AT THE BEGINNING of January, the Pennsylvania ACLU filed a federal lawsuit seeking to overturn a Pennsylvania law that tramples on the free speech rights, not only of the incarcerated and journalists like me who report on the criminal justice system. The law is clearly unconstitutional, violating both free speech and due process rights.
The Revictimization Relief Act, which my lawyers at the Pennsylvania ACLU have appropriately dubbed the “Silencing Act,” allows victims of personal injury crimes (and family members or prosecutors acting on their behalf) to petition a judge to stop criminal offenders from speaking or acting if their speech or action “perpetuates the continuing effect of” that crime, including by causing “mental anguish.”
The law was passed in a hurry, by overwhelming majorities, in October by furious legislators after a recorded speech by Mumia Abu-Jamal was played as part of the commencement ceremonies at Goddard College. In Philadelphia, perhaps no individual is more polarizing — proclaimed by many worldwide as a wrongfully convicted public intellectual, reviled by others as a cop killer.
The law is frighteningly vague and pathetically tailored to bolster politicians’ law-and-order bona fides.
Under the First Amendment, it is nearly always unconstitutional to regulate speech based upon its content. That includes speech that people may not like — or even despise — although Mumia’s speech was clearly appropriate for the commencement, saying “Take what you know, and apply it in the real world” and “help be the change you’re seeking to make.”
The House Judiciary Committee’s lawyer made it clear that “the court would have broad power to stop a third party who is the vessel of that [offender] conduct or speech from delivering it or publishing that information.” Indeed, a third party — a newspaper publishing a prisoner’s comments or Prison Radio recording and transporting Abu-Jamal’s commentary to Goddard College — is necessary to make public the comments of an incarcerated person.
It could make prisoners think twice before contacting me, or bar them from doing so. As a reporter, I need prisoner sources to investigate correctional-officer abuse, the wrongful conviction of innocent people, and unjust sentencing laws. Even more Orwellian, it could allow someone to petition a judge to stop me or my newspaper from publishing work that is based on interviews with criminal offenders.
It could cause me to be called into court on a moment’s notice, forcing my newspaper to overcome possible prior restraint and defend the right to publish a story.
I’m a plaintiff in the suit along with multiple journalists, former prisoners and the paper I write for, the Philadelphia City Paper. We are suing Pennsylvania Attorney General Kathleen Kane and Philadelphia District Attorney Seth Williams because they are among those who could drag us into court in an effort to muzzle our speech. Williams, like outgoing Gov. Tom Corbett, has also been a major proponent of the law.
I feel pretty good about our odds since the law is patently unconstitutional. But the law must be struck down now because its very existence chills speech. Politicians, including the prosecutors we elect, swear to uphold the Constitution. To do so they must first stop trampling upon it.
July-August 2015, ATC 177