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Wednesday, July 8, 2009

Some Case Law for Newland's First Amendment Sentencing Appeal?

Messrs. Powers, Woster, Fleming, and I have all expressed misgivings over Judge John Delaney's sentencing of Bob Newland to, among other things, one year of public silence on the issue of marijuana legalization. I've been wondering what precedents might inform such a deprivation of a felon of his First Amendment rights.

In today's pro bono work for the Free Bob committee, I find some possibly relevant case law. Note that where the cases deal specifically with inmates, I would argue that non-incarcerated individuals on probation (as Newland will be for 88% of his public-silence sentence) deserve at least as much protection of their First Amendment rights, if not more.
  • Wolfel v. Bates, 707 F2d 932: Prisoners retain their First Amendment right to petition for redress of grievances . Might this mean that Newland can still participate in a petition drive to overturn anti-marijuana laws?
  • Pell v. Procunier, 417 U.S. 817 (1974): Restrictions on prison inmate First Amendment rights should deter crime, help rehabilitate the inmate, and/or maintain security within the corrections facility. I continue to wonder how banning public statements on a given law serves any of those purposes. (I read, however, that Pell v. Procunier "has been substantially eroded as a precedent.")
  • Procunier v. Martinez, 416 U.S. 396 (1974): Free speech restrictions imposed on prisoners must "further one or more of the important and substantial governmental interests of security, order, and the rehabilitation of inmates," and must "be no greater than is necessary to further the legitimate governmental interest involved." Again, Newland's advocacy for marijuana legalization is a call for changes in the law, not violent overthrow of the government or even the prison warden. Forcing Newland's silence does not sound like a path to rehabilitation. Permitting a citizen to participate in legitimate political activity might actually be a good safety valve to prevent the citizen from seeking to advance his goals through covert illegal activity.
  • Johnson v. Raemisch (2008): Inmates have a right to read and, concomitantly, publish dissent that advocates political action by citizens outside prison walls. Judge Crabb cites Truman: "Once a government is committed to the principle of silencing the voice of opposition, it has only one way to go, and that is down the path of increasingly repressive measures." [Harry S. Truman, Message to Congress, Aug. 8, 1950]
  • Murphy v. Missouri Dep't of Corrections 814 F2d 1252 (1987): The U.S. 8th Circuit Court of Appeals found unconstitutional a prison's blanket ban on Aryan Nation publications. Even though Aryan Nation publications sometimes advocate violent action or express racially inflammatory views, the second criterion of Procunier v. Martinez requires restrictions be no greater than necessary. Banning Aryan Nation publications completely is greater than necessary. Arguably, the same standard applies to Bob Newland's speech. If he advocates legalizing marijuana through violent revolution or incites a prison riot to get some dope, then sure, the state has an interest in silencing him. But as far as I know, Newland's political advocacy has never crossed over into such dangerous territory.
Again, I'm no big advocate of smoking dope. But I share President Truman's commitment to protecting the voice of opposition. Bob Newland's transportation of a controlled substance is a crime, but his political advocacy has never been a crime, and it never should be.

Update 12:00 CDT: A real South Dakota lawyer weighs in... and comes to a similar conclusion. Mr. Epp understands the judge's logic and acknowledges the bench's broad discretion, but notes that defendants still have the right to speak out. More opinions are welcome!

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