Case 1:15-cv-00045-CCC Document 38 Filed 02/17/15 Page 1 of 33

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
PRISON LEGAL NEWS, DANIEL
DENVIR, PHILADELPHIA CITY
PAPER, CHRISTOPHER MORAFF,
PENNSYLVANIA PRISON SOCIETY,
SOLITARY WATCH, PROFESSOR
REGINA AUSTIN, STEVEN
BLACKBURN, WAYNE JACOBS,
EDWIN DESAMOUR, and WILLIAM
COBB,
Plaintiffs,
v.
KATHLEEN KANE, in her capacity as
Attorney General of Pennsylvania, and
R. SETH WILLIAMS, in his capacity as
District Attorney of Philadelphia County,
Defendants.

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CIVIL ACTION

No. 15-0045

PLN PLAINTIFFS’ BRIEF IN OPPOSITION TO DEFENDANTS’
MOTIONS TO DISMISS AND IN FURTHER SUPPORT OF PLN
PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

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TABLE OF CONTENTS
I.

PLN PLAINTIFFS’ CLAIMS ARE JUSTICIABLE ..................................... 1
A.

B.

PLN Plaintiffs Have Standing to Bring Their Claims.......................... 1
1.

The Threat of the Silencing Act’s Enforcement
Constitutes Injury in Fact. .......................................................... 2

2.

PLN Plaintiffs Satisfy Article III Standing’s Causation
and Redressability Requirements, Too. ................................... 10

PLN Plaintiffs’ Claims Are Ripe. ...................................................... 11

II.

THE MONELL DOCTRINE DOES NOT WARRANT DISMISSAL
AS TO DEFENDANT WILLIAMS. ............................................................ 14

III.

PLN PLAINTIFFS HAVE A REASONABLE PROBABILITY OF
SUCCESS ON THE MERITS, THUS SATISFYING THE FIRST
PRELIMINARY INJUNCTION REQUIREMENT. ................................... 17
A.

The Silencing Act is Unconstitutionally Vague. ................................ 17

B.

The Silencing Act Is an Unconstitutional Content-Based Speech
Regulation. ......................................................................................... 19

C.

The Silencing Act Is Unconstitutionally Overbroad. ......................... 22

D.

The Silencing Act Unconstitutionally Authorizes Prior
Restraints. ........................................................................................... 23

IV.

PLN PLAINTIFFS SATISFY THE OTHER THREE
PRELIMINARY INJUNCTION FACTORS, TOO. .................................... 24

V.

CONCLUSION............................................................................................. 25

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TABLE OF AUTHORITIES
Alexander v. United States, 509 U.S. 544 (1993) ....................................................24
Babbitt v. UFW Nat’l Union, 442 U.S. 289 (1979) ...........................................2, 5, 7
Carter v. City of Phila., 181 F.3d 339 (3d Cir. 1999) .............................................15
Clapper v. Amnesty International USA, 133 S. Ct. 1138 (2013) ............................... 8
Cohen v. California, 403 U.S. 15 (1971) .................................................................20
Coleman v. Kaye, 87 F.3d 1491 (3d Cir. 1996) .......................................................15
Constitution Party v. Aichele, 757 F.3d 347 (3d Cir. 2014) ..............3, 6, 7, 8, 13, 14
Cramp v. Bd. of Public Instruction, 368 U.S. 278 (1961) .......................................18
DeJohn v. Temple Univ., 537 F.3d 301 (3d Cir. 2008)............................................23
Elrod v. Burns, 427 U.S. 347 (1976) .......................................................................24
FOCUS v. Colville, 75 F.3d 834 (3d Cir. 1996) ........................................................ 9
Free Speech, LLC v. City of Phila., 884 A.2d 966 (Pa. Commw. Ct.
2005) .......................................................................................................20, 23, 21
Freedom from Religion Found., Inc. v. Saccone, 894 F. Supp. 2d 573 (M.D.
Pa. 2012) .............................................................................................................11
Goudy-Bachman v. Health & Human Servs., 764 F. Supp. 2d 684 (M.D. Pa.
2011) .................................................................................................................3, 6
Gov’t of V.I. v. Vanterpool, 767 F.3d 157 (3d Cir. 2014)........................................23
Holder v. Humanitarian Law Project, 561 U.S. 1 (2010) ...............................2, 5, 20
L.A. County v. Humphries, 562 U.S. 29 (2010) .......................................................14
Miller v. Mitchell, 598 F.3d 139 (3d Cir. 2010) ................................................16, 24
N.N. v. Tunkhannock Area Sch. Dist., 801 F. Supp. 2d 312 (M.D. Pa. 2011) ...15, 16
Peachlum v. City of York, 333 F.3d 429 (3d Cir. 2003) ................................7, 12, 13

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Planned Parenthood v. Farmer, 220 F.3d 127 (3d Cir. 2000) ..............................3, 5
Presbytery of N.J. Florio, 40 F. 3d 1454 (3d Cir. 1994) .............................11, 12, 13
Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200 (3d Cir. 2001) ......................20, 23
SEIU Healthcare Pa. v. Commonwealth, 104 A.3d 495 (Pa. 2014) ........................23
Sorrell v. IMS Health Inc., 131 S. Ct. 2653 (2011) .................................................20
Stanley v. Georgia, 394 U.S. 557 (1969) ................................................................... 9
Steffel v. Thompson, 415 U.S. 452 (1974) ................................................................. 2
Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334 (2014)..........1, 2, 4, 5, 8, 10, 14
Thompson Coal Co. v. Pike Coal Co., 412 A.2d 466 (Pa. 1979) ............................19
United States v. Stevens, 559 U.S. 460 (2010) ........................................................22
United States v. Wecht, 484 F.3d 194 (2007) ............................................................ 9
Va. State Bd. of Pharmacy v. Va. Citizens Consumer Counsel, 425 U.S. 748
(1976) ....................................................................................................................9
Vance v. Universal Amusement Co., 445 U.S. 308 (1980) ......................................23
Virginia v. American Booksellers Ass’n, 484 U.S. 383 (1988) .....................3, 4, 5, 6
Zubik v. Sebelius, 911 F. Supp. 2d 314 (W.D. Pa. 2012) ........................................13

