This past March, the University of Wyoming cancelled a speech by William Ayers amid a storm of protest of the event. Hundreds of students, citizens, and even politicians called and sent letters to the university objecting to the speech. The speaker, Bill Ayers, was a co-founder of the radical anti-was group Weather Underground. Weather Underground was responsible for a series of non-fatal bombings meant to protest the Vietnam War, including bombings of government buildings such as the U.S. Capital and the Pentagon.
Ayers had been invited to speak on Monday, April 5 by the UW Social Justice Research Center on the issues of social justice and education. Following the tremendous criticism of the event, the director of the Social Justice Research Center cancelled the event citing personal and professional reasons as well as safety concerns. The university explained that they had received threats of violence if the event were to occur.
Now a professor at the University of Illinois-Chicago, Ayers occasionally speaks at universities on the issues of education and social justice. After the cancellation by the University of Wyoming, Illinois Wesleyan University announced on April 14 that it had decided to allow Ayres to keep his invitation to speak at the college after being invited by the student groups IWU Peace Fellows and the Global Politics Society. The spokesman for the university maintains that colleges exist to support the discussion of ideas, and the university thus decided not to cancel the speech despite the potential controversy.
A University of Wyoming student Meg Lanker invited Ayers back to campus after the Social Justice Research Center cancelled his speech. However, Lanker was told that the entire campus was unavailable for Ayers to speak. On April 18 it was announced that Bill Ayers and Meg Lanker had decided to sue the university. Ayers and Lanker are suing on the basis that this ban on Ayers speaking at a university venue violates their constitutional rights to free speech and the freedom of assembly. The plaintiffs asked for an injunction from a federal judge to allow the lecture to take place.
In the 1972 Supreme Court case Healy v. James, students at a state-supported college in Texas tried to create a local chapter of Students for a Democratic Society. However, the students were denied recognition by the college as the college feared possible disruption and violence from the group because of its assumed association with the National SDS. The Court ruled that the university may not deny the students the right to assemble on the college grounds, stating that “state colleges and universities are not enclaves immune from the sweep of the First Amendment.”
This Monday, April 26, 2010, Judge William Downes listened to the arguments of the plaintiffs and the defendants. The defendants claimed that the speech was cancelled due to serious safety concerns after threats of violence were received by the university. The plaintiffs argued that the threats were insufficient and were instead a cover for the university to not allow Ayers to speak so as not to upset the schools reputation and dissuade donors from giving to the school. They argued that their rights to freedom of speech and assembly were of foremost concern.
Judge Downes delivered his ruling on Tuesday, April 27 in favor of the plaintiffs and issued an injunction based on the fact that the university had violated the plaintiffs’ first amendment rights. The injunction forced the university to allow Ayers to speak on the campus, and he is scheduled to give his lecture today, Wednesday, April 28.
Downes, a captain in the Marines during Ayers involvement in Weather Underground, declared that in spite of the any offensive of a speaker, every United States citizen has the right to speak. Downes said in his ruling:
"This court is of age to remember the Weather Underground. When his group was bombing the U.S. Capitol in 1971, I was serving in the uniform of my country. Even to this day, when I hear that name, I can scarcely swallow the bile of my contempt for it. But Mr. Ayers is a citizen of the United States who wishes to speak, and he need not offer any more justification than that."
Judge Downes decision follows libertarian principles of freedom of speech. His ruling was both risk-acceptant and in favor of the individual. Downes declared that Ayers must be guaranteed his first amendment rights despite the threat of violence that may occur. Therefore, his ruling also favored the primacy of the individual speaker, Ayers over the potential public concern about violence at the event or violence directed at university employees or administrators.
The pros of this stance are clear in that it upholds the constitutional guarantees of freedom of speech and freedom of assembly. This contributes to the expansion of the marketplace of ideas, a value cherished in by supports of free speech. It supports the idea that every person, even if they are considered offensive by the majority of people, has a fundamental right to speak. A possible con of this decision is that the risk-acceptant nature of the decision could underestimate the chance for violence. If this is true, either the speaker or the general public could be harmed. A second con is the expenses that the university must pay for in order to increase security at the event, which it plans to do. As this case raises the question of the rights of controversial speakers, I think it is important to remember to protect the rights of the least popular to speak, as that is a fundamental value of the American legal system. It seems to me that this right is justifiably said to outweigh the potential negatives that may come with this speech.
