PA Middle District Strikes Down 'Mental Anguish' Speech Law

HARRISBURG, PA—Convicted murderer Mumia Abu-Jamal has been protesting his innocence since his conviction in 1982 for the murder of police officer Daniel Faulkner—and much of that protest has taken the form of books—he's had eight published while in prison—essays, guest spots on radio shows and even pre-recorded commencement speeches delivered on video at Evergreen State College, Antioch College and most recently Goddard College, Abu-Jamal's alma mater. But a lot of people—mainly supporters of Faulkner's family—have not been happy about Abu-Jamal's public face, so back in October, the Pennsylvania legislature put a bill on the desk of Gov. Tom Corbett called the "Revictimization Relief Act." The bill, which Corbett readily and very publicly signed, would allow any victim of a crime to file a civil suit against anyone—not just the perpetrator him/herself—who engages in "conduct which perpetuates the continuing effect of the crime on the victim." In other words, anyone who makes a crime victim or anyone close to a crime victim (i.e., Faulkner's wife Maureen) suffer "mental anguish" by remembering the events and consequences of the crime. It even allowed a county district attorney or even Pennsylvania's Attorney General to file such an action. As would be obvious to anyone who's studied the First Amendment, the Revictimization Relief Act is clearly unconstitutional. Making someone feel bad is not a legitimate basis for a lawsuit—and one of the folks who would know that best, of course, is Larry Flynt who, in 1983, published a parody ad for Campari Liqueur that suggested that not only had televangelist Jerry Falwell tasted the beverage, but that the tasting was "during a drunken incestuous rendezvous with his mother in an outhouse,"as the U.S.Supreme Court stated. Falwell sued both Flynt and Hustler magazine, claiming that the ad had not only libeled him but invaded his privacy, and that one of the ad's purposes was the "intentional infliction of emotional distress." Falwell won his suit at the district court level—it was heard in the Western District of Virginia, very Falwell-friendly territory—but Flynt appealed the verdict to the U.S. Supreme Court, which in 1988 threw out Falwell's win, noting in its opinion that, "The sort of robust political debate encouraged by the First Amendment is bound to produce speech that is critical of those who hold public office or those public figures who are 'intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large.'" [Citations omitted here and below] And if there's one thing Mumia Abu-Jamal has been good at since his incarceration, it's speech "critical of those who hold public office [and] public figures." Hence, he and five other inmates, as well as several local and national media outlets including Prison Legal News, sued to overturn the new law, and it's not too surprising that Middle District Chief Judge Christopher C. Conner saw the relevance of the Flynt case in agreeing to do so. "The court concludes that the challenged statute betrays several constitutional requirements," Judge Conner wrote in his opinion. "[T]he 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." The opinion refers several times to the Hustler magazine case when analyzing why making someone feel bad isn't a basis for legal action, and it also references several other adult industry-related cases, including Reno v. ACLU, the 1997 case that struck down the Communication Decency Act's anti-indecency rules; U.S. v. Playboy Entertainment Group, the "signal bleed" case; Ashcroft v. ACLU, the Child Online Protection Act (COPA) case; and even the FCC v. Fox Television case, where the network got cited for broadcasting celebrities' vulgarities at the Billboard Music Awards. "The First Amendment's guarantee of free speech extends to convicted felons whose expressive conduct is ipso facto controversial or offensive," Judge Conner concluded. "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. "The victims who have suffered at the hands of certain plaintiffs are not without remedies," he added. "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." All in all, it's an excellent free speech decision, though unless the state appeals it, its effects will be confined to the Middle District of Pennsylvania. The entire decision can be read here. An analysis of the case by Alexandria Mendoca and Marc Randazza can be found here.