Amicus Curiae Brief — Shaw v. Murphy

DEC I/ 2%ee No. 99-1613

IN THE

Supreme Court of the Hnited States

— —_-o<—_>s__—__-

ROBERT SHAW, et al..

Petitioners.

—VS.—_—

KEVIN MURPHY.

Respondent

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF OF AMICI CURIAE LEGAL AID SOCIETY OF THE

CITY OF NEW YORK. AMERICAN CIVIL LIBERTIES UNION,

HUMAN RIGHTS WATCH AND SOUTHERN CENTER FOR

HUMAN RIGHTS IN SUPPORT OF RESPONDENT

Ei IZABETH ALEXANDER DANIEL L. GREENBERG

MARGARET WINTER JOHN BosTON

Davip C. FATHI Counsel of Record

National Prison Project of the MARY LYNNE WERLWAS

American Civil Liberties Legal Aid Society

becgrnig Foundation _— Prisoners’ Rights Project

1875 € onnecticut Avenue. N.W.. 91) Church Street

wane S00 New York. New York 10007

Washington. DC 20009 (212) 577-3530

(202) 234-4830

| 7 Attorneys for Legal Aid Society

Attorneys for American Civil

Liberties Union

(Counsel continued on inside front cover)

Jane FeELLNER STEPHEN BRIGHT

Human Rights Watch LAMARA SERWER

S90 Fitth Avenue Southern Center for Human Rights

New York. New York LOOTS $3 Poplar Street, N.W.

fetch cee-O2h2 Atlanta, Georgia 30303-2122

trrorney tor Human Rrehts Watch (404) OSS-1202

\rrorneyvs for Southern Center

for Human Rights

TABLE OF CONTENTS

CK ili

INTERESTS OF AMICI CURIAE ... 0... ccc ccc cenees l

SUMMARY OF ARGUMENT ...................... 2

ees Cede ee cendcebeentececsececes 5

1. Prisons Have an Inherent and Persistent Tendency

to Suppress Criticism of Official Misconduct ..... 5

A. Prisons’ unique isolation from society

shields abuse from public view

and accountability ................... 6

B. Prisons are characterized by a pervasive

caste system that encourages abuse by

ensuring impunity for official misconduct . . 6

cS. Prisoners who complain about

official misconduct face harsh

sanctions from their jailers ............ 14

Il. The First Amendment Does Not Permit Prisons to

Punish Prisoners Solely for Criticizing Official

EN a a 17

A. The Court has never permitted prisons to

impose content or viewpoint-based

restrictions on prisoners’ speech ........ 17

—_

B. Under the standard of Turner v. Safley,

- punishment of prisoner speech about

official misconduct violates the

PIED nacddcedacbanssceces 19

1. The prison punished Respondent's

speech solely because it criticized

official misconduct ................ 20

2. Punishment on this basis is not

rationally related to a neutral,

legitimate government interest ....... 22

Ill. | The Punishment of Respondent Violated the First

Amendment Right to Engage in Speech Concerning

RE cncdvadedsdducesesssuceanadane ie 26

IV. The Punishment of Respondent Denied Due Process

Since the Rules Do Not Give Adequate Notice That

They Forbid Speech about Staff Misconduct... . . 28

CONCLUSION

iii

TABLE OF AUTHORITIES

CASES

Alnutt v. Cleary, 27 F. Supp. 2d 395 (W.D.N.Y. 1998)..... 16

Arkansas Wriiers' Project v. Ragland, 481 U.S. 221

CIT cicscctcsnicncacnnimassiinasininbianemsinsucasmsmbeniinanasuninnemnen 5

Bell v. Wolfish, 441 U.S. 520 (1979) .......cccccccecsceeeeeeeeeeeees 18

Blair v. City of Pomona, 223 F.3d 1074 (9th Cir. 2000) ..... i)

Brandon v. Allen, 645 F. Supp. 1261

ee, On 9.10, 11

Castle v. Clymer,15 F. Supp. 2d 640 (E.D. Pa. 1998) ....... 16

Chambers v. Baltimore & Ohio R., 207 U.S..142 (1907) .. 27

Chatin v. Coombe, 186 F.3d 82 (2d Cir. 1999) ................. 29

Cleavinger v. Saxner, 474 U.S. 193 (1985) ......... 5, 6, 10, 16

Cornell v. Woods, 69 F.3d 1383 (8th Cir. 1995) ................ 15

Downey v. Denton City, 119 F.3d 381 (Sth Cir. 1997) ...... 20

Feliciano v. Colon, 704 F. Supp. 16 (D.P.R. 1988) ........... 16

Garrison v. Louisiana, 379 U.S. 64 (1964) ...........ccceeeeeees 17

Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991) 17, 28

Grayned v. City of Rockford, 408 U.S. 104 (1972) ............ 28

iv

Hines v. Gomez, 108 F.3d 265 (9th Cir. 1997) 200000... 15

Houston v. Hill, 482 U.S. 451 (1987) oo.cccccccccccccccceeeceeeceeees 23

Jeffes v. Barnes, 208 F.3d 49 (2d Cir.), cert. denied,

TEER TESTE ee 9,10

Jones v. North Carolina Prisoners’ Union, 433 U.S. 119

TI ieee aaa iit Ba 18,19

Kesler v. King, 29 F. Supp. 2d 356 (S.D. Tex. 1998) ....... 11

Lewis v. Casey, 518 U.S. 343 (1996) .....ccccccccccecececeeeecerseres 26

Lowrance v. Coughlin, 862 F. Supp. 1090

Sa I sitet ai ala 16

Madrid v. Gomez, 889 F. Supp. 1146 (N.D. Cal. 1995) ...... i)

Mathie v. Fries, 121 F.3d 808 (2d Cir. 1997) 0.00.00. 20

McLin v. City of Chicago, 742 F. Supp. 994

I Sc beneteeiiaiehichetiniadiaaelias ia aa 9

Meriwether v. Coughlin, 879 F.2d 1037

UTES HITT cssabinciceinichlictnititinenieclitiiladetitinitictpaiiaiaa luis 9, 16

NEA v. Finley, 118 S. Ct. 2168 (1998) 0.....ccccccccceeeeeeeeeeees 29

New York Times Co. v. Sullivan, 376 U.S. 254

SET ihsericssheectnsttcennapahddeiininspaaiibibiniiniibdeiastianteapammeasin 17, 23, 30

Newby v. District of Columbia, 59 F. Supp.2d 35

ERTL TERE 2 a 12

Newsom v. Norris, 888 F.2d 371 (6th Cir. 1989)

—- —a

Vv

Perry v. McGinnis, 209 F.3d 597 (6th Cir. 2000) .............. 10

Procunier v. Martinez, 416 U.S. 396 (1974) ...........0 15,19

Reno v. American Civil Liberties Union, 521 U.S. 844

SOTO ccccastnsstnssensmamimmeieisiinmnncninnnnaninns 28

Rizzo v. Dawson, 778 F.2d 527 (9th Cir. 1985) ...........000: 26

Ryland v. Shapiro, 708 F.2d 967 (8th Cir. 1983) .............. 27

Sharp v. Houston, 164 F.3d 923 (Sth Cir. 1999) .......c008 9,10

Sheppard v. Phoenix, 9\ Civ. 4148 (RPP)

DO yyy 13

Smylis v. City of New York, 25 F. Supp.2d 461

Ol 4. 9

Superintendent v. Hill, 472 U.S. 445 (1985) «0... 30

Swans v. City of Lansing, 65 F. Supp.2d 625

CED. DabaRe, CODD ccrecscccccnsscscenscnssccsscccaggeszenpeosecsese 1]

