The FBI Says Its Homegrown Terrorist Stings Are Nothing More Than A Proactive Fight Against 'Going Dark'

Court Says Free Speech Rights For Prisoners Not 'Clearly Established,' Gives Pass To Retaliatory Actions By Officials

from the 'because-you-asked-wrong,-we-won't-examine-the-unexamined-issue' dept

Thu, Jun 16th 2016 9:39am — Tim Cushing

While it's true that prisoners enjoy fewer rights than Americans who've never been convicted of a crime, their rights are by no means nonexistent. Except in some cases... where bits and pieces of protected speech vanish into the gaps between established prison guidelines and case law directly addressing the matter.

That's an admittedly unclear summation of the appeals court decision finding a federal prisoner's rights weren't violated when he was removed from a halfway house and placed in solitary confinement in retaliation for publishing an article about his prison experience.

Daniel McGowan, an environmental activist whose prosecution for "eco terrorism" was the subject of an award-winning film, was finishing his seven-year term at a Brooklyn halfway house when he wrote a HuffPost blog post that contained details about a secretive prison where he had spent years in isolation.

There was nothing particularly revealing about what he wrote: Much of it had been made public in an ongoing civil rights lawsuit he and other low-risk prisoners filed in federal court in Washington challenging their placement there, for no other reason than their political views or who they are.

Even if McGowan had published something more revealing, it still shouldn't have mattered. The law used to punish him for publishing the piece was no longer on the books at the time a prison official decided to pull McGowan from the halfway house and take him to a detention center in Brooklyn. From the Second Circuit Court of Appeals decision [PDF]:

McGowan alleges that, shortly after his article appeared online, defendant Tracy Rivers, the Residential Reentry Manager at the New York Residential Reentry Management Office of the Bureau of Prisons (“BOP”), determined that he should be issued an incident report and remanded to a federal detention center. The incident report stated that McGowan had violated “BOP Program Statement no. 1480.05 dated September 21, 2000; 540.62 page 5, section (d),” which provided that “an inmate currently confined in an institution may not be employed or act as a reporter or publish under a byline” (the “Byline Regulation”).

The problem with citing this guideline is that the Bureau of Prisons had rescinded it in 2010, (belatedly) following a 2007 Colorado district court decision finding the regulation unconstitutional. Unfortunately for McGowan, despite the regulation being nonexistent when it was used to put him in solitary confinement, the appeals court has found that there's no Second Circuit precedent clearly asserting First Amendment protections for federal prisoners.

Whether or not we would agree with that analysis is beside the point. We conclude only that, in light of the different interests at stake, our case law establishing a prisoner’s right to file a lawsuit or grievance does not clearly establish a prisoner’s right to publish an article under a byline. Indeed, the only authority that McGowan has identified that involved expression similar to that at issue in this case is a district court opinion, which, of course, is not binding.

That erases McGowan's retaliation claim. The official who made the decision to confine McGowan is entitled to qualified immunity as no "clearly established right" was violated -- just the use of federal prisoner guideline that had been removed by the BOP three years earlier.

By reaching these conclusions, the appeals court is able to dodge thornier issues -- like further clarifying the limits of First Amendment protections for federal prisoners.

As one of McGowan's lawyers, Alexander Reinert, put it, the decision was silent about how "prisoners may express themselves to the outside world."

Reinert, a law professor at Cardozo, said he's disappointed in the ruling and is considering asking for a rehearing. Ryan Grim, HuffPost's Washington bureau chief, called the decision "appalling on its face."

Nothing but stasis from the Second Circuit Appeals Court. It notes that no "clearly established right" was violated here, but passes on the opportunity to more clearly define the boundaries of prisoners' First Amendment rights. A rehearing could fix this by pushing the court towards examining the issue it overlooked during its decision, but until it does so, prisons in the Second Circuit will still be able to get away with using nonexistent guidelines to punish prisoners for otherwise protected speech.

