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May 26, 2015

Pennsylvania Law Violates the First Amendment Rights of Prisoners


Last October, the Pennsylvania legislature passed the Revictimization Relief Act,[1] which permitted victims of crime to take legal action to prohibit convicted prisoners from making statements in public that cause the victims “mental anguish.” The law was designed with a specific prison inmate in mind—Mumia Abu-Jamal, who is serving a life sentence for a first-degree murder conviction in 1981. Abu-Jamal had a highly controversial trial that was deemed unfair by Amnesty International and other activist organizations. During his incarceration, Abu-Jamal has himself become a well-known political activist, often criticizing and commenting on the criminal justice system in the United States. He has given several graduation addresses for colleges via recordings, the most recent one a week before the bill was passed.

The widow of the deceased police officer who was the victim in Abu-Jamal’s case claimed she was “revictimized” every time Abu-Jamal was in the public eye and that she, therefore, suffered mental anguish. She often made statements in response to claims regarding Abu-Jamal’s unfair trial and his comments on an unfair criminal justice system and she sought to stop him from making further statements in the public eye. Lawmakers responded by drafting and passing the Revictimization Relief Act, which would effectively allow her to sue to have a court order Abu-Jamal’s public silence. Only fifteen minutes were devoted to discussing the law at a House meeting and the law was passed in only three weeks, as compared to many laws that take several months or even years to pass.

Immediate criticisms and ACLU lawsuit

Though opponents often agree that the bill may have been well-intentioned to protect crime victims from further unnecessary suffering, many civil rights advocacy groups immediately spoke out against the bill, referring to it as the “Silencing Act.” They stated that the law clearly violated silenced inmates’ right to free speech and expression under the First Amendment of the Constitution of the United States.[2] Opponents further claimed that the law clearly targeted Abu-Jamal in particular, due to a suspected ongoing vendetta by state officials due to his conviction for killing a police officer.

On January 8, 2015, the American Civil Liberties Union (ACLU) filed a lawsuit[3] against Pennsylvania Attorney General Kathleen Kane and the District Attorney of Philadelphia Seth Williams, challenging the constitutionality of the law and seeking an injunction to prevent anyone from using the law in the meantime. Joining in the lawsuit were ten other plaintiffs, including:

  • Additional civil rights advocacy organizations
  • Journalists and media outlets who feared the law would prohibit them from citing prison sources in exposing prison abuse
  • Ex-convicts who now speak in the community and to youth to prevent crime, fearing that the law would affect their ability to continue to speak publicly

The lawsuit claimed that the law was too vague and too broad, that it was unclear exactly what type of speech could be prohibited, and that permitting courts to restrain an individual’s speech before it occurred was “the most serious and intolerable infringement on First Amendment rights.

Federal Judge strikes down the law

Federal Judge Christopher Conner recently issued his opinion[4] in the case, which ruled that the law was unconstitutional[5] as it violated inmates’ rights to free speech and due process. Judge Conner stated that the First Amendment does not discriminate and applies even to individuals who have committed violent or vile acts. He pointed out that First Amendment rights continue past the “prison gate” and protect statements that may cause upset, offense, discomfort, or even anger. While the fact that a prisoner’s public statements may cause mental anguish to victims may be unpalatable, it is certainly not justification to restrain a prisoner’s right to make such statements.

Judge Conner additionally stated that the Act did not have a lawful purpose and agreed with the ACLU’s assertion that it was overly broad and vague. First, the law did not adequately define who qualified as an “offender.” The law further unlawfully permitted the restraint on all public statements, not just those that related to the offense or the victim. This could include memoirs or other oral or written expression completely unrelated to a victim. Finally, Judge Conner said that the state also intended to apply the law to petitions for clemency and pardon applications. Such a restraint on speech could possibly prohibit prisoners from publicly declaring their innocence or from issuing apologies.

Attorney General Kane is expected to appeal the decision but, for now, the law is no longer effective.



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