In Re Texas Prison Litigation,

191 F.R.D. 164 (W.D. Mo. 1999) 200... cccccceceeeeees 11

Thornburgh v. Abbott, 490 U.S. 401 (1989) ................ 18, 19

Turner v. Safley,482 U.S. 78 (1987) ...........- 4, 17, 18, 19, 25

West v. Atkins, 487 U.S. 42 (1988) .......cccccccccceeeeeeeeeeeeerees 5,7

White-Ruiz v. City of New York, 983 F. Supp. 365

CBRBDILY... UGDF) cccncccccccrsscercenscsscsconsncssnsconcsscsscsssessees 9

vi

Women Prisoners of District of Columbia DOC vy. District of

Columbia, 93 F.3d 910 (D.C. Cir. 1996),

cert. denied, 520 U.S. 1196 (1997) ............00005. 12,13

ADDITIONAL AUTHORITIES

Attica: The Official Report of the New York State Special

Commission on Attica (Bantam Books 1972) ........ 15

Susan Bandes, Patterns of Injustice: Police Brutality in the

IUTITTED ccinniesenhdceunhasesiineisiaarieiadiadeaitittaitatilads 8,9, 10, 14, 16

Rick Bragg, Prison Chief Encouraged Brutality, Witnesses

Report, New York Times, July 1, 1997 ................. 12

Paul Chevigny, Police Power (1969) .0..........cccccccceeee 14, 16

The City of New York Commission to Investigate

Allegations of Police Corruption, Commission

PE IEEE cxrcscnnsssnnincctinnenemmadinnianiniananiniedéninsdeeies 9

Ted Conover, Newjack: Guarding Sing Sing (2000) ......... 10

Christopher Drew, Rikers Island Guards Made

“House of Pain” for Inmates, N.Y. Times,

FREES Way EPID cncccsecesnscensinesniibenmensienestaniesenitainmess 13

Ex-Guard is Sentenced in Beating at Rikers,

Pees CANINE Oy CU centerrnsensecnsanentecctenensannts 13

Myriam E. Gilles, Breaking the Code of Silence,

80 Boston U. L. Rev. 17 (2000) .........0.00cccccceececeeee. 7)

Vil

Craig Haney, Curtis Banks & Philip Zimbardo,

Interpersonal Dynamics in a Simulated Prison, \ \nt.

J. Crim. & Penology 69 (1973) .......ccccceceeereeees 8,14

Norman Hayner & Ellis Ash. The Prison as A Community,

$ Amn. Soc. Rev. 575 (1940) .....ccc.ccossceccecssrscerseeeees 7

Human Rights Watch, A// Too Familiar: Sexual Abuse of

Women in U.S. State Prisons (1996) .... 13, 16, 17, 20-~—

Human Rights Watch, Nowhere to Hide: Retaliation Against

Women in Michigan State Prisons (1998) ..........+. 17

Human Rights Watch, Shielded From Justice

CIFUIED cccsconivesctensencessesctussenssedsnepenseniatmencesioene 9, 10, 16

James B. Jacobs, Stateville (1977) .......cccccccceeeeeeeeeeeees 6,7, 15

Inmate Beatings Decrease, but Continue, at Rikers, N.Y.

pM eee 13

James W. Marquart, Prison Guards and the Use of Physical

Coercion as A Mechanism of Prisoner Control,

24 Criminology 347 (1986) .........cccccecceeeseereeeeeeees 7,9

Payment Offer in Rikers Abuse Suit, N.Y. Times,

Pabenty 0S, 1GBG .coccccccsescsccsscscosccsssssssovcssssssessees 13

Steve J. Martin & Sheldon Ekland-Olson, Texas Prisons

COTE .:cocensheceossnsnsesshatutubntenesinasntianacscestedenosas 6, 7,15

Mike McPhee, Vigilante Guards May Do Time, Denver

Past, Pally 27, DOGO .ccccoccccecccecscccssscesssssscsssssssossssosees 12

Jerome H. Skolnick & James J. Fyfe, Above the Law

CUTE cecsancussarectmcssemiueensecsemmennenesietes 7, 8,9, 10, 14

Vill

U.S. Dept. of Justice, Findings of Investigation of State

Juvenile Justice Facilities .........cccccccccccssscssceesceseees 13

S. Kirson Weinberg, Aspects of the Prison's Social

Structure, 47 Am. J. Soc. 717 (1942) ooo... 7, 8,14

Philip Zimbardo, The Pathology of Imprisonment, reprinted

in Lawrence F. Travis III, Corrections: An Issues

NES RSE ed RD 8,9

—_- <a -_

l

INTERESTS OF AMICI CURIAE'

The American Civil Liberties Union (ACLU) is a

nationwide, non-partisan organization of nearly 300,000

members, dedicated to preserving and protecting the Bill of

Rights. The ACLU established the National Prison Project in

1972 to protect and promote the civil and constitutional rights

of prisoners. Thus, the ACLU has a particular interest in the

punishment of prisoners for exercising rights guaranteed by the

First Amendment to the United States Constitution.

The Legal Aid Society of the City of New York is a

private organization that has provided free legal assistance to

indigent persons in New York City for nearly 125 years.

Through its Prisoners’ Rights Project, the Society seeks to

ensure that prisoners are afforded full protection of their

constitutional and statutory rights. The Society advocates on

behal: of prisoners in New York City jails and New York state

prisons, and where necessary conducts class action litigation on

prison conditions and mistreatment and brutality against

prisoners.

Human Rights Watch is a private non-profit and non-

partisan organization that works to promote respect for

international human rights worldwide. In the United States,

one of its key priorities for the past decade has been conditions

of confinement for adults and children. Through research,

reporting and advocacy Human Rights Watch publicizes human

rights violations and promotes policies and practices that will

prevent abuses against inmates and detainees and hold

‘No counsel for any party authored any part of this brief. No

persons or entities other than the amici curiae made any monetary

contribution to the preparation or submission of this brief. Pursuant to

Supreme Court Rule 37.3, copies of letters of consent to the filing of this

brief have been lodged with the Court.

2

accountable those who commit them. Human Rights Watch

has a strong interest in efforts to punish inmates for

communicating information about official misconduct: such

communications are an important means by which prisoners

protect their right to be free of abuse and are a vital source of

information about conditions behind prison walls.

. For nearly 25 years, the Southern Center for Human

Rights, a private non-profit organization, has been engaged in

litigation, public education and advocacy to protect the civil

and human rights of persons confined in the prisons and jails of ©

the South. The Center challenges unconstitutional practices in

prisons and jails by bringing lawsuits on behalf of the

imprisoned, and by providing free legal assistance to prisoners

challenging brutality or the conditions of their confinement. In

1998. the Center settled Anderson v. Garner, a case involving

brutal beatings of hundreds of prisoners at the direction of the

Commissioner of the Georgia Department of Corrections. The

Center was forced to seek a protective order to prevent

retaliation against the officers who testified against the prison.

SUMMARY OF ARGUMENT

. Respondent Kevin Murphy, assigned to work as an

inmate law clerk, wrote to another prisoner informing him that

a prison guard who had accused that prisoner of assault had

himself engaged in serious misconduct. Rather than investigate

the allegations, petitioners, Montana State Prison officials

(hereafter “the prison”) punished Mr. Murphy, without any

showing that his letter was false or malicious, and despite an

explicit finding his conduct did not impair prison security.

They claim, in effect, an unfettered right to punish prisoners

who complain about abuse by prison guards.

____ To legitimize such retaliatory punishment would further

institutionalize a culture of impunity within prisons. Prisons

3

exhibit an enduring tendency to suppress criticism of official

misconduct occurring behind their walls. Their insularity from

mainstream society and their coercive mandate combine to

create an environment in which abuse of authority is an ever-

present danger, yet accountability is drastically diminished.