2nd-Cir-Mcgowan (PDF)2nd-Cir-Mcgowan (Text)

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Filed Under: first amendment, free speech, prisoners

34 Comments

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crade (profile), 16 Jun 2016 @ 10:02am

it's the next "emergency state". They figured out that prisoners can have less rights, next step is to make everyone perpetually prisoners.
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Anonymous Coward, 16 Jun 2016 @ 10:29am

Re:
Prisoners DO have less rights. It's pretty much the nature of the entire business. Sure the system is also corrupt as fuck and damn sure needs fixing, but lets not fucking kid ourselves here.
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Anonymous Coward, 16 Jun 2016 @ 10:31am

Re: Re:
And to clarify... there is NO reason for freedom of speech to be suppressed EVER! Not even in prison!
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Anonymous Coward, 16 Jun 2016 @ 10:33am

from prisoner to slave. test it on the most vulnerable first to see if people don't care then move on to the rest of the population.

Interesting how the government decided to send him back to prison without a trial.
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Anonymous Anonymous Coward (profile), 16 Jun 2016 @ 10:38am

The rules of law
In other words, the Court says we cannot allow law enforcement to NOT enforce the law, even if they don't know the law, make it up randomly on the spot, or lie in court about how they went about enforcing laws they do not know about, but should have known about, while inserting laws they imagine; or for any other failing to follow rules, policy, or procedure they were or were not thoroughly trained in.
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freedomfan (profile), 16 Jun 2016 @ 10:38am

"You have rights when we say you have rights" ?
How is what the Second Circuit Court of Appeals decided different from saying that the Bureau of Prisons can haul this guy back into prison for pretty much anything? I am serious. It seems to be saying that a released prisoner has no rights (even those listed in the Bill of Rights) unless they have been specifically adjudicated and confirmed for prisoners. It should be obvious that everyone has all of their rights unless they are specifically taken away, not the opposite. The default assumption shouldn't be no-rights-until-confirmed.

Meanwhile, before tossing someone back into prison, the government should at least have to establish that he is violating some actual law that is currently on the books.

BTW, we need a serious reexamination of qualified and absolute immunity. No law degree here, but my understanding is that those were both largely made up out of whole cloth and have pretty much no statutory basis. They are behind much of the lack of accountability that enables misbehavior by law enforcement, prosecutors, judges, and (apparently) prison officials.
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That Anonymous Coward (profile), 16 Jun 2016 @ 10:41am

TMW you see they are ruling to protect the system, not the law or jusice.
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Anonymous Coward, 16 Jun 2016 @ 10:42am

Re: Re: Re:
Oh, shut up!
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Anonymous Coward, 16 Jun 2016 @ 10:45am

Re: The rules of law
You are wrong on one point.

Courts have made it clear, law enforcement can decide when, where, and how to enforce the law even if it is wrong and even if not enforcing the law resulting in your loss of property, limb, or life.

Law Enforcement in no is required to enforce any law!
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Anonymous Coward, 16 Jun 2016 @ 10:58am

I have to agree with the appeals court in this case. The prisoner's constitutional rights weren't violated. There could have been other reasons why he was transferred, which is probably what happened.

Let's see, you committed a crime, violated the law. You're not in prison for a vacation, you're there to spend time in prison. Because of that, there are certain things you do not do, certain rights you do not have, and pissing off the prison officials is NOT advisable under any circumstances.
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Anonymous Anonymous Coward (profile), 16 Jun 2016 @ 11:06am

Re: "You have rights when we say you have rights" ?
There should be no absolute immunity anywhere and qualified immunity should exist only if the subject (police person, lawyer, etc.) can prove beyond a reasonable doubt that they deserve to be above whatever law, rule, policy, procedure, that in that particular instance are attempting to be held immune from. These should be viewed in a totality of all behavior displayed with an emphasis upon the worst behaviors rather than the best behaviors and intent should not even come into play because intent is whatever htey say it is after the fact rather than something knowable at the time of the event.
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Anonymous Coward, 16 Jun 2016 @ 11:16am

Re:
True they are not there for a vacation, but can you come up with a single reason why their speech should be suppressed?

Sorry, but would not not allow ourselves to become the barbarians we convicted & imprisoned them for being.
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Whatever (profile), 16 Jun 2016 @ 12:18pm

It's not up to the courts to invent rights. They are there to look at the constitution, looks at the laws on the books, and to come to a conclusion based on those and those alone.

If you want prisoners to have more rights, then work to get a law passed that specifically grants them those rights which are not currently part of any particular law.

Remember, the prisons do have very wide latitude in limiting speech in and out of their establishments INCLUDING half way houses. They can use that discretionary power as they see fit.