1. http://www.chicagobreakingnews.com/2010/03/university-of-wyoming-cancels-speech-by-william-ayers.html
2. http://www.chicagobreakingnews.com/2010/04/ayers-sues-after-banned-from-speaking-at-wyoming-university.html
3. http://trib.com/news/state-and-regional/article_01bd1b85-831e-5506-a673-3caf0c25022a.html
4. http://www.nytimes.com/2010/04/28/us/28brfs-BANONSPEECHI_BRF.html?scp=1&sq=Ayres%20Wyoming&st=cse
5. http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=408&invol=169
Wednesday, April 28, 2010
Wednesday, April 14, 2010
Alcohol Advertisements in College Newspapers
On April 9, 2010, the Federal Appellate Court for the Fourth Circuit in Virginia released its opinion in the case of Educational Media Co. v Swecker. In this case, the Alcoholic Beverage Control Board in the Commonwealth of Virginia had created regulation on alcoholic beverage advertisements in college student publications. The Educational Media Company at Virginia Tech and The Cavalier Daily, Inc. at the University of Virginia, which represent The Collegiate Times and The Cavalier Daily newspapers respectively, argued that two of the restrictions created by the Board violate their First Amendment rights. The District Court granted the college newspapers summary judgment and enjoined the regulation. The Board then appealed to the Fourth Court on one of the restrictions, and the Court reversed the decision of the District Court.
The regulation in question, known as § 5-20-40 (B)(3), defines a college student publication with these three requirements. It must be:
(1) Prepared, edited, or published primarily by its students;
(2) Sanctioned as a curricular or extracurricular activity; and
(3) "Distributed or intended to be distributed primarily to persons under 21 years of age."
If a publication meets these qualifications, the Board regulates that it “may not print advertisements for beer, wine, or mixed beverages unless the ads are ‘in reference to a dining establishment.’” Furthermore, while these exemptions may not reference alcohol brand or price in their advertisements, they may incorporate five approved words and phrases: “A.B.C. [alcohol beverage control] on-premises,” “beer,” “wine,” “mixed beverages,” “cocktails,” or “any combination of these words.”
This one regulation by the Alcoholic Beverage Control Board costs each newspaper approximately $30,000 a year in lost advertising revenue. The college newspapers in turn filed a complaint that this regulation is a violation of their First Amendment rights. To determine if this is true, the Fourth Court turned to the four-part test set forth in the case of Central Hudson Gas & Electric Corp. v. Public Service Commission of New York. The four points are as follows:
(1) Whether the commercial speech is protected by the First Amendment;
(2) Whether there is a substantial government interest in regulation;
(3) Whether the regulation directly and materially advances the government’s interest;
(4) Whether the regulation is not “more extensive than is necessary to serve that interest”
To address the first part of this test, commercial speech qualifies for protection by the First Amendment if it “(1) concern[s] lawful activity and (2) [is] not misleading.” The commercial speech in this case of the alcohol advertisements reaches of-age readers, and it therefore concerns lawful activity. Also the Alcoholic Beverage Control Board did not provid any evidence that the advertisements provide misleading information. For this reason, the regulation by the Board does restrict commercial speech protected by the First Amendment.
The second part of this test questions whether there is a substantial government interest in the regulation. The Board has stated that it has a substantial interest in combating underage drinking and abusive drinking by college students, which the newspapers do not dispute. For these reasons, the Board’s interest is found to be substantial.
The third part of this test is where the Fourth Circuit Court differed from the findings of the District Court. The Fourth Court agrees with the Board that “history, consensus, and common sense” support that the regulation banning alcohol advertisements in college newspapers decreases the demand for alcohol in college students.
In the fourth prong of this test, the Fourth Court rules that the regulation created by the Board is sufficiently narrow to warrant implementation. The Court rules that it is narrowly drawn as the regulation only prohibits certain kinds of alcohol advertisements. Furthermore, the Court argues it is sufficiently narrow as it only apples to college student publications which target students under the age of twenty-one. While the college newspapers argue that the regulation is not the least restrictive option in serving the interests of the Board, the Court finds that the regulation need not be “the single best disposition.”
Despite the fact that the majority opinion ruled in favor of the Alcoholic Beverage Control Board, I agree more with the dissenting opinion of Judge Moon. First, Moon makes the compelling argument that these newspapers in question should not even be regulated, as they do not fit the three requirements for regulation. Over half of the students at these universities are over twenty-one, as are the faculty and staff. Because of this, a majority of the readership of the newspapers is over the age of twenty-one, and the publications therefore are not "distributed or intended to be distributed primarily to persons under 21 years of age." For this reason, these newspapers should be exempt from any regulation.
Despite this fact, Judge Moon also makes a persuasive constitutional argument for why the Board should not be permitted to regulate the alcohol advertisements in these newspapers.
In the third prong of the Central Hudson test, Moon sides with the District Court’s ruling that the government carries the burden of proving the justification for a ban on commercial speech. The Central Hudson test specifies that regulation alleviates the harm “to a material degree” and that “this burden is not satisfied by mere speculation or conjecture.” Moon references a decision by the Third Court in the similar case of Pitt News v. Pappert. In the case of Pitt News, the Court found that a Pennsylvania statute banning alcoholic beverage advertising by media affiliated with a university or college failed the third and fourth prongs of the Central Hudson test. The Court argued that there was not proof that eliminating advertising of alcoholic beverages in the very limited and narrow sector of media associated with educational institutions would substantially decrease underage and abusive drinking.
