ACLU Challenges Law That Says Convicts Lose Free Speech Rights If Their Speech Upsets Crime Victims

Free Speech

from the free-speech-doesn't-equal-more-speech-for-some,-less-for-others dept

Tue, Jan 13th 2015 2:13pm — Tim Cushing

The ACLU is challenging a recently-passed Pennsylvania law that seeks to prevent convicts from publicly speaking or having their words published. The bill, hailed as "blatantly unconstitutional," was passed with overwhelming support by the Pennsylvania legislature in response to convicted murderer Mumia Abu-Jamal being invited to give a commencement speech at Goddard College.

The new law provides for "injunctive relief" against "conduct which perpetuates the continuing effect of the crime on the victim," including "temporary or permanent mental anguish." The law obviously targets free speech, as can easily be confirmed by the incident that prompted its creation. The wording used creates a chilling effect, if not the direct encouragement of prior restraint.

The ACLU maintains that the “Silencing Act” allows courts to “enjoin and penalize any speech or other conduct by an ‘offender’ (undefined) that causes ‘mental anguish’ to a personal injury crime ‘victim’ (broadly defined) or otherwise ‘perpetuates the continuing effect of the crime on the victim’ (not otherwise defined).”

The law can be applied to third parties, such as newspapers, which publish speech by anyone who has committed a “personal injury crime” in Pennsylvania. In fact, during discussion by the state’s House Judiciary Committee prior to passage, the committee’s counsel indicated the courts “would have broad power to stop a third party, who is the vessel of that conduct or speech, from delivering it or publishing that information.”

It makes it possible for the state to regulate speech based on content. Individuals and organizations have to guess whether the law covers their speech, which means there is a “chilling effect” against their freedom of expression. It imposes a “prior restraint on speech,” something which the Supreme Court has regarded as the “most serious and intolerable infringement on First Amendment rights.”

The ACLU is suing to have the law declared unconstitutional, citing the negative effect it will have on the free speech of those affected -- which obviously include the much-hated Abu-Jamal, but also others who have been incarcerated and wish to speak about their personal experiences.

Steven Blackburn, Wayne Jacobs, Edwin Desamour and William Cobb, who were each convicted of “personal injury crimes” in Philadelphia County, are also plaintiffs.

“Since being released from prison, they have drawn on their personal experiences with the justice system to become community leaders working to reduce crime,” the complaint describes. “Through a combination of direct service and advocacy, they and the organizations they have founded and run have striven to help at-risk youth avoid lives of crime and to help those returning from prison reintegrate into their communities and avoid recidivism.

Public speaking—through presentations, lectures, panel appearances, media interviews, legislative testimony, documentaries and more—is a key component of their efforts.”

“Each of these four individuals reasonably fears that the Silencing Act will be used to enjoin or penalize such speech.”

The filing [pdf link] also points to the ongoing issues at Prison Legal News, a monthly publication "95% written by current and former inmates." PLN is sitting on a submission by Abu-Jamal thanks to the legal threat posed by this law. City Paper senior staff editor Daniel Denvir is also quoted as saying his employer has held off on further reporting on wrongfully incarcerated inmates because of the so-called "Silencing Act."

As has been stated countless times before, the answer to speech you don't like is more speech, not less. Passing bad laws to shut up someone you'd rather not hear infringes on not only that person's rights, but anyone else whose speech falls under the wording of the law -- and this one is particularly broadly-written. The number of people who hold the power to preemptively strip away free speech include not only direct victims of personal crimes, but also children (and their legal guardians) who are "material witnesses," anyone related to the victim by a "third degree of consanguinity or affinity," anyone retaining a "common-law" relationship with the victim… even anyone living in the same household. The law also vaguely wanders around the term "victim," making it unclear whether actual criminal charges are needed. The law could reasonably be construed as covering those involved in civil actions only.

Pennsylvania Rep. Mike Vereb -- former police officer and crafter of the law -- made it perfectly clear that he felt a "hate-filled murderer" (Abu-Jamal) shouldn't be allowed to speak in a public forum. But that's where he should have left it. Vereb's opinion had been heard and noted. Others raised similar concerns, but Vereb actually held the power to do something about it. Because no one wanted to take the side of a convicted cop-killer, the bill passed out of the House unopposed and only 11 dissenting Senators voted against it when it rolled through that side of the legislature. Now, the law stands in the way of free speech in Pennsylvania, subjecting its citizens to censorship should they happen to be perpetrators of personal injury crimes… or simply providing them a platform.

