19-H. Using Telephones
While some courts have held that prisoners have a First Amendment right to telephone access, 258 some refuse to hold that prisoners have such a right.259 Even courts recognizing a right to telephone access say the right can be severely limited. 260Turner reasonableness governs these restrictions on phone use. Courts point to prison security as a valid reason under Turner.261 Courts also point to the fact that prisoners have only a limited need for telephones because they have other ways of communicating with the outside world, like letter-writing and visitation.262 In short, courts usually uphold restrictions on phone use unless the restrictions eliminate telephone access entirely or impede attorney representation. 263
These restrictions govern how much you have to pay to make a call, what types of calls you can make, whom you can call, and how many calls you can make. In one case, 264 the Ninth Circuit said prisoners were not entitled to a specific telephone rate and so it was valid to charge prisoners a higher rate than non-prisoners. In another case, 265 the Ninth Circuit also upheld a rule requiring all calls to be operator-assisted and collect (which means that prisoners there cannot call toll-free numbers). In another list, 266 the Sixth Circuit upheld a regulation that allowed calls only to persons on an approved list. Courts have also upheld restrictions on the number of calls a prisoner can make.267
Additionally, these restrictions govern your privacy during phone calls. Call monitoring does not violate prisoners' Fourth Amendment privacy rights for two reasons. First, there is no reasonable expectation of privacy in outbound calls from prison.268 Second, prisoners are considered to have consented to monitoring when they receive notice of the surveillance, either by signs near the telephones or informational handbooks. 269 However, as an exception to this general rule, many courts have held prisons must allow unmonitored phone calls between a prisoner and his attorney so long as the phone call is arranged in advance. 270 If such a lawyer-prisoner call is not arranged in advance, it can be monitored like any other call. Courts justify monitoring lawyer-prisoner phone calls that were not pre-arranged by noting that prisoners have the alternative of corresponding with their lawyers confidentially through the mail.271
258. See Johnson v. California, 207 F.3d 650, 656 (9th Cir. 1999) (affirming that prisoners have a First Amendment right to telephone access but holding that prisoners are not entitled to a specific rate for their telephone calls); see also Walton v. N.Y. State Dep't of Corr. Servs., 18 Misc. 3d 775, 787, 849 N.Y.S.2d 395, 405 (N.Y. Sup. Ct. 2007) (upholding constitutional right to telephone...