The majority opinion in Educational Media Co v. Swecker argues that the fact that alcohol vendors want to put alcoholic beverage advertisements in the college newspapers proves that these ads increase alcohol demand by college students. However, as stated earlier, the majority of the readers of these newspapers are of legal age. The Alcoholic Beverage Control Board never stated as its purpose for regulation to decrease the general demand of alcohol by college students. Its expressed purpose is simply to decrease underage drinking and abusive drinking.
Moon argues that the regulation infringes on the constitutional rights of adults by permitting adults to only receive speech that the Commonwealth of Virginia has deemed appropriate for people under the age of twenty-one. He further argues that the regulation infringes on the rights of the under twenty-one readers who should be free to receive truthful information about “a lawful product that they will soon have the right to consume.” Lastly not only the readers are infringed upon, but so are the advertisers. The advertisers should have the right to communicate this information on alcoholic beverages for the readers.
Moon also takes issue with the fourth prong of the Central Hudson test as applied to this case. First, the regulation itself is inconsistent in that it will allow advertisements by dining establishments such as “mixed drink night,” but it will not allow for the advertisement of alcohol prices or brands. The regulation does not appear to fit the Board’s goal of curbing underage and abusive drinking by allowing a restaurant to advertise “mixed drink night” while banning the advertisement of a “margarita night.” The regulation itself is in fact not narrowly tailored, but instead entirely inconsistent.
Furthermore, the majority opinion argued that the regulation is not more extensive than necessary because it only applies to college student publications targeted at students under the age of twenty-one. As previously stated, the majority of the audience of the newspapers in question are not under the age of twenty-one.
The restriction of commercial speech must be “a necessary as opposed to merely convenient means of achieving” the goals of the Board. According to Moon, “the record indicates that ‘the Commonwealth can seek to combat underage and abusive drinking by other means that are far more direct and that do not affect the First Amendment.’”
For these reasons, I agree with Judge Moon that the regulation created by the Alcoholic Beverage Control Board does not meet the constitutional requirements of the four-prong Central Hudson test. In addition to not meeting the test, I also would argue that that the benefits of this regulation simply do not outweigh the negatives. On the one hand, this regulation is meant to curb underage and abusive drinking. It may be possible that restricting alcohol advertisements in college publications would curb these problems, even though this has not been proved. However, I think that the cons outweigh that potential pro. I do not think that this potential benefit justifies the suspension of these newspapers First Amendment rights.
1. Educational Media Co v. Swecker Full Text: pacer.ca4.uscourts.gov/opinion.pdf/081798.P.pdf
2. ACLU Article on District Court Decision: http://www.aclu.org/free-speech/federal-court-says-ban-alcohol-related-advertising-college-publications-violates-free-sp
3. First Amendment Coalition Article: http://www.firstamendmentcoalition.org/2010/04/federal-court-rules-virginia-can-ban-alcohol-ads-in-college-publications/
4. Central Hudson Gas & Electric Corp. v. Public Service Commission of New York Case Full Text: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=447&invol=557
5. Pitt News v. Pappert Full Text: www.ca3.uscourts.gov/opinarch/031725p.pdf
The regulation in question, known as § 5-20-40 (B)(3), defines a college student publication with these three requirements. It must be:
(1) Prepared, edited, or published primarily by its students;
(2) Sanctioned as a curricular or extracurricular activity; and
(3) "Distributed or intended to be distributed primarily to persons under 21 years of age."
If a publication meets these qualifications, the Board regulates that it “may not print advertisements for beer, wine, or mixed beverages unless the ads are ‘in reference to a dining establishment.’” Furthermore, while these exemptions may not reference alcohol brand or price in their advertisements, they may incorporate five approved words and phrases: “A.B.C. [alcohol beverage control] on-premises,” “beer,” “wine,” “mixed beverages,” “cocktails,” or “any combination of these words.”
This one regulation by the Alcoholic Beverage Control Board costs each newspaper approximately $30,000 a year in lost advertising revenue. The college newspapers in turn filed a complaint that this regulation is a violation of their First Amendment rights. To determine if this is true, the Fourth Court turned to the four-part test set forth in the case of Central Hudson Gas & Electric Corp. v. Public Service Commission of New York. The four points are as follows:
(1) Whether the commercial speech is protected by the First Amendment;
(2) Whether there is a substantial government interest in regulation;
(3) Whether the regulation directly and materially advances the government’s interest;
(4) Whether the regulation is not “more extensive than is necessary to serve that interest”
To address the first part of this test, commercial speech qualifies for protection by the First Amendment if it “(1) concern[s] lawful activity and (2) [is] not misleading.” The commercial speech in this case of the alcohol advertisements reaches of-age readers, and it therefore concerns lawful activity. Also the Alcoholic Beverage Control Board did not provid any evidence that the advertisements provide misleading information. For this reason, the regulation by the Board does restrict commercial speech protected by the First Amendment.