The result is a pervasive prison culture of extreme loyalty by

staff, including the rigid “code of silence” by which staff and

supervisors shield one another from accountability. Prisoners

who complain about abuse or criticize their jailers are targeted

by prison staff for retaliation in order to secure their silence.

By ensuring impunity, this culture fosters abuse and permits

cover-ups on a scale virtually impossible in free society.

The speech that the prison punished--peaceful criticism

of a government officer--is at the core of First Amendment

protection. The prison had no substantial security or other

justification for punishing it, and indeed absolved Mr. Murphy

of charges of violating security. The prison had no rule

prohibiting prisoners from corresponding, nor any restriction

governing to whom inmate law clerks could write. Rather, the

prison disciplined Mr. Murphy because of the contents of his

letter, concluding that relating information about misconduct by

a correctional officer violated prison rules against “insolence”

and “interference with due process hearings,” even without any

finding that the information was false, malicious, or intended to

harass the staff.

—

The Ninth Circuit Court of Appeals correctly concluded

that the First Amendment protected the communication here,

relying in part on circuit precedent concerning application of

the First Amendment to inmate law clerks. In our view, under

more general free speech principles, any prisoner has a First

Amendment right to communicate information concerning

official misconduct, subject to reasonable restrictions on the

manner in which the communication is made. Thus the Court

need not address Mr. Murphy’s inmate law clerk status.

4

The government may limit prisoner speech in ways that

are reasonably related to legitimate and neutral government

interests. Turner v. Safley, 482 U.S. 78, 89 (1987). But the

Court has never upheld the type of restriction presented here, in

which discipline is imposed solely because the speech was

critical of prison staff. And it should not do so, because

punishment of speech criticizing staff has no reasonable

relationship to any legitimate, neutral government interests, and

the government has no legitimate, neutral interest in

suppressing it. Punishing this speech is an exaggerated

response to security interests. This result does not jeopardize

prisons’ authority to efforce legitimate restrictions on prisoner

speech, such as rules that ensure that speech takes place in an

orderly and non-dangerous manner; or rules that prohibit

communication among certain classes of prisoners, as in

Turner, or restriction of material that is hazardous to prison

security. It does mean that prisons cannot punish someone

solely for communicating information about official

misconduct that the authorities find unwelcome.

Additionally, Mr. Murphy’s punishment was

unconstitutional because prison rules did not adequately

provide notice that they proscribe this type of communication.

A prisoner could not be expected to know that a private

communication with another prisoner could constitute

“insolence” against an officer who did not even overhear the

statement. Nor could a prisoner presume that identifying

witnesses for a prisoner involved in a criminal proceeding, or

providing information critical of staff, would be prohibited as

“interfering with a due process hearing.” Nor is there a shred of

evidence in the record to show that Mr. Murphy’s statements

were false.

5

ARGUMENT

I. Prisons Have an Inherent and Persistent Tendency

to Suppress Criticism of Official Misconduct.

“All government displays an enduring tendency to

silence, or to facilitate silencing, those voices that it

disapproves.” Arkansas Writers’ Project v. Ragland, 481 U.S.

221, 235 (1987) (Scalia, J., dissenting). In particular,

government prefers to silence criticism of itself. This tendency

is particularly pronounced in prisons, because of their isolation

from public scrutiny, and their authoritarian task and

accompanying unique social structure. See West v. Atkins, 487

U.S. 42, 56 n.15 (1988); Cleavinger v. Saxmer, 474 U.S. 193,

203-05 (1985).* These institutional features not only provide

fertile ground for abuses of the prison’s coercive power, but

also operate in predictable ways to shield officials who misuse

their power from accountability.

In this closed, secretive environment, the government

wields its maximum authority to suppress dissent and conceal

?In both these cases, the Court acknowledgedhow the nature of the

prison can distort official conduct to the detriment of prisoners’ rights. In

West, discussing prison medical care, the Court acknowledged:

[T]hat correctional setting, specifically designed to be removed

from the community, inevitably affects the exercise of

professional judgment. Unlike the situation confronting free

patients, the nonmedical functions of prison life inevitably

influence the nature, timing, and form of medical care provided to

inmates. . . . [S]tudies of prison health care, and simple common

sense, suggest that [the] delivery of medical care was not

unaffected by the fact that the State controlled the circumstances

and sources of a prisoner's medical treatment.

487 U.S. at 56 n.15.

In Cleavinger, the Court recognized similar institutional pressures

distorting the conduct of prison disciplinary hearing officers. 474 U.S. at

203-05; see infra at 10.

6

misconduct. To grant prison authorities more tools to suppress

criticism -- as the prison seeks here -- is to invite abuse of that

power. Prisons’ code of silence and corollary pattern of covert

retaliation and outright suppression of dissent already make it

extremely difficult to uncover and redress abuse by prison staff.

Permitting prisons to punish prisoners who truthfully complain

of misconduct serves only further to insulate officials from

accountability and to perpetuate abuse.

A. Prisons’ unique isolation from society shields abuse

from public view and accountability.

Prisons are singularly isolated from the outside world.

In other public institutions, “the openness. . . and supervision

by the community afford significant safeguards against. . .

abuses,” in contrast to the “jailhouse[,] where the door is

closed, not open. . . and where there is little, if any, protection

by way of community observation.” Cleavinger, 474 U.S. at

205.

Prisons have clung to this insularity, deeply resisting

efforts to open their doors to community oversight or increased

communication between prisoners and the outside. See James

B. Jacobs, Stateville 29 (1977); Steve J. Martin & Sheldon

Ekland-Olson, Texas Prisons 23-25, 81-82, 176-77, 185-202

(1987) (describing resistance of prisons to reforms). Isolation

permits misconduct to occur with impunity from the outside

world’s standards of accountability, and makes it exceedingly

difficult to observe or investigate abuses within prisons.

B. Prisons are characterized by a pervasive caste

system that encourages abuse by ensuring impunity

for official misconduct.

Prisons officials occupy a unique social world due to

their role as agents of an isolated and “inherently coercive

———— +

7

institution” (West v. Atkins, 487 U.S. at 56 n.15) tasked with

using force to achieve institutional goals. Prisons share this

feature with police: this “fundamental culture” of law

enforcement “is everywhere similar. . . since everywhere the

same features of the police role--danger, authority and the

mandate to use coercive force--are present. This combination

generates and supports norms of internal solidarity or

brotherhood.” Jerome H. Skolnick & James J. Fyfe, Above the

Law 92 (1993); see id. at 95-98; see also James W. Marquart,

Prison Guards and the Use of Physical Coercion as A

Mechanism of Prisoner Control, 24 Criminology 347, 361

(1986) (explaining how “coercion builds solidarity”). Far

beyond mere professional allegiance, the solidarity of the

prison staff is part of a strict caste system, a profound

“dichotomy between ‘us’ and ‘them.”” Martin, supra, at 23; S.

Kirson Weinberg, Aspects of the Prison’s Social Structure, 47

Am. J. Soc 717, 719-720 (1942); Skolnick, supra, at 111.

“The division into ‘cons’ and ‘screws’ (guards) in prison

society is even more basic than the Middletown dichotomy into

workers and businessmen. . . Just as the Southern cotton

plantation during slavery times exhibited a sharp division into

two major groups. . . so also does the American prison.”

Norman Hayner & Ellis Ash, The Prison as A Community, 5

Am. Soc. Rev. 575, 578 (1940).

