On Tuesday, April 28, 2015, Chief Judge for the federal court of the Middle District of Pennsylvania, Christopher Connor, ruled in favor of plaintiffs in the consolidated cases of Abu-Jamal v. Kane and Prison Legal News v. Kane and held the recently enacted Silencing Act unconstitutional.

The court held:

“The court concludes that the challenged statute betrays several constitutional requirements; the enactment is unlawfully purposed, vaguely executed, and patently overbroad in scope. However well-intentioned its legislative efforts, the General Assembly fell woefully short of the mark. The result is a law that is manifestly unconstitutional, both facially and as applied to plaintiffs. Thus, the court is compelled to grant plaintiffs’ requests for declaratory relief, declare the Revictimization Relief Act, 18 PA. CONS.STAT. § 11.1304, to be violative of the First and Fifth Amendments to the United States Constitution, and permanently enjoin its enforcement.”

The so-called Revictimization Relief Act was passed in response to Abolitionist Law Center client and imprisoned intellectual and journalist Mumia Abu-Jamal’s commencement address to Goddard College students in October 2014. Abu-Jamal’s commencement address led to yet another campaign of repression and censorship by the Fraternal Order of Police and the Pennsylvania political establishment designed to silence Mumia and any other former or current prisoner who’s speech roused the ire of prosecutors or crime victims.

In a crushing victory, the court found that all of the plaintiffs’ primary arguments against the constitutionality of the statute had merit: “Plaintiffs assert three principal challenges: first, that the Act is a content-based regulation of speech unjustified by compelling government interests; second, that it is impermissibly vague; and third, that it is substantially overbroad, all in violation of the United States Constitution. Each challenge is meritorious.”

Finding the statute “unlawfully purposed,” the court chastised the legislature for passing a law that was “manifestly unconstitutional” on account of the U.S. Supreme Court holding more than 20 years ago that restricting free expression for the purpose of protecting crime victims from mental anguish is unconstitutional:

“In the Revictimization Act, the Commonwealth articulates that which the state of New York in Simon & Schuster did not—an explicit intent to enjoin expression that causes mental anguish in crime victims. Compare 18 PA. CONS.STAT. § 11.1304 (“Revictimization Relief Act” (emphasis added)), with Simon & Schuster, 502 U.S. at 118 (“The [state] disclaims, as it must, any interest in suppressing descriptions of crime out of solicitude for the sensibilities of readers.”). Simon & Schuster, in conjunction with decades of Supreme Court precedent, seals the Act’s fate. Even the noblest governmental intentions cannot cure impermissible legislation when the United States Supreme Court has explicitly foreclosed the legislation’s purpose. See Simon & Schuster, 502 U.S. at 118; see also Snyder, 131 S.Ct. at 1218 (holding that even when expression “inflict[s] great pain … we cannot react … by punishing the speaker”). Hence, the court must strike the Revictimization Relief Act for its impermissible infringement on the constitutional guarantee of free expression.”

The court observed that the law was so indefensible that the Attorney General of Pennsylvania’s counsel was forced to distort the legislative intent of the statute in a futile effort to argue that the law conformed with constitutional precedent:

“During oral argument, the Attorney General conceded that her office is uncertain whether even Maureen Faulkner—the victim- catalyst for the legislation—could successfully obtain relief under the Act. (Tr. 35:25 (“They could certainly attempt to … [but] I don’t believe that they could necessarily secure it.”)). Such equivocality reflects the impossibility of defending this law: the weight of precedent has forced the Attorney General to contort the legislature’s vision so as to render it unrecognizable from its original intent. (See, e.g., id.)”

The opinion concluded with First Amendment truisms as well as an acknowledgment that the legal and appropriate way to counter speech one disagrees with is by speech, not repressive legislation:

“The First Amendment’s guarantee of free speech extends to convicted felons whose expressive conduct is ipso facto controversial or offensive. 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. Indeed, the “high purpose” of the foremost amendment is perhaps best displayed through its protection of speech that some find reprehensible. Johnson, 491 U.S. at 408–09 (“[Free speech] may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.” (quoting Terminiello v. Chicago, 337 U.S. 1, 4 (1949))). The United States Constitution precludes any state enactment that effectively limits expressive conduct when the essential injury is personal affront. 13 See Coleman, 335 F.Supp. at 589.
The victims who have suffered at the hands of certain plaintiffs are not without remedies. Victims are free to protest inmate speech through demonstrations, picketing, or public debate. They may publish responsive leaflets and editorials. As Maureen Faulkner did, victims may air their grievances to the press. Indeed, the victims’ discourse may include expressive conduct that plaintiffs themselves find objectionable. 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 may find offensive.”