Let's just say this guy is a "piece of work", and really seems to have been intent on pissing people off.
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foolie, 16 Jun 2016 @ 1:24pm

No 2nd Circuit Precedent, huh? I wonder who could change that, perhaps the 2nd Circuit? What, they can't anymore? Time to shut down the Court and refer all future appeals to the case reporters.
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Bonelesscheese, 16 Jun 2016 @ 1:50pm

I keep seeing these stories and they all have a common theme: Eroding our rights as citizens. What's it gonna take to get the government to stop fucking us?
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Anonymous Coward, 16 Jun 2016 @ 1:56pm

Re:
you're an ass
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Will Braunfeld, 16 Jun 2016 @ 2:39pm

I don't understand
"The problem with citing this guideline is that the Bureau of Prisons had rescinded it in 2010, (belatedly) following a 2007 Colorado district court decision finding the regulation unconstitutional."

"...our case law establishing a prisoner’s right to file a lawsuit or grievance does not clearly establish a prisoner’s right to publish an article under a byline."

...wait, what? Wasn't the regulation he was being moved on ESTABLISHED TO BE UNCONSTITUTIONAL? How is that NOT PRECEDENCE?

IANAL, someone please HELP ME understand this!

The regulation was unconstitutional, but we haven't determined yet whether what the regulation was designed to prevent IS a constitutional right? The negative does not imply the positive?
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Rekrul, 16 Jun 2016 @ 3:06pm

I hope that once his sentence is up, he publishes a highly embarrassing article about the douche who threw him back in prison, naming and shaming him.
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Anonymous Coward, 16 Jun 2016 @ 3:09pm

The First Amendment clearly says "except for prisoners"...
doesn't it? Either that or the judge is wiping his ass with the Constitution, and I'm sure that would never happen.
/s
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Anonymous Coward, 16 Jun 2016 @ 3:11pm

Re:
There could have been other reasons why he was transferred, which is probably what happened.

Oh, so you're saying the BOP lied? Citation please, or you're full of it.
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John Fenderson (profile), 16 Jun 2016 @ 3:31pm

Re:
It's going to take a substantial percentage of the population to start seriously pushing back.
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Anonymous Coward, 16 Jun 2016 @ 3:45pm

Re: Re:
It's going to take a substantial percentage of the population to start seriously pushing back.

Won't that just make the dick go deeper?
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Lawrence D’Oliveiro, 16 Jun 2016 @ 4:14pm

“We Find These Truths To Be Self-Evident...”
“...that all non-prisoners are created equal...”
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Dheneb, 16 Jun 2016 @ 5:38pm

Re: “We Find These Truths To Be Self-Evident...”
And even then, some are more equal than others.
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Anonymous Coward, 16 Jun 2016 @ 9:55pm

Re: Re: The rules of law
Going to be a lot of dead cops then at this rate. people will start defending their rights even if it means dying in a hail of gunfire to criminals dressed as police.
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Anonymous Coward, 16 Jun 2016 @ 10:21pm

Re:
1 giant massacre of unarmed citizens by gestapo like criminal cops I figure to make people rise up and actively fight them
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Anonymous Coward, 16 Jun 2016 @ 10:22pm

Re: I don't understand
they wanted to shut him up and the fact they could not legally do that did not fail to stop them because they know they don't have to follow the laws or rules.
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John Fenderson (profile), 17 Jun 2016 @ 5:59am

Re: Re: Re:
Temporarily, yes. We've gone so far down the hole that any path back to light will involve increased short-term pain. But that increased pain is coming no matter what, so it's only an illusory cost to actually standing up for ourselves.
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orbitalinsertion (profile), 17 Jun 2016 @ 6:33am

And not a single breath on, whether right or wrong in application of assumed law, the completely disproportionate response? I don't see how that fails to add a bit weight to the claim of violation.

In fact, I rather suspect if they had acted more reasonably and had simply chosen to tell McGowan, "you can't do that", he could have made a call and perhaps eventually, someone would have informed the relevant prison machine operators that, "oh yes he can".
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Anonymous Coward, 17 Jun 2016 @ 8:56am

Re:
...someone would have informed the relevant prison machine operators that, "oh yes he can".

