Federal Judge Strikes Down Law that Made it Illegal for Prison Inmates to Speak Publicly

After Mumia Abu Jamal, a former black nationalist and current Pennsylvania inmate convicted of killing a cop in 1981, was broadcast giving a commencement speech in absentia at Goddard College in Vermont last year, Pennsylvania legislators moved to enact a law restricting communications from prisoners — and former prisoners — from going public in the event that they continue to cause pain to victims. But the so-called Re-victimization Relief Act hit an obstacle this week when it was struck down in a federal court, with a judge calling the legislation "manifestly unconstitutional."

US Middle District Chief Judge Christopher C. Conner found the law vague and poorly defined, saying the legislator "fell woefully short of the mark," regardless of their intentions. In overturning the law Tuesday, the judge said its violations of free speech were graver than the potential effects on the criminal's victims.

"A past criminal offense does not extinguish the offender's constitutional right to free expression," Conner wrote in the decision. "The First Amendment does not evanesce at the prison gate, and its enduring guarantee of freedom of speech subsumes the right to expressive conduct that some may find offensive."

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Pennsylvania state legislators passed the re-victimization act in October 2014, and it was signed by Republican Governor Tom Corbett, despite opposition from groups like the American Civil Liberties Union (ACLU). The law sought to prevent perpetrators from re-traumatizing victims, allowing these individuals to pursue legal action to "stop any conduct by an offender or former inmate that perpetuates a crime's effects on the victim."

"There's nowhere in the Constitution that says we should be setting up TV production studios in our prisons, and essentially that's what we are doing," Mike Vereb, the state Representative who sponsored the bill, said at the time.

The law came about following Abu Jamal's commencement speech, which was broadcast at the ceremony using a prior recording made on a prison phone. The 60-year-old inmate was convicted in 1982 on charges of first-degree murder, and while he was initially handed a death sentence, it was later reduced to life without parole.

During his time in prison, Abu Jamal has become a popular activist and published author. While his name is not specifically mentioned in the law, the wording is widely considered to allude to him — something Conner noted in his ruling on Tuesday.

"The act's sponsor extolled its capacity to silence Abu Jamal in particular," Conner wrote in his decision. "And Gov. Corbett commended the Legislature for expeditiously passing a law that quells the 'obscene celebrity' of an 'unrepentant cop killer.'"

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Tuesday's decision covers two separate lawsuits; one brought by Abu Jamal and other prisoners, and a separate claim made by groups like the ACLU and Pennsylvania Prison Society.

One of Abu Jamal's lawyers, Bret Grote, said he was pleased the day had finally come to throw out the controversial law.

"Before his law was enacted, I was determined to work with Mumia and others in prison to bring a case that would wipe it off the books as soon as possible," Grote told the Philadelphia Inquirer. "And we're pleased that day has come."

Eugene Volokh, a law professor at University of California Los Angeles, told VICE News the re-victimization legislation was unusual and said he was not aware of any other laws on the books in any other state specifically targeting this issue. Comparable laws, he explained, have also been struck down, like the 1991 Simon & Schuster court case regarding a law preventing prisoners from earning money for writing books about their crimes. The Supreme Court struck down the law.

Plenty of legal provisions allow leeway for prisons to regulate rights of inmates, who typically enjoy fewer constitutional guarantees, in the interest of maintaining safety and order, according to Ken Paulson at the First Amendment Center. However, these are specific allowances for the entities running the prison.

"The courts have been clear that there can be prison regulations that limit First Amendment rights," he told VICE News, explaining that legitimate government interest in doing so is required. "[But] that's kind of a low bar that only applies when the prison is imposing restrictions on inmates. It doesn't allow the legislature to have the same authority."

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While Paulson said the federal court made the right decision Tuesday, he added that this wasn't really a First Amendment issue, but more of a due process problem and an instance of poorly written legislation.

"This wasn't really a free speech case because the law was so badly drafted that it was impossible to know what was being prohibited," Paulson said. "Laws on every topic are going to be invalid on every topic when they're poorly written."

He explained that it's normal to be sympathetic to the victims, but that sparing their feelings is not grounds to bend the Constitution. It is challenging to know what and wouldn't cause distress in any case, Paulson said.

"Every victim is going to have a different threshold of discomfort, every victim is going to have a different thing that triggers emotions," he said. "It's just not reasonable to expect people to interpret it. You can't define a prohibition by the reaction of the individual."

This may not be the end of the re-victimization act, however. Pennsylvania State Representative Mike Vereb told talk radio station WPHT that this was just the "first bell" in the fight. He said he plans to dedicate the rest of his legislative career — however many years that is — to post-trial rights for victims.

Follow Kayla Ruble on Twitter: @RubleKB