Banning of Newsletter in Wisconsin Prison Violates First Amendment
Banning of Newsletter in Wisconsin Prison Violates First Amendment
by John E. Dannenberg
A U.S. District Court has held that a decision by the Wisconsin Dept. of Corrections (WDOC) to ban a prisoner’s receipt of The New Abolitionist, an establishment-critical newsletter, was an exaggerated response and thus violated the prisoner’s First Amendment rights. The court ordered the newsletter to be delivered as injunctive relief, and suggested the parties negotiate any damage claims because a trial would not be well taken, given the apparent lack of physical injury or economic loss.
In 2007, Lorenzo Johnson, incarcerated at Waupun Correctional Institution, subscribed to The New Abolitionist, a newsletter of the Prisoners’ Action Coalition. The March 22, 2007 issue of that publication was censored by Defendant Dane Westfield, WDOC’s security chief.
The issue included articles about a recent agreement in Jones ‘El v. Schneiter, U.S.D.C., Case No. 00-C-421-C (W.D. Wis.) [regarding criticism of Wisconsin’s parole board], a critical letter to the chair of the parole board, a story about “Wisconsin’s Correctional Future,” a prisoner’s commentary on the Jones ‘El settlement, an interview with a member of the Wisconsin Assembly, prisoners’ views on parole and classification decisions in the WDOC, a story about Colorado prison labor replacing immigrant labor, legal and political updates, requests for prisoner art, and contact information for prison officials, politicians and prisoner rights advocates.
The March 22, 2007 issue was censored because it supposedly was a threat to the safety and security of the prison. Westfield called statements in the issue “inflammatory,” “encourag[ing] disrespect” and “encourag[ing] unrest and hopelessness,” which would cause prisoners “to distrust staff and act out” and “subvert [their] appreciation of the value of good behavior and program participation in furtherance of their rehabilitation.” But Westfield’s real concern was that the newsletter dared to be critical of “the establishment,” including the WDOC.
The court carefully reviewed quoted passages in the censored issue. It found that nowhere did the writers advocate violence. At worst, they encouraged readers to contact community leaders to make changes in prison conditions and parole procedures. The district court cited numerous U.S. Supreme Court rulings upholding the right to criticize the government under the First Amendment, noting that “criticism of government is at the very center of the constitutionally protected area of free discussion.”
That this case involved a prisoner and not a free world citizen did not lessen the First Amendment protections; it only changed the way the violation was to be examined. “Although the standards of review are different, the right to dissent is no less important in the prison setting than it is in the free world,” the court wrote. For prisoners, that standard was the “legitimate penological interest” test established by Turner v. Safley, 482 U.S. 78, 89 (1987).
Regarding Westfield’s censorship, the court observed that “an attempt to immunize oneself from public scrutiny is not a legitimate penological interest.” In this case the commentary in the newsletter was merely critical of Wisconsin prisons and parole practices. Even if some statements were “inflammatory,” they were not censorable because “they did not advocate violence or any other unlawful activity.” While the “defendants may prefer that [prisoner advocacy] activities not take place, they have no legitimate basis for preventing them.”
The district court found that in challenging the newsletter’s alleged militancy, the defendants failed to cite even one precedent case where such censorship had been upheld.
Moreover, the newsletter was delivered to other WDOC prisoners with no apparent adverse consequences. Accordingly, the court held the “defendants have failed to show that their censorship of the newsletter is logically connected to a legitimate penological interest ... [and therefore] their decision was an exaggerated response to those concerns.” Having failed the first Turner factor, no further analysis was necessary.
The district court ordered the WDOC to deliver the censored issue of The New Abolitionist to Johnson. As for damages, the court was skeptical because no proof of injury or economic loss was apparent, and the parties were encouraged to negotiate this issue out of court. The case settled on July 15, 2008 for $919.08 plus payment of $280.92 in court costs by the defendants. See: Johnson v. Raemisch, 557 F.Supp.2d 964 (W.D.Wis., 2008).
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Related legal case
Johnson v. Raemisch
| Year | 2008 |
|---|---|
| Cite | 557 F.Supp.2d 964 (W.D.Wis., 2008) |
| Level | District Court |
| Conclusion | Bench Verdict |
| Damages | 919.08 |
| Injunction Status | Granted |