A Victory for Prisoners' First Amendment Rights

[The following article begins with excerpts from an article by a California prisoner, which gives a detailed historical account of relevant case law, and was originally published by San Francisco BayView. Also available on our website is the full court opinion for In Re Crawford.]

Greetings. The struggle is long and arduous, and sometimes we do etch out significant victories, as in the case of our brotha in In re Crawford, 206 Cal.App.4th 1259 (2012).

It’s important to emphasize that this victory is a significant step in reaffirming that prisoners are entitled to a measure of First Amendment protection that cannot be ignored simply because the state dislikes the spiel. New Afrikan prisoners have a right to identify with their birthright if they so choose, as does anyone else for that matter – Black, White or Brown. …

[California prison officials] have gone so far as to boldly proclaim that the term New Afrikan was created by the Black Guerilla Family (BGF) and that those who identify as or use the term are declaring their allegiance to the BGF, which has been declared a prison gang. They have sought to suppress its usage by validating (i.e. designating as a gang member or associate) anyone who uses the term or who dares mention the name George Jackson. …

Our brotha’s case In Re Crawford was filed June 4, 2012, and certified for publication June 13. In a brilliant piece of judicial reasoning, a panel of justices in a 3-0 decision finally reaffirmed a prisoner’s First Amendment right to free speech and expression, stating:

Freedom of speech is first among the rights which form the foundation of our free society. “The First Amendment embodies our choice as a nation that, when it comes to such speech, the guiding principle is freedom – the unfettered interchange of ideas – not whatever the State may view as fair.” (Arizona Free Enterprise Club v. Bennett (2011) 131 S.Ct. 2806). “The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people … All ideas having even the slightest redeeming social importance – unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion – have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests.” (Roth v. United States (1957) 354 U.S. 476, 484.”

The programs embodied in the New Afrikan Collective Think Tank, New Afrikan Institute of Criminology 101, the George Jackson University and the New Afrikan ideology itself are inclusive programs emphasizing a solution-based approach to carnage in the poverty stricken slums from where many of us come. The CDCR Prison Intelligence Units (PIU) have sought to suppress these initiatives simply because they do not like the message. They have marched into court after court with one standard line: New Afrikan means BGF and these initiatives are promoting the BGF. In re Crawford continues,

As recently noted by Chief Justice Roberts, “[t]he First Amendment reflects ‘a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.’ [Citation.] That is because ‘speech concerning public affairs is more than self-expression; it is the essence of self-government.’ [Citation.] … Speech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.” (Snyder v. Phelps (2011) 562 U.S. , [131 S.Ct. 1207, 1215].

In re Crawford is a very important ruling because the justices said these protections apply to prisoners as well. …

George Jackson cannot be removed from the fabric of the people’s struggles in this society any more than Malcolm X can or Medger Evers or Dr. Martin Luther King, Jr. or Harriett Tubman or Sojourner Truth or Ida B. Wells, Rosa Parks or Frederick Douglass, or the countless others who’ve fought and struggled for a brighter future for generations to come.

What CDCR and its PIU are trying to do is make a run around the First Amendment by shielding its suppression activity under the guise of preventing gang activity, just as it’s done historically, which gave rise to Procunier v. Martinez (1974) 416 U.S. 396, 413.

In In re Crawford, CDCR argued for an exception to the Martinez test for validated gang members. The court declined to make such an exception, holding: “Gang related correspondence is not within the exception to the First Amendment test for censorship of outgoing inmate mail.”

The fact that they even argued for such an exception shows their mindset. Their intentions are to suppress that which they believe to be repugnant, offensive and that which they believe a prisoner ought not be thinking! In their minds we have no right to think or possess ideas, concepts or vision beyond that which they believe we should possess.

Until In Re Crawford, these highly educated judges were sanctioning this nonsense with twisted, perverted rulings permitting a newspaper article or magazine layout or book to be used against a prisoner for validation purposes [to put them in torture cells - editor]. They issued twisted rulings like those in Ellis v. Cambra or Hawkins v. Russell and In Re Furnace, where the petitioner was told he has no right to his thoughts and the First Amendment only protects a prisoner’s right to file a 602 [grievance form].

These kinds of fallacious rulings ought to be publicized so as to show the skillful manipulation of the law by those sworn to uphold it. In Re Crawford reestablishes that First Amendment protections apply to prisoners and that we too enjoy a measure of free speech and expression. We ought not be punished with fabricated notions of gang activity for merely a thought!