What makes you think that they didn't already know?
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Anonymous Coward, 17 Jun 2016 @ 9:43am

Re:
Agreed, it undermines the purpose of democracy if the government can simply and arbitrarily limit our rights to vote and free speech simply by labeling those that disagree with it as criminals. They can then just negate the power of the majority by simply labeling the majority as criminals undermining the entire democratic process. People should have a say in the laws and punishments they are subject to, to remove that is to remove their ability to participate in a democracy and to unfairly subject them to laws determined entirely by others, laws they had no say in. Which is a hallmark of an oppressive government and even resembles slavery.
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Anonymous Coward, 18 Jun 2016 @ 7:26am

Re:
"It's not up to the courts to invent rights."

First of all rights should be assumed to exist unless they are explicitly removed. What the courts are doing here by restricting the rights of prisoners is arbitrarily inventing laws that don't exist.

The first amendment says "congress shall make no law ... abridging the freedom of speech". The implication is clear, limiting free speech for prisoners is a law limiting free speech and so there is no reason it should not apply to prisoners.

"then work to get a law passed that specifically grants them those rights which are not currently part of any particular law."

It is part of the first amendment.

"Remember, the prisons do have very wide latitude in limiting speech in and out of their establishments INCLUDING half way houses."

This only makes sense if those limitations of speech involve orders from criminals to carry out executions, for example. Not if they simply involve criticisms to the institution.

"They can use that discretionary power as they see fit."

A statement like this is so unacceptable, it amazes me someone could say something so stupid and insane.

They can't, or at least shouldn't be, allowed to use their discretionary power in a way that discriminates against race for instance. They should not be allowed to use their discretionary power in a way that is either socially harmful or unnecessarily harmful/hurtful to the prisoner (ie: excessive force). and they should not be able to use their discretionary power just to protect their reputation from criticism.

"Let's just say this guy is a "piece of work", and really seems to have been intent on pissing people off."

The whole purpose of free speech laws is to allow the expression of controversial speech. Speech that may upset people, even and especially if intentional, is exactly the speech that's protected.

If he said something incorrect and defamatory that's something that can be handled separately. But his freedom to express how he was treated is exactly the type of speech that's protected. and if the expression of how he was treated upsets the institution that treated him that way perhaps the problem is with how he was treated and not with his speech.

As a functional democracy his ability to freely express how he was treated is important so that we can democratically decide if his treatment is acceptable. But, by now, it's clear by this post and many many others that you are no fan of democracy at all.
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Anonymous Coward, 18 Jun 2016 @ 7:37am

Re: Re:
What's amazing is how law enforcement and the system views the push back. People have been suspended from schools or arrested, for instance, for very petty things like bringing a plastic knife in their lunch boxes. I've heard all sorts of stupid stories of people being suspended for very very very stupid things.

Yet when there is any push back against this the police and school and government authorities cry that they can't even kick a disruptive student out of class anymore and they have no way of punishing any student that acts up. The cops complain that everything they now say is held with less weight in court than it used to be unless more proof is provided and that's so unfair.

Yet I can provide you stories that I heard from others where cops either lied or were mistaken and where schools suspended or threatened to suspend students for very silly reasons. I feel like the cops and schools are crying that the system must actually work reasonably and that cops are upset at the idea that people should be innocent until proven guilty beyond a reasonable doubt because anything a cop says should automatically be assumed to be true unless proven otherwise. That cops need no other evidence beyond their word. But then cops are upset about the body cameras that can provide them the proof they need because it's just too much headache to manage (and, to some extent, I can see the logistical problems it imposes). Just listening to their mentality is almost incredible.
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The Wanderer (profile), 18 Jun 2016 @ 11:16am

Re: I don't understand
The "our" in the second quote you gave refers not to society or the government as a whole, but only to this specific appeals court, and its superiors in the judicial system - i.e., the Supreme Court.

A lower/subordinate court (referred to in the first quote you gave as a "district court") decided that the regulation was unconstitutional. That decision may establish that unconstitutionality for the jurisdiction of that lower court, but it is not enough to establish such for the broader jurisdiction of the circuit court.

Provided that the case at hand does not arise from actions which occurred within the jurisdiction of the disctrict court in question, the circuit court's logic seems solid, if unfortunate and arguably unnecessary.
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