Why I filed a federal lawsuit to defend criminals' free speech rights

The suit asks the court to overturn a law hastily passed after Mumia Abu-Jamal's commencement speech last fall.

Philadelphia Prison System
Maria Pouchnikova

Today, City Paper and I joined in a federal court lawsuit seeking to overturn a Pennsylvania law that tramples on the free speech rights not only of criminal offenders but also of journalists like me who report on the criminal justice system.

The Revictimization Relief Act, which my lawyers at the Pennsylvania ACLU and Pepper Hamilton 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."

We filed the suit because the law is clearly unconstitutional, violating both free speech and due process rights.

The law was passed in a hurry, by overwhelming majorities, in October by furious legislators after celebrity inmate Mumia Abu-Jamal, convicted of murdering a Philadelphia police officer in 1981, gave a commencement speech at Goddard College. Abu-Jamal is reviled by many as a cop killer and celebrated by many others worldwide as a wrongfully convicted public intellectual. In Philadelphia, perhaps no individual is more polarizing.

Either way, his recorded speech to Goddard graduates didn't mention the crime of which he was convicted, but instead conveyed the sort of encouragement that is often standard fare at commencement: “Take what you know, and apply it in the real world” and “help be the change you're seeking to make."

The law is frighteningly vague and pathetically tailored to scapegoat criminal offenders in an effort 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 — like white supremacist marches or the Westboro Baptist Church's "God Hates Fags" protests outside of funerals for soldiers.  It most certainly includes speech by criminal offenders who want to contend that they are innocent, repent for their crime, complain about prison conditions and correctional-officer abuse or simply write a letter to the editor about which players should fill out the Philadelphia Eagles' roster next season.  

This is the First Amendment's bread and butter.

This new law, however, harms far more than individual prisoners' free speech rights — it attacks mine as a journalist. It could make prisoners think twice before contacting me, or bar them from doing so. As a reporter, I need prisoners as 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.

This might seem highly unlikely, but 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 — whether it is a newspaper publishing a prisoner's comments or Prison Radio recording and transporting Abu-Jamal's commentary to Goddard College — seems to be necessary to make public the comments of an incarcerated person.  

It could even 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 and former prisoners. We are suing Pennsylvania Attorney General Kathleen Kane and Philadelphia District Attorney Seth Williams because they, in their official capacities, 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 stop trampling upon it first.