ACLU lawsuit: PA law to silence offenders’ speech violates First Amendment

By Andrew Staub  /   January 9, 2015 

By Andrew Staub | PA Independent

HARRISBURG, Pa. — The American Civil Liberties Union of Pennsylvania on Thursday made good on its promise to sue over a new state law that gives crime victims and prosecutors the power to silence offenders by seeking a civil injunction to stop speech that could cause them mental anguish.

While lawmakers called the hastily passed bill the Revictimization Relief Act, the ACLU said the legislation is better referred to as the “Silencing Act” and that it’s unconstitutional.

Filed in federal court, the lawsuit contends the act violates the First Amendment and stifles the free speech of prisoners, journalists and formerly incarcerated individuals who now work in their communities.

“Laws designed to silence anyone, even people society may find disagreeable, are unconstitutional and bad for democracy,” Reggie Shuford, executive director of the ACLU of Pennsylvania, said in a written statement. “This law reaches broadly, and could prevent innocent prisoners from seeking clemency, journalists from using sources to expose prison abuse and formerly incarcerated persons from speaking publicly.”

State legislators passed the law after convicted cop-killer Mumia Abu-Jamal on Oct. 5 delivered a recorded commencement address to a small group of students at Goddard College, a small progressive school in Vermont.

Gov. Tom Corbett signed the legislation into law Oct. 21 in Philadelphia, near the location where Abu-Jamal fatally shot police officer Daniel Faulkner in 1981. State Rep. Mike Vereb, a former police officer, proposed the legislation Oct. 2, saying Abu-Jamal was continuing to traumatize Faulkner’s widow.

Vereb defended the law Thursday, saying he would not have asked his colleagues to vote for anything knowing it was unconstitutional.

“I don’t care what the ACLU says,” Vereb said. “I don’t live my life and fight for crime victims based on what the ACLU thinks.”

According to the lawsuit, the ACLU thinks the law is too broad and vague and that it unconstitutionally regulates speech based on content and “unconstitutionally authorizes courts to impose a prior restraint on speech — which, as the Supreme Court has observed, is the most serious and intolerable infringement on First Amendment rights.”

The ACLU’s complaint names Attorney General Kathleen Kane and Philadelphia District Attorney Seth Williams as defendants, noting both have the authority to file suit under the law. Neither Kane nor Williams’ office immediately responded to a request for comment about the lawsuit late Thursday afternoon.

The complaint includes journalists, news outlets and advocacy organizations among its 11 plaintiffs.

Four individuals who were convicted of various crimes, including first-degree and third-degree murder, are also party to the lawsuit. They now help run programs to help offenders re-enter communities and keep at-risk youth out of prison and often speak publicly. They fear the law could penalize that speech, according to the complaint.

“Everyone — even prisoners — has a right to free speech and expression free from government interference,” said Paul Wright, editor of the Prison Legal News and one of the plaintiffs.

The lawsuit also noted legislators passed the Revictimization Relief Act in a mere three weeks when many statues take months or years to clear the General Assembly. They discussed it for just 15 minutes in a House committee meeting and approved it with no changes in the weeks before an election, the lawsuit said. And before it passed, Corbett joined lawmakers such as Vereb and prosecutors such as Williams to herald the legislation at a press conference at the state Capitol.

While Abu-Jamal’s speech prompted the law, his commencement address didn’t mention the crime or Faulkner’s widow, according to the lawsuit. But had the law been in place before the speech, it would have allowed Faulkner’s wife or a prosecutor acting on her behalf to ask a judge for a civil injunction to stop the speech before it happened.

“We hope to never use this law,” Vereb said the day of the press conference. “We hope that the actual people that sit in prison recognize that they themselves are there to heal, not tear the scabs off the wounds of our victims some 30 years later.”

The ACLU asked for an injunction to stop Kane and Williams from enforcing the act.

To date, the law hasn’t been used, but at least one victim is considering asking a court to intervene in a situation, Vereb said. “It’s going to be used soon,” he said, adding he couldn’t elaborate further.

In the meantime, Vereb said he’s standing behind his legislation even as the ACLU fulfilled past promises to challenge it in court.

“Let the court decide,” Vereb said. “If the court upholds it, great. If the court throws it out, don’t think I’m going away. We’re going to draft something else.”