Prisoners who copy "arguably inflammatory” or “incendiary” passages from the books they check out from a prison library or are allowed to purchase are not entitled to rely on the First Amendment to protect them from disciplinary punishment, the U.S. Court of Appeals for the Seventh Circuit held on August 2, 2012.

In dismissing Wisconsin state prisoner Toni Toston’s free speech claims brought under 42 U.S.C. § 1983, Circuit Judge Richard A. Posner wrote that Toston could face disciplinary sanctions for possessing a handwritten copy of the “Ten-Point Program” included in books about the Black Panther Party, notwithstanding that the passage appeared in two books he had checked out from the prison library and a book he was allowed to order from an outside vendor.

Toston filed suit alleging free speech and due process violations when he was sent to segregation for 90 days for “possessing gang literature” after a guard found his handwritten copy of the Ten-Point Program in his locker. The offending passage, from To Die for the People: The Writings of Huey P. Newton (1972), states:

1. We want freedom. We want power to determine the destiny of our Black Community. 2. We want full employment for our people. 3. We want an end to the robbery by the white man of our black community. 4. We want decent housing fit for shelter of human beings. 5. We want education for our people that exposes the true nature of this decadent American society. We want education that teaches us our true history and our role in the present-day society. 6. We want all Black men to be exempt from military service. 7. We want an immediate end to POLICE BRUTALITY and MURDER of Black people. 8. We want freedom for all black men held in federal, state, county and city prisons and jails. 9. We want all Black people brought to trial to be tried in court by a jury of their peer group or people from their Black communities, as defined by the Constitution of the United States. 10. We want land, bread, housing, education, clothing, justice and peace.

Prison officials theorized that the “likeliest reason” why Toston had copied the passage “was to show it to inmates whom he hoped to enlist in a prison gang, a local cell as it were of the Black Panthers; the Ten-Point Program would be the gang’s charter.”

While the Court of Appeals admitted that the defendants’ reasoning was “merely a supposition,” it noted that the “plaintiff is a black man in a state prison and the Black Panthers were implicated in many acts of violence, including murder.” Further, Mr. Newton “himself may have killed a police officer,” and there was even a Black Panthers coloring book that “depicted children murdering police officers.”

The appellate court focused on Point 8: “We want freedom for all black men held in federal, state, county and city prisons and jails.” The Seventh Circuit acknowledged that “[i]n context, Point 8 is less inflammatory than when read in isolation.” Indeed, the Court added that in Newton’s explanatory notes that followed each point in his book, there was the following “innocuous” explanation: “We believe that all Black people should be released from the many jails and prisons because they have not received a fair and impartial trial.” Nonetheless, the Court of Appeals found that “this underscores the difference between a book as a whole and an arguably inflammatory nugget plucked from it.” The Court did not endeavor to explain which part of Point 8 might be considered inflammatory.

In a passing reference to Turner v. Safley, 482 U.S. 78 (1987), the appellate court remarked that the free speech of a prisoner “is of course limited by the prison’s legitimate concerns with security.” It did not, however, engage in the usual Turner four-part analysis as to the reasonableness of prison officials’ actions and whether alternative options might exist. The Court of Appeals found that the defendants’ position that a prisoner “might form a gang” using the Ten-Point Program was “not so implausible that we can dismiss as groundless the prison’s concern with the plaintiff’s possession of a copy of the Ten-Point Program.”

As such, the Seventh Circuit deferred to the prison administrators’ judgment. Besides, the Court of Appeals commented, the confiscation of the materials – and, apparently, Toston’s punishment of three months in segregation – limited his free speech rights “only very slightly.” While admitting that freedom of speech does imply freedom to read, citing Stanley v. Georgia, 394 U.S. 557, 567 (1967), the Court questioned whether it could “imply freedom to copy.” The answer, apparently, is “no” within the prison context.

Toston had also raised a due process claim, arguing he had not been given fair notice of prohibited conduct. There was no reference to “gang literature” in the Wisconsin Administrative Code that would “have alerted him to the unlawfulness of copying the Ten-Point Program from a book he was permitted to buy.” The case was remanded on this point to determine whether Toston’s disciplinary punishment amounted to a “deprivation of liberty” that would support a due process challenge. Wilkinson v. Austin, 545 U.S. 209, 221-24 (2005) (assessing whether conditions in segregation were sufficiently “unusually harsh” to create a liberty deprivation) [PLN, Aug. 2005, p.24].

Despite the mostly adverse ruling, the Seventh Circuit did quote from another First Amendment prison case, King v. Federal Bureau of Prisons, 415 F.3d 634 (7th Cir. 2005) [PLN, May 2006, p.36]: “Forbid a person to read and you shut him out of the marketplace of ideas and opinions that it is the purpose of the free speech clause to protect.” But evidently the freedom of prisoners to read does not encompass the right to copy what they have read – at least not based on the facts in this case. See: Toston v. Thurmer, 689 F.3d 828 (7th Cir. 2012).

Toston’s lawsuit remains pending on remand, on cross motions for summary judgment.

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