Maintaining these deep divisions is critical, as “the

guard’s only basis for authority is his rank within the caste

system.” Jacobs, supra, at 179. In prison, “a separate moral

order emerged for prison officials and for staff. An officer’s

status in the [corrections] community, his sense of purpose and

of right and wrong, were all dependent on approval from the

authoritarian regime.” Martin, supra, at 23. Loyalty to fellow

staff members becomes the paramount concern. /d.; Jacobs,

supra, at 202; Skolnick, supra, at 111, 122; Weinberg, supra,

at 724. “In the closed society of. . . departments that see

themselves and the public in terms of ‘us’ and ‘them’ and adopt

the siege view of the world, the pressure to remain loyal is

enormous.” Skolnick, supra, at 111; see also Susan Bandes,

Patterns of Injustice: Police Brutality in the Courts, 47 Buff. L.

Rev. 1275, 1306 (1999) (discussing “the siege mentality, the

us/them attitude. . . the blue wall of silence, and the elevation

of loyalty over integrity” of police culture). Disloyalty thus is

perceived not only as a break in group cohesiveness, but as a

direct threat to the authoritarian prerogatives of all members of

the law enforcement caste.’

The well known law enforcement “code of silence”

flows directly from this system, as the caste structure fosters an

“attitude of fierce loyalty and protectiveness within the ranks to

*Loyalty in the caste system is “inherent in the prison situation

[and] can neither be controlled nor modified by any single individual of

either group. In fact, the individuals who do not conform to these group

representations are considered variants and subject to the controls and

pressures of their respective stratum.” Weinberg, supra, at 26.

The force of this observation was demonstrated in the classic

Stanford study by Philip Zimbardo, which created a mock prison and

randomly assigned students as prisoners and guards. Craig Haney, Curtis

Banks & Philip Zimbardo, /nterpersonal Dynamics in a Simulated Prison,

1 Int. J. Crim. & Penology 69 (1973). The experiment was shut down

early because of the “frightening” results, as students took to their roles

with alarming intensity. Philip Zimbardo, The Pathology of Imprisonment,

reprinted in Lawrence F. Travis Il, Corrections: An Issues Approach 99,

100 (1983); Haney, at 80-81. One third of the guards became “tyrannical

in their arbitrary use of power.” /d at 101; Haney, at 85-86, 88-89.

Although others were more benign,

no good guard ever interfered with a command by any of the bad

guards; they never intervened on the side _‘ the prisoners, they

never told the others to ease off because it was only an

experiment, and they never even came to me as prison

superintendent or experimenter in charge to complain... _ In a

guards because their own needs to be liked prevented them from

disobeying or violating the implicit guards’ code.

_

~~_Zimbardo, at 101; accord Haney, at 94.

_ sa

9

the point that officers refuse to address or report each other's

misconduct.” Sharp v. Houston, 164 F.3d 923, 935 (S® Cir.

1999); see also Marquart, supra, at 361.‘ The code of silence

“consist[s] in a single rule: an officer does not provide adverse

information against a fellow officer. . . . all police officers

adhere to this rule, even good ones. It is a formidable barrier to

the investigation of complaints about the police.” Blair, 223

F.3d at 1081 (quoting Report of the Independent Commission

on the Los Angeles Police Department 168 (1991).

The code of silence is equally well entrenched in

prisons and jails. See, e.g. Jeffes v. Barnes, 208 F.3d 49, 52-

53, 62 (2d Cir.), cert. denied. 121 S. Ct. 47 (2000) (describing

code of silence in jails and retaliation against officer who

reported beating of prisoners): Meriwether v. Coughlin, 879

F.2d 1037, 1049 (2d Cir. 1989) (citing Commnissioner’s

testimony that “corrections officers generally adhere to a “code

of silence’ and lie to conceal other officers’ assaults on

prisoners”); Smylis v. City of New York, 25 F. Supp.2d 461,

463 (S.D.N.Y. 1998) (jail supervisor's acknowledgment of

code); Madrid v. Gomez, 889 F. Supp. 1146, 1156 & n.4 (N.D.

Cal. 1995) (“undeniable presence of code of silence” at prison

was direct cause of pattern of brutality; testimony about

existence of code); Zimbardo, Pathology, supra, at 101.

The code not only encompasses passive silence, but

“For additional finidngs about the code of silence, see Blair v. City

of Pomona, 223 F.3d 1074, 1081 (9 Cir. 2000); White-Ruizv. City of New —

York, 983 F. Supp. 365, 379 (S.D.N.Y. 1997)); McLin v. City of Chicago,

742 F. Supp. 994, 1001-02 (N.D. Ill. 1990); Brandon v. Allen, 645 F. Supp.

1261 (W.D. Tenn. 1986); Skoinick, supra, at 108-112; The City of New

York Commission to Investigate Allegations of Police Corruption,

Commission Report (1994) (Mollen Commission); Human Rights Watch

(“HRW”), Shielded From Justice 68-69 (1998), Bandes, supra, at | 306-07;

Myriam E. Gilles, Breaking the Code of Silence, 80 Boston U. L. Rev. 17,

66-88 (2000).

10

“also takes the active forms of covering up wrongdoing, and

lying under oath.” Bandes, supra, at 1326. It adheres

throughout the ranks: supervisors not only lie to protect staff,

but affirmatively avoid learning of misconduct so as not to

discipline staff.’ /d.; Skolnick, supra, at 7,122; HRW, Shielded

From Justice, at 44-45; Brandon, 645 F. Supp. at 1266. The

demands of loyalty also skew internal disciplinary proceedings,

for as this Court recognized, staff “are under obvious pressure

to resolve a disciplinary dispute in favor of the institution and

their fellow employee.” Cleavinger, 474 U.S. at 204.

{Committee members] are employees of the Bureau of

Prisons and they are the direct subordinates of the

warden who reviews their decision. They work with the

fellow employee who lodges the charge against the

inmate upon whom they sit in judgment. The

credibility determination they make often is one

between a co-worker and an inmate. . . . It is the old

situational problem of the relationship between the

keeper and the kept, a relationship that hardly is

conducive to a truly adjudicatory performance.

Id.; see also Perry v. McGinnis, 209 F.3d 597, 605-06 (6" Cir.

2000) (finding prison had quota on number of inmates who

could be acquitted of disciplinary charges). Or, as one guard

summanized, “We'd never act as a witness for an inmate.” Ted

Conover, Newjack: Guarding Sing Sing 284 (2000).

The code of silence encourages abuse by ensuring

; ey:

The code of silence . . . permitted and condoned police

misconduct as surely as a written rule expressly

immunizing officers from any inquiry into acts of

violence. If Memphis had any nominal rule forbidding

*See, e.g, Jeffes, 208 F.3d at 53-54, 58, 60-61 (finding jail

leadership accountable for cover-up by staff); Sharp, 164 F.3d at 936

(supervisors participate in maintaining code of silence).

a ——

11

police violence, it was little more than a dead letter.

The police officers who knew of the mistreatment of

civilians uniformly suppressed that information, and

their supervisors, although well aware that criminal

conduct was being concealed in this manner, made no

apparent effort to impose sanctions on any of the

officers involved in the cover-up.

Brandon v. Allen, 645 F. Supp. at 1266-67, 1271.

In these circumstances, abuse and cover-ups are

rampant. For example, in a Texas jail, a videotape showed an

egregiously abusive search in which a riot squad forced

unresisting prisoners to lie on the floor, kicked and beat them,

used stun guns, forced them to crawl naked on their stomachs,

and unleashed dogs who mauled and bit several prisoners. See

In Re Texas Prison Litigation, 191 F.R.D. 164, 166-167 (W.D.

Mo. 1999); Kesler v. King, 29 F. Supp.2d 356, 362-63 (S.D.

