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Wisconsin Federal Court Discusses Censorship of “Gang Material” in Prisons
In ruling that prison officials, in part, violated a prisoner’s First Amendment free speech rights by disciplining him for having gang-related literature, a Wisconsin federal district court provided an engrossing discussion on the factors that would make such literature a “security threat” that would allow censorship of the material.
While imprisoned at Wisconsin’s Waupun Correctional Institution, prisoner Johnson W. Graybuffalo received disciplinary action for possessing two documents. The first was a 1775 quotation about freedom from a Native American chief and the initials “A.I.M.,” which the parties agreed stands for “American Indian Movement.” The other document is a code of ethics of the Warrior’s Society.
At a June 16, 2005 disciplinary hearing, Graybuffalo was found guilty of “possessing any gang literature, creed, symbols, or symbolisms.” In addition, he was found guilty of possessing contraband. He was sentenced to 210 days of disciplinary segregation, but the warden reduced it to 180 days.
Graybuffalo filed a 42 U.S.C. § 1983 action challenging prison officials’ confiscation of the documents and their discipline of him on grounds that it violated his First Amendment rights. The Court noted that as the discipline did not affect the duration of his confinement, the § 1983 action, rather than a petition for writ of habeas corpus, was the proper remedy. Before the Court was prison officials’ motion for summary judgment.
Beyond a general reference to “prison security” and a slightly more specific reference to “suppressing gang activity,” the defendants did not clearly identify the legitimate interest served by censoring Graybuffalo’s documents. The Court examined each document under the Turner v. Safley, 107 S. Ct. 2254 (1987) four prong test.
The Court said that “gang” is a loaded term. While Courts defer to prison officials on security matters, they cannot avoid scrutiny for restricting prisoners’ constitutional rights simply by incanting the word “gang.” The Court found prison officials asserted three interrelated bases for concluding a group is a “gang” and that any literature from it must be suppressed: (1) The group is not sanctioned by prison officials; (2) it is a “race” group; (3) it has a “negative…history.”
The Court held “it is an exaggerated response to any interest in security to require preapproval from prison officials before a prisoner may possess any literature or documents that include reference to [a] group.” Such broad, unbridled discretion to deem a group “unsafe” because prison officials had not approved it would “invite prison officials and employees to apply their own personal prejudices and opinions as standards for prisoner censorship” and to prohibit materials simply because they include “unwelcome criticism.”
As to race, the Court said that prison officials have a legitimate interest in suppressing beliefs of racial hatred. It rejected the defendants’ position that any group organized on the basis of race is a security threat, as this is not only illogical, but would also allow banning literature from groups such “as the NAACP, The Mexican American Legal Defense and Education Fund and the Anti-Defamation League.”
As for a group’s history, the Court said this raises larger questions of whether it was individual members or the group’s philosophy or mission that caused unlawful activity, as well as the question of how long ago that conduct occurred and if it is advocated by the group.
As to the document with “A.I.M.” written on it, the Court held that Graybuffalo was entitled to summary judgment. As prison officials do not suggest the quotation is a code for something more nefarious than it seems, Graybuffalo “was disciplined for nothing more than having a piece of paper with the initials ‘A.I.M.’ on the top.” Moreover, A.I.M. is discussed in a book in the prison library. The Court found Graybuffalo’s request that the document be returned was moot because it was provided in discovery, but it ordered any reference to disciplinary action related to the document be expunged from his prisoner file.
The Court, however, granted prison officials summary judgment on the Warrior’s Society code, finding the Society is a gang created for the “self-protection” of Native American prisoners and it include “violent offenders who involve themselves in criminal/drug activities.”
See: Graybuffalo v. Kingston, 581 F.Supp.2d 1034 (D. Wisc. 2007).
While imprisoned at Wisconsin’s Waupun Correctional Institution, prisoner Johnson W. Graybuffalo received disciplinary action for possessing two documents. The first was a 1775 quotation about freedom from a Native American chief and the initials “A.I.M.,” which the parties agreed stands for “American Indian Movement.” The other document is a code of ethics of the Warrior’s Society.
At a June 16, 2005 disciplinary hearing, Graybuffalo was found guilty of “possessing any gang literature, creed, symbols, or symbolisms.” In addition, he was found guilty of possessing contraband. He was sentenced to 210 days of disciplinary segregation, but the warden reduced it to 180 days.
Graybuffalo filed a 42 U.S.C. § 1983 action challenging prison officials’ confiscation of the documents and their discipline of him on grounds that it violated his First Amendment rights. The Court noted that as the discipline did not affect the duration of his confinement, the § 1983 action, rather than a petition for writ of habeas corpus, was the proper remedy. Before the Court was prison officials’ motion for summary judgment.
Beyond a general reference to “prison security” and a slightly more specific reference to “suppressing gang activity,” the defendants did not clearly identify the legitimate interest served by censoring Graybuffalo’s documents. The Court examined each document under the Turner v. Safley, 107 S. Ct. 2254 (1987) four prong test.
The Court said that “gang” is a loaded term. While Courts defer to prison officials on security matters, they cannot avoid scrutiny for restricting prisoners’ constitutional rights simply by incanting the word “gang.” The Court found prison officials asserted three interrelated bases for concluding a group is a “gang” and that any literature from it must be suppressed: (1) The group is not sanctioned by prison officials; (2) it is a “race” group; (3) it has a “negative…history.”
The Court held “it is an exaggerated response to any interest in security to require preapproval from prison officials before a prisoner may possess any literature or documents that include reference to [a] group.” Such broad, unbridled discretion to deem a group “unsafe” because prison officials had not approved it would “invite prison officials and employees to apply their own personal prejudices and opinions as standards for prisoner censorship” and to prohibit materials simply because they include “unwelcome criticism.”
As to race, the Court said that prison officials have a legitimate interest in suppressing beliefs of racial hatred. It rejected the defendants’ position that any group organized on the basis of race is a security threat, as this is not only illogical, but would also allow banning literature from groups such “as the NAACP, The Mexican American Legal Defense and Education Fund and the Anti-Defamation League.”
As for a group’s history, the Court said this raises larger questions of whether it was individual members or the group’s philosophy or mission that caused unlawful activity, as well as the question of how long ago that conduct occurred and if it is advocated by the group.
As to the document with “A.I.M.” written on it, the Court held that Graybuffalo was entitled to summary judgment. As prison officials do not suggest the quotation is a code for something more nefarious than it seems, Graybuffalo “was disciplined for nothing more than having a piece of paper with the initials ‘A.I.M.’ on the top.” Moreover, A.I.M. is discussed in a book in the prison library. The Court found Graybuffalo’s request that the document be returned was moot because it was provided in discovery, but it ordered any reference to disciplinary action related to the document be expunged from his prisoner file.
The Court, however, granted prison officials summary judgment on the Warrior’s Society code, finding the Society is a gang created for the “self-protection” of Native American prisoners and it include “violent offenders who involve themselves in criminal/drug activities.”
See: Graybuffalo v. Kingston, 581 F.Supp.2d 1034 (D. Wisc. 2007).
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Related legal case
Graybuffalo v. Kingston
| Year | 2007 |
|---|---|
| Cite | 581 F.Supp.2d 1034 (D. Wisc. 2007) |
| Level | District Court |
| Injunction Status | N/A |