The second part of this test questions whether there is a substantial government interest in the regulation. The Board has stated that it has a substantial interest in combating underage drinking and abusive drinking by college students, which the newspapers do not dispute. For these reasons, the Board’s interest is found to be substantial.
The third part of this test is where the Fourth Circuit Court differed from the findings of the District Court. The Fourth Court agrees with the Board that “history, consensus, and common sense” support that the regulation banning alcohol advertisements in college newspapers decreases the demand for alcohol in college students.
In the fourth prong of this test, the Fourth Court rules that the regulation created by the Board is sufficiently narrow to warrant implementation. The Court rules that it is narrowly drawn as the regulation only prohibits certain kinds of alcohol advertisements. Furthermore, the Court argues it is sufficiently narrow as it only apples to college student publications which target students under the age of twenty-one. While the college newspapers argue that the regulation is not the least restrictive option in serving the interests of the Board, the Court finds that the regulation need not be “the single best disposition.”
Despite the fact that the majority opinion ruled in favor of the Alcoholic Beverage Control Board, I agree more with the dissenting opinion of Judge Moon. First, Moon makes the compelling argument that these newspapers in question should not even be regulated, as they do not fit the three requirements for regulation. Over half of the students at these universities are over twenty-one, as are the faculty and staff. Because of this, a majority of the readership of the newspapers is over the age of twenty-one, and the publications therefore are not "distributed or intended to be distributed primarily to persons under 21 years of age." For this reason, these newspapers should be exempt from any regulation.
Despite this fact, Judge Moon also makes a persuasive constitutional argument for why the Board should not be permitted to regulate the alcohol advertisements in these newspapers.
In the third prong of the Central Hudson test, Moon sides with the District Court’s ruling that the government carries the burden of proving the justification for a ban on commercial speech. The Central Hudson test specifies that regulation alleviates the harm “to a material degree” and that “this burden is not satisfied by mere speculation or conjecture.” Moon references a decision by the Third Court in the similar case of Pitt News v. Pappert. In the case of Pitt News, the Court found that a Pennsylvania statute banning alcoholic beverage advertising by media affiliated with a university or college failed the third and fourth prongs of the Central Hudson test. The Court argued that there was not proof that eliminating advertising of alcoholic beverages in the very limited and narrow sector of media associated with educational institutions would substantially decrease underage and abusive drinking.
The majority opinion in Educational Media Co v. Swecker argues that the fact that alcohol vendors want to put alcoholic beverage advertisements in the college newspapers proves that these ads increase alcohol demand by college students. However, as stated earlier, the majority of the readers of these newspapers are of legal age. The Alcoholic Beverage Control Board never stated as its purpose for regulation to decrease the general demand of alcohol by college students. Its expressed purpose is simply to decrease underage drinking and abusive drinking.
Moon argues that the regulation infringes on the constitutional rights of adults by permitting adults to only receive speech that the Commonwealth of Virginia has deemed appropriate for people under the age of twenty-one. He further argues that the regulation infringes on the rights of the under twenty-one readers who should be free to receive truthful information about “a lawful product that they will soon have the right to consume.” Lastly not only the readers are infringed upon, but so are the advertisers. The advertisers should have the right to communicate this information on alcoholic beverages for the readers.
Moon also takes issue with the fourth prong of the Central Hudson test as applied to this case. First, the regulation itself is inconsistent in that it will allow advertisements by dining establishments such as “mixed drink night,” but it will not allow for the advertisement of alcohol prices or brands. The regulation does not appear to fit the Board’s goal of curbing underage and abusive drinking by allowing a restaurant to advertise “mixed drink night” while banning the advertisement of a “margarita night.” The regulation itself is in fact not narrowly tailored, but instead entirely inconsistent.
Furthermore, the majority opinion argued that the regulation is not more extensive than necessary because it only applies to college student publications targeted at students under the age of twenty-one. As previously stated, the majority of the audience of the newspapers in question are not under the age of twenty-one.
The restriction of commercial speech must be “a necessary as opposed to merely convenient means of achieving” the goals of the Board. According to Moon, “the record indicates that ‘the Commonwealth can seek to combat underage and abusive drinking by other means that are far more direct and that do not affect the First Amendment.’”
For these reasons, I agree with Judge Moon that the regulation created by the Alcoholic Beverage Control Board does not meet the constitutional requirements of the four-prong Central Hudson test. In addition to not meeting the test, I also would argue that that the benefits of this regulation simply do not outweigh the negatives. On the one hand, this regulation is meant to curb underage and abusive drinking. It may be possible that restricting alcohol advertisements in college publications would curb these problems, even though this has not been proved. However, I think that the cons outweigh that potential pro. I do not think that this potential benefit justifies the suspension of these newspapers First Amendment rights.