Tex. 1998). For months, prison authorities engaged in a pattern

of cover-up and lies about the incident. Kesler, 29 F. Supp.2d

at 363-364. Officials refused to view the videotape of the

incident, ignored grievanees, lied to their superiors, and

stonewalled efforts by outside agencies to investigate the

abuses. /d. at 363-65. The abuse and cover-up were revealed

only when numerous television stations broadcast the videotape

months later; even then, the warden continued to maintain that

it was merely a “training tape.” Jd. at 365.°

Similar examples abound of the type of egregious

abuses that occur within prisons:

°See also Swans v. City of Lansing, 65 F. Supp.2d 625, 632-35,

650 (W.D. Mich. 1999) (judgment for estate of prisoner who died after

guards beat him, noting “but for the video [tape of incident], there would

have been no contradictory evidence to the testimony of the Defendants”

and that the “City even tried to suppress or alter the Coroner's report”).

12

--In Georgia, corrections officers testified about a mass

beating in which riot guards punched, kicked and stomped on

prisoners, stepped on their heads or smashed their heads into

walls, and dragged a prisoner by his hair, while the

Commissioner watched. Staff initially denied the facts of the

incident out of fear of retaliation from other guards. See Rick

Bragg. Prison Chief Encouraged Brutality, Witnesses Report,

N.Y. Times, July 1, 1997.

--Guards at a District of Columbia jail forced female

prisoners to engage in “sex shows including nude and semi-

nude dancing” while guards watched, and ordered one prisoner

to place a cigarette in her vagina. Newby v. District of

Columbia, 59 F. Supp.2d 35, 37 & n.2 (D.D.C. 1999). A

prisoner who refused to participate was beaten by staff. /d. at

36. The Court observed:

What is particularly troubling is that these horrendous

activities that took place at the City jail only surfaced

when [the prisoners] complained about them. It is

inconceivable how improper sexual activities involving

the entire prison population of Southeast I, with inmates

numbering between eight and one-hundred and three

prison guards on duty as well as the presence of other

prison guards from other parts of the prison could have

occurred with no one putting an immediate stop to

them.

Id.; see Women Prisoners of D.C. DOC v. D.C., 93 F.3d 910,

914, 929-31 (D.C. Cir. 1996), cert. denied, 520 U.S. 1196

(1997) (earlier findings of rampant sexual abuse at D.C. jail and

retaliation against those who complained).

--In 1995, staff at a federal prison in Florence, Colorado

banded together to systematically beat prisoners whom they

believed disrespected their authority. Mike McPhee, Vigilante

Guards May Do Time, Denver Post, July 27, 2000, at

http://www.denverpost.com/news/news0727.htm. One guard

13

admitted that staff would claim that the prisoner had attacked

the guard, sometimes inflicting self-injuries to bolster the

cover-up. By last summer, three officers reportedly had been

convicted of criminal offenses for the set-ups. /d.

--In New York City, corrections officers engaged in a

longterm pattern of severely beating prisoners in a jail

segregation unit and falsifying reports to make it appear that the

prisoners had attacked the officers. Ex-Guard is Sentenced in

Beating at Rikers, N.Y. Times, April 5, 1997, at 27;

Christopher Drew, Rikers Island Guards Made ‘House of Pain’

for Inmates, N.Y. Times, August 16, 1998, at A-1, 36. Cover-

ups were routine: for example, an officer beat a prisoner and

then faked an injury, rubbed carbon paper on his skin to

simulate bruises, and upon orders of a captain, wrote a false

report claiming the prisoner had attacked him. /nmate Beatings

Decrease, but Continue, at Rikers, New York Times, March 1,

1997, at B-1; Drew, supra, at 36. The City settled a civil class

action based on the excessive use of force with payment of $1.6

million (Payment Offer in Rikers Abuse Suit, N.Y. Times,

February 15, 1996), and injunctive relief entered in 1998.

Sheppard v. Phoenix, 91 Civ 4148 (RPP) (S.D.N.Y. 1998).

--In Georgia’s juvenile detention centers, a 1997

investigation by the U.S. Justice Department revealed

widespread patterns of excessive force and abusive discipline,

inadequate™ procedures to investigate misconduct, and a

systemic failure to report abuse. See U.S. Dept. of Justice,

Findings of Investigation of State Juvenile Justice Facilities, at

http://www.usdoj.gov/crt/split/documents/gajuvfind. htm.

Allowing prisons to conceal or cover up abuse only

abuse. Given the gravity of abuses in prison and

the extraordinary lengths staff will go to keep them hidden, to

ndone the silencing of those who speak out against abuse is

particularly dangerous. It is not sufficient that prisoners can

14

report abuse individually to outside correspondents if they

cannot discuss it among themselves. Individual complaints of

mistreatmentare not likely to be taken seriously because of the

impaired credibility of convicts and the status of prison staff as

law enforcement personnel. And even when a prisoner’s

complaint is so serious or so undeniable that it must be heeded,

the impulse of those in authority is to dismiss it as an aberration

that does not reflect a larger problem. See Bandes, supra, at

1305-09. It is only when patterns of misconduct are unearthed

that individual complaints are given due credence and the need

for broader corrective measures is recognized. And those

patterns will not be uncovered if prisoners are forbidden to

speak among themselves of their experiences at the hands of

iheir keepers.

C. Prisoners who complain about official misconduct

face harsh sanctions from their jailers.

Prisoner complaints about staff misconduct are

perceived by staff as direct challenges to their institutional

authority. See Paul Chevigny, Police Power 136-38 (1969);

Skolnick, supra, at 102; Haney, supra, at 93-94. This stems

from the view underlying the “us vs. them” mentality that staff

must be held blameless:

The inmates and officials are two segregated strata. . .

Modes of deference and obedience are expected by the

officials, and expressions of authority are anticipated

and tolerated by the inmates. . . . Through isolation the

members of each group develop logically extreme

positions. . . . [Thus] the custodians believe that they

are ‘always right’ and that the prisoners are ‘always

wrong.’

Weinberg, supra, at 719-20. Thus prisons have traditionally

punished harshly inmates who criticize misconduct by staff:

An inmate who challenged the system and called

attention to himself. . . would find himself on the coal

——

——-

oo oe oe

15

pile for years, in isolation on a stringent diet, or salted

away in segregation for an indefinite term. . . . More

extreme was the punishment inflicted upon those few

inmates who dared to directly challenge [the warden’s]

authority by complaining to the outside. . . [or] defying

an officer. . . Such inmates could be expected to be

beaten by the captains and lieutenants or by their

specially selected inmate hetpers.

Jacobs, supra, at 50, 203.

The most overt method of punishing criticism is express

prohibition of complaints about staff. Until the Court struck

down such rules in Procunier v. Martinez, 416 U.S. 396 (1974),

prisons prohibited prisoners from “criticizing policy, rules or

officials,” or “belittling staff or our judicial system or anything

connected with Department of Corrections.” /d. at 415; see

Jacobs, supra, at 50 (Stateville required letters be “respectful

and decent in every way, containing no. . . remarks derogatory

to the institution” and disciplined inmates “for the offense of

criticizing Stateville”); Martin, supra, at 24 (Texas prohibitions

on criticism to avoid “damaging publicity” and minimize

“outside interference”); Attica: The Official Report of the New

York State Special Commission on Attica 60 (Bantam Books

1972) (New York prohibitions on criticism).

