Judge strikes down Pennsylvania law restricting speech of prisoners

Kimberly Chow | Prior Restraints | News | April 29, 2015

Following arguments from prisoners, prisoner rights groups, and members of the media, a judge yesterday struck down the Pennsylvania Revictimization Relief Act as unconstitutionally restricting the speech of prisoners as well as media that carry their messages.

The act allowed victims of personal injury crimes to bring civil actions against the perpetrators for “conduct which perpetuates the continuing effect of the crime on the victim,” defined as including “conduct which causes a temporary or permanent state of mental anguish.”

Chief Judge Christopher Conner of the Middle District of Pennsylvania, granted requests asking for a preliminary injunction against enforcement of the law, agreeing with the plaintiffs that the act is a content-based regulation of speech unjustified by compelling government interests, is impermissibly vague, and is substantially overbroad, all in violation of the U.S. Constitution.

“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,” Judge Conner wrote.

The Reporters Committee, together with three other amici, filed an amicus brief in support of the preliminary injunction.

The law was passed six months ago in response to a recording of a speech by Mumia Abu Jamal, who was convicted of the 1981 killing of a police officer, played at the Goddard College commencement. The wife of Abu Jamal’s victim spoke to the media about her disgust at the attention being given to the prisoner’s speech, which did not mention the crime. The Pennsylvania Legislature responded swiftly with the new law, admitting that it was intended to target Abu Jamal as well as others who spoke out after committing crimes.

Judge Conner noted, as the plaintiffs and the Reporters Committee brief pointed out, that many valuable contributions to discourse and culture could be and already had been chilled by the act. Speech of convicted prisoners includes media accounts of convicts, their life journeys, and the justice system, as well as speech that contends wrongful conviction or cautions others against leading a life of crime. The chilling effect was exacerbated by the act’s vagueness and overbreadth.

“Short of clairvoyance, plaintiffs cannot determine in advance whether and to what extent a particular expression will impact a victim’s sensibilities,” Judge Conner emphasized.

Furthermore, the vagueness extended to possible penalties for media that carried the forbidden speech. As the judge indicated, discussion of the bill in the Legislature showed that the drafters contemplated broad liability that included “vessels” of speech. Combined with the Attorney General’s argument in court that the law could even apply to those who have been accused but not convicted, the term “offender” was wholly unclear.

“As a result, many plaintiffs — prisoners and non-prisoners alike — instantly modified their conduct for fear of falling within the ambit of the Act,” Judge Conner wrote.

While the judge did not reach these issues, the Reporters Committee brief additionally argued that the act was an unconstitutional prior restraint on a limitless range of speech, including matters of public interest, and the act further harmed the press and the public by interfering with the First Amendment right to receive information from willing speakers.