1. Educational Media Co v. Swecker Full Text: pacer.ca4.uscourts.gov/opinion.pdf/081798.P.pdf
2. ACLU Article on District Court Decision: http://www.aclu.org/free-speech/federal-court-says-ban-alcohol-related-advertising-college-publications-violates-free-sp
3. First Amendment Coalition Article: http://www.firstamendmentcoalition.org/2010/04/federal-court-rules-virginia-can-ban-alcohol-ads-in-college-publications/
4. Central Hudson Gas & Electric Corp. v. Public Service Commission of New York Case Full Text: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=447&invol=557
5. Pitt News v. Pappert Full Text: www.ca3.uscourts.gov/opinarch/031725p.pdf
Wednesday, March 31, 2010
Prisoners' Rights to Receive Information
In the United States, we like to believe that everyone has equal rights protected under the Constitution. Unfortunately, this is not always the case. Prisoners in the U.S. penal system have been deprived of their fundamental right to protection under the First Amendment.
The Supreme Court has created a pattern in recent decades of giving deference to the rights of prison officials over the prisoners. In the most recently decided case of Beard v. Banks the Supreme Court goes too far in restricting the rights of prisoners and instead deprives them of their First Amendment rights.
In the first significant decision regarding prisoners’ rights by the Supreme Court in the case of Procunier v. Martinez, the issue at hand was the censorship of inmate mail. The prison officials set up rules that banned any mail in which the officials believed the prisoners “unduly complain” or “magnify grievances.” Furthermore, the letters were also regulated on the basis of obscenity or lewdness. In this decision, the Supreme Court ruled with the prisoners and declared that censorship of inmate mail is unconstitutional. While this decision appropriately ruled in favor of the prisoners’ rights, it would be the last time before the Supreme Court began its tradition of deference to prison officials rather than prisoners. It would in fact be overturned by a later Supreme Court decision.
In 1979, the case of Bell v. Wolfish was brought before by the Supreme Court. The Court ruled in favor of prison officials by permitting the regulation of mailed hardcover books to inmates due to security threats. This case started a legal precedent that allowed for prisoners constitutional rights to be limited based on the “legitimate goals and policies” of prison authorities, including prison safety and order. This case also set the precedent of the Court ruling in favor of prison officials, excepting cases in which the regulation was too exaggerated for the needs of the prison.
The next significant case on prisoners’ rights decided by the Supreme Court in which the Court deferred to the prison officials is Turner v. Safely in 1987. The case regarded the issue of correspondence between inmates held in separate prisons, which prison authorities had banned. In this case, the Court clarified the jurisdiction set in Bell v. Wolfish and stated that, “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” The Turner test created a four-point test of reasonableness to be applied to more prisoners’ rights cases. These four points included the following requirements:
(1) “There must be a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it.”
(2) “Whether there are alternative means of exercising the right that remain open to prison inmates.”
(3) The Court should give deference to the prison officials when ruling in favor of prisoners’ rights in cases where ruling in favor of the prisoners could have a negative ripple effect on the inmates and the prison employees.
(4) “Easy alternatives” that accommodate prisoners’ rights “ may be evidence that the regulation is not reasonable, but is an ‘exaggerated response’ to the prison concerns.”
In the most recent 2006 case of Beard v. Banks, the Supreme Court ruled with the prison officials again by declaring the constitutionality of regulating Level 2 inmates’ access to newspapers, magazines, and personal photographs. Level 2 inmates are the highest security level prisoners, deemed the “most incorrigible, recalcitrant inmates.” In addition to a large number of highly strict limitations placed on the prisoners, this ruling allowed prison officials to deny these inmates access to any newspapers, magazines, and personal photographs.
In the Beard v. Banks case, the Level 2 inmates are put in solitary confinement for twenty-three hours a day, they are denied visitation rights of family and friends, and they are kept in this confinement for a bare minimum of ninety days. Most do not graduate into the less restrictive Level 1 status. I believe that the right to access print materials should not be denied by the federal government for these inmates.
The Supreme Court incorrectly applied the Turner test to the Beard v. Banks case. Regarding the second point, there are not alternative ways for the inmates to access this information. These inmates do have access to religious and legal periodicals, as well as one library book. But they are denied access to the vast amount of information and news available in secular, non-legal newspapers and magazines. For this reason there are no alternative methods for the inmates to have access to these sources and information.
In addition to the ruling on prisoner correspondence in the Turner case, there was a second decision by the Supreme Court. In this case, the issue of allowing inmates to get married was another topic that was decided upon. The Court ruled against the prison officials by saying that the right to marriage is a fundamental right of United States citizens and it cannot be restricted for the reasons given by the prison officials. I would argue that the first amendment and specifically the right to freedom of speech is an even greater fundamental right that should be protected by the Court in its decisions regarding prisoners’ rights.
As an arm of the US government, when prison authorities create policies of censorship and restriction of access, there is no question that there is an issue regarding prisoners’ First Amendment rights. In this controversial topic, there are strong reasons both for and against the limitation on prisoners’ rights.
The most salient reason for the restriction of the rights of inmates is for security concerns. Prison officials maintain that certain allowances and materials may endanger themselves and the safety of the prison, including other inmates. On the other side, the most prominent reason against the limitation on prisoners’ rights is the belief that inmates should not be stripped of their constitutionally guaranteed rights like the First Amendment.
