Daniel McGowan made three mistakes. The first landed him in federal prison. The second landed him in SHU, the kinder, gentler name of Special Housing Unit because solitary confinement sounds too unpleasant. The third was thinking that just because he was a federal prisoner, he still had constitutional rights. The Second Circuit put that notion to an end.
Daniel McGowan, an environmental activist whose prosecution for “eco terrorism” was the subject of an award-winning film, was finishing his seven-year term at a Brooklyn halfway house when he wrote a HuffPost blog post that contained details about a secretive prison where he had spent years in isolation.
There was nothing particularly revealing about what he wrote: Much of it had been made public in an ongoing civil rights lawsuit he and other low-risk prisoners filed in federal court in Washington challenging their placement there, for no other reason than their political views or who they are.
But HuffPo being HuffPo, they had a guy inside willing to write, and needed squiggly lines on their wall to get clicks to monetize, so up it went. What happened next hardly seems worth it.
A prison official took note of the blog post and decided to punish McGowan by transferring him from the halfway house — which allowed him to live a semi-normal life of work and home visits on weekends — and placing him in solitary confinement at a detention center in Brooklyn.
But the prison official seemingly got it wrong. The rule she thought McGowan had broken, which prohibited federal inmates for publishing bylined articles, had actually been rescinded by the Bureau of Prisons because a federal judge had found it unconstitutional years earlier.
When the rule was held unconstitutional, the government’s argument was that the use of bylines on outside articles could turn a prisoner into a “big wheel” in prison. Of course it’s absurd, but they had to come up with something. In any event, the court laughed at it, muttered nah, and out the regulation went.
But the fact that there was no rule to be violated by McGowan, and yet he was violated, removed from his halfway house, returned to prison and thrown in the hole, would strike most as some seriously wrongful retaliation. Some, but not all. Not if you’re a circuit judge, because getting beyond qualified immunity requires a litigant to jump a very high hurdle.
We conclude that, at the time the alleged violation occurred, our case law did not clearly establish that McGowan had a First Amendment right to publish his article.
One might suspect that the First Amendment, having been around for a while, would serve as a pretty strong foundational basis for every person’s right to publish an article. But McGowan was a prisoner? Why yes, yes he was. So? That would be the argument in opposition to the overarching rule that every person has the right to exercise free speech in the absence of a clearly established rule precluding him from doing so.
The Supreme Court has held that “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987)). This test is “particularly deferential to the informed discretion of corrections officials” where “accommodation of an asserted right will have a significant ‘ripple effect’ on fellow inmates or on prison staff.” Id. at 90. For example, the Supreme Court has upheld “proscriptions of media interviews with individual inmates, prohibitions on the activities of a prisoners’ labor union, and restrictions on inmate‐to‐inmate written correspondence.” Shaw v. Murphy, 532 U.S. 223, 229 (2001) (citations omitted).
Cool story, judge, but your analysis is entirely backwards. The issue here isn’t the validity of the prison regulation. That was already tossed as unconstitutional, and withdrawn by the Bureau of Prisons five years before McGowan was punished for getting a HuffPo byline.
The analysis starts with the plaintiff’s exercise of his First Amendment rights, the ones for which he was thrown into the hole. What it does not do is begin with the prison’s rights to make up excuses for why it can retaliate against prisoners because no one at the institution had the capacity to read or remember what screws are allowed to do.
However, unbeknownst to Rivers, by the time these events occurred, the Byline Regulation had been rescinded. Specifically, in August 2007, a district court in Colorado held that the Byline Regulation was unconstitutional under the First Amendment. See Jordan v. Pugh, 504 F. Supp. 2d 1109, 1124 (D. Colo. 2007). On November 27, 2007, the BOP issued mandatory guidance to its staff instructing them not to enforce it. On April 23, 2010, the BOP published an interim rule rescinding the Byline Regulation, and finalized that rule on May 3, 2012.
Unbeknownst? No, no, no. The authority of the BoP isn’t based on the limits of Rivers’ memory or reading comprehension skills. Does a screw get a pass on punishing a guy for violation of a no-longer-existent rule because he didn’t bother to read the memo? She is at worst imputed to have knowledge. At best, Rivers is too stupid to be on the payroll. In either event, McGowan’s life isn’t dictated by the depth of stupidity available on the BoP payroll.
Too often, judges (and lawyers and law professors) get so caught up in the existence of holdings that address the secondary authority of the government to regulate people that they forget that the default is the fundamental rights set forth in the Constitution.
The further tragedy of the ruling is that it does nothing to clarify the state of the law, let alone provide guidelines for what an inmate may or may not say in a published article. As one of McGowan’s lawyers, [Cardozo lawprof] Alexander Reinert, put it, the decision was silent about how “prisoners may express themselves to the outside world.”
The rights of free speech and press protected in the First Amendment didn’t need the Second Circuit’s approval. The decision was silent? So what? Since 1791, these rights have been “clearly established.” The problem with the decision is that they were so clearly established, so obvious, that everyone took them for granted.
The question never should have been whether McGowan’s rights were clearly established. They could not have been any more fundamental. The question was whether there was any clearly established law excepting his fundamental rights, which there was not. When the opening assumption is that people have no rights unless the government says they do, you end up with horrendously misbegotten analyses like this.