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The Supreme Court and Third Circuit have made that clear when
people reasonably fear that an unconstitutional law will be used against them, they
should not be forced to just sit around and wait. They should not be told, give up
your rights or proceed at your own risk. And it should not be left to the
government, when it has not disavowed an intent to enforce the law, to determine
if and when to give a court the opportunity to strike the law down.
The Silencing Act—enacted in response to a commencement speech
by Mumia Abu-Jamal—is unconstitutional due to its vagueness, its content-based
regulation of speech, its overbreadth, and its authorization of prior restraints.
Plaintiffs in this case (“PLN Plaintiffs”) reasonably fear that the Act will be used
against them. Under Supreme Court and Third Circuit precedent, the time to
enjoin its enforcement is now. 1
I.

PLN PLAINTIFFS’ CLAIMS ARE JUSTICIABLE
A.

PLN Plaintiffs Have Standing to Bring Their Claims.
Article III standing requires “(1) an injury in fact, (2) a sufficient

causal connection between the injury and the conduct complained of, and (3) a
likelihood that the injury will be redressed by a favorable decision.” Susan B.
Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 (2014) (internal quotation marks
1

PLN Plaintiffs incorporate the arguments made in the brief filed today by
the plaintiffs in Abu-Jamal v. Kane, No. 14-cv-2148, and the arguments made in
the opening brief filed January 8, 2015 by the plaintiffs in the Abu-Jamal case.

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and brackets omitted). Though Defendant Kane and Defendant Williams insist
that there is no case or controversy here (AG Br. at 3-8; DA Br. at 6-9), PLN
Plaintiffs satisfy all three of the requirements for standing.
1.
Injury in Fact.

The Threat of the Silencing Act’s Enforcement Constitutes

Just the threat of enforcement can provide injury in fact: “an actual
arrest, prosecution, or other enforcement action is not a prerequisite to challenging
the law.” Susan B. Anthony, 134 S. Ct. at 2342. In other words, “‘[i]t is not
necessary that [a plaintiff] first expose himself to actual arrest or prosecution to be
entitled to challenge a statute that he claims deters the exercise of his constitutional
rights.’” Id. (quoting Steffel v. Thompson, 415 U.S. 452, 459 (1974)).
Thus, the Supreme Court has repeatedly found standing in preenforcement challenges to allegedly unconstitutional statutes. See, e.g., Susan B.
Anthony, 134 S. Ct. at 2338, 2341-47 (pre-enforcement challenge to Ohio statute
prohibiting false statements about political candidates); Holder v. Humanitarian
Law Project, 561 U.S. 1, 7, 15-16 (2010) (pre-enforcement challenge to federal
statute prohibiting provision of material support or resources to terrorist
organizations); Babbitt v. UFW Nat’l Union, 442 U.S. 289, 297-303 (1979) (preenforcement challenge to Arizona farm labor statute regulating union elections,
limiting union publicity, and establishing criminal sanctions for violations of
statute).
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And courts in this Circuit have found similarly. See, e.g., Constitution
Party v. Aichele, 757 F.3d 347, 349-50, 360-67 (3d Cir. 2014) (pre-enforcement
challenge to Pennsylvania statute permitting courts to impose administrative and
litigation costs on political candidates whose nomination papers were successfully
challenged); Planned Parenthood v. Farmer, 220 F.3d 127, 146-47 (3d Cir. 2000)
(pre-enforcement challenge to New Jersey statute prohibiting abortion procedures);
Goudy-Bachman v. Health & Human Servs., 764 F. Supp. 2d 684, 692 (M.D. Pa.
2011) (pre-enforcement challenge to individual mandate in Patient Protection and
Affordable Care Act).
Virginia v. American Booksellers Ass’n, 484 U.S. 383 (1988),
illustrates these principles. There, a group of bookstore owners filed a preenforcement, facial First Amendment challenge to a Virginia statute prohibiting the
knowing commercial display of sexually explicit materials to juveniles. Id. at 38688. For several reasons, the Supreme Court was “not troubled by the preenforcement nature of [the] suit,” even though the plaintiffs did not even wait until
the statute took effect to sue. Id. at 392-93. First, “[t]he State ha[d] not suggested
that the newly enacted law w[ould] not be enforced,” and the Court “s[aw] no
reason to assume otherwise.” Id. at 393. Second, “the law [was] aimed directly at
plaintiffs, who, if their interpretation of the statute [were] correct, w[ould] have to
take significant and costly compliance measures or risk criminal prosecution.” Id.

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at 392. Third, “the alleged danger of this statute [was], in large measure, one of
self-censorship; a harm that can be realized even without an actual prosecution.”
Id. at 393.
Through decades of pre-enforcement standing cases, the Supreme
Court has developed a three-part injury in fact test, explaining that “a plaintiff
satisfies the injury-in-fact requirement where he alleges [1] an intention to engage
in a course of conduct arguably affected with a constitutional interest, but [2]
proscribed by a statute, and [3] there exists a credible threat of prosecution
thereunder.” Susan B. Anthony, 134 S. Ct. at 2342 (internal quotation marks
omitted). PLN Plaintiffs have done all three. First, they have alleged an intention
to engage in a wide range of constitutionally protected conduct—including
speaking publicly about their own experiences with the criminal justice system and
publishing accounts of others’ experiences. (Ver. Compl. at ¶¶ 52, 64, 72, 84, 94,
103, 112, 121, 130, 138, 147.) Second, PLN Plaintiffs have alleged that this
intended speech is proscribed by the Silencing Act. (Id. at ¶¶ 51, 63, 71, 83, 93,
102, 111, 120, 129, 137, 147.) Finally, they have alleged that they reasonably
fear—or, in other words, face a credible threat—that the Silencing Act will be used
against them. (Id. at ¶¶ 52, 64, 72, 84, 94, 103, 112, 121, 130, 138, 148.)
Both Defendants have challenged the credibility of the threat that PLN
Plaintiffs allege the Silencing Act poses to them. (DA Br. at 8; AG Br. at 6.) Yet

