On Law, M&M’s, and the Panopticon: The Work of Donny Johnson

Even though Johnson was not keeping any of the proceeds, the prison defines a business as “any revenue-generating or profit-making activity.” This narrowly tailored definition, along with the little first amendment protection afforded to prisoners makes Johnson’s battle for his right to engage in art making and donative activities nearly insurmountable. Although the Eighth Amendment to the U.S. Constitution prohibits cruel and unjust punishment, and the First Amendment’s free speech clause has been interpreted by the U.S. Supreme Court as encapsulating artistic expression, prisoners enjoy a significantly lower level of first amendment protection.

Also this past summer, in Beard v. Banks, the U.S. Supreme Court upheld a Pennsylvania prison rule denying prisoners access to personal photographs as well as secular magazines and newspapers. Prison officials asserted that the ban on newspapers, magazines, and personal photographs served to “motivate” better behavior by creating incentives, “minimize” the amount of personal property and make it easier to detect contraband, and “diminish” the amount of raw material that prisoners might use to fashion attack weapons (spears, blowguns, or catapults for hurling objects). The Supreme Court decision in Turner v. Safley affords considerable deference to prison officials so long as the regulations at issue are “reasonably related to legitimate penological interests.”

However, two dissenters, Justice John Paul Stevens and Justice Stephen Breyer, noted in their dissents that this ruling could be short-lived if there was another constitutional challenge to the prison’s rules introducing evidence proving that the rules serve no rehabilitative or security purpose.

Stevens said a trial should be held to determine whether Pennsylvania’s goal is legitimate, especially because of the rights at stake: “Plainly, the rule at issue in this case strikes at the core of the First Amendment rights to receive, to read and to think,” Stevens wrote.

–Sergio Munoz-Sarmiento

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