Although these prisoners have surely committed very serious crimes, I do not believe that this warrants having their right to freedom of speech being deprived. In the case of Beard v. Banks the Supreme Court incorrectly applied the Turner test, and in my opinion made the wrong decision in restricting these inmates to the fundamental right of freedom of speech. I take the more risk acceptant side of this argument and I believe that these inmates should have the ability to receive the messages put out by these media sources. In this case, the “lock ‘em up” mentality of the prison officials, and the complicity of the Supreme Court to this regulation, has unjustly denied the prisoners’ protected rights under the First Amendment.
1. ACLU http://www.aclu.org/prisoners-rights/restriction-rights
2. Mary C. Meixner, LOCKING THEM UP AND THROWING AWAY THEIR CONSTITUTIONAL RIGHTS: THE COURT'S DECISION IN BEARD V. BANKS DEPRIVED PRISONERS OF FIRST AMENDMENT PROTECTION, 57 DePaul L. REV. 793 (2008).
3. Beard v. Banks http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=04-1739
4. Procunier v. Martinez http://www.bc.edu/bc_org/avp/cas/comm/free_speech/procunier.html
5. Turner v. Safely http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=482&invol=78
The Supreme Court has created a pattern in recent decades of giving deference to the rights of prison officials over the prisoners. In the most recently decided case of Beard v. Banks the Supreme Court goes too far in restricting the rights of prisoners and instead deprives them of their First Amendment rights.
In the first significant decision regarding prisoners’ rights by the Supreme Court in the case of Procunier v. Martinez, the issue at hand was the censorship of inmate mail. The prison officials set up rules that banned any mail in which the officials believed the prisoners “unduly complain” or “magnify grievances.” Furthermore, the letters were also regulated on the basis of obscenity or lewdness. In this decision, the Supreme Court ruled with the prisoners and declared that censorship of inmate mail is unconstitutional. While this decision appropriately ruled in favor of the prisoners’ rights, it would be the last time before the Supreme Court began its tradition of deference to prison officials rather than prisoners. It would in fact be overturned by a later Supreme Court decision.
In 1979, the case of Bell v. Wolfish was brought before by the Supreme Court. The Court ruled in favor of prison officials by permitting the regulation of mailed hardcover books to inmates due to security threats. This case started a legal precedent that allowed for prisoners constitutional rights to be limited based on the “legitimate goals and policies” of prison authorities, including prison safety and order. This case also set the precedent of the Court ruling in favor of prison officials, excepting cases in which the regulation was too exaggerated for the needs of the prison.
The next significant case on prisoners’ rights decided by the Supreme Court in which the Court deferred to the prison officials is Turner v. Safely in 1987. The case regarded the issue of correspondence between inmates held in separate prisons, which prison authorities had banned. In this case, the Court clarified the jurisdiction set in Bell v. Wolfish and stated that, “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” The Turner test created a four-point test of reasonableness to be applied to more prisoners’ rights cases. These four points included the following requirements:
(1) “There must be a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it.”
(2) “Whether there are alternative means of exercising the right that remain open to prison inmates.”
(3) The Court should give deference to the prison officials when ruling in favor of prisoners’ rights in cases where ruling in favor of the prisoners could have a negative ripple effect on the inmates and the prison employees.
(4) “Easy alternatives” that accommodate prisoners’ rights “ may be evidence that the regulation is not reasonable, but is an ‘exaggerated response’ to the prison concerns.”
In the most recent 2006 case of Beard v. Banks, the Supreme Court ruled with the prison officials again by declaring the constitutionality of regulating Level 2 inmates’ access to newspapers, magazines, and personal photographs. Level 2 inmates are the highest security level prisoners, deemed the “most incorrigible, recalcitrant inmates.” In addition to a large number of highly strict limitations placed on the prisoners, this ruling allowed prison officials to deny these inmates access to any newspapers, magazines, and personal photographs.
In the Beard v. Banks case, the Level 2 inmates are put in solitary confinement for twenty-three hours a day, they are denied visitation rights of family and friends, and they are kept in this confinement for a bare minimum of ninety days. Most do not graduate into the less restrictive Level 1 status. I believe that the right to access print materials should not be denied by the federal government for these inmates.
The Supreme Court incorrectly applied the Turner test to the Beard v. Banks case. Regarding the second point, there are not alternative ways for the inmates to access this information. These inmates do have access to religious and legal periodicals, as well as one library book. But they are denied access to the vast amount of information and news available in secular, non-legal newspapers and magazines. For this reason there are no alternative methods for the inmates to have access to these sources and information.
In addition to the ruling on prisoner correspondence in the Turner case, there was a second decision by the Supreme Court. In this case, the issue of allowing inmates to get married was another topic that was decided upon. The Court ruled against the prison officials by saying that the right to marriage is a fundamental right of United States citizens and it cannot be restricted for the reasons given by the prison officials. I would argue that the first amendment and specifically the right to freedom of speech is an even greater fundamental right that should be protected by the Court in its decisions regarding prisoners’ rights.
