Judge weighs in favor of First Amendment by striking down ‘Silencing Act’

Photo: Pennsylvania Gov. Tom Corbett signs the Re-victimization Relief Act as State Rep. Mike Vereb looks on Tuesday Oct. 21

When Pennsylvania lawmakers earlier this year passed a statute that threatened the relationship between journalists and sources who had been convicted of a violent crime, a coalition of media outlets, journalists, inmates, and advocacy groups fought back. This week, a federal judge ruled in their favor, striking down the law in a decision that resounds as a passionate homage to the First Amendment.

“The right to free expression is the shared right to empower and uplift, and to criticize and condemn; to call to action, and to beg restraint; to debate with rancor, and to accede with reticence; to advocate offensively, and to lobby politely,” wrote Christopher Connor, chief judge of the federal court for Pennsylvania’s Middle District, in an April 28 ruling. He faulted the law for being unconstitutionally vague and over-broad, and for restricting free expression based on content: “The First Amendment does not evanesce at any gate, and its enduring guarantee of freedom of speech subsumes the right to expressive conduct that some might find offensive.”

The Revictimization Relief Act—dubbed the “Silencing Act” by critics—was introduced by state Rep. Mike Vereb on Oct. 2, 2014, after the prison activist Mumia Abu-Jamal, who is incarcerated for killing a Philadelphia police officer, was invited to give a recorded commencement address to a small Vermont college. Abu-Jamal is a controversial figure, and the news that he was getting a public platform to speak sparked a backlash. The law authorized victims of personal injury crimes to bring civil actions, and prosecutors to seek injunctions, in order to block or penalize conduct that “perpetuates the continuing effect of [a] crime on the victim” and “causes “a temporary or permanent state of mental anguish” It passed within 15 days.

In addition to the direct effect on inmates and ex-offenders, for reporters, the law amounted to “a standing gag order on an entire population of potential sources,” journalist Christopher Moraff wrote in January. The statute’s broad language also raised questions about whether publishers could themselves be liable. So the legal challenge came quickly: Philadelphia’s City Paper, Prison Legal News, Solitary Watch and individual reporters Daniel Denvir and Moraff were among the plaintiffs in a lawsuit backed by the ACLU of Pennsylvania and the law firm of Pepper Hamilton. It merged with a separate suit filed by Abu-Jamal and prison activists, including Prison Radio and the Human Rights Coalition, both of which publish work by people in prison.

A bench trial was held on March 30. Pennsylvania Attorney General Kathleen Kane defended the law as not restricting expression, but rather “behavior” that taunted and harassed victims. Because the law is about conduct rather than speech, she argued, it requires a lesser standard of constitutional scrutiny.

But the judge concluded that since its passage, the law “has had an undeniable chilling effect on the speech of prisoners and on the behavior of those individuals and entities who rely on that speech,” citing, among other things, a decision by Prison Legal News to withhold publication of an article by Abu-Jamal. “Indeed,” the judge wrote, “throughout its brief legislative gestation, the law was championed primarily as a device for suppressing offender speech.”

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Eli Segal, a Pepper Hamilton associate, said the ruling “leaves journalists in Pennsylvania free to investigate and report on criminal justice issues of great public importance—wrongful convictions and prison conditions to name just a few—without being afraid that their offender sources will be chilled from speaking with them”—or that they themselves will be enjoined or dragged into court for publishing what their sources say.

Denvir, an occasional CJR contributor, said he was relieved the law was struck down “so emphatically and articulately.”

“It was a frontal assault on the free speech rights of journalists,” he said, “most straightforwardly because it allowed judges to basically block an inmate or ex-offender from speaking to us as reporters, shutting down critical sources that we need to do the absolutely necessary reporting on the American criminal justice system.”

“This was a big victory for free speech in Pennsylvania, but at the same time, I think it’s a big victory for freedom of the press, which was a secondary victim of the law and is why I got involved,” said Moraff. He is at work on a story about a juvenile lifer in Pennsylvania. As part of an ongoing dialogue they “certainly discussed the potential for this law to complicate” the reporting, he said.

Moraff added that Judge Connor, an appointee of President George W. Bush, “is certainly not a bleeding-heart liberal… That removes any political implications of this ruling…. This was not an ideological ruling in any shape or form.”

Still, this battle may not be over: Rep. Vereb told The Associated Press that he would rewrite the act if the attorney general did not appeal the verdict. “This is the first ring of the bell in this fight,” he said.

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Anna Clark is CJR’s correspondent for Michigan, Wisconsin, Ohio, and Pennsylvania. A 2011 Fulbright fellow, Clark has written for The New York Times, The American Prospect, and Grantland. She can be found online at www.annaclark.net and on Twitter @annaleighclark. She lives in Detroit.