PA Passes Law that Protects Victims but Restricts Free Speech

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November 24, 2014; The Marshall Project

With the largest incarcerated population in the world, the United States has long been fighting a losing war attempting to find a fair and legal balance with prisoners’ rights. We only pay attention to those compelling stories that infrequently make the headlines, like the case of Albert Woodfox of the Angola 3, who spent an unprecedented 42 years in solitary confinement, or Jerome Murdough, an unattended mentally ill inmate who died after temperatures in his cell exceeded 100 degrees. Now, prisoners and released felons may have to fight for their First Amendments rights as well.

Late in October, outgoing Pennsylvania governor Tim Corbett signed the Revictimization Relief Act, which allows a victim of a “personal injury crime” to bring the convicted perpetrator to civil court to place an injunction on actions that “[perpetuate] the continuing effect of the crime on the victim,” effectively “revictimizing” the individual. Proponents of the law say it will prevent convicts from earning the kind of notoriety that resulted in the “Son of Sam” laws, named after serial killer David Berkowitz from the 1970s. Ultimately reversed, narrower versions of the bill still exist, restricting prisoners’ ability to profit from their crimes.

The provision came in direct reaction to Mumia Abu-Jamal’s giving of a prerecorded commencement address to his alma mater, Goddard College in Vermont, on October 5th. Like many other campus speakers, Abu-Jamal was controversial, but not for his ideas. Rather, it’s because he is currently serving a life sentence for killing Daniel Faulkner, a white police officer, back in 1981. During his period of incarceration, Jamal became a sort of emblem of black repression during a time marred by difficult race relations. Therefore, his notoriety came as his voice emerged as a source of active, insightful, and intelligent commentary on the prison and legal system.

However, the bill’s House sponsor, State Representative Mike Vereb, takes issue with Abu-Jamal’s actions, even if they are insightful. “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.”

The big problem with this law is that it may do a lot more than just prevent inmates from giving televised interviews. The concern lies in its broad scope, which can theoretically include any sort of actions, including speech, which could be construed as further victimizing an individual. The measure is finding fierce opponents in legal scholars and First Amendment advocates. “It violates the Constitution straight out,” says Burton Caine, professor at Temple University law school in Philadelphia.

An overbroad or vague law runs the mistake of potentially including protected speech, which covers a very wide range of expression. Aside from a few exceptions, most speech is protected, even in some cases of libel and slander. According to Sara Rose, ACLU staff attorney, under the current writing of the law, it is possible that those who have been wrongly convicted would be unable to participate in bringing awareness about their cases; it could even impact convicts who have already left prison and are trying to reform their lives.

Vereb has asserted that the law’s intention is not at all to restrict speech, but merely give victims the opportunity to bring a case before a judge, who will decide if the actions cause “a temporary or permanent state of mental anguish.” Vereb fails to take into account that merely giving the court the opportunity to misconstrue the limits of the First Amendment is problematic.

Unsurprisingly, ACLU has taken note of the potential free speech violations that can abound from the law. Reggie Shuford from the ACLU of Pennsylvania said, “Essentially, any action by an inmate or former offender that could cause ‘mental anguish’ could be banned by a judge. That can’t pass constitutional muster under the First Amendment.” The state ACLU chapter is planning to bring a federal lawsuit, and the Pittsburgh-based Abolitionist Law Center has already done so on behalf of Abu-Jamal.

This is not to say that victims’ rights should not be protected. There certainly are actions that could understandably disturb a victim, such as the perpetrator reaching out to the victim, writing about the actual incident, or in some way profiting from the crime. Indeed, previous laws and nonprofit organizations have taken into account the very issue of protecting victims after crimes have been committed. Organizations like the National Crime and Law Institute and the National Organization for Victim Assistance, as well as the governmental programs that several states provide, help support and inform victims of their rights. However unsettling, though, protecting a victim must not come at the price of sacrificing another’s First Amendment rights, which are afforded even to those behind bars.—Shafaq Hasan