As an arm of the US government, when prison authorities create policies of censorship and restriction of access, there is no question that there is an issue regarding prisoners’ First Amendment rights. In this controversial topic, there are strong reasons both for and against the limitation on prisoners’ rights.
The most salient reason for the restriction of the rights of inmates is for security concerns. Prison officials maintain that certain allowances and materials may endanger themselves and the safety of the prison, including other inmates. On the other side, the most prominent reason against the limitation on prisoners’ rights is the belief that inmates should not be stripped of their constitutionally guaranteed rights like the First Amendment.
Although these prisoners have surely committed very serious crimes, I do not believe that this warrants having their right to freedom of speech being deprived. In the case of Beard v. Banks the Supreme Court incorrectly applied the Turner test, and in my opinion made the wrong decision in restricting these inmates to the fundamental right of freedom of speech. I take the more risk acceptant side of this argument and I believe that these inmates should have the ability to receive the messages put out by these media sources. In this case, the “lock ‘em up” mentality of the prison officials, and the complicity of the Supreme Court to this regulation, has unjustly denied the prisoners’ protected rights under the First Amendment.
1. ACLU http://www.aclu.org/prisoners-rights/restriction-rights
2. Mary C. Meixner, LOCKING THEM UP AND THROWING AWAY THEIR CONSTITUTIONAL RIGHTS: THE COURT'S DECISION IN BEARD V. BANKS DEPRIVED PRISONERS OF FIRST AMENDMENT PROTECTION, 57 DePaul L. REV. 793 (2008).
3. Beard v. Banks http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=04-1739
4. Procunier v. Martinez http://www.bc.edu/bc_org/avp/cas/comm/free_speech/procunier.html
5. Turner v. Safely http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=482&invol=78
Wednesday, March 17, 2010
Public Release of Crime Scene Photos Depicting Mutilation
On January 7, 2008, investigators searching in the mountains of northern Georgia found the nude and decapitated body of 24-year-old Meredith Emerson. Emerson had disappeared six days earlier, and her body was found after admitted killer Gary Michael Hilton bargained for a life sentence in exchange for leading investigators to her body.
Two years following the discovery of her body, a writer for Hustler magazine requested copies of the crime scene photos depicting Emerson’s naked and dismembered body. Emerson’s family in turn sought a temporary restraining order on the photos, which was granted by DeKalb Superior Court Judge Daniel Coursey on March 10, 2010. This order prohibited the Georgia Bureau of Investigation from releasing “any and all photographs, visual images or depictions of Meredith Emerson which show Emerson in an unclothed or dismembered state.”
The same day this order was granted by Coursey, the Georgia House Governmental Affairs Committee unanimously passed "The Meredith Emerson Memorial Privacy Act.” This legislation prohibits the public release of photographs and video recordings “which depict or describe a deceased person in a state of dismemberment, decapitation, or similar mutilation including, without limitation, where the deceased person's genitalia are exposed.”
The question at stake in this case is over the privacy right of the victim and her family, and the public’s right to access these photographs. The passage of this new legislation has sparked debate among first amendment lawyers and free speech advocates over the effect that this kind of ban could have.
The reporter for Hustler, Fred Rosen, is a journalist, historian, and true-crime book author. In defense of his request for the crime scene photographs, Posen states, “the reason I'm looking for [the crime scene photos] is to find the best obtainable version of the truth." While Rosen justifies his need for access to these photos, he does not explain why he must have his own copies of the photos in his possession. The bill passed allows credentialed journalists, lawyers, and law enforcement agents access to these photographs at the Georgia Bureau of Investigation Headquarters, even though they are not allowed to produce copies of the photos.
Furthermore, Posen does not address how these photos would be used in the pornographic magazine Hustler. It is not unreasonable to presume that the crime scene photos of Meredith Emerson’s mutilated body would be exploited by Hustler to conflate sexuality and brutality against women.
First amendment lawyers have expressed concern that this ban “could have a chilling effect on open records requests,” according to the CNN article. The Freedom of Information Act allows for exceptions that permit certain documents to be exempt from public release. These exceptions include autopsy photos, medical records, personnel records, and other documents of a private nature. This new legislation is an attempt to add crime scene photos as another exception to the Freedom of Information Act. Free speech advocates argue that further restrictions limiting the release of information to the public is a step backwards and is not in the public’s interest.
On the other side of this issue, the Emerson family argues that these photographs should not be released to the public to respect the privacy and integrity of the Meredith and of future victims. Victims of these crimes do not give their consent for the crime scene photos to be released, and the family thus argues that the victim’s right to privacy be respected.
In response to this argument, free speech advocates have argued that there should not be a censor on these photos due to their awfulness, as photos equally terrible, such as pictures of soldiers and victims of war are openly displayed to the public. Furthermore, people photographed suffering from problems like starvation or national disasters do not give their consent for photographs. Their choices may not be respected, and advocates say that there should be no reason for the crime scene photos to be special exceptions.