Since then, prisons have pursued the same end through

different means by retaliating against prisoners who complain

or who reveal staff misconduct. Retaliatory measures include

physical violence; transfers, denials of jobs, or other

punishments; and pretextual disciplinary charges.’ This use of

7See Hines v. Gomez, 108 F.3d 265, 267-69 (9" Cir. 1997)

iscipli i lati ise of First Amendment

(disciplinary charges filed in retaliation for exercise o )

rights); Cornell v. Woods, 69 F.3d 1383, 1386-89 (8" Cir. 1995) (staff

retaliation against prisoners who reported staff misconduct to internal

affairs); Newsom v. Norris, 888 F.2d 371, 373, 375-77 (6" Cir. 1989)

16

“cover charges,” well known from the police context (see

Chevigny. supra, at 136-46; Bandes, supra, at 1333 n.362;

HRW, Shielded from Justice at 20, 51), is particularly insidious

in prison, since the many rules and restrictions of prison life

provide innumerable possible false charges. Unlike the outside,

there is almost never anyone but prisoners or guards who can

refute such false allegations. The pervasive bias of the prison’s

internal disciplinary system against prisoners (see Cleavinger,

474 U.S. at 203-05), further erodes any likelihood that the

guard's deception will be revealed. |

An analysis by Human Rights Watch of staff sexual

abuse of women prisoners in several states illustrates these

phenomena: virtually every woman who complained of sexual

abuse by staff was subjected to retaliation in the form of

disciplinary cover charges, loss of good time credits, removal

from programs, or prolonged periods of segregation. HRW,

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

5-6, 43, 89, 95, 124, 155, 252-262, 313-14 (1996). Retaliation

was directly linked to the bias of prison grievance systems. In

almost every case, authorities assumed that the prisoner lied

about the misconduct, and refused, absent medical reports or

non-inmate witnesses, to credit prisoner testimony. /d. at 5,

91, 172, 252-56. Staff were reluctant to report misconduct

(retaliation against inmate disciplinaryassistants who complained about the

disciplinary board chairman’s performance); Meriwether, 879 F.2d at 1040,

1046 (prisoners transferred for being “outspoken critics of administration”

and “corresponding with state officials and public interest organizations

about the problems” at the prison); A/nutt v. Cleary, 27 F. Supp.2d 395, 397

(W.D.N.Y. 1998) (false disciplinary charges, assault, and faked positive

drug test in retaliation for First Amendment exercise); Castle v. Clymer, 15

F.Supp.2d 640, 657, 663-67 (E.D. Pa. 1998) (retaliation for, inter alia,

statements to newspaper reporter about prison); Lowrance v. Coughlin, 862

F. Supp. 1090 (S.D.N.Y. 1994) (retaliation and segregation for protected

activity); Feliciano v. Colon, 704 F. Supp. 16 (D.P.R. 1988) (beating and

tear-gassing of prisoner who complained to court).

a

j

— -—— o—— - 7 —e

——

17

observed in fellow staff. /d at 156-57, 312-13. “Given the

closed nature of the prison environment, and the reluctance of

officers to testify against their peers” (id. at 5), complaints of

sexual misconduct frequently went unredressed, and the

complainants were punished. Indeed, in Michigan, virtually all

women interviewed in connection with this HRW report and

who complained about abuse were subsequently subjected to

retaliatory abuse. HRW. Nowhere to Hide: Retaliation Against

Women in Michigan State Prisons (1998).

Il. The First Amendment Does not Permit Prisons to

Punish Prisoners Solely for Criticizing Official

Misconduct.

“There is no question that speech critical of the exercise

of the State's power lies at the very center of the First

Amendment.” Gentile vy. State Bar of Nevada, 501 U.S. 1030,

1034-35 (1991) (Kennedy. J.. dissenting). Censorship of such

speech is inimical to the fundamental principle that the people

retain the “right of free public discussion of the stewardship of

public officials,” (New York Times Co. v. Sullivan, 376 U.S.

254, 275 (1964)), even though such criticism “may well include

vehement, caustic and sometimes unpleasantly sharp attacks on

government and officials.” Garrison v. Louisiana, 379 U.S. 64,

74-75 (1964) (quoting Sullivan, 376 U.S. at 270); see also

Sullivan, 376 U.S. at 269-270, 274-76. Prisons are not exempt

from this principle, as “prison walls do not form a barrier

separating prisoners from the protections of the Constitution.”

Turner v. Safley, 482 U.S. at 84.

A. The Court has never permitted prisons to impose

content or viewpoint-based restrictions on prisoners’

speech.

While the First Amendment permits substantial

restrictions on prisoners’ speech (Turner, 482 U.S. at 89), the

18

Court has never approved the sort of content and viewpoint-

based punishmentat issue here. Decisions limiting prisoners’

free speech rights have consistently emphasized that they

upheld general, content-neutral limitations.

In Turner, the Court upheld a blanket prohibition on

non-legal correspondence between prisoners in different

prisons, and emphasized that “the governmental objective must

be a legitimate and neutral one. We have found it important to

inquire whether prison regulations restricting inmates’ First

Amendment rights operated in a neutral fashion, without regard

to the content of the expression. See Pell v. Procunier, 417

U.S. at 828; Bell v. Wolfish, 441 U.S. [520], at 551 [1979].”

Turner, 422 U.S. at 90; see Bell, 441 U.S. at 551 (affirming a

rule permitting receipt of hardback books only from the

publisher, emphasizing that “[t]he rule operates in a neutral

fashion, without regard to the content of the expression”).

Similarly, the Court upheld a regulation barring

prisoners from receiving publications containing information

deemed detrimental to prison security (Thornburgh v. Abbott,

490 U.S. 401, 404-05 (1989)), and explained that the

government must advance a “legitimate and neutral” interest,

that is, one “unrelated to the suppression of expression.” /d. at

415. The regulation satisfied the standard since it distinguished

between publications “solely on the basis of their potential

implications for security”--and not, in other words, based on

whether or not authorities agreed with the message. /d

By contrast, in the only case in which the Court has

reviewed non-neutral restrictions on speech, it struck them

down.* In Martinez, the Court concluded, “Prison officials may

‘In Jones v. North Carolina Prisoners’ Union, 433 U.S. 119

(1977), the Court upheld various restrictions on the associational activities

of a prison labor union, but was careful to note that “First Amendment

19

not censor inmate correspondence simply to eliminate

unflattering or unwelcome opinions or factually inaccurate

statements.” 416 U.S. at 414. Thus the Court invalidated

outgoing mail regulations banning letters that “‘unduly

complain’ or ‘magnify grievances,’ express[] ‘inflammatory

political, racial, religious or other views,’ and matter deemed

‘defamatory’ or ‘otherwise inappropriate’” (416 U.S. at 415),

since these regulations “were decidedly not ‘neutral’.” Abbott,

490 U.S. at 416 n.14. In so doing, the Court identified the

inherent danger in such rules, noting that “some prison officials

used the extraordinary latitude for discretion authorized by the

regulations to suppress unwelcome criticism.” Martinez, 416

U.S. at 415. That is precisely what happened in this case.

B. Under the standard of Turner v. Safley, punishment

of prisoner speech about official misconduct violates

the First Amendment.

Prison restrictions on speech will be upheld if they bear

a reasonable relationship to a legitimate and neutral

governmental interest unrelated to the suppression of

expression. Turner, 482 U.S. at 89; Abbott, 490 U.S. at 415.

While this standard permits significant limitations on prisoners’

speech rights (see Abbott, 490 U.S. at 404), the “reasonableness

standard is not toothless.” Jd, at 414. It would, however,

become meaningless if the Court determined that prison

officials may punish prisoners for exchanging information

about abuse by prison guards in the absence of any finding of

falsity or malice, and when the prison already determined that

the communication did not disrupt security. See infra at 21.

speech rights are barely implicated in this case.” /d. at 130. Although the

restrictions precluded “bulk mailings” of union literature--i.e.,large bundles

of newsletters to be distributed by prisoners--prison officials permitted

receipt of these publications when mailed to individual prisoners. /d. at 130

n.7, 1310.8.

20

Nothing in Turner or the Court’s other prison First Amendment

decisions permits this result.

1. The prison punished Respondent's speech solely

because it criticized official misconduct.

