Bryan Robinson, Prisoners of Advocacy, ABCNews.com, July 30, 2002.
ACLU Lawsuit Pits First Amendment Rights Against Victims' Rights and Prison Security
July 30 - Arizona prisoners hope they do not appear on various advocacy
groups' Web sites, or else they may be charged with a crime or have more
time added to their sentences.
This has prompted the American Civil Liberties Union to file a federal
lawsuit against the Arizona Department of Corrections, alleging that the
state law barring prisoners from communicating with the Web sites of
advocacy groups violates the First Amendment rights of both the inmates
and the organizations that want to tell their story. The law, adopted by
Arizona in 2000, prohibits inmates from communicating with Internet
service providers, remote computer services and Web sites, either directly
or through other parties.
"It's really a matter of both infringing on both the First Amendment
rights of the prisoners and the groups," said David Fathi of the ACLU
National Prison Project. "The Corrections Department has the right to
prevent prisoners from communicating with groups who want to put these
prisoners on their sites. Organizations have been told that any mail sent
to prisoners will be confiscated. So the First Amendment rights of both
have been heavily burdened."
However, Arizona prison officials say the issues surrounding the law
involve more than freedom of speech. The law is intended to ensure both
prison security and the rights of victims' families who feel violated by
prisoners' presence on Web sites.
Advocating Free Speech - For Everyone
Under the law, Arizona inmates and their stories are not allowed to appear
on sites outside the one maintained by the Department of Corrections. And
if officials find stories about inmates posted on outside sites, they can
threaten the prisoners with punishment, even if they never initiated
contacted with their advocates.
"It is extraordinary that Arizona prison officials believe they can tell
international groups opposed to the death penalty what they can and cannot
say online about prisoners in Arizona," said Eleanor Eisenberg, executive
director of the ACLU of Arizona. "It is equally absurd that this law
punishes prisoners even when they are not responsible for the posting of
information about them on these outside Web sites."
The lawsuit was filed on behalf of three groups - Canadian Coalition
Against the Death Penalty, Citizens United for Alternatives to the Death
Penalty and Stop Prisoner Rape. Before the prisoner-internet law was
adopted, Arizona inmates were not allowed to have direct computer access
to the outside world.
Plaintiff lawyers said the goal of the lawsuit is not give direct computer
access to prisoners and opportunities to conduct or plan crimes in
cyberspace. They are trying to preserve the right to freedom of expression
of both inmates and the prisoner rights groups.
"We're not talking about giving prisoners access to computers with a modem
or anything like that. We're talking about their communicating with groups
through letters, phone calls, or they're telling other parties to tell
their story on the Web," said Fathi. "In the state's legislative history,
it has not been an issue of prison security or maintaining prison
security. There have been people out there who have been annoyed that
prisoners have been able to get information about them out there, saying
things like, "I need a lawyer' or 'I'm innocent' or even things such as
'I'm lonely. I need someone to talk to.' This is really about nothing more
than the suppression of free speech."
Preserving Victims' Rights and Prison Security
However, Arizona prison officials there is more to the law than alleged
suppression of speech. The families of murder victims were horrified when
they learned that their loved ones' killers has postings on the Web asking
for pen pals and professing their innocence without revealing all the
details of their crimes.
Jennifer Johnson Lopez was disgusted when she found out that her father
Roy Johnson's convicted killer, Beau Greene, appeared in a picture of a
Web site searching for pen pals. Convicted killers are prohibited from
contacting their victims' families in any way, and Roy Johnson's family,
believing that Greene had violated their privacy, urged the Arizona state
legislators to pass a law prohibiting other prisoners from telling what
may be distorted versions of their stories.
"The law started when the wife and daughter of the victim of a homicide
came across a picture of her father's killer, Beau Greene, and he was
talking about how he was such a great lover of cats," said Gary Phelps,
chief of staff for the Arizona Department of Corrections. "They were very
upset, and she [the daughter] felt that her privacy had been violated."
Phelps also pointed out, despite the ACLU's arguments, that the law is
also intended to buffer prison security. He recalled a 1997 foiled prison
escape where Floyd Bennett Thornton Jr., a death row inmate, and his wife
Rebecca were killed in a hail of gunfire. Thornton had enlisted his wife's
help in his attempted escape as she fired a semiautomatic rifle at
authorities before guards killed her and her husband near the prison
Phelps said that further investigation showed that inmates were using the
Internet to solicit help in escape plans.
"As we were investigating the incident we found that some inmates were
using a very remote Internet access system to try to solicit help with
escapes, escape routes, maps," he said.
An Inmate's Alleged 'Catch-22'
Still, the ACLU argues that the Arizona law is too broad. Inmates, the
federal complaint alleges, have received notices from officials who
threaten to charge them with crimes or add time to their sentences if they
do not tell the advocacy groups to remove their names from their sites.
However, the prisoners, under the law, cannot contact the sites, leaving
them in a no-win situation.
"It's really a Catch-22," said Fathi. "The prisoners are told to contact
the sites and get their name off the sites or risk being charged with a
crime. But if they contact the sites, they are still violating the law."
New York has a similar Internet prisoner access law forbidding inmates
from receiving mail from third-party services. However, they are allowed
to send mail to these services, as long as they disclose that they are
Arizona prison officials, Phelps said, do their best to monitor
traditional correspondence between inmates and the outside world,
inspecting all their letters. However, they will do anything necessary to
monitor non-traditional correspondence, especially if prison security is
"It's an issue that faces this country, even as we try to track down and
protect the nation from terrorists," Phelps said.