In 2014 Goddard College selected Mumia Abu-Jamal, a former Black Panther, as a commencement speaker. He gave the speech via recorded playback, since he was in jail (and remains there today).
In 1982, Jamal was convicted of the murder of Philadelphia police officer Daniel Faulkner. Some say that his trial was unfair, tainted by racism and a lack of impartiality. Others say that he is a cold blooded murderer who is yet to face the justice he deserves.
The case is one of the most controversial in current existence. In fact, Debo P. Adegbile represented Abu-Jamal when he worked for the NAACP, and helped to overturn Abu-Jamal’s death sentence. Adegbile was Obama’s nominee to head up the Justice Department’s Civil Rights Division, and that nomination was derailed entirely because of Adegbile’s prior representation.
In reaction to Abu Jamal’s selection as a commencement speaker, the legislature sprang into action to pass the Pennsylvania’s Crime Victims Act §11.1304. This Act authorized civil actions against criminals who engage in “conduct which perpetuates the continuing effect of the crime on the victim” including “conduct which causes a temporary or permanent state of mental anguish.”
I get it. Someone murders your dad, you don’t want to see their damn face on TV. You want them dead. Gone. Erased.
As psychologically understandable a that is, the PA crime victims’ act ran afoul of the First Amendment, so held the Middle District of Pennsylvania in PLN v. Kane.
1) Content Based Regulation
The Act is content based as it limits speech not any other type of harassing conduct, and the legislative history does not speak to harassing phone calls or any other behavior that could affect a victim, its focus is on speech in particular. The state must have a compelling governmental purpose to impose its regulation of content particular to victim listeners, readers, or other recipients. Alvarez, 132 S.Ct at 2543. The Act discourages a distinct group from speaking for the particular purpose of restricting the content of such speech. The state’s interest is not compelling since the First Amendment demands tolerance of hurtful speech and public debate. Snyder, 131 S. Ct. at 1220.
2) Vagueness & Overbreadth
The Act does not appropriately advise, in violation of the Fifth Amendment, the public of what conduct is impacted so it may tailor its behavior accordingly. Legislation must provide notice for a person of ordinary intelligence of what is prohibited. Fox TV Stations, 132 S. Ct. 2307.
The Act is vague because it lacks definitions of “offender,” and could thus cover third party speakers, accused, or exonerated parties. It also refers to “conduct that causes a temporary or permanent state of mental anguish” but does not state how the courts are to determine whether to grant relief. The Act’s vagueness also implies that unidentified conduct could fall within the Act’s scope (e.g. harassment and stalking). The outcome also falls on plaintiff’s particular emotive responses.
The Act is overbroad as “it is unclear whether it regulates a substantial amount of protected speech.” Williams, 553 U.S. at 304. The Act covers any conduct that elicits mental anguish which could include protected speech such as or apologies. The overbreadth of “offender” also impedes an accused person’s right to profess innocence before he is proven guilty.
3) Injunctive Relief
Plaintiffs have suffered irreparable injury as the Act violates free expression and even minimal periods of First Amendment violations constitute irreparable injury. Money damages are inadequate in First Amendment cases. Act attacks the core of expression under the first amendment thus a remedy in equity is warranted. Suppressing free speech does not advance any pubic interest.
Conclusion:
First Amendment protection extends to convicted felons. The Act is in violation of the First Amendment as it is content based, overbroad, and vague in its coverage of “offenders” and speech “conduct.” Victims have other forms of redress and can use their own free speech to combat that of inmates.
Credit to Alexandria Mendoca who wrote most of this post.