The prison portrays this case as though it involved a

generic ban on inmate-inmate correspondence, akin to the rules

in Turner. But the prison did not ban inmate-inmate

correspondence generally (Joint Appendix (“JA”) 36-37; Brief

of Petitioner at 6), nor did it ban inmate law clerks from writing

to other inmates. Thus Mr. Murphy was not disciplined

pursuaiut to a neutral rule, but rather was singled out for

punishment exclusively because of the content of his speech.

Since the prison persistently mischaracterizes the nature of

these rules, we must clarify the actual regulations involved.°

Upon learning that Pat Tracy, another prisoner, had

been criminally charged with assault on Officer Galle, Mr.

Murphy wrote Mr. Tracy a letter describing other misconduct

by Officer Galle. JA 50-51. This conduct--sexual advances

towards prisoners and retaliation---would,if it occurred, violate

prison rules and probably criminal laws.'° The mail censor,

Officer Shaw, read the letter. JA 52, 54, 57. There is no

evidence that he forwarded the allegations of misconduct to his

superiors, or that the prison investigated Mr. Murphy’s

complaints. Instead, Officer Shaw charged Mr. Murphy with

*Mr. Murphy does not challenge the facial validity of the rules,

other than on vagueness grounds, infra Point IV. Rather, he challenges

these rules as applied to his particular communication with Mr. Tracy.

‘Sexual abuse and harassment of prisoners by staff is a persistent

problem. See e.g. Mathie v. Fries, 121 F.3d 808, 810-11 (2d Cir. 1997)

(guard sodomized and harassed male inmate); Downey v. Denton City, 119

F.3d 381,384 (5" Cir. 1997) (female prisoner raped and impregnated by

guard); see generally HRW, Sexual Abuse, supra.

21

7 «666

three disciplinary infractions: “Insolence”, “Interference with

Due Process Hearings,” and “Conduct Which Disrupts or

Interferes With the Security or Orderly Operation of the

Institution.” JA 14-15 52, 54,57. Mr. Murphy was found guilty

of the first two charges. However, he was acquitted of the

interference with security charge. JA 59-62.

The disciplinary charges that were sustained make clear

that discipline was based exclusively on the contents of the

letter. The “Insolence” violation charged:

DESCRIPTION OF ALLEGED VIOLAT!ONS: While

routinely monitoring Institutional maii, | (CS Shaw)

noticed statements in a letter from Inmate Murphy to

Inmate Tracy. In this letter, Inmate Murphy accused

CO Galle of being an overzealous guard who punishes

and harasses inmates for personal pleasure. Inmate

Murphy also accused CO Galle of making homosexual

advances towards inmates. Inmate Murphy stated that

CO Galle retaliated against Murphy by writing him up

on two rule infractions. [JA 52].

The hearing officer sustained the charge on the grounds that

“Evidence states C/O Galle retaliated against Murphy by

Issuing Inmate Murphy a Class II infraction. That statement

indicates unprofessional actions which tend to intimidate the

employee.” JA 60.

The charge for “Interference with Due Process

Hearings” read:

DESCRIPTION OF ALLEGED VIOLATION: While

routinely monitoring institutional mail | (CS Shaw)

noticed comments in a letter from Inmate Murphy to

Inmate Tracy concerning an incident that had occurred

with an assault on CO Galle. In this letter Murphy tries

22

to persuade Inmate Tracy to pursue certain actions that

may disrupt a court hearing in which Inmate Murphy is

no part of. Inmate Murphy states he tried to ‘do

something’ about CO Galle, but He (Murphy) was

retaliated against. There is no evidence of any of the

statements in this letter to be fact. [JA 54].

The hearing officer sustained the charge on different grounds:

“The statement referring to C/O Galle making homosexual

advances to another inmate would result in disciplinary action

against stated employees of the DOC.” JA 62.

Plainly, these charges are not grounded in any general

ban on inmate-inmate correspondence, nor the rules of the law

clerk program. Mr. Murphy's only wrongdoing, in the prison’s

eyes, was to discuss an officer's misconduct in an otherwise-

lawful communication.

2. Punishment on this basis is not rationally related

to a neutral, legitimate government interest.

Under Turner, the prison’s punishment is not

reasonably related to “legitimate and neutral” governmental

objectives, and is instead an exaggerated response to the

prison’s concerns. The prison advances three interests in

support of the discipline: protecting officers from learning of

prisoner complaints about their misconduct; preventing

prisoners from communicating information about official

misconduct that may be relevant to a court proceeding;'' and

maintaining security.

First, in the disciplinary proceedings, the prison

defended the discipline based on its interest in preventing

''We address this interest in Point III, infra.

cal

-

23

officers from hearing prisoner’s allegations of misconduct,

finding that Mr. Murphy’s letter alleged “unprofessionalactions

which tend to intimidate the employee” (JA 60) and conduct

that, if true, would subject the guard to discipline. JA 62. This

turns the notion of a “legitimate” objective on its head, for the

government has no legitimate interest in permitting an

employee to escape disciplinary action where misconduct has

occurred. “Criticism of [a government officer’s] official

conduct does not lose its constitutional protection merely

because it is effective criticism and hence diminishes their

official reputations.” Sullivan, 376 U.S. at 273. Yet this is

essentially what prison officials urge here--that the Court

approve of their interest in suppressing allegations of staff

misconduct. ‘

It is dubious at best whether the prison has a legitimate

interest in protecting prison staff from derogatory

communications about themselves. Law enforcementand other

government officials must be prepared to tolerate even harsh

and strident criticism. See Houston v. Hill, 482 U.S. 451, 461

(1987) (“the First Amendment protects a significant amount of

verbal criticism and challenge directed at police officers,”

including speech that is “provocative and challenging”); see

also Sullivan, 376 U.S. at 273 (“If judges are to be treated as

‘men of fortitude, able to thrive in a hardy climate,’ surely the

same must be true of other government officials.”). While such

comments, if made face to face, may present a risk of disorder

in the sometimes volatile atmosphere of a prison, no such

danger is presented when a prison staff member simply reads a

letter in the ordinary course of a monitoring scheme. Moreover,

at bottom, this governmental objective is aimed at suppressing

speech, however much defendants talk about its effects on the

listener rather than the speaker. As such, it is precisely the type

of non-neutral objective “related to suppression of expression”

that does not permit limitations on speech. See supra at 18.

24

But even if the prison had a legitimate interest in

protecting officers from hearing prisoners’ complaints,

imposing discipline on any prisoner speech critical of an officer

is an exaggerated response to that concern. It sweeps far too

broadly, censoring speech that the officer may never, or need

never, hear. Here, the critical speech was not made to or in the

hearing of Officer Galle, but rather was sent in a private letter

intended to be read only by the prison censor and Mr. Tracy.

As the Ninth Circuit correctly noted, the “easy, obvious”

alternative way for the prison to protect the officer from a

complaint is simply not to tell him about it. Appendix to

Petition for Certiorari (“Cert. App.”) 14.

Second, the prison maintains that the discipline was

reasonably related to its general interest in security. The prison

relies almost exclusively on Turner's approval of a ban on

inmate-inmate correspondence for security reasons. But this is

misplaced, for there was no such ban here. Yet the only record

evidence on “security” discusses the “Inmate Correspondence

Policy” (the generic rule permitting the prison to review and

censor certain mail), which is nof at issue here since Mr.

Murphy was not charged with violating that policy and it does

not prohibit the conduct in which he engaged.'? The issue is

whether legitimate security concerns permit punishing Mr.

