can demonstrate that the censorship is “reasonably related to legitimate penological interests.” Content containing instructions on how to build a bomb or brew alcohol are examples of what might fit that description. But there is nothing in the content of Jones’ requested books and music that affects the functioning of the prison. ADC is censoring these items for the viewpoints they express.
Censoring books and music in correctional facilities isn’t just a problem in Arizona. A Georgia jail system one of the strictest bans ever in 2019, preventing detained people from possessing any books other than a Bible. Georgia jail restricts what books and magazines prisoners can access to only those in the very limited jail book cart. Other correctional facilities have attempted to enforce on books including Paul Butler’s Chokehold: Policing Black Men and Michelle Alexander’s The New Jim Crow, which reflect on issues that directly affect a disproportionate portion of the incarcerated population — people of color. It’s notable that the state of Arizona, where Jones is incarcerated, has among the highest incarceration rates in the country, including for Black and Latinx people.
Correctional facilities often ban content that relates to race for its perceived effect on operations. The state of Texas, for example, claims that in banned materials could be construed as being “written solely for the purpose of communicating information designed to achieve the breakdown of prisons through offender disruption.” Arizona goes much further, banning any content that espouses the “superiority of one racial/religious/political group [...] over another.” But as far as we can tell, the ADC’s list of banned books David Duke’s My Awakening or Adolf Hitler’s Mein Kampf. Nor do ADC rules target music by white artists like Johnny Cash and Alice Cooper, whose lyrics often allude to violence. The books and music that do get banned often share one thing in common: they are produced by Black artists and writers and reflect the Black experience in America.
The irony is that by censoring books like Chokehold, The New Jim Crow, and Elijah Muhammad’s Message to the Blackman in America, prison officials actually prove their premise that this country’s criminal legal system is designed to punish Black people.
Books provide one of the few opportunities for incarcerated people to engage in self-directed education, entertainment, and self-improvement at virtually no cost to the government. The books and CDs that Jones seeks are forms of artistic expression infused with social commentary and religious texts — all of which require the highest protections of the First Amendment. Jones’ case exemplifies the ever more tenuous grounds prison officials use to ban artistic content, especially when it’s made by Black artists and addresses the Black experience. The courts must defend the rights of incarcerated people to access artistic and religious content protected under the First Amendment.
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
MississippiJul 2024
Free Speech
Privacy & Technology
NetChoice v. FitchNetChoice v. Fitch
Whether a law that mandates age verification for all users of social media services violates the First Amendment. -
News & CommentaryDec 2024
Free Speech
Can you define pornography? Neither can the government.Can you define pornography? Neither can the government.
We break down the absurd-but-true history of trying to censor sexual speech under the guise of "keeping kids safe." -
Minnesota Supreme CourtNov 2024
Free Speech
Energy Transfer LP v. Greenpeace International, Unicorn RiotEnergy Transfer LP v. Greenpeace International, Unicorn Riot
This case in the Minnesota Supreme Court asks whether the MFFIA's protections apply to newsgatherers even if they are alleged to have engaged in trespassing while newsgathering. The ACLU’s State Supreme Court Initiative, alongside the ACLU of Minnesota and law firm Biersdorf & Associations, filed a brief representing Unicorn Riot, a media organization that covered protests of the Dakota Access Pipeline. The brief argues that MFFIA and constitutional reporter’s privileges, under both the U.S. and Minnesota constitutions, protect Unicorn Riot from having to comply with Energy Transfer’s subpoenas.