Federal Court Strikes Down Pennsylvania Law that Restricts Prisoners’ Speech

by Derek Gilna

Pennsylvania state lawmakers and former Pennsylvania Governor Tom Corbett both claimed they had good intentions when they enacted legislation that restricted prisoners’ free speech rights if their speech might upset crime victims. A federal judge disagreed, however, finding the law vague and overbroad.

“A past criminal offense does not extinguish the offender’s constitutional right to free expression,” stated U.S. District Court Chief Judge Christopher C. Connor. “The First Amendment does not evanesce at the prison gate, and its enduring guarantee of freedom of speech subsumes the right to expressive conduct that some may find offensive.”

The legislation, titled the Revictimization Relief Act, 19 Pa. C.S. § 11.1304, had been passed in rapid response to a prerecorded commencement address at a small Vermont college provided by Pennsylvania political prisoner Mumia Abu-Jamal, who was sentenced to death for the murder of Philadelphia policeman Daniel Faulkner in 1981. The Third Circuit Court of Appeals overturned Mumia’s death sentence and he was resentenced to life without parole, which was reaffirmed by the state Superior Court in July 2013. See: Commonwealth v. Abu-Jamal, 2013 Pa. Super. Unpub. LEXIS 3238 (Pa. Super. Ct. 2013).

The Revictimization Relief Act was sponsored by Rep. Mike Vereb, largely at the urging of police officials and Faulkner’s widow, Maureen, who have long tried to silence Mumia. Following Mumia’s October 5, 2014 commencement address at Goddard College – by invitation from graduating law students at the school, where Mumia had received a B.A. degree – the Pennsylvania legislature quickly passed the law restricting prisoners’ speech that causes anguish to their victims.

Proponents of the bill said its purpose was to ensure that victims of personal injury crimes were not “revictimized” by prisoners exercising their free speech rights, but its enactment sparked a firestorm of criticism and two federal lawsuits. The first was filed by Mumia Abu-Jamal, four other prisoners, Prison Radio, the Human Rights Coalition and Educators for Mumia Abu-Jamal. Plaintiffs in the second suit included journalists, prisoner rights organizations and advocates, former prisoners and publishers, including lead plaintiff Prison Legal News, which publishes Mumia’s writing. [See: PLN, May 2015, p.12].

The lawsuits argued that the statute was “a content based regulation of speech unjustified by compelling government interests,” was impermissibly vague and substantially overbroad, and had a chilling effect on the speech of prisoners, their supporters and the news media.

The federal district court found that legislators had fallen “woefully short of the mark” and flatly rejected the state’s argument that the law – which allowed victims or the district attorney to seek injunctions, attorney fees, costs and “other appropriate relief” for mental anguish resulting from a prisoner’s speech – was designed to regulate behavior, not expression. The court noted that “the law was championed as a device to suppress offender speech. Its terms single out a distinct group and disincentivize its members from speaking.”

The Revictimization Relief Act was “the embodiment of content-based regulation of speech,” the district court wrote in an April 28, 2015 order enjoining enforcement of the law, which followed a bench trial in the consolidated cases. The court held the Act was “unlawfully purposed, vaguely executed, and patently overbroad in scope,” and “manifestly unconstitutional, both facially and as applied to plaintiffs.”

The district court described the law’s deficiencies, including its “wholesale lack of definition” and failure to properly define the term “offender.” The court further noted that the statute’s legislative history indicated many lawmakers had intended it to also cover the publication of prisoners’ comments by third parties, such as PLN. “Short of clairvoyance,” the court wrote, “plaintiffs cannot determine in advance whether and to what extent a particular expression will impact a victim’s sensibilities” and thus fall under the law’s restrictions.

Importantly, the district court found that “[s]ince its passage, the Revictimization Act has had an undeniable chilling effect on the speech of prisoners and on the behavior of those individuals and entities who rely on that speech.” For example, Prison Legal News withheld publication of one of Mumia’s articles after the law was enacted; that article now appears in this issue of PLN.

In permanently enjoining enforcement of the statute, the court noted that “free speech extends to convicted felons whose expressive conduct is ipso facto controversial or offensive.”

Mumia and the plaintiffs in the first lawsuit were represented by the Abolitionist Law Center, the Amistad Law Project and attorney David M. Shapiro at the Northwestern University School of Law. See: Abu-Jamal v. Kane, U.S.D.C. (M.D. Penn.), Case No. 1:14-cv-02148-CCC; 2015 U.S. Dist. LEXIS 55250.

The other plaintiffs in the suit filed by PLN included journalists Daniel Denvir and Christopher Moraff, the Philadelphia City Paper, the Pennsylvania Prison Society, Solitary Watch, Professor Regina Austin with the University of Pennsylvania Law School, and former prisoners Steven Blackburn, Wayne Jacobs, Edwin Desamour and William Cobb. They were represented by the ACLU of Pennsylvania, attorney Seth F. Kreimer, and attorneys with the law firm of Pepper Hamilton LLC and the Human Rights Defense Center. See: Prison Legal News v. Kane, U.S.D.C. (M.D. Penn.), Case No. 1:15-cv-00045-CCC.

Goddard College interim president Robert P. Kenny commended the students’ decision to select Mumia to give their commencement address despite the controversy it created. “Choosing Mumia as their commencement speaker, to me, shows how this newest group of Goddard graduates express their freedom to engage and think radically and critically in a world that often sets up barriers to do just that,” he said.

Additional sources: The New York Times, http://dissenter.firedoglake.com, www.nonprofitquarterly.org, Associated Press

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