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the same factors that led the American Booksellers Court to find the threat of
enforcement credible there—and many of the same factors that led the courts in the
other pre-enforcement cases discussed above to find similarly—are present here.
Most important, as in American Booksellers, 484 U.S. at 393, neither
Defendant Kane nor Defendant Williams has disavowed an intent to enforce the
Silencing Act—even after learning of PLN Plaintiffs’ suit. See also Susan B.
Anthony, 134 S. Ct. at 2345 (“[R]espondents have not disavowed enforcement if
petitioners make similar statements in the future.”); Holder, 561 U.S. at 16 (“The
Government has not argued to this Court that plaintiffs will not be prosecuted if
they do what they say they wish to do.”); Babbitt, 442 U.S. at 302 (“[T]he State
has not disavowed any intention of invoking the criminal penalty provision against
unions that commit unfair labor practices.”); Planned Parenthood, 220 F.3d at 148
(“[P]laintiffs received no assurances that [the Act] would not be enforced against
them if they performed such [abortion] procedures. They were entitled to know
what they could not do.”).
Defendant Williams does state in his brief that he will not enforce the
Silencing Act “pending the outcome of this litigation.” (DA Br. at 1; accord DA
Br. at 8.) But this short-term commitment is cold comfort to PLN Plaintiffs, as it
actually suggests that Defendant Williams will enforce the Silencing Act in the
future, unless it is found unconstitutional. And PLN Plaintiffs, of course, care

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most about Defendant Williams’ enforcement plans over the coming months and
years. Indeed, much of the speech in which PLN Plaintiffs intend to engage is
fundamental to the missions of the organizations that they have founded and now
run and much of it requires a long-term commitment of resources. (See, e.g., Ver.
Compl. at ¶¶ 75-76, 79-81, 87-88, 121, 130, 138, 144, 148-49.) See Aichele, 757
F.3d at 364-65 (“Because campaign planning decisions have to be made months, or
even years, in advance of the election to be effective, the plaintiffs’ alleged injuries
are actual and threatened.”); Goudy-Bachman, 764 F. Supp. 2d at 692 (“[Plaintiffs]
must undertake financial planning and budgeting decisions now in preparation for
the implementation of the individual mandate.”).
Also substantiating the credibility of the threat of Silencing Act
enforcement is the fact that at least those PLN Plaintiffs who are themselves
“offenders,” like the plaintiffs in American Booksellers, 484 U.S. at 393, are the
express subjects of the statute. See also Aichele, 757 F.3d at 362 (“[W]hen an
individual who is the very object of a law’s requirement or prohibition seeks to
challenge it, he always has standing. . . . Here, the portions of the election code
challenged by [plaintiffs] directly regulate [them].” (internal quotation marks
omitted)).
The Silencing Act’s chilling effect on the exercise of constitutional
rights, like the statute in American Booksellers, 484 U.S. at 393, further supports

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finding injury in fact. See also Aichele, 757 F.3d at 363 (“[W]hen they submit
nomination papers as they must under [the statute], they face the prospect of costshifting sanctions, the very fact of which inherently burdens their electioneering
activities.”). Tellingly, Plaintiff Prison Legal News held up publication of a
submission by Abu-Jamal due to the threat of Silencing Act enforcement. (Ver.
Compl. at ¶ 40.) And Plaintiff Pennsylvania Prison Society felt obliged to warn
inmates that submissions for publication in the Prison Society’s Graterfriends
newsletter could be enjoined or penalized under the Act. (Id. at ¶ 96.)
The statute’s overbreadth and vagueness add to the pre-enforcement
injury, too. See Babbitt, 442 U.S. at 303 (“If the provision were truly vague,
appellees should not be expected to pursue their collective activities at their
peril.”); Peachlum v. City of York, 333 F.3d 429, 438 (3d Cir. 2003) (“In the case
of overbreadth challenges, standing arises not because the plaintiff’s own rights of
free expression are violated, but because of a judicial prediction or assumption that
the challenged statute’s very existence may cause others not before the court to
refrain from constitutionally protected speech or expression.” (brackets and
internal quotation marks omitted)).
That the universe of potential enforcers under the Silencing Act is
broad—including not only the Attorney General and sixty-seven district attorneys,
but also victims and, in many instances, victims’ family members to the “third

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degree of consanguinity or infinity”—is yet another reason to find the alleged
enforcement threat credible. See Susan B. Anthony, 134 S. Ct. at 2345 (holding
that “[t]he credibility of that [enforcement] threat is bolstered by the fact that
authority to file a complaint with the Commission is not limited to a prosecutor or
an agency,” even though plaintiff did not name all possible filers as defendants);
Aichele, 757 F.3d at 364 (relying on Susan B. Anthony for same point).2
Finally, the seven non-offender PLN Plaintiffs who rely on and
publish offender speech meet the injury in fact requirements not only based on the
threat that the Silencing Act will be used against them, but also based on the threat
that it will be used against their sources. As the Supreme Court said a half-century
ago, “[i]t is now well established that the Constitution protects the right to receive
2