In my opinion, the harm that the release of these photos would cause seems to outweigh the benefits. To the family and friends of the victim, their public release would cause extreme pain and unnecessary stress. I feel as if there is not a strong enough public interest in this case to warrant the release of these photographs.
I understand the danger in suppressing information to the press, and as a general rule all information should be made available to the press. However, exceptions exist for a reason, and in this particular case I believe that the harm to the families outweighs the interest of the public in regards to the release of these photographs.
1. http://chronicle.augusta.com/news/metro/2010-03-08/hustler-wants-crime-scene-photos-
slain-hiker
2. http://www.cnn.com/2010/CRIME/03/10/meredith.emerson.photos/index.html
3. http://www.legis.ga.gov/legis/2009_10/search/hb1322.htm
4. http://www.righttohikeinc.com/
5. http://www.rcfp.org/newsitems/index.php?i=11315
6. http://en.wikipedia.org/wiki/Freedom_of_Information_Act_(United_States)#Scope
Two years following the discovery of her body, a writer for Hustler magazine requested copies of the crime scene photos depicting Emerson’s naked and dismembered body. Emerson’s family in turn sought a temporary restraining order on the photos, which was granted by DeKalb Superior Court Judge Daniel Coursey on March 10, 2010. This order prohibited the Georgia Bureau of Investigation from releasing “any and all photographs, visual images or depictions of Meredith Emerson which show Emerson in an unclothed or dismembered state.”
The same day this order was granted by Coursey, the Georgia House Governmental Affairs Committee unanimously passed "The Meredith Emerson Memorial Privacy Act.” This legislation prohibits the public release of photographs and video recordings “which depict or describe a deceased person in a state of dismemberment, decapitation, or similar mutilation including, without limitation, where the deceased person's genitalia are exposed.”
The question at stake in this case is over the privacy right of the victim and her family, and the public’s right to access these photographs. The passage of this new legislation has sparked debate among first amendment lawyers and free speech advocates over the effect that this kind of ban could have.
The reporter for Hustler, Fred Rosen, is a journalist, historian, and true-crime book author. In defense of his request for the crime scene photographs, Posen states, “the reason I'm looking for [the crime scene photos] is to find the best obtainable version of the truth." While Rosen justifies his need for access to these photos, he does not explain why he must have his own copies of the photos in his possession. The bill passed allows credentialed journalists, lawyers, and law enforcement agents access to these photographs at the Georgia Bureau of Investigation Headquarters, even though they are not allowed to produce copies of the photos.
Furthermore, Posen does not address how these photos would be used in the pornographic magazine Hustler. It is not unreasonable to presume that the crime scene photos of Meredith Emerson’s mutilated body would be exploited by Hustler to conflate sexuality and brutality against women.
First amendment lawyers have expressed concern that this ban “could have a chilling effect on open records requests,” according to the CNN article. The Freedom of Information Act allows for exceptions that permit certain documents to be exempt from public release. These exceptions include autopsy photos, medical records, personnel records, and other documents of a private nature. This new legislation is an attempt to add crime scene photos as another exception to the Freedom of Information Act. Free speech advocates argue that further restrictions limiting the release of information to the public is a step backwards and is not in the public’s interest.
On the other side of this issue, the Emerson family argues that these photographs should not be released to the public to respect the privacy and integrity of the Meredith and of future victims. Victims of these crimes do not give their consent for the crime scene photos to be released, and the family thus argues that the victim’s right to privacy be respected.
In response to this argument, free speech advocates have argued that there should not be a censor on these photos due to their awfulness, as photos equally terrible, such as pictures of soldiers and victims of war are openly displayed to the public. Furthermore, people photographed suffering from problems like starvation or national disasters do not give their consent for photographs. Their choices may not be respected, and advocates say that there should be no reason for the crime scene photos to be special exceptions.
In my opinion, the harm that the release of these photos would cause seems to outweigh the benefits. To the family and friends of the victim, their public release would cause extreme pain and unnecessary stress. I feel as if there is not a strong enough public interest in this case to warrant the release of these photographs.
I understand the danger in suppressing information to the press, and as a general rule all information should be made available to the press. However, exceptions exist for a reason, and in this particular case I believe that the harm to the families outweighs the interest of the public in regards to the release of these photographs.
1. http://chronicle.augusta.com/news/metro/2010-03-08/hustler-wants-crime-scene-photos-
slain-hiker
2. http://www.cnn.com/2010/CRIME/03/10/meredith.emerson.photos/index.html
3. http://www.legis.ga.gov/legis/2009_10/search/hb1322.htm
4. http://www.righttohikeinc.com/
5. http://www.rcfp.org/newsitems/index.php?i=11315
6. http://en.wikipedia.org/wiki/Freedom_of_Information_Act_(United_States)#Scope
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