Court Strikes Down “Manifestly Unconstitutional” Law Restricting Convicts’ Speech

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April 28, 2015; The Patriot-News (Harrisburg, PA)

In recent years, college commencement season has become quite divisive, and last year at Goddard College was no different. The small liberal arts college invited alum Mumia Abu Jamal, who was convicted of the 1981 murder of a Philadelphia police officer, to speak at its ceremony as a way of showing “how this newest group of Goddard graduates expresses their freedom to engage and think radically and critically in a world that often sets up barriers to do just that,” according to interim president Bob Kenny.

Abu Jamal, a polarizing figure, rose to international notoriety and became a symbol of Black Nationalism in much the same atmosphere as the recent protests in Baltimore and Ferguson. More than 30 years later, the former journalist Abu still attracts both strong support and controversy. Just this month, New Jersey parents were outraged when a New Jersey teacher had her third grade students write “get-well” cards to Abu Jamal after his recent trips to the hospital.

The decision to invite Abu Jamal incited so much backlash that Pennsylvania constructed and passed the Revictimization Relief Act last November, restricting what certain criminals—and in some cases those only accused of crimes—could say about the crimes and other related actions. The intent of the law was to avoid the “continuing effect of the crime on the victim [defined to include conduct which causes a temporary or permanent state of mental anguish],” in the way Jamal may have “re-victimized” the slain police officers’ family in speaking at Goddard’s commencement. Under the law, victims would have been able to file an injunction to “stop any conduct by an offender or former inmate that perpetuates a crime’s effects on the victim.”

As NPQ mentioned last year when we first reported on the passage of the law (also known as the Silencing Act), there were numerous concerns about potential First Amendment violations and implications of the statute. Similarly, the law raised the question of exactly what speech rights convicts had. Now, a federal judge has overturned the state law, indicating the law violated the First Amendment based on several factors.

For one, the act does not restrict only the speech of convicted criminals; the act would also restrict others who could have reproduced the speech, like newspapers or radio shows. Moreover, the vague and overbroad nature of the law is problematic. The vague use of the word “offender” and potential application of the law to speech other that what is intended under the statue were cited in the decision. Eugene Volokh, professor at UCLA School of Law, does a good job of further delineating these reasons.

In its short-lived life, the act had both staunch opponents in the nonprofit sector. The plaintiffs in the case include Jamal, but also the Pennsylvania Prison Society, the American Civil Liberties Union, Prison Legal News (part of the Human Rights Defense Center), the National Writers Union, and a number of former prisoners and journalists as well. The widespread media and public response has been in opposition to the law.

However, the well-meaning intentions behind the defunct law are truly worthy, despite the failure of the act. Victims should be protected, and in principle convicted criminals should be barred from potentially profiting from their misdeeds. The act is in some ways similar to the state and federal “Son of Sam” laws named after rumors that publishers were attempting to “buy the story” of notorious “Son of Sam” serial killer David Berkowitz. But these concerns about the welfare of victims and enforcing punishment of convicts must be in stride with the constitution.—Shafaq Hasan

  • paul wright

    Prison Legal News was one of the plaintiffs that successfully challenged this statute. There is no indication at all that the purpose of this law was to “protect victims” or anyone else so much as to silence and dehumanize prisoners as well target publishers like us who publish articles by prisoners. The most pathetic thing is both how quickly and with what near unanimity this law passed the Pennsylvania legislature, all voted on by legislators sworn to uphold the constitution. Its passage illustrates the ongoing diminishment of the free speech rights of all Americans.