Murphy under the Insolence and Due Process rules because his

'*The Magistrate Judge below concluded that the prison had not

shown a rational relationship between the discipline and a legitimate

penological objective. Cert . App. 39. The prison then submitted the

affidavit of Warden Mahoney, which states that the “Inmate

Correspondence policy” (Policy 16-001, JA 34-49) furthers security by

permitting the facility to review prisoner mail to prisoners in maximum

security. JA 96-97. The district court, in rejecting the Magistrate’s report,

summarily concluded that “there is a valid, rational connection between the

inmate correspondence policy and the objectives of prison order, security

and inmate rehabilitation,” (Cert. App. 25), without noticing that the policy

was not at issue.

25

letter was critical of authorities. The prison adduced no

evidence demonstrating how such punishment was related to

legitimate security interests.'°

Nor can the prison make this showing, for punishing a

prisoner for peaceful speech that criticizes an officer, without

any showing that the speech is false or malicious, is an

exaggerated response to legitimate security interests. The

prison does not suggest that there is a direct threat to security

from all prisoner reports of staff misconduct; indeed, reporting

of misconduct would appear to be essential to ensuring the

accountability of staff and the integrity of the institution.

The concerns over the content of critical speech are thus

qualitatively different from the prison’s legitimate concerns

over speech that is genuinely hazardous to security, such as

escape plans or illegal activity. The prison is entitled to impose

reasonable time, place and manner restrictions on speech in

general, including complaints about official misconduct, in

order to ensure order and security. But this prisoner voiced his

concerns peacefully in a letter not directed either to the

offending guard, or to anyone other than Mr. Tracy, and not in

violation of prison correspondence rules. The prison does not

suggest that this mode of delivery threatened security any more

"This is in stark contrast to the evidence adduced in Turner

establishing the connection between legitimate security concerns and the

ban on non-legal inmate-inmate correspondence there. At the trial in

Turner, the state presented evidence of a growing and significant problem

with gang activity, the specific needs of the facility since it was designated

to house protective custody inmates, and the manner in which the

limitations on correspondence were connected to these security concerns.

482 U.S. at 91. The state also adduced evidence of the potential harmful

effects of permitting such correspondence, and demonstrated how the

correspondence directly threatened the core interests of maintaining safety.

Id. at92. There has been no analogous showing here of any relationship

between security and punishment of speech about abuse by prison staff.

26

than had Mr. Murphy delivered the same message in another

manner, such as simply talking with a prisoner. A complete

prohibition on speech that, in and of itself, poses no cognizable

security threat, is an exaggerated response to concerns over

maintaining order.

III. The Punishment Violated the First Amendment

Right to Engage in Speech Concerning Litigation.

The Ninth Circuit held that Mr. Murphy, as a law clerk

designated by prison officials, had a First Amendment right to

assist Mr. Tracy with his pending legal matter. This is correct,

though the emphasis on his status as a law clerk is unnecessary.

Any prisoner who had information relevant to Mr. Tracy’s

defense had a right to communicate it to him, absent a neutral,

non-content-based rule prohibiting the correspondence.

This right is not necessarily grounded on a right of court

access, recently addressed by this Court in Lewis v. Casey, 518

U.S. 343 (1996). Mr. Murphy asserted a court access claim, but

the appeals court did not rule on it. Cert. App. 15. Rather, our

analysis rests on the more general right to freedom of speech,

which protects speech about litigation just as it does speech

about any other subject. See Rizzo v. Dawson, 778 F.2d 527,

531 (9" Cir. 1985), citing NAACP v. Button, 371 U.S. 415

(1963). Mr. Murphy’s exercise of that right in Connection with

Mr. Tracy’s pending case is therefore protected in the same

manner as would be, e.g., stating his support for a Presidential

candidate or his opposition to a legislative proposal. That point

is especially pertinent given the nature of his communication.

He was not purporting to draft legal papers, perform legal

research, or advocate for Mr. Tracy; he merely offered

information that he believed relevant to Tracy's defense.

There is an important difference between a claim about

speech concerning litigation and a claim about access to courts.

27

The right of access to courts enjoyed by persons the state has

incarcerated, as explicated by this court in Lewis v. Casey,

places an affirmative obligation on the state to assist those

persons who have non-frivolous legal claims related to their

incarceration in presenting those claims to courts.'* The more

general right of free speech extends to all persons and all

subjects, but places no obligation on government to assist the

speaker. It is that aspect of the free speech right that was

abridged by the prison officials in this case.

The Court of Appeals correctly concluded that, under

Turner, the discipline of Mr. Murphy was not rationally related

to a legitimate, neutral government objective. The court did not

rely significantly on his status as a law clerk in this analysis,

but rather, it focused on the nature of the communication and

the risks it allegedly posed to the prison’s interests. It observed

that “the Prison’s interest in security and order is at a low ebb

when the correspondence in question is legal advice relating to

a pending or potential case.” Cert. App. 12. Mr. Murphy had

no other way to communicate to Mr. Tracy the information he

had for Mr. Tracy’s defense counsel. There would be no

impact on prison staff, other prisoners, or prison resources from

delivering that correspondence, and certainly none from

refraining from punishing him for it; he does not dispute the

prison’s right to read such correspondence and intercept it if it

contains matter that is genuinely hazardous to legitimate

penological interests. Such monitoring imposes no additional

burden on prison officials. Cert. App.13-14. The easy, obvious

alternative to protect staff from derogatory communications

about themselves is to have the correspondence read by

someone else -- as they already do. Cert. App.14.

‘There is a broader right of all persons to be free of governmental

obstruction of their access to courts. Ryland v. Shapiro, 708 F.2d 967, 971

(8 Cir. 1983), citing Chambers v. Baltimore & Ohio R. , 207 U.S. 142, 148

(1907). That right is not at issue in this case.

28

In that context, Mr. Murphy’s law clerk status only

buttresses the appeals court’s conclusion. It shows that the

prison saw no need to bar prisoners from helping each other

with legal matters, and indeed that Mr. Murphy was a person

whom they deemed qualified, and assigned, to engage in

precisely that sort of communication. Along with the fact that

the prison did not prohibit other correspondence with prisoners

in the high security compound, these facts show that nothing

about Mr. Murphy’s communication presented any threat to

legitimate prison management concerns.

IV. The Punishment of Respondent Denied Due Process

Since the Rules Do Not Give Adequate Notice That

They Forbid Speech about Staff Misconduct.

The discipline of Mr. Murphy also denies due process

because the rules under which he was disciplined are

impermissibly vague as applied to his conduct, and thus fail to

give “fair notice to those to whom [they are] directed.”

Grayned v. City of Rockford, 408 U.S. 104, 112 (1972)

(citations omitted).'° The vagueness doctrine serves to

eliminate the impermissible risk of discriminatory

enforcement [citations omitted], for history shows that

speech is suppressed when either the speaker or the

message is critical of those who enforce the law. The

question is not whether discriminatory enforcement

occurred. . . but whether the Rule is so imprecise that

discriminatory enforcement is a real possibility.

Gentile, 501 U.S. at 1050; accord Reno v. American Civil

'’Mr. Murphy alleged that the rules were vague as applied to his

conduct, but the Ninth Circuit did not reach this question, concluding only

that the regulations were facially valid. Cert. App. 15-16.

29

Liberties Union, 521 U.S. 844, 871-72 (1997)."°

Both rules invoked to punish Mr. Murphy fail on these

grounds. First, the prison relied upon the insolence rule, which

forbids “words, actions or other behavior which is intended to

harass or cause alarm in an employee” and “cursing; abusive

language, writing or gestures directed to an employee.” JA 10.

But Mr. Murphy’s statements were not “directed to” Officer

Galle; rather, they were made in a private letter to Mr. Tracy,

intended to be read only by Mr. Tracy and the prison mail

censor. He could not have known that statements made entirely

out of earshot and view of Officer Galle would be deemed

insolence. Nