JDI IN THE NEWS - 2002

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 fence.

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 prison inmates.

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 at risk.

"It's an issue that faces this country, even as we try to track down and protect the nation from terrorists," Phelps said.