As the Third Circuit in Aichele explained, Clapper v. Amnesty International
USA, 133 S. Ct. 1138 (2013), a pre-Susan B. Anthony case relied upon by the
District Attorney (DA Br. at 8), is distinguishable for at least three reasons:
First, Clapper addresses the unique realm of national
security in which peculiar balance-of-power concerns,
which are not present here, abound. Second, the Court’s
holding that respondents did not have standing was based
on a detailed review of the particular statutory scheme at
issue in that case, which, by the Court’s count, included
five levels of safeguards and contingencies. Third, and
most importantly, the law at issue in Clapper did not
directly regulate the respondents. This third point alone
makes Clapper inapposite and renders any language from
it regarding subjective speculation or chains of
contingencies inapplicable here.
Aichele, 757 F.3d at 365 n. 21 (citations omitted).
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information and ideas.” Stanley v. Georgia, 394 U.S. 557, 564 (1969). In fact,
while “[f]reedom of speech presupposes a willing speaker,” “where a speaker
exists . . . , the protection afforded is to the communication, to its source and to its
recipients both.” Va. State Bd. of Pharmacy v. Va. Citizens Consumer Counsel,
425 U.S. 748, 756 (1976). Thus, a third party enjoys standing to challenge a
government limitation on speech “as long as the third party can demonstrate that an
individual subject to the [limitation] would speak more freely if the [limitation] is
lifted or modified.” United States v. Wecht, 484 F.3d 194, 203 (2007); see also
FOCUS v. Colville, 75 F.3d 834, 838-39 (3d Cir. 1996) (holding that third parties
have standing to challenge a gag order “when there is reason to believe that the
individual subject to the gag order is willing to speak and is being restrained from
doing so”).
Here, the seven non-offender PLN Plaintiffs—a combination of
journalists and advocates—have alleged that they reasonably fear that the threat of
Silencing Act enforcement will chill offenders from speaking with them and
submitting materials for publication. (Ver. Compl. at ¶¶ 53, 65, 73, 85, 95, 104,
113.) All seven have relied on offender speech in the past, and it is critical to their
journalistic and advocacy efforts that they be able to continue to do so in the
future. The Silencing Act jeopardizes that flow of information. For example,
Plaintiff Christopher Moraff is working on a long-term article that would put a

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human face on mandatory juvenile life without parole in Pennsylvania by sharing
the stories of several Pennsylvania inmates serving such sentences. (Id. at ¶ 22.)
One of the inmates he has identified is Robert Holbrook, an inmate convicted of a
Philadelphia murder over twenty years ago who has spoken publicly and with the
press in the past about his experience as a juvenile lifer. (Id.) But Holbrook, a
plaintiff in the other pending suit challenging the Silencing Act, has stated that the
Act is now chilling his exercise of his right to speak about his experience. (Id.; see
also Abu-Jamal v. Kane, No. 14-cv-2148, Am. Comp. at ¶¶ 73-74.)
2.
PLN Plaintiffs Satisfy Article III Standing’s Causation and
Redressability Requirements, Too.
Where, as here, the injury in fact is the threat of enforcement of an
allegedly unconstitutional statute, and the relief sought is an injunction against that
statute’s enforcement and a declaration of its unconstitutionality, there is, by
definition, “a sufficient causal connection between the injury and the conduct
complained of” and “a likelihood that the injury will be redressed by a favorable
decision,” Susan B. Anthony, 134 S. Ct. at 2341 (internal quotation marks and
brackets omitted). Simply put, if the Silencing Act’s enforcement is enjoined and
the Act declared unconstitutional, PLN Plaintiffs’ injury in fact—which is caused
entirely by the Act’s existence and potential enforcement—would necessarily be
eliminated. Indeed, this Court has previously articulated that same logical point:

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The final two aspects of Article III standing—causation
and redressability—need be addressed only briefly.
[Plaintiff] alleges that the injury they suffer is caused
directly by the passage of H.R. 535, and they seek, inter
alia, a declaratory judgment that the resolution is
unconstitutional. If [Plaintiff] prevails on the merits of
their claims, a decision declaring the resolution void
would redress their injury by communicating that the
House has transgressed the boundaries of our
Constitution and the First Amendment.
Freedom from Religion Found., Inc. v. Saccone, 894 F. Supp. 2d 573, 582 (M.D.
Pa. 2012).
B.

PLN Plaintiffs’ Claims Are Ripe.
In pre-enforcement challenge cases, ripeness requires (1) that the

parties have sufficiently adverse interests, (2) that the Court be able to issue a
conclusive judgment, and (3) that such a judgment would actually be useful.
Presbytery of N.J. v. Florio, 40 F. 3d 1454, 1463 (3d Cir. 1994). In Presbytery, a
pre-enforcement First Amendment challenge to a New Jersey anti-discrimination
statute, the Third Circuit found sufficient adversity when the defendants did not
forswear enforcement of the statute. Id. at 1466-68. The court found a conclusive
judgment could be rendered because the issues were “largely legal,” stressing that
“[f]actual development would not add much to the plaintiffs’ facial challenges to
the constitutionality of the statute.” Id. at 1468-69. And the court held that a
judgment “would be useful to the parties and others who could be affected,” as “[a]
declaration of [the plaintiffs’] rights and those of all others who would seek to
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engage in similar activity would permit a person to speak without fear of
governmental sanction or regulation of their activities protected by the statute.” Id.
at 1470.
Almost ten years later, in Peachlum v. City of York, 333 F.3d 429,
434-35 (3d Cir. 2003), the Third Circuit emphasized that “[a] First Amendment
claim, particularly a facial challenge, is subject to a relaxed ripeness standard”
because, “even in the absence of a fully concrete dispute, unconstitutional statutes
or ordinances tend to chill protected expression among those who forbear speaking
because of the law’s very existence.” The court went on to explain:
Our stance toward pre-enforcement challenges stems
from a concern that a person will merely comply with an
illegitimate statute rather than be subjected to
prosecution. Or, the government may choose never to
put the law to the test by initiating a prosecution, while
the presence of the statute on the books nonetheless chills
constitutionally protected conduct.
Id. at 435 (citations omitted). That is why “in cases involving fundamental rights,
even the remotest threat of prosecution, such as the absence of a promise not to
prosecute, has supported a holding of ripeness where the issues in the case were
‘predominantly legal’ and did not require additional factual development.” Id.
Here, given Defendants’ failure to foreswear enforcement of the
Silencing Act against PLN Plaintiffs, there is the requisite adversity of interests.

