A CHILLING EFFECT ON FREEDOM OF SPEECH

FRIDAY, MARCH 26, 2010, DAY ELEVEN IN THE HOLE


A CHILLING EFFECT ON FREEDOM OF SPEECH

It’s not that I’ve been slacking off, returning to my prison diary three days later, but instead I’ve been trying to dig myself out of this hole in solitary confinement. If someone tosses you into a twenty-foot well, then fills it with stones and dirt until you’re buried neck deep, it’s not easy digging your way out. That’s the way it is in here. You need people “up there,” on the surface to throw you ropes (hopefully not looping the ropes around your neck) and rescue you, or you’re liable to be left at the bottom of the pit for the duration. A handful of people whose names I won’t mention have been doing just that, furiously moving the rubble of bureaucratic obstinacy and abuses of authority out of the way, trying to make a path for me to climb out. Hopefully, I’ll be freed soon. In the meantime…

Know your opponent. In a supposedly “free society,” things like this aren’t supposed to happen. One of the ways that our new country of the United States set itself apart from the oppressive “Mother England” was our Constitution and Bill of Rights, particularly the freedoms established such as Freedom of Speech. In England you spoke out at your own risk. They didn’t have freedom of speech. Say something someone in authority didn’t like and you might find yourself in lockup, like I am right now.

In the meantime, our courts have hammered out over the years the parameters of “free speech,” what it is and what it isn’t, so we’d know what is protected and what isn’t. Yelling, “FIRE!” in a crowded theater is not protected speech. There are many other examples that I don’t have the paper or ink to go into now.

Although some people don’t agree, our wise judges have ruled that there is no iron curtain separating the Constitution from the prison walls. Even prisoners, the lowest caste in our society, retain some freedoms, although often on a restricted basis. Freedom of Speech is one of them. There are only three areas of unprotected speech or communications involving prisoners, and those restrictions make sense in this environment.

First, if you write or speak out about planning an escape, as they say in New York, forget about it. You write a letter to Uncle Sid telling him to mail you a hacksaw blade and meet you outside the fence at midnight with a getaway car, they will stick you under the jail. You may not come out for awhile. Prisoners do not have the right to make escape plans, unless you are an American prisoner of war, which maintains that you have the duty to escape, evade capture, and return to your lines. That’s different.

The second area of unprotected speech in prison is the threat of riot, disruption, or insurrection. Think about Attica in 1971. They took over the prison, took hostages, and burned the place down. Why? The prison grievance procedures weren’t working, and after awhile, the prisoners got so fed up with not being able to redress their complaints they started setting fires. When Governor Nelson Rockefeller met their televised demands and appeared in person to hear their complaints, most of which seemed fairly mundane – food, medical care, visiting, and others – he asked them why didn’t they just say something before rather than do all that? They replied that they’d tried for years, but the prison authorities turned deaf ears to their grievances. Now they were listening.

You can’t advocate riots or destruction in prison, or they will mail you. You can’t stand in the recreation yard and urge everyone to engage in a sit-down strike or a hunger strike. You talk about organizing a prison union, they put you on the bus so fast your head will still be spinning when you wake up in a dungeon somewhere. That is not protected speech.

Neither is talk of criminal activities. If the mailroom trolls with their thick glasses down in their basement censorship office read your outgoing mail and you are discussing bringing in drugs, cell phones, weapons, or other illegal items, if you’re talking about bribing the warden to get a parole, or any other criminal act, so long. They got you. No freedom of speech involved in any of those areas. Don’t write Mama and threaten the life of the guard who took your contraband, either, or you’ll find yourself in a world of hurt.

The four-volume set of law books, “The Rights of Prisoners” (4th Edition, Vol. II Prisoner Writings, p. 62-68), exhaustively covers what prisoners can and cannot write about, with landmark case references. You’d think the prison system would get a set of those books and familiarize themselves with the law, rather than letting their personal prejudices and feelings guide their repressive actions. (Excuse me, they did buy a set – they’re in the law library – prisoners know the laws that the guards and officials are unaware of).

The following quotes (at 6:18 – 6:19) from this excellent work have close parallels to my own situation:

“The legal problems that an inmate’s original expression engenders depend on whether the inmate is writing primarily for a prison audience or whether instead, the author seeks a wider audience for the work. This section will consider whether inmates may be punished for their writing.”

“Without a specific factual record showing legitimate dangers that are reasonably related to an inmate writing for the outside world, they cannot be prohibited.”

“The first case involved Murmia Abu-Jamal, a journalist turned inmate, who was sentenced to death for the murder of a police officer, who was approached by National Public Radio to broadcast his commentaries to a national radio audience. When police organizations protested these contacts, prison officials began to inspect all of his mail, including his legal mail, and thereafter invoked a prison rule that prevented all inmates from engaging in “business” while incarcerated. In fact, this rule had not previously been enforced against another inmate who had written a novel while in prison. Mr. Abu-Jamal sued, claiming that the rule as enforced against him violated his First Amendment right to speak and write.

The Third Circuit agreed. It found that the rule was imposed on the plaintiff “in retaliation against the content of his writing.” See Abu-Jamal v. Price, 154 F.3d 128 (3rd Cir, 1998)

“Unlike the Rison case, the court noted that here there was no evidence that the plaintiff’s writings and broadcasts ‘had strained prison resources, contributed to unrest among the inmate population, or enhanced Jamal’s status as a prisoner, resulting in danger to himself or others.’ (at 134). The court concluded that while prison officials could validly prohibit a business operation that placed a substantial burden on prison staff, it could not prevent a First Amendment activity that did not threaten corrections officials or incite the inmate population.” (154 F.3rd at 134-135).

When I sent a request form to the mail clerk who’d originally censored, “To Protect The Guilty” as it appeared in “Wordsmith 2010,” I sought the actual date the book had arrived at the mailroom, which would be the initial date when all the time and deadline calculations would begin. I received the following surprising admission: [spelling and punctuation uncorrected]:

“After receiving the book in the mailroom and reading the first few pages of the story I determined it should be looked at to see if it could come in and sent it to Mr. Hodgson. I have no way of knowing the date the book was received a we do not log incoming mail except for legal. The day it arrived does not change the content of the story [emphasis added]”

The content of the story! How similar is that to what the federal court said about Abu Jamal? “…the rule was imposed on the plaintiff ‘in retaliation against the content of his writings.’ ”

I don’t know what Abu-Jamal writings were about, but I know that mine was a humorous account of a dark subject, Ku Klux Klan prison guards and retaliation I suffered for telling the truth about what I thought of them. Sometimes you have to speak out, and that was one of them. Taking it a logical step forward, I must agree with one of my reader’s comments that the only people who might be offended by “To Protect The Guilty,” would be KKK prison guards and their sympathizers. Either way, I should not be writing this from solitary confinement as a result of it. Case closed.

Prison systems copy the tired strategies, legal or otherwise, others have tried to invoke their will on their subjects. One way to suppress the writings and words of an outspoken prisoner is to label his efforts as “running a business,” forbid it, lock him up, and throw away his pens (they took six pens from me). That has what is called “a chilling effect” on Freedom of Speech. The message—express yourself and go to lockup, lose gain time, stay in prison longer. Keep silent and maintain the status quo, stomp on the Bill of Rights.

It’s not supposed to be that way. Would someone speak out, please? I’m outnumbered.

Charlie