By Carey Shenkman
Any state legislature would have a hard time dreaming up a more unconstitutional measure than the one outgoing Pennsylvania Gov. Tom Corbett recently signed into law. The so-called Revictimization Relief Act allows victims of personal-injury crimes to sue convicts to silence any speech that allegedly "perpetuates the continuing effect of the crime" or causes "mental anguish."
This vaguely defined gag order is a textbook violation of the First Amendment. Mumia Abu-Jamal was convicted of killing Philadelphia Police Officer Daniel Faulkner, and is now, from prison, a prolific journalist and author. The legislature passed the "Muzzle Mumia Law" to censor academic and political speech. Lawmakers rushed to pass it days after Abu-Jamal gave a commencement address recorded from prison at the invitation of his alma mater, Vermont's Goddard College. Officials aimed to make sure Abu-Jamal never spoke at an academic institution again, with one representative calling his invitation to be commencement speaker "despicable."
Abu-Jamal has spent more than 33 years in prison, 29 years in solitary confinement on death row. He has published seven books, and his numerous articles have appeared in many publications, including the Yale Law Journal. He also delivers radio commentaries produced by San Francisco-based Prison Radio and distributed to hundreds of stations across the country.
The passage of the Revictimization Relief Act confirms a reality the public can no longer ignore: Scores of communities live daily with the threat of lawmakers and law enforcement taking away their right to speak. This new Pennsylvania law will force convicted people to face threats of being sued if they choose to speak, regardless of the issues they address.
In tougher circumstances than those presented by the case here, the U.S. Supreme Court has held overwhelmingly that the First Amendment protects speech that is "upsetting or arouses contempt." In Snyder v. Phelps, the court held 8-1 that protesters from the infamous Westboro Baptist Church had a First Amendment right to demonstrate at funerals for members of the armed services and were protected against lawsuits alleging intentional infliction of emotional distress.
Phelps concerned intentional infliction of emotional distress, while the Pennsylvania law imposes strict liability, a wide standard that requires no intent. The law could also censor speech where the speaker has absolutely no desire to offend. It does not require speech to be actually directed at victims. Its standard is completely subjective. It would also ban books, as well as academic speech on matters of public concern.
The Fraternal Order of Police, the nation's largest police association, is among the most enthusiastic supporters of the law. This organization has waged a relentless campaign against Abu-Jamal and his supporters over the years to thwart their First Amendment rights in order to silence them.
The FOP's president has called for the public to "inflict economic punishment on the supporters" of Abu-Jamal. The FOP placed Amnesty International on a public blacklist for supporting Abu-Jamal's right to due process. It also bullied NPR into canceling radio commentaries it had commissioned from Abu-Jamal; tried to prevent HBO from broadcasting a special on him; and pressured Temple University to bar Abu-Jamal's books from classrooms and to end the campus radio station's contract with the Pacifica Network's Democracy Now, which aired work by Abu-Jamal.
A greater concern than whether courts will declare this law unconstitutional is the impunity with which the Fraternal Order of Police and lawmakers continue to operate. The speed with which this law was passed signals a need for action. Otherwise, what comes next? Censorship of articles in support of the rights of those convicted, articles which might cause "mental anguish"? Taking away the right to counsel of convicted persons because it could cause "mental anguish"? Prohibiting journalists from interviewing prisoners because the resulting stories might cause "mental anguish"?
Any first-year law student could see that Pennsylvania's statute is unconstitutional, but lawyers and lawmakers passed it anyway in order to force a whole segment of society to risk being hauled into court if what they speak is considered reprehensible. The way we protect against censorship is by defending the free-speech rights of all.
Carey Shenkman is a New York City-based First Amendment and human-rights lawyer. firstname.lastname@example.org