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See id.; Presbytery, 40 F. 3d at 1466-68.3 Further, the central issues in the case—
whether the Silencing Act is unconstitutional in any of four different ways—are
legal and require no further factual development, thus allowing for a judgment that
resolves the dispute. See Peachlum, 333 F.3d at 435; Presbytery, 40 F. 3d at 146869. Finally, such a judgment would be useful—not only to the parties in this case,
but to all those who want to engage in conduct that could be subject to the Act.
See Presbytery, 40 F. 3d at 1470. Peachlum’s exhortation to relax this three-part
standard even further in the First Amendment context only adds to the basis for
finding ripeness here. See Peachlum, 333 F.3d at 434-35.4

3

Zubik v. Sebelius, 911 F. Supp. 2d 314 (W.D. Pa. 2012), relied on by
Defendant Kane (AG Br. at 9, 11), is very different from this case. There, the
court found a pre-enforcement challenge to regulations promulgated under the
Patient Protection and Affordable Care Act to be unripe given that (1) the
government agreed not to enforce it for over a year and (2) in the interim, the
government had introduced amendments to the regulations to address plaintiffs’
concerns. Id. at 325-26.
4

Defendant Kane maintains that PLN Plaintiffs’ challenge to the Silencing
Act is unripe because no one can be enjoined or penalized under the Act without a
judicial determination that an injunction or other penalty is in fact warranted. (AG
Br. at 10.) In other words, according to Defendant Kane, only after “[t]he
intervening determination” by a court that “the conduct has caused temporary or
permanent mental anguish” “will offenders sued under the Act be injured.” (Id.)
But having to defend against a lawsuit, even if ultimately successful, is injury in
and of itself. More important, statutes that authorize civil or criminal penalties
almost always require some sort of judicial determination before a penalty can be
imposed. That is how our system of separation of powers and due process
generally works. And it has not made—and should not make—pre-enforcement
challenges to such statutes unripe. See, e.g., Aichele, 757 F.3d at 349-50, 368
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The Supreme Court has recognized that, in the pre-enforcement
challenge context, “the Article III standing and ripeness issues . . . boil down to the
same question.” Susan B. Anthony, 134 S. Ct. at 2341 n.5; see also Aichele, 757
F.3d at 368 n.25 (summarily holding that pre-enforcement challenge was ripe “for
the reasons discussed above” as to standing). Therefore, given that PLN Plaintiffs
have standing to bring their pre-enforcement challenge, it is only natural that their
challenge is ripe, too.
II.
THE MONELL DOCTRINE DOES NOT WARRANT DISMISSAL AS
TO DEFENDANT WILLIAMS.
Defendant Williams maintains that PLN Plaintiffs’ official-capacity
suit against him should be dismissed under the Monell doctrine because, he
contends, he is a county official for Silencing Act purposes and “has no policy or
custom of using the [Silencing Act] in violation of Plaintiffs’ constitutional right.”
(DA Br. at 9-12.) Defendant Williams is incorrect for two reasons.
First, he is a state official—not a county official—for purposes of the
Act, making Monell’s “policy or custom” requirement irrelevant. See L.A. County
v. Humphries, 562 U.S. 29, 34-39 (2010) (describing the contours of the Monell
doctrine and its application to municipal government). The Third Circuit has
explained that Pennsylvania district attorneys have a hybrid state/county status, as
(finding to be ripe pre-enforcement challenge to statute permitting courts to impose
costs on candidates whose nomination papers were successfully challenged).
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they “may be State officials when they prosecute crimes or otherwise carry out
policies established by the State, but serve as local policy makers when they
manage or administer their own offices.” Carter v. City of Phila., 181 F.3d 339,
354 (3d Cir. 1999). Thus, for example, “[d]istrict attorneys act as agents of the
state when they ‘execut[e] their sworn duties to enforce the law by making use of
all the tools lawfully available to them to combat crime.’” N.N. v. Tunkhannock
Area Sch. Dist., 801 F. Supp. 2d 312, 318 (M.D. Pa. 2011) (quoting Coleman v.
Kaye, 87 F.3d 1491, 1499 (3d Cir. 1996) (brackets in N.N.)). But when a district
attorney “engages in purely administrative tasks unrelated to prosecutorial
functions, he or she ‘in effect acts on behalf of the county that is the situs of his or
her office.’” Id. (quoting Coleman, 87 F.3d at 1499).
The Silencing Act is a state law that authorizes the Attorney General
and all Pennsylvania district attorneys to enforce it. Thus, by enforcing the Act,
Defendant Williams would be “carrying out policies established by the State.”
Carter, 181 F.3d at 354. Further, given that the Silencing Act, located in the
state’s Crimes Code, is aimed at halting the “continuing effect of . . . crime[s] on . .
. victim[s],” 18 Pa. C.S. § 11.1304, it is a “tool” available to Defendant Williams
“to combat crime,” Coleman, 87 F.3d at 149. Indeed, at the beginning of the
Crime Victims Act, which the Silencing Act amends, the General Assembly “finds
and declares” that protecting crime victims’ rights helps fight crime:

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In recognition of the civic and moral duty of victims of
crime to fully and voluntarily cooperate with law
enforcement and prosecutorial agencies and in further
recognition of the continuing importance of victim
cooperation to State and local law enforcement efforts
and the general effectiveness and well-being of the
criminal justice system of this Commonwealth, all
victims of crime are to be treated with dignity, respect,
courtesy and sensitivity.
18 Pa. C.S. § 11.102 (emphasis added). Further, bringing a court action under the
Act is in no way “purely administrative,” N.N., 801 F. Supp. 2d at 318.
Second, even if Defendant Williams were considered a county official
with purely administrative functions as to the Silencing Act, his policy as to the
Act’s enforcement is at the heart of the case. As described in PLN Plaintiffs’
Verified Complaint, Defendant Williams was an enthusiastic proponent of the Act
before its passage, leaving no doubt that he would use it if enacted. (Ver. Compl.
at ¶¶ 34, 36.) Moreover, in his brief, he has effectively revealed that his current
policy is to enforce the Act unless it is deemed unconstitutional in this litigation.
(DA Br. at 1, 8.) It is this policy of intended enforcement that is causing PLN
Plaintiffs’ constitutional injury.
Therefore, be he a state actor or a county actor, Defendant Williams
should be preliminarily enjoined from enforcing the Silencing Act because, as
explained below, the Act is unconstitutional in at least four ways. See Miller v.
Mitchell, 598 F.3d 139, 147-55 (3d Cir. 2010) (affirming, on First Amendment

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grounds, preliminary injunction of District Attorney’s threatened prosecution of
minors for refusing to attend sex education class). 5
III. PLN PLAINTIFFS HAVE A REASONABLE PROBABILITY OF
SUCCESS ON THE MERITS, THUS SATISFYING THE FIRST
PRELIMINARY INJUNCTION REQUIREMENT.
A.

The Silencing Act is Unconstitutionally Vague.
In their opening brief, PLN Plaintiffs identified three ways in which

the Silencing Act is unconstitutionally vague. (PLN Br. at 13-19.) Defendant
Kane has not overcome any of them.
First, PLN Plaintiffs explained that one cannot know in advance what
conduct will be subject to the Silencing Act. (PLN Br. at 16-17.) Defendant Kane
stresses, in response, that courts determine all the time whether people have
suffered mental anguish. (AG Br. at 24-25.) But those are determinations about
how people felt in the past, not predications about how they will feel in the future.
The Silencing Act requires a person subject to it to somehow determine
beforehand whether the speech or other conduct in which he or she wishes to
engage will cause his or her “victim” (broadly construed under the Act) mental
anguish. Crucially, this risk-assessment inquiry depends entirely on what the
future, subjective response of the would-be actor’s “victim” will be to the
contemplated conduct—not on any objective or reasonable person standard. That
5

Unlike Defendant Kane, Defendant Williams has declined to take a
position on the propriety of a preliminary injunction. (DA Br. at 12.)
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is why “men of common intelligence are left to guess” about what conduct will end
up falling with the Act’s scope. See Cramp v. Bd. of Public Instruction, 368 U.S.
278, 287 (1961). Making matters worse is the Act’s failure to specify what
“conduct which perpetuates the continuing effect of the crime on the victim”
“includes” other than “conduct which cases a temporary or permanent state of
mental anguish.” See 18 Pa. C.S. § 11.1304(d).
Second, in response to PLN Plaintiffs’ argument that the lack of a
definition for “offender” also makes the statute vague (see PLN Br. at 17-18),
Defendant Kane contends that the term’s meaning is obvious (AG Br. at 25). Her
reason is that FreeDictionary.com has a definition for it: “an accused defendant in
a criminal case or one convicted of a crime.” (Id. (quoting http://legal-dictionary.
thefreedictionary.com).) Yet Defendant Kane fails to explain how anyone would
know that this particular definition—which sweeps in the accused, not just the
convicted—controls for Silencing Act purposes. Indeed, it differs from the range
of “offender” definitions found in other Pennsylvania statutes (PLN Br. at 17-18)
and from the definition in Black’s Law Dictionary (http://thelawdictionary.org/
offender: “the name that is used for a person who is guilty of an offense according
to law”). Defendant Kane’s reliance for statutory construction on
FreeDictionary.com—rather than on anything in the Silencing Act itself—only
confirms the Act’s vagueness.

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Third, as to PLN Plaintiffs’ argument that it is unclear whether the
Silencing Act permits the injunction of a third party’s publication of offender
speech (PLN Br. at 18), Defendant Kane suggests that it does not because the
statute is silent on that point (AG Br. at 25). But the House Judiciary Committee
counsel said just the opposite at the Committee hearing on the law. (Ver. Compl.
at ¶ 33 (“[T]he court would have broad power to stop a third party who is the
vessel of that conduct or speech from delivering it or publishing that
information.”).) Which makes good sense, given that Abu-Jamal’s commencement
speech—the Silencing Act’s impetus—was pre-recorded and broadcast to the
students by a third party (id. at ¶¶ 23, 27), and given that prisoners usually need
third party conduits to be able to communicate broadly with the outside world.
Moreover, Pennsylvania recognizes a “civil conspiracy” cause of action when “two
or more persons combine[] or agree[] with intent to do an unlawful act,” Thompson
Coal Co. v. Pike Coal Co., 412 A.2d 466, 472 (Pa. 1979), and whether the tort will
be used to extend the Silencing Act’s reach to third parties and fulfill the
legislative intent is unclear.
B.

Regulation.

