Behind Bars, Beyond Speech: TikTok and Prisoners’ First Amendment Rights
In recent years, TikTok has emerged as a new platform for prison content. [1] Videos recorded on contraband phones have shown prisoners cooking in their cells, talking about their daily routines, or sometimes even documenting violence between fellow inmates. Other slips expose the poor conditions – as documented by videos from multiple U.S. prisons, according to the Marshall Project – such as moldy food and unsanitary showers. [2] Millions of captivated people watch these videos, but prisons usually react by punishing the inmates who make them. [3] Officials argue that these videos are dangerous because they can reveal layouts of facilities or show evidence of gang activity, which they say puts order and safety at risk. Regardless, the videos raise a bigger constitutional question: how does the First Amendment apply to those who are incarcerated?
The Supreme Court has looked at similar questions before, though none have ever involved TikTok. In Procunier v. Martinez, 416 U.S. 396 (1974), the Court struck down California laws that let prison officials censor outgoing mail whenever they deemed it “inappropriate.” [4] The Court explained that this was too broad because it not only hurt the rights of the incarcerated, but also the rights of the public to receive information about prisons. The decision made it clear that expression from inside prisoners matters in a democracy.
That approach shifted later in Turner v. Safely, 482 U.S. 78 (1987). Here, the Court created a new test, saying that restrictions on prisoners’ rights are valid as long as they are “reasonably related to legitimate penological interests.” [5] This standard gives broad authority to prisons when enforcing their regulations. In Turner, the Court upheld a Missouri regulation banning letters between inmates at different prisons, because officials argued it would reduce gang communications and escape plots. At the same time, the Court struck down a blanket ban on prisoner marriages, finding it had no real link to safety or order. Turner set the standard that prisons can limit rights as long as they give a reason tied to security.
Later cases followed this deferential logic. In Shaw v. Murphy, 532 U.S. 223 (2001), the Court held that inmates do not receive additional First Amendment protections simply because they are giving each other legal advice. [6] In Beard v. Banks, 548 U.S. 521 (2006), the Court upheld a policy that denied newspapers and magazines to certain high-security inmates. [7] These cases illustrate how courts have generally upheld restrictions when applying the Turner standard.
However, TikTok complicates the equation. A letter might be seen by a handful of people, but a TikTok can reach millions overnight. [8] The content can embarrass prisons by showing terrible conditions, or it can actually pose risks if it reveals guard routines or weak security spots. [9] Prison officials have also warned that viral videos can expose staff identities, gang activity, or detailed facility layouts, which are potential threats to institutional security and public safety. [10] This makes it harder to treat TikTok videos as contraband, punishing them without asking whether the actual content threatens safety. That might work under Turner, but it also raises concerns about whether the First Amendment is shrinking in practice.
Other cases highlight this tension. In Pell v. Procunier, 417 U.S. 817 (1947), the Court ruled that journalists had no constitutional right to interview specific inmates face-to-face, but it also recognized that society has an interest in knowing what goes on in prisons. [11] That idea seems relevant to TikTok, except now prisoners are creating the content themselves rather than reporters. More recently, the 2017 ruling in Packingham v. North Carolina struck down a state law that banned registered sex offenders from social media. 7 The Court declared social media is “the most important place” for speech today. Even though Packingham concerned non-incarcerated individuals, it underscores how central platforms like TikTok are essential to communication in modern life.
The Court has also considered restrictions on other kinds of prisoner expression. In Thornburgh v. Abbott, the Court upheld regulations that allowed prison officials to reject incoming publications they believed could undermine security or discipline. [12] The Court reasoned that such restrictions were valid as long as they were “reasonably related to legitimate penological interests.” [13] This reaffirmed the deferential Turner standard. Likewise, in Overton v. Bazzetta, the Court upheld a Michigan policy limiting visitation rights for inmates with repeated substance abuse violations. 9 The justices found that the restrictions, though severe, did not constitute cruel and unusual punishment and were justified by safety and rehabilitation goals. These rulings illustrate the Court’s consistent willingness to grant broad discretion to prison administrators in regulating both communication and contact with the outside world.
There are possible middle-ground approaches. Prisons could punish contraband phones but create safer alternatives, like monitored tablets or video calls. Some systems already experiment with this. Several correctional systems, including those in Washington and California, have already introduced secure tablets that allow incarcerated individuals to send supervised messages, access educational programs, and maintain limited contact with family members. These initiatives, according to the AP News, have reduced contraband use and improved inmate morale while allowing officials to maintain oversight. [14] This way, speech isn’t entirely shut down, but security is still protected. If courts ignore this possibility, they risk letting technology erase the protections recognized in cases such as Martinez.
The stakes of this debate are not small. It is about whether the Constitution adapts to new technology or if it falls behind. If every TikTok is punished without consideration of content, it raises concerns that the First Amendment’s protections may be effectively curtailed whenever a phone is involved. But if courts grant too much protection, prisons could face real safety problems. Turner’s test is supposed to find a balance by asking if a rule is “reasonably related” to security, but that phrase can be interpreted differently depending on how much deference you want to give prisons. [15]
TikTok videos from behind bars are not just entertainment, they represent a new challenge for constitutional law. The Court has long maintained that incarcerated individuals do not lose all rights at the prison gate, yet it has also recognized that prisons require control, a balance increasingly tested by new technology. As more videos are posted and prisons react, the courts will eventually have to decide if the First Amendment truly follows people into prison, or if it stops the moment a smartphone camera turns on.
Sources
Keri Blakinger, “The Many Ingenious Ways People in Prison Use (Forbidden) Cell Phones,” The Marshall Project, January 19, 2023, https://www.themarshallproject.org/2023/01/19/cell-phones-in-prisons-tiktok-education
Ibid.
Ibid.
Procunier v. Martinez, 416 U.S. 396 (1974).
Turner v. Safley, 482 U.S. 78 (1987).
Shaw v. Murphy, 532 U.S. 223 (2001).
Beard v. Banks, 548 U.S. 521 (2006).
Keri Blakinger, “The Many Ingenious Ways People in Prison Use (Forbidden) Cell Phones,”
Ibid.
Pell v. Procunier, 417 U.S. 817 (1974).
Packingham v. North Carolina, 582 U.S. 98 (2017).
Thornburgh v. Abbott, 490 U.S. 401 (1989).
Ibid.
Overton v. Bazzetta, 539 U.S. 126 (2003).
Associated Press, “New Program Will Help Inmates Earn High School Diplomas Using Prison Tablets.” AP News, September 17, 2024. https://apnews.com/article/prison-high-school-education-tablets-d8e8f844611383f86ffab6dd0d48c16e
Turner v. Safley, 482 U.S. 78 (1987).