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The First Amendment behind bars

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The U.S. Supreme Court will tackle the issue of prisoners' First Amendment rights, and the news media's ability to gather…

The U.S. Supreme Court will tackle the issue of prisoners’ First Amendment rights, and the news media’s ability to gather news about prisons and prisoners may be affected.

From the Winter 2006 issue of The News Media & The Law, page 27.

By Susan Burgess

Ronald Banks has lived without newspapers for decades. Confined to his cell 23 hours a day, Banks is barred by a Pennsylvania prison policy from receiving newspapers or magazines unless their content is religious or legal.

A coalition of media organizations including The Reporters Committee for Freedom of the Press and Prison Legal News is urging the U.S. Supreme Court to find the policy unconstitutional, asking the court in a friend-of-the-court brief submitted in early February to affirm the U.S. Court of Appeals in Philadelphia (3rd Cir.) in Banks v. Beard. But more importantly, the coalition is arguing that any ruling the Court hands down on how prison policies affect prisoners’ First Amendment rights can have serious consequences for how journalists interview prisoners and obtain information on prison conditions.

“The right to open access to the media, including sources for discussions of current national and worldwide news and events, is a fundamental right safeguarded by the First Amendment. The policy imposed by the state of Pennsylvania violates the prisoners’ ability to exercise this basic right,” the coalition wrote in its brief. Restrictions like Pennsylvania’s hurt the public because they curtail the First Amendment right of newspaper and magazine publishers and writers to transmit ideas and information to prisoners, threatening “an essential means of holding a powerful government institution accountable.”

Banks sued the Pennsylvania Department of Corrections in October 2001, arguing that the state’s ban on reading materials for prisoners segregated from the general population because they are deemed disruptive, violent or problematic violates their free speech rights.

U.S. District Judge Terrence F. McVerry in Pittsburgh disagreed with Banks in January 2003, adopting Magistrate Judge Robert C. Mitchell’s finding that the policy reasonably relates to legitimate prison interests.

But an appellate panel ruled 2-1 on Feb. 25, 2005, that the prison policy violated prisoners’ First Amendment rights.

Writing for the appeals court, Judge Julio M. Fuentes rejected the state’s argument that a reasonable relationship exists between the policy and its rehabilitative and security goals, noting that the prisoners subjected to the policy had no history of burning newspapers or using them to manufacture weapons or causing other security concerns cited by the state as a justification for the policy. “[T]here is no evidence before us to indicate that what sets these inmates apart from the rest is their misuse of non-legal or non-religious periodicals,” or that the state’s “deprivation theory of behavior modification had any basis in real human psychology or had proven effective with [the] inmates,” Fuentes wrote.

Then-Judge Samuel Alito dissented, writing that the state’s policy is a last resort for trying to change the behavior of the most dangerous prisoners. It is rational, he wrote, for prison officials to think that inmates will not misbehave because they do not want their reading material banned, and that the most disruptive inmates will improve their behavior because they want the ban lifted.

The U.S. Supreme Court agreed to review the case, scheduling oral argument for March 27. Alito, who has since been appointed to the high court, is expected to abstain from ruling on the case because he participated in the appellate court ruling.

In its brief to the Supreme Court, the state Department of Corrections urged reversal of the Third Circuit’s decision, arguing that the majority erred in examining the evidence behind the state’s policy justification. The standard for reviewing prison policies’ constitutionality requires appeals courts to judge only whether the prison’s objectives to rehabilitate prisoners and maintain prison safety are legitimate and whether withholding reading material is rationally related to those objectives, the state argued.

The Supreme Court’s decision will clarify how closely judges should scrutinize states’ justifications for prison policies. “This is an important case because it could potentially define the level of deference that has to be afforded to prison officials when adopting policies that implicate fundamental constitutional rights,” explained Banks’ attorney, Jere Krakoff.

The decision also will have significant ramifications on the ability of the press to reach a large portion of the prison population, said Paul Wright, executive director of Prison Legal News, a publication written by and for prisoners. “At any given time, at least 6 percent of the 2.2 million people who are in prison are held in some form of isolation or segregation,” he said, noting that an adverse ruling could encourage prisons to deny publications to even greater percentages of the inmate population.

“There’s no reason why the policy couldn’t be extended to other categories of segregated prisoners or even prisoners in the general inmate population,” Krakoff agreed.

“What’s at risk here,” explained Janet Tung, a lawyer for the media coalition, “is greater than the specific facts and disciplinary scheme at issue in Pennsylvania.

“The media’s ability to fulfill its function as the so-called Fourth Estate depends on its access to the darkest corners of the nation, ‘acting as the ”eyes and ears” of the public,’ and, at times, as its voice,” Tung wrote in the coalition’s friend-of-the-court brief, quoting the 1978 U.S. Supreme Court case Houchins v. KQED.

The media’s and prisoners’ speech rights are “inextricably meshed,” the coalition argued in its brief. “Printed publications convey information as well as provide a forum for discussion and response. An inmate who has access to newspapers and magazines might for example, read a news article discussing matters he is personally familiar with &#151 perhaps prison conditions &#151 and respond to the editor offering relevant information or contribute a unique perspective. Only his receipt of the news publication enables this important mechanism of exchange to occur.”

Justice Sandra Day O’Connor’s retirement is unfortunate for Banks, Tung noted, “because O’Connor’s vote would be more up for grabs than the core conservative justices who’ve made clear that they think a high level of deference should be given to prison officials and the executive branch generally.”

The Department of Justice filed a friend-of-the-court brief with the Supreme Court in support of the state, and the ACLU National Prison Project filed a friend-of-the-court brief in support of Banks.