Court Says Free Speech Rights For Prisoners Not 'Clearly Established,' Gives Pass To Retaliatory Actions By Officials

from the 'because-you-asked-wrong,-we-won't-examine-the-unexamined-issue' dept

While it's true that prisoners enjoy fewer rights than Americans who've never been convicted of a crime, their rights are by no means nonexistent. Except in some cases... where bits and pieces of protected speech vanish into the gaps between established prison guidelines and case law directly addressing the matter.

That's an admittedly unclear summation of the appeals court decision finding a federal prisoner's rights weren't violated when he was removed from a halfway house and placed in solitary confinement in retaliation for publishing an article about his prison experience.

Daniel McGowan, an environmental activist whose prosecution for "eco terrorism" was the subject of an award-winning film, was finishing his seven-year term at a Brooklyn halfway house when he wrote a HuffPost blog post that contained details about a secretive prison where he had spent years in isolation. There was nothing particularly revealing about what he wrote: Much of it had been made public in an ongoing civil rights lawsuit he and other low-risk prisoners filed in federal court in Washington challenging their placement there, for no other reason than their political views or who they are.

Even if McGowan had published something more revealing, it still shouldn't have mattered. The law used to punish him for publishing the piece was no longer on the books at the time a prison official decided to pull McGowan from the halfway house and take him to a detention center in Brooklyn. From the Second Circuit Court of Appeals decision [PDF]:

McGowan alleges that, shortly after his article appeared online, defendant Tracy Rivers, the Residential Reentry Manager at the New York Residential Reentry Management Office of the Bureau of Prisons (“BOP”), determined that he should be issued an incident report and remanded to a federal detention center. The incident report stated that McGowan had violated “BOP Program Statement no. 1480.05 dated September 21, 2000; 540.62 page 5, section (d),” which provided that “an inmate currently confined in an institution may not be employed or act as a reporter or publish under a byline” (the “Byline Regulation”).

The problem with citing this guideline is that the Bureau of Prisons had rescinded it in 2010, (belatedly) following a 2007 Colorado district court decision finding the regulation unconstitutional. Unfortunately for McGowan, despite the regulation being nonexistent when it was used to put him in solitary confinement, the appeals court has found that there's no Second Circuit precedent clearly asserting First Amendment protections for federal prisoners.

Whether or not we would agree with that analysis is beside the point. We conclude only that, in light of the different interests at stake, our case law establishing a prisoner’s right to file a lawsuit or grievance does not clearly establish a prisoner’s right to publish an article under a byline. Indeed, the only authority that McGowan has identified that involved expression similar to that at issue in this case is a district court opinion, which, of course, is not binding.

That erases McGowan's retaliation claim. The official who made the decision to confine McGowan is entitled to qualified immunity as no "clearly established right" was violated -- just the use of federal prisoner guideline that had been removed by the BOP three years earlier.

By reaching these conclusions, the appeals court is able to dodge thornier issues -- like further clarifying the limits of First Amendment protections for federal prisoners.

As one of McGowan's lawyers, Alexander Reinert, put it, the decision was silent about how "prisoners may express themselves to the outside world." Reinert, a law professor at Cardozo, said he's disappointed in the ruling and is considering asking for a rehearing. Ryan Grim, HuffPost's Washington bureau chief, called the decision "appalling on its face."

Nothing but stasis from the Second Circuit Appeals Court. It notes that no "clearly established right" was violated here, but passes on the opportunity to more clearly define the boundaries of prisoners' First Amendment rights. A rehearing could fix this by pushing the court towards examining the issue it overlooked during its decision, but until it does so, prisons in the Second Circuit will still be able to get away with using nonexistent guidelines to punish prisoners for otherwise protected speech.

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Filed Under: first amendment, free speech, prisoners