Verified Complaint Filed 1 8 15 (PDF)Verified Complaint Filed 1 8 15 (Text)

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Filed Under: free speech, mumia abu-jamal, pennsylvania

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metalliqaz (profile), 13 Jan 2015 @ 2:35pm

Ahh, politics
This law is so blatantly unconstitutional that it should have been obvious to every senator and representative in PA that it wouldn't hold up in court and they were just wasting everyone's time. Of course, they couldn't dare vote against it because the political attack ads would misconstrue the action as supporting cop-killers. The public would eat it up, I'm sure.

Politics is a dirty, dirty game.
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S. T. Stone (profile), 13 Jan 2015 @ 2:42pm

I love how that Representative felt so offended for others that he enshrined his offense into law.

Wait, no, I don’t love that.

I despise it.

I feel for the victims of crimes, I really do. But their rights end where another person's rights begin—and despite whatever crimes Abu-Jamal committed, he is still a citizen of the United States of America and his fundamental rights are not (and should not be) rescinded when he is convicted of a crime. To suspend his rights because he is a convicted criminal is to enshrine such suspension of rights for all criminals into our legal system.

Censorship is a weapon. The legal system must be a shield against it.
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btr1701 (profile), 13 Jan 2015 @ 2:56pm

Ridiculous
This is exactly the sort idiotic bullshit that needs to come to a stop. How much tax money is Pennsylvania going to use not only passing this law, but defending it against the ACLU a lawsuit, only to almost certainly lose because it violates 200+ years of 1st Amendment jurisprudence?

Not to mention it only applies in Pennsylvania, so any ex-con that wants to speak or write a book about her crime need only go to one if the other 49 states to do it with impunity, all while having the exact same "traumatic" impact on the victims.
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Anonymous Coward, 13 Jan 2015 @ 2:57pm

The title of this article is wrong....
Replace

"ACLU Challenges Law That Says Convicts Lose Free Speech Rights If Their Speech Upsets Crime Victims"

with

"ACLU Challenges Law That Says Everyone Loses Free Speech Rights If Their Speech Upsets Crime Victims"

Frankly, the way that travesty is written, it looks like a purely factual report on the original crime would be in violation of the law. Since after all, the purely factual report would remind the crime victim of the crime and as such could cause mental distress at the memory.
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Anonymous Coward, 13 Jan 2015 @ 3:22pm

the constitution is being overridden more and more especially when it comes to things like free speech. it just seems to me that democracy isn't dying so much as being removed forcefully by whichever (seems mostly Conservative led) government that is in charge in various nations. it almost seems as if the things millions died for in two World Wars are actually taking the back burner now being replaced by the very things that Hitler tried to bring in. the difference at the moment being there hasn't been any deaths over it.
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nasch (profile), 13 Jan 2015 @ 3:51pm

Re:
But their rights end where another person's rights begin—and despite whatever crimes Abu-Jamal committed, he is still a citizen of the United States of America and his fundamental rights are not (and should not be) rescinded when he is convicted of a crime.

I think there are a lot of people who feel that once someone has committed a terrible crime, they shouldn't have any rights any more. Whether this is because they believe that that is a different kind of person than they are, or some other reason I don't know.
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Nicci Stevens (profile), 13 Jan 2015 @ 4:14pm

(un)Civil?
Not only is this a bad law but the remedies for such are equally bad and part of a large trend that really bothers me. While the "victim" can bring a civil action against the perpetrator so, also, can the state. It seems to me that there are serious 6th amendment problems here and with other civil actions taking by the state or federal governments. How convenient it is for an action for a crime to be taken against someone when the requirements for verdict are lower and the respondent is stuck having to pay not only his or her own legal bills but also the bills of those prosecuting. Once it is a civil action the respondent no longer has a right to counsel so if they cannot afford $300/hr or much more, they're stuck to pro se representation and we all know what sort of a client they then have.
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Anonymous Coward, 13 Jan 2015 @ 4:18pm

Might want to reconsider.
I would say that both conservatives and liberals in power are working towards restricting speech. If you want a conservative example, look no further than topics that the strongly religious find offensive. And for liberals, think "politically correct". In fact, I find the liberals to be more censorious than the conservatives simply because they seem to consider upsetting speech to be wrong and therefore should be censored. "Oh, someone is upset at what you said so you shouldn't say it. Let's make a law to prevent that from happening again."
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Anonymous Coward, 13 Jan 2015 @ 4:26pm

The way things are going now, it won't be too much longer until "supporting a cop-killer" is a politically acceptable position.

