Even Prisoners Can’t Be Silenced

The law was one of the most cynical attempts ever to stem the celebrity of Mumia Abu-Jamal, who has become an inspirational celebrity, for better or worse, despite serving a life sentence for the murder of a police officer after his death sentence was reduced.  The wife of the slain officer, Daniel Faulkner, couldn’t bear it. Neither could Pennsylvania Governor Tom Corbett.

So they created a law to silence those convicted of crime, and wrapped it up in sad tears, emotional rhetoric and gave it a name no one could question, the Revictimization Relief Act.  Because they believed Abu-Jamal’s “obscene celebrity” was evil, and that if they spin it just right, no one would notice that the law was ridiculously unconstitutional.

Whether this perpetuates the crime by reminding the widow of her lost husband, or just angers her that this man who she wanted to see dead still breaths, is a matter of debate.  But there really isn’t much question that his celebrity must cause her mental anguish.  Hell, his continued existence causes her mental anguish.

And yet, no matter how carefully they word this law, it amounts to one thing: Silence Mumia.

And the law has now been struck down as unconstitutional by Middle District of Pennsylvania Judge Christopher C. Conner.  Eugene Volokh quotes the highlights of the decision.  The state representative who sponsored the bill did so three days after Goddard College announced that Abu-Jamal would be its commencement speaker:

His cosponsor memorandum admonished an unidentified “convicted killer” for “traumatizing the victim’s family.” …

Note the word “traumatizing.” It’s become very popular of late, although this use is far stronger than most.  Here, it’s applied to the family of the actual victim, rather than anyone wholly unconnected with the “trauma,” but who is so sensitive that they too are traumatized by whatever pain, real or imagined, is felt by others.

The State sought desperately to characterize the law as one prohibiting conduct rather than speech, acknowledging (as so many others promoting laws that unconstitutionally infringe on free speech) that there is no magic exception for expression wrapped up in a tear-stained bow.

The attorney general … denounces plaintiffs’ characterization of the statute as a regulation of expression, describing it instead as a limitation of certain “behavior.” The attorney general argues that the law’s primary goal is to eliminate “taunting” or “harassing” behavior toward victims. She emphasizes the statute’s use of the term “conduct” and dismisses any First Amendment infringement as “incidental” to this broader purpose….

While supporters of the law may agree with its purpose, and believe that there is nothing wrong with silencing Abu-Jamal, that doesn’t mean we turn a blind eye to the First Amendment.  No matter how it’s characterized, it silenced speech.  It was vague:

The act’s primary barometer of actionable expressive activity is equally vague. It refers only to “conduct” that causes “a temporary or permanent state of mental anguish,” but offers no guidance to state courts in determining whether a plaintiff is entitled to relief. It does not specify whether reactions to speech will be measured by an objective or subjective standard, or what level of “anguish” will suffice. See, e.g., Williams, 553 U.S. at 306 (observing that vague statutes include those which define prohibited conduct by terms such as “annoying” or “indecent,” requiring “wholly subjective judgments without statutory definitions, narrowing context, or settled legal meanings.” 

It was overbroad:

The attorney general agrees that any conduct which elicits mental anguish in a victim might fall within the act’s inestimable sweep so long as that victim can prove the fact of anguish in court. 

At a time when new laws criminalize conduct based on the offense felt by others, this decision makes clear that they cannot pass constitutional muster by wrapping it up in the rhetoric of offense.

The bottom line result and the general analysis strike [Eugene] as quite correct; the government can’t forbid prisoners’ speech to the public — even if the statute is read as limited to convicted criminals — simply because it offends the victims (however reasonable we might think it is for the victims to feel offended).

Notably, the law speaks to the rights of prisoners, whose civil rights are permissibly limited by virtue of their conviction.  Yet, even prisoners have the right to free speech.  Few people are more sympathetic than the family of a murder victim, particularly when the victim is a police officer, which makes their murderers perhaps the most unsympathetic people around.  Still, they possess the right to speak.

The arguments in favor of suppressing free speech and expression in other new and proposed laws are grounded in similar offense taken by victims, and similarly vague words about trauma, anguish and annoyance, which create a feel of something being very wrong while defying any meaningful definitional limitations.

As here, the question isn’t whether there are victims who, we all agree, are severely harmed or rightfully offended, but whether the laws can withstand constitutional scrutiny.  As here, they cannot.  And if the First Amendment rights of prisoners remain protected, so too do the rights of the rest of us.


2 thoughts on “Even Prisoners Can’t Be Silenced

  1. Keith Lynch

    A friend of mine was falsely (in my opinion) convicted in federal court of kidnapping a 15-year-old girl. One of the conditions of his upcoming conditional release is that he not advocate for lowering the age of consent. He has no intention of doing so, but I was baffled as to how that condition can be allowed. Especially since he’s apparently allowed to do so now, while he’s still in prison. He’s also not allowed to communicate with ex-felons (e.g. me) while on release, but he is allowed to communicate with them while still in prison.

    Also, one of the things the judge used against him during sentencing was that he posted to his blog the name of his alleged victim, and he called her a liar.

    1. SHG Post author

      That baffles me as well. As to the judge using his revelation of the name on his blog, he has a right to speech, but no right to free of consequences.

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