JDI IN THE NEWS - 2002

Law Barring Online Information About Prisoners Enjoined, The Reporters Committee for Freedom of the Press, December 18, 2002.

  • Although prisoners do not have access to the Internet, the law would prevent communication between advocacy groups and the prisoners they sought to assist.

Under a recent state law, prisoner and civil rights groups had a choice: They could either delete information they published on their Web sites about Arizona prisoners or risk punishment of those prisoners they are trying to help.

But for now, this is not a choice the groups will have to make.

Recognizing that this law implicated First Amendment rights, federal judge Earl Carroll temporarily enjoined enforcement of the law, which punishes prisoners if they write to an Internet site provider, if any person accesses a Web site at a prisoner's request, or if prisoners have access to the Internet.

Carroll's Dec. 16 order came after the American Civil Liberties Union, on behalf of the Canadian Coalition Against the Death Penalty, Stop Prisoner Rape, and Citizens United for Alternatives to the Death Penalty, filed suit to declare the law unconstitutional and moved to stop enforcement of the law.

The law was enacted in January 2000 to maintain prison security, but plaintiffs argue that it goes too far.

Arizona prisoners do not have access to the Internet; however, by writing to an advocacy group that maintains a Web site, inmates are able to have information about themselves or their case published online.

In their motion to enjoin enforcement of the new law, the plaintiffs argued that the law violated the First Amendment because prisoners are punished when their names are mentioned on a Web site, even if the prisoner was not responsible for the material.

The law also violates prisoners' rights because it prohibits them from writing to advocacy groups about their innocence or sexual assault while in prison, and could be used to punish prisoners when a Web service provider publishes an account of their case that differs from that offered by the Arizona Department of Corrections, they argued.

In addition, plaintiffs argued that the law burdens the speech of Internet service providers because they must regulate the circumstances under which free persons can access their Web sites to ensure that no one is accessing the Web site at the request of a prisoner.

As applied, the law "will inhibit communication between plaintiffs and the very population they wish to reach," argued attorneys for the ACLU. "With no audience, and severed from the people for whom they advocate, plaintiffs' political speech is significantly chilled."

The court found that there is a strong likelihood that the restrictions are "not rationally related to legitimate penological objections" and ordered the Arizona Department of Corrections not to enforce the law.

The Department of Corrections argued that the law was necessary to prevent crime victims from encountering information about prisoners on the Internet that would cause them further pain.

However, "the fact that someone is offended by speech does not give that person a veto on the speech," said Alice Bendheim, co-counsel for the ACLU.

The court also rejected the department's argument that the law is necessary to prevent fraud by prisoners or inappropriate contact with the public since these concerns are already addressed by existing department policies and criminal statutes.

The temporary injunction will remain in effect until the court has a full hearing on the issue.

According to the ACLU, Arizona is the only state in the country to have enacted a statute that imposes such severe restrictions on the First Amendment rights of inmates and non-inmates.

(Canadian Coalition Against the Death Penalty v. Stewart: Counsel: David Fathi, ACLU National Prison Project, Washington, DC; Ann Beeson, ACLU Technology & Liberty Program, New York, NY; Pamela K. Sutherland, Arizona Civil Liberties Foundation, Phoenix, Ariz.; Alice L. Bendheim, Alice L. Bendheim P.C., Phoenix, Ariz.)