Also, it sounds a bit like Pennsylvania is attempting to permanently seal court proceedings from public view. After all, the courtroom is where the vast majority of public speech by (later) convicted criminals would occur, and the law as I understand it is so vague that it wouldn't be hard to get the court transcripts sealed off to prevent "mental anguish."
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Anonymous Coward, 13 Jan 2015 @ 4:33pm

Re: Might want to reconsider.
Agree liberal PCness is a danger, but 'conservative political correctness' is absolutely a thing...see freedom fries, enhanced interrogation techniques, etc
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RR, 13 Jan 2015 @ 4:36pm

Of course
The politicians lost nothing from proposing this. They spent someone else's money to earn votes and build a reputation for supporting victims and fighting crime. Their methods work and pay off. The people who complain about the cost were never going to vote for them anyway. The politicians aren't dumb.
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Anonymous Coward, 13 Jan 2015 @ 4:51pm

Re:
What are other rights compared to freedom?

We can take their freedom but not their right to free speech?
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Anonymous Coward, 13 Jan 2015 @ 5:14pm

Re: Ahh, politics
The laws written to remove 2nd amendment rights from felony class offenders was just as unconstitutional as this one and it passed.

We must defend every right including the ones people used to do things we disagree with or we have no standing to challenge the loss of the rest.
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Anonymous Coward, 13 Jan 2015 @ 5:43pm

Would such a law prevent Fox News from engaging in its routine practice of hiring convicted criminals such as Oliver North and G. Gordon Liddy as celebrated talking heads?
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Anonymous Coward, 13 Jan 2015 @ 6:57pm

They already take away their right to vote in many states.
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btr1701 (profile), 13 Jan 2015 @ 7:45pm

Re:
> Would such a law prevent Fox News from engaging in its
> routine practice of hiring convicted criminals such as Oliver
> North and G. Gordon Liddy as celebrated talking heads?

No. This only applies to people in Pennsylvania, only then to people talking about their own crimes. It doesn't purport to muzzle ex-cons from talking about everything in the world.

And not only Fox hires degenerates for its shows. Look at MSNBC-- they gave Al Sharpton his own show.
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nasch (profile), 13 Jan 2015 @ 8:04pm

Re: Re:
And not only Fox hires degenerates for its shows. Look at MSNBC-- they gave Al Sharpton his own show.

Is he a convicted felon?
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Anonymous Coward, 13 Jan 2015 @ 8:12pm

Good Bill
This bill sounds good to me. I went back and read Pennsylvania's 1998 'Title 18, Crimes and Offenses; Chapter 2, Crime Victims Act Chapter 1' and this bill only closes a loophole that was left in. The loophole allows the criminal to profit from their crime through media rights and continue harassing the victim in an open public arena.

http://law.lclark.edu/live/files/4976-pennsylvania
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Ninja (profile), 14 Jan 2015 @ 1:55am

Re:
former police officer and crafter of the law

See, law enforcement meddling with legislation. Of course they'll want all powers...
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Ninja (profile), 14 Jan 2015 @ 2:00am

Re:
I find it worrying that once somebody gets a conviction for something it will permanently taint them. That's wrong on so many levels it's hard to talk about them all. While not every of them would change their ways why can't we give them a second chance? We as a society are actively forcing convicted 'criminals' (today it seems sneezing could be a felony somewhere) into more crime because we are blocking their reintegration in society and thus better paying jobs.

Food for thought.
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Anonymous Coward, 14 Jan 2015 @ 3:38am

"ACLU Challenges Law That Says Convicts Lose Free Speech Rights If Their Speech Upsets Crime Victims."

