A 1st Amendment For Some
Why I Sued My State Over Free Speech
Pennsylvania just passed a bill to take away free speech rights to anyone convicted of a violent crime. Here’s why I’m trying to stop it.
Last Thursday – against the somber backdrop of an unfolding global dialogue on the sanctity of free expression – I joined a small group of fellow journalists, academics, prison reform advocates and ex-offenders in a lawsuit challenging an assault on the First Amendment taking place in my home state of Pennsylvania.
The suit, which was filed in federal court in Harrisburg with backing from the American Civil Liberties Union, seeks to block enforcement of a law approved by Governor Tom Corbett in October that tramples the free speech rights of thousands of individuals and organizations under the noble guise of protecting crime victims.
Dubbed the “Revictimization Relief Act” by its sponsors – but more appropriately referred to as the “Silencing Act” by the attorneys who crafted our complaint – the law provides for the suppression of public speech by Pennsylvanians who have been convicted of a personal injury crime if that speech is deemed to cause victims or their families “a temporary or permanent state of mental anguish.”
Never mind that the Supreme Court has ruled on numerous occasions that the mere incitement of emotional distress is insufficient grounds for quashing protected speech – the Silencing Act goes even further. It violates constitutional prohibitions against prior restraint by censoring speech that has yet to be uttered based solely on the criminal histories of those planning to utter it.
Adding insult to injury, the law makes no effort to define exactly what type of speech would qualify for an embargo, leaving that rather critical detail up to the discretion of individual judges.
Given the intimate link between free speech and a free press, it doesn't take much effort to connect the dots and see how the Silencing Act will impact the journalism profession. For reporters who cover the criminal justice system, the law amounts to a standing gag order on an entire population of potential sources.
This is why we are asking a judge to invalidate it before it can be enforced.
The speed with which this flawed piece of legislation was conceived, considered, passed and signed into law is nearly unprecedented for the Pennsylvania General Assembly – which just spent an entire year failing to pass a watered-down medical marijuana bill that had bi-partisan support and 85 percent voter approval.
By contrast it took just 15 days for the Silencing Act to sail through the legislature, riding the coattails of outrage over a college commencement address delivered at the end of the summer by convicted cop-killer Mumia Abu-Jamal.
As many readers likely know, Abu-Jamal was sentenced to death for the 1981 murder of Philadelphia police officer Daniel Faulkner, only to be re-sentenced to life in prison in 2012 after a lengthy legal battle exposed irregularities at his trial.
Over the years he has become an international cause célèbre, held aloft by his supporters (many of whom know little to nothing about his case) as a poster child for America's racially biased judicial system. There is even a street in France named after him.
It's little surprise, then, that for many Pennsylvanians – not least of all the family of Officer Faulkner – Abu-Jamal has remained a source of “mental anguish” for more than three decades. The fact that his pre-recorded commencement address was heard by fewer than two dozen graduating seniors at a small liberal arts college few people have heard of – or that it contained not a single statement of incitement – in no way mitigates their right to express their disgust.
But it doesn't give the state the right to protect them from feeling it. By equating speech with an instrument of violence capable of producing remunerable injury, Pennsylvania is claiming the authority to enforce a law that is fundamentally at odds with the constitution.
The talented attorneys at the Philadelphia law firm of Pepper Hamilton (who deserve credit for doing the heavy lifting on our case) have ID’d four ways that this is so in our complaint. Rather than reiterating them here, I encourage anyone reading this to take a moment to peruse it. Don't be surprised if you find yourself scratching your head in bewilderment that no one in the Pennsylvania legislature thought to seek the input of a constitutional attorney before sending this bill to Governor Corbett's desk.
Given the ambiguity of the law's language the ramifications of the Silencing Act are potentially limitless. If the law could be used to prevent Abu-Jamal from making an innocuous public address lasting barely 11 minutes – and given its genesis, we must assume it could be – the mere act of a formerly incarcerated person exchanging wedding vows or cheering on his favorite football team within earshot of a victim or three generations of their family could elicit judicial action.
That the Silencing Act illegally targets the speech of prisoners and ex-offenders based on the subjective experience of people they may have wronged years ago is bad enough. But it will also have a chilling effect on the press by establishing cause for an injunction against publications that print or broadcast statements that fall under its overly broad purview.
As a lawyer for the Pennsylvania House Judiciary Committee explained during a hearing on the bill prior to its passage: “[T]he court would have broad power to stop a third party who is the vessel of ... [offender] conduct or speech from delivering it or publishing that information.”
Those third-party vessels include not only local and state-based news outlets in Pennsylvania, but national publications like this one that print articles from writers like me that shine a light on the commonwealth's criminal justice system.
To avoid the law's reach, journalists working on stories that involve sources who have been convicted of a violent crime will now face the additional burden of not only ascertaining the potential impact of that source's testimony on their victims, but determining whether their victims are still alive and/or whether or not they have family members who might find the public testimony distressing. Added to that will be the ethical dilemma of deciding whether to notify inmates or ex-offenders who are unaware of the Silencing Act that what they are saying could be grounds for a lawsuit, or whether to contact victims for comment on a story knowing that they may take an adversarial position against publication of the final product.
In signing the Silencing Act into law, Governor Corbett (who was defeated in November and is now counting down his final days in office) has placed the state of Pennsylvania in the unenviable position of defending a law that violates the very principles its largest city played host to creating.