However, if we are to continue to meet with success, we need our professors, historians and intellectuals to step up and provide declarations that we can use in our litigation, defending our right to read, write and study all aspects of a people’s history, like Professor James T. Campbell did in In Re Crawford. This is the only way a prisoner can challenge the opinion of a prison official. …

Much work remains to be done, like stopping the bogus validations based on legitimate First Amendment material. We know that many individuals are falsely validated simply for reading George’s books or a newspaper article, for observing Black August or for simply trying to get in touch with one’s cultural identity.

These legitimate expressions should carry no penalty at all. You’re not doing anything wrong, and a lot of brothas who’ve been validated simply shouldn’t be. Nor should folks be frightened away from reading or studying any aspect of history simply because the state doesn’t like its content. Judges who issue fallacious opinions permitting prisoners to be punished for reading a George Jackson book or researching your history should be exposed.

Literary content and cultural and historical materials are not the activities of a gang; they are political and social activities that we have a right to express, according to the unanimous decision in In re Crawford.

The First Amendment campaign continues to forge ahead, although we still don’t have a lawyer. The campaign still exists, and we anticipate even greater successes in the future. … We’ve cracked one layer of a thick wall. Now all prisoners should take advantage of this brilliant ruling and reassert your rights to study your heritage, Black, White or Brown.

MIM(Prisons) adds: The issue in this case was one that we have experienced first-hand as well. For example, in 2008 a letter from a comrade in California was censored before it could reach us because it discussed the New Afrikan Collective, which allegedly was a code word for the Black Guerrilla Family.(1) But in reality, the New Afrikan Collective was a new political organization in New York focused on bettering the conditions of New Afrikans as a nation, with no connections to any sort of criminal activity.

The first thing that strikes us about this case is a quote from the proceedings cited by the author above, “Gang related correspondence is not within the exception to the First Amendment test for censorship of outgoing inmate mail.” Unfortunately this is not part of the final opinion explaining the decision of the court, and it is specific to outgoing mail from the prison. Nonetheless, it would logically follow from this statement that anything that can be connected to a gang is not automatically dangerous or illegal.

“Gang members” have long been the boogeyman of post-integration white Amerika. The pigs use “gang member” as a codeword to excuse the abuse and denial of constitutional rights to oppressed nation youth, particularly New Afrikan men. And this has been institutionalized in more recent years with “gang enhancements,” “gang injunctions” and “security threat group” labels that punish people for belonging to lumpen organizations. Often our mail is censored because it mentions the name of a lumpen organization in the context of a peace initiative or organizing for prisoners’ humyn rights. While criminal activity is deemed deserving more punishment with the gang label, non-criminal activity is deemed criminal as well.

As the author discusses, it becomes a question of controlling ideas to the extreme, where certain words are not permitted to be spoken or written and certain symbols and colors cannot be displayed. So the quote from the court above is just a baby step in the direction of applying the First Amendment rights of association and expression to oppressed nation youth. Those who are legally inclined should consider how this issue can be pushed further in future battles. Not only is such work important in restoring rights to people, but we can create space for these organizations to build in more positive directions.

Part of this criminalization of a specific sector of society is the use of self-created and perpetuated so-called experts on gang intelligence. Most of our readers are all too familiar with this farce of a profession that is acutely exposed by the court’s opinion in this case. The final court opinion calls out CO J. Silveira for claiming that the plaintiff’s letter contained an intricate code when he could provide no evidence that this was true. They also call him out for using his “training and experience” as the basis for all his arguments.

The warden’s argument is flawed for two reasons. First, the argument is based solely on the unsupported assertions and speculative conclusions in Silveira’s declaration. The declaration is incompetent as evidence because it contains no factual allegations supporting those assertions and conclusions. Second, even if the declaration could properly be considered, it does not establish that the letter posed a threat to prison security.

As great as this is, as the author of the article above points out, they usually get away with such baseless claims. More well thought out lawsuits like this are needed, because more favorable case law is needed. But neither alone represents any real victory in a system that exists to maintain the existing social hierarchy. These are just pieces of a long, patient struggle that has been ongoing for generations. The people must exercise the rights won here to make them real. We must popularize and contextualize the nature of this struggle.