I wouldn't be at all surprised if the well known troll/(s) who complain that their comments are censored on this site will applaud and cheer this if this passes.
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Anonymous Coward, 14 Jan 2015 @ 3:41am

Re:
correction: i meant to say if the law that has recently passes is ALLOWED to stand.
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Anonymous Coward, 14 Jan 2015 @ 4:56am

Re: Ahh, politics
at this point cop killers might get a lot of support when the other side of the coin is cops randomly killing unarmed unresisting people for fun.

I am making the point if we go to the extreme version of a citizen gone bad via cop killing on 1 side we should consider the extreme version of the dirty cop being that of a sociopathic killer that gets away with it because he is a cop
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Anonymous Coward, 14 Jan 2015 @ 4:57am

Re:
1 party 2 faces
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Anonymous Coward, 14 Jan 2015 @ 4:59am

just another pretense for removing basic rights from all citizens eventually. These politicians act like they want to be treated as royalty and everyone else their serfs.

How long until this law gets applied to everyone not just convicts. everyone save the self perceived elite of course.
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art guerrilla (profile), 14 Jan 2015 @ 5:18am

Re: Re:
yes, the whole 'rehabilitation' aspect of jailing people becomes a joke when compared to the fact that they are HAMSTRUNG when they get out of jail in TRYING to make a place for themselves in 'polite society' (*cough*bullshit*cough*)...

there is LITTLE to NO incentive to 'go straight' (WHERE are you going to find a decent fucking job, EVEN IF NEVER A CON?), and MANY MANY reasons to keep on with being a criminal...

of course, there is a material difference between being an ex-con of the darker persuasion from the 'hood; and being an ex-con ('i wear your scorn like a badge of honor...'), traitorous POS like an ollie north slimeball who gets teevee shows and millions for their troubles...
THERE IS NO DOUBT an ollie north has done INCALCULABLE damage to the country, but gets rewarded because he did the bidding of the puppetmasters; a two-bit criminal who bops one person over the head ? = decline of western civilization...
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lifeform23, 14 Jan 2015 @ 7:10am

Parole
The solution might lie in an improved parole system. When a prisoner wants to get out on parole they would have to satisfy a panel of their good behavior. Behavior that reinforces the harm caused by the original crime would not impress a Parole Board. However free speech that is constructive in some way might impress a Parole Board. Give prisoners an incentive to behave rather than prohibit misbehavior.
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nasch (profile), 14 Jan 2015 @ 7:40am

Re: Good Bill
The loophole allows the criminal to profit from their crime through media rights and continue harassing the victim in an open public arena.

Then why doesn't it just close the loophole? There are laws in other jurisdictions that do that, and don't trample speech rights like this one does.
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Anonymous Coward, 14 Jan 2015 @ 7:49am

Re: Re:
You seem to be confusing the punishment part with after they have paid the price, unless you are suggesting there is no limit to the price to pay for a crime and no chance to return to a functioning member society. Note studies have shown without a chance they have no hope and without hope we get recidivism.
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Dirkmaster (profile), 14 Jan 2015 @ 8:10am

Re: Re:
Removing rights of criminals is just the first step in removing rights for ALL OF US. Hasn't it been said that we all (usually accidentally) break laws everyday, and that no one can know all the laws that exist? So the key to permanently disenfranchising anyone would be as simple as just getting them convicted of some stupid law/crime? That sounds mind-bogglingly bad to me.
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Anonymous Coward, 14 Jan 2015 @ 9:18am

As you read this story if you listen close you can hear the sound of the chisels working away at "inalienable rights".
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Anonymous Coward, 14 Jan 2015 @ 9:29am

A Politicians Path to Total Power
Step 1 - Take away the right for convicted criminals to vote.
Check

Step 2 - Create enough laws that everyone is guilty of something.
Check

Step 3 - Convict everybody who doesn't support you.
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Docrailgun, 14 Jan 2015 @ 9:31am

Mental anguish
Wouldn't 'continuing to draw breath' cause mental anguish for sone victims? Could they seek injunctive relief against the convicted's continued existance under this boll?
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btr1701 (profile), 14 Jan 2015 @ 10:04am

Re: Re: Re:
> Is he a convicted felon?

He certainly ought to be, considering his history.
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tod d toad, 28 Jan 2015 @ 10:53pm

Re: Re: Re:
close enough
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