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Prison restriction on bylined articles is unconstitutional

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Aug. 16, 2007  ·   Prison rules prohibiting federal inmates from writing bylined articles violate the First Amendment rights of…

Aug. 16, 2007  ·   Prison rules prohibiting federal inmates from writing bylined articles violate the First Amendment rights of the prisoners and of the press, a federal judge in Denver ruled last week.

U.S. District Judge Marcia S. Krieger rejected prison officials’ contentions that the regulation was needed to prevent inmates from gaining notoriety among fellow prisoners because of articles they authored, to leave prison employees free to exercise control over inmates without fear their conduct and statements would be published in the press, and to prevent prisoners from starting businesses behind prison walls.

The lawsuit was brought by Mark Jordan, a convicted murderer housed at the Florence, Colo., prison known as the Supermax. According to the opinion, Jordan was punished twice after his bylined articles appeared in Off!, a magazine published by students at the State University of New York at Binghamton. Jordan sued, saying the regulation was a violation of his constitutional rights.

The Bureau of Prisons argued that the regulation stating an “inmate may not act as a reporter or publish under a byline” was necessary in part because inmates who published bylined articles become more prominent in the prison system, making them a security risk.

But Krieger found this so-called “big wheel” theory “undocumented and speculative,” noting the government had not rebutted the testimony of a criminal justice professor and former prison warden who had testified that although this theory was touted in corrections literature during the 1970s, it has been “largely abandoned.”

In fact, she said the only “historical evidence” of inmates who published in the media under bylines was “to the contrary” — citing the examples of Unabomber Ted Kaczynski and former Aryan Brotherhood leader Thomas Silverstein, two fellow Supermax inmates whom Krieger said did not turn into security threats.

The judge also found that an existing policy allowing prison officials to screen inmates’ incoming publications should address any security concerns. She also said the argument that the byline regulation was needed to prevent inmates from conducting a business was diminished by the fact that another regulation already prohibits prisoners from operating businesses.

Krieger found the singling out of bylined articles disingenuous since inmates are allowed to submit letters to the editor, Internet postings, and fiction or nonfiction manuscripts for publication with attribution. The prison bureau had argued that the news media posed a special threat because it was more credible, but the judge said the government had provided no evidence of this.

(Jordan v. Pugh, Jordan’s counsel: Laura Lee Rovner, University of Denver College of Law Student Law Office, Denver)RG

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