The Silencing Act Is an Unconstitutional Content-Based Speech
In an effort to invoke intermediate scrutiny—which is somewhat less

rigorous than the strict scrutiny that applies to content-based speech regulations—

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Defendant Kane insists that (1) the Silencing Act does not regulate speech, but
regulates conduct, and (2) is not content-based. She is incorrect as to both.
First, that the Silencing Act uses the term “conduct” does not mean
that it does not regulate speech or that it does so only incidentally. The term
“conduct” includes speech, and what matters for First Amendment purposes is the
actual effect of the law being challenged on the exercise of free expression. See,
e.g., Holder, 561 U.S. at 27-28 (evaluating statute prohibiting provision of material
support and resources to terrorist organizations as content-based speech regulation
because, even though statute “generally function[ed] as a regulation of conduct,”
“as applied to plaintiffs the conduct triggering coverage under the statute
consist[ed] of communicating a message”); Cohen v. California, 403 U.S. 15, 1626 (1971) (deeming “offensive conduct” prohibition a First Amendment violation
when applied to individual wearing “F— the Draft” jacket); Saxe v. State Coll.
Area Sch. Dist., 240 F.3d 200, 214-18 (3d Cir. 2001) (invalidating on First
Amendment overbreadth grounds school district policy prohibiting “verbal or
physical” harassing “conduct”).
Here, the Silencing Act was drafted, introduced, enacted, and signed
into law in direct response to Abu-Jamal’s graduation speech. The legislative
history recapped in PLN Plaintiffs’ Verified Complaint, and not disputed by
Defendants, leaves no doubt about that. (Ver. Compl. at ¶¶ 21-44.) See Sorrell v.

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IMS Health Inc., 131 S. Ct. 2653, 2663-64 (2011) (citing legislative history as
suport for conclusion that statute was content-based speech restriction). Further, as
the bases for their First Amendment claims, PLN Plaintiffs have identified
countless ways in which the Act jeopardizes their freedom of speech. (Ver.
Compl. at ¶¶ 47-150.) And while Defendant Kane has identified a few examples
of non-speech conduct that could fall within the Act’s scope (AG Br. at 16-17, 22,
31), that conduct, as explained at pages 20-24 of the Abu-Jamal Plaintiffs’ brief, is
already prohibited by other Pennsylvania laws and thus could not have been the
reason for the Silencing Act. 6 To claim that the Silencing Act does not regulate
speech simply does not comport with reality.
Second, while Defendant Kane says that the Silencing Act is “contentneutral” (AG Br. at 18, 23), the Supreme Court and Third Circuit, as detailed in
PLN Plaintiffs’ opening brief, have made clear that where a speech restriction is
based on listeners’ reaction to that speech, the restriction is necessarily contentbased (see PLN Br. at 20-21). Defendant Kane ignores that authority, even though
its application is a matter of common sense here. Whether any particular speech
falls within the scope of the Silencing Act depends on the subjective reaction of the
particular “victim” (broadly construed) to it. That subjective reaction in turn
depends on the content of the particular speech. Defendant Kane appears to
6

Defendant Kane offers no legislative history to suggest that it was.
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Case 1:15-cv-00045-CCC Document 38 Filed 02/17/15 Page 26 of 33

concede as much, by positing a list of “innocuous” speech that, based on her
sensibilities, would not be subject to the statute. (See AG Br. at 23.)7
Because the Silencing Act is a content-based speech restriction, it is
subject to strict scrutiny, which the Defendants not only cannot satisfy (see PLN
Br. at 21-25), but have not even attempted to satisfy.
C.

The Silencing Act Is Unconstitutionally Overbroad.
Defendant Kane’s response to PLN Plaintiffs’ overbreadth argument

is based on the wrong standard. According to her brief, a statute is overbroad only
if it has no legitimate sweep. (AG Br. at 16.) But the Supreme Court has held that,
in the First Amendment context, “a law may be invalidated as overbroad if a
substantial number of its applications are unconstitutional, judged in relation to the
statute’s plainly legitimate sweep.” United States v. Stevens, 559 U.S. 460, 473
(2010). As discussed in PLN Plaintiffs’ opening brief, when judged under that
standard, the Silencing Act is overbroad. (PLN Br. at 26-30.)8

7

Defendant Kane’s subjective view of what is “innocuous” naturally differs
from others’. For example, while she suggests that Abu-Jamal’s graduation
speech, given its content, would not have been subject to the Act (AG Br. at 23),
Pennsylvania legislators, Defendant Williams, former Governor Corbett, and Mrs.
Faulkner appear to feel differently (see, e.g., Ver. Compl. at ¶¶ 29, 34-36, 44).
8

The Silencing Act is much broader than the harassment and stalking
statutes that Defendant Kane invokes. (See AG Br. at 17-18). Unlike the Silencing
Act, those statutes require a continuing course of conduct and specific intent by the
offender. In fact, just a few months ago, the Third Circuit invalidated a harassment
statute on overbreadth grounds because, among other things, the statute
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D.

The Silencing Act Unconstitutionally Authorizes Prior Restraints.
Defendant Kane maintains that the Silencing Act does not authorize

prior restraints because, according to her, the injunctions it permits are “subsequent
punitive measures” for conduct that a judge has already determined falls within the
statute’s scope. (AG Br. at 26-28.) She is wrong.
First, the Silencing Act does not just permit the injunction of alreadyspoken or already-published speech; it permits the injunction of future speech just
the same—a classic prior restraint. Second, by authorizing “special” and
“preliminary” injunctions, the Act allows courts to enjoin speech based on a
provisional judicial determination. See 18 Pa. C.S. § 11.1304(c). The Supreme
Court made clear that this is unconstitutional in Vance v. Universal Amusement
Co., 445 U.S. 308, (1980), invalidating on prior restraint grounds a Texas statute
permitting the provisional injunction of obscene materials without a final judicial
determination that they were in fact obscene. Special and preliminary injunctions
only require the plaintiff to be “likely to prevail on the merits,” SEIU Healthcare
Pa. v. Commonwealth, 104 A.3d 495, 501-02 (Pa. 2014); Free Speech, LLC v. City
“regulate[d] not only conduct ‘solely intending to harass’ but any conduct
‘intending to harass,’ broadly sweeping to regulate a wide variety of expressive
speech.” Gov’t of V.I. v. Vanterpool, 767 F.3d 157, 166-68 (3d Cir. 2014). The
court emphasized that “[a] harassment statute should be carefully tailored to avoid
constitutional vulnerability on the grounds that it needlessly penalizes free speech.”
Id.; see also DeJohn v. Temple Univ., 537 F.3d 301, 313-20 (3d Cir. 2008); Saxe,
240 F.3d at 214-16 (invalidating overbroad school district harassment policy).
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of Phila., 884 A.2d 966, 970-71 (Pa. Commw. Ct. 2005)—a far cry from the
beyond-a-reasonable-doubt standard in Alexander v. United States, 509 U.S. 544,
552 (1993), the key case on which Defendant Kane relies.
IV. PLN PLAINTIFFS SATISFY THE OTHER THREE PRELIMINARY
INJUNCTION FACTORS, TOO.
First, as PLN Plaintiffs explained in their opening brief, the Supreme
Court held in Elrod v. Burns, 427 U.S. 347, 373 (1976)—and the Third Circuit has
since reiterated—that a First Amendment violation by definition qualifies as
“irreparable harm.” (See PLN Br. at 32-33; see also Miller, 598 F.3d at 147 n.8
(citing Elrod and holding that, given likelihood of success on claim that District
Attorney’s threatened prosecution would violate First Amendment, plaintiffs “have
necessarily shown that irreparable harm would result absent an injunction”).
Defendant Kane does not dispute that this is the law, but instead contends that
there is no First Amendment violation here. (See AG Br. at 30-32.) As discussed
throughout this brief, she is incorrect.
Second, the harm that Defendant Kane claims she would suffer if a
preliminary injunction were issued is minimal if not non-existent. While she
maintains that her “interest in protecting [Pennsylvania’s] vulnerable citizens
[would be] thwarted” (AG Br. at 32), an alternate avenue for protection already
exists for the hypothetical vulnerable citizens she cites as examples. (See AbuJamal Plaintiffs’ Br. at 20-24.) Also undercutting Defendant Kane’s asserted
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Case 1:15-cv-00045-CCC Document 38 Filed 02/17/15 Page 29 of 33

harm is the fact that she had no Silencing Act available to her until October 21,
2014, she has not used it since, and no other state appears to have such a law. 9
Third, Defendant Kane’s identical argument as to why the public
interest would be harmed by a preliminary injunction (see AG Br. at 32) fails for
the same reasons. Conversely, as discussed in PLN Plaintiffs’ opening brief, a
preliminary injunction would be in the public’s interest, as it would help ensure
that our Constitution is upheld. (See PLN Br. at 33.)
V.

CONCLUSION
For all of these reasons and all those discussed in PLN Plaintiffs’

opening brief and in the Abu-Jamal Plaintiffs’ opening brief and brief filed today,
PLN Plaintiffs respectfully request that this Court deny Defendants’ motions to
dismiss and preliminarily enjoin the enforcement of 18 Pa. C.S. § 11.1304.

9

In response to the Court’s request during the parties’ January 13, 2015
teleconference, Plaintiffs researched whether other states have statutes similar to
the Silencing Act. They found none.
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Case 1:15-cv-00045-CCC Document 38 Filed 02/17/15 Page 30 of 33

Date: February 17, 2014

Respectfully submitted,
/s/ Eli Segal
Amy B. Ginensky (PA 26233)
Eli Segal (PA 205845)
PEPPER HAMILTON LLP
3000 Two Logan Square
18th & Arch Streets
Philadelphia, PA 19103
(215) 981-4000
Attorneys for Plaintiffs
Thomas B. Schmidt, III (PA 19196)
Tucker R. Hull (PA 306426)
PEPPER HAMILTON LLP
100 Market Street, Suite 200
Harrisburg, PA 17108-1181
(717) 255-1155
Attorneys for Plaintiffs
Witold J. Walczak (PA 62976)
Sara J. Rose (PA 204936)
AMERICAN CIVIL LIBERTIES
FOUNDATION OF PENNSYLVANIA
313 Atwood Street
Pittsburgh, PA 15213
(412) 681-7864
Attorneys for Plaintiffs
Seth F. Kreimer (PA 26102)
3400 Chestnut Street
Philadelphia, PA 19104
(215) 898-7447
Attorney for Plaintiffs

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Case 1:15-cv-00045-CCC Document 38 Filed 02/17/15 Page 31 of 33

Lance Weber (FL 104550)
Sabarish Neelakanta (FL 26623)
HUMAN RIGHTS DEFENSE CENTER
PO Box 1151
Lake Worth, FL 33460
(561) 360-2523
Attorneys for Plaintiff Prison Legal News

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Case 1:15-cv-00045-CCC Document 38 Filed 02/17/15 Page 32 of 33

CERTIFICATE OF PAGE COUNT
I hereby certify that, pursuant to the Court’s February 13, 2015 Order
(Docket No. 37) the foregoing PLN PLAINTIFFS’ BRIEF IN OPPOSITION TO
DEFENDANTS’ MOTIONS TO DISMISS AND IN FURTHER SUPPORT OF
PLN PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION does not
exceed twenty-five pages.
/s/ Eli Segal
Eli Segal

Case 1:15-cv-00045-CCC Document 38 Filed 02/17/15 Page 33 of 33

CERTIFICATE OF SERVICE
I hereby certify that the foregoing PLN PLAINTIFFS’ BRIEF IN
OPPOSITION TO DEFENDANTS’ MOTIONS TO DISMISS AND IN
FURTHER SUPPORT OF PLN PLAINTIFFS' MOTION FOR PRELIMINARY
INJUNCTION was filed electronically with the Clerk of the Court using CM/ECF,
which will send notification of the filing to all counsel of record.
/s/ Eli Segal
Eli Segal