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The Prison Complex

Sunday, Jan 11, 2015, 1:45 am

New Challenge To Pennsylvania Law Restricting Mumia Abu-Jamal And Other Prisoners’ Speech

By George Lavender

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A controversial Pennsylvania law which could limit the ability of Mumia Abu-Jamal and other prisoners to write or speak publicly is being challenged in court. On Thursday, lawyers filed a motion for a preliminary injunction to prevent SB508 being enforced.

The “Revictimization Relief Act” was passed in October last year, sixteen days after Abu-Jamal delivered this prerecorded commencement speech at his former college.

Imprisoned for the 1981 murder of a Philadelphia police officer, Daniel Faulkner, Abu-Jamal's writing and commentaries have gained him a worldwide following. In passing the new law, outgoing Pennsylvania Governor Tom Corbett was quoted by The Washington Times described Abu-Jamal as an “unrepentant cop killer” who had “tested the limits of decency.”

The new law reads, in part, “a victim of a personal injury crime may bring a civil action against an offender in any court of competent jurisdiction to obtain injunctive and other appropriate relief, including reasonable attorney fees and other costs associated with the litigation, for conduct which perpetuates the continuing effect of the crime on the victim.”

To find out more about the law and the legal challenge to it The Prison Complex spoke with David Shapiro, a lawyer and professor at the MacArthur Justice Center at Northwestern Law School. 

Interview edited for length and clarity

What is the “Revictimization Relief Act”

It's called the Revictimization Relief Act but really a better name for it is “The Silencing Act” because that's what it does. It says that any speech by a current or former prisoner that causes offense or pain to the victim of a crime can be banned. It doesn't provide any guidance as to what speech might cause emotional injury the person is totally left to guess as to what exactly this law means. It doesn't matter if you're a current prisoner, it doesn't matter if you're a former prisoner, you're within the sweep of the law. In this country when people commit crimes we punish them we don't shut them up and that's why this particular law is so outrageous.

Why was it passed?

It was passed frankly because there was an election right around the corner in Pennsylvania and shortly before the election it became public that Mr. Abu-Jamal had been invited and would give a prerecorded radio graduation speech at his alma mater college and this lead to a sloppily-drafted hastily-enacted and immediately-signed silencing act.

Has anyone been subject to this law yet?

There have not been court actions as of yet. Some of the things our preliminary injunction filing shows though is that there has been contemplated litigation under the law, it's by no means a theoretical possibility it's something that appears imminent. And on top of that people are engaging in self censorship in fear of this law doing things like publishing books under pseudonyms, not broadcasting certain things or scuttling plans to publish so the laws very clearly having an effect.

Governor Corbett has said this is not “about one single criminal” but rather “was inspired by the excesses and pious hypocrisy of one particular killer.” To what extent do you think this law is just aimed at Mumia Abu-Jamal?

I think that it is largely aimed at him. There is no question that that was part of the rhetoric that surrounded its passage and that is another reason why it is so obviously illegal in that it goes after his speech and tries to shut up a particular individual. That said it's incredibly broad and could be applied against anyone who's a current or former prisoner there's nothing at all in the statutes that limits it to Mr. Abu-Jamal. It's incredibly vast in the amount of speech it prohibits.

What constitutional rights to free expression do people in prison have?

People in prison do retain their first amendment rights. Those first amendment rights can be limited based on legitimate penalogical rationales. But this is not a law that only applies to people in prison. It's a law that applies to anyone with a criminal record and therefore many of the people subject to the law have the exact same first amendment rights that you or I have.

Are there comparable laws anywhere else in the country?

This law is a total outlier. And frankly, as someone who works in Chicago, I was stunned to see a law like this that is just such an extremist, unprecedented, wildly illegal law come out of the state of Pennsylvania.

What was it that motivated you to get involved in this case?

I have personally worked on a lot of matters involving first amendment rights involving prisoners so it's a particular interest to me and I work as part of an organization that does civil litigation related to the justice system that fits squarely into our work here. I also got involved in it because I think it's important that people who are in prison or were in prison have a voice in our society. we have more prisoners both per capita and in absolute terms than any other nation on earth and that includes nations like Russia, nations like China. The idea that you can shut everyone up and prevent them from speaking is outrageous to me.

What about this issue of “revictimization” of victims or family members, do you think there are cases in which that is a problem, and what protections are there under law?

The sort of thing that ought to be prohibited and can legally be prohibited is already prohibited. You cannot harass people. You cannot call them incessantly you can't threaten them you can't stalk them. The conduct that needs to be prohibited is already prohibited and I don't see what this law adds to that other than illegality.

What affect do you think this law could have on other prisoners?

I think it's terrifying. I think the thought that if you say something that somebody finds offensive the court could enter an injunction preventing you from talking is just an incredibly frightening thing that is likely to make people fearful of exercising their right to speak.

Tell us about the motion for a preliminary injunction you submitted on Thursday?

What that asks the court to do is to issue a preliminary injunction which is an injunction at the beginning of the case saying that the law violates the First Amendment and is therefore unenforceable. The plaintiffs who are bringing the motion for preliminary injunction are engaged in all sorts of expressive activities, radio commentaries, books about an incredible array of topics; prison the criminal justice system, racial disparities in the criminal justice system, the death penalty the list goes on and on.

What are the next steps in this legal challenge?

The court will likely receive briefs from both sides it may schedule a hearing depending on what the court sees as an appropriate next step and ultimately the motion for preliminary injunction will get decided by the judge

How confident are you that this challenge will be successful?

I would just say that we're right on the law and the facts in this case are very clearly in our favor. 

George Lavender is an award-winning radio and print journalist based in Los Angeles. Follow him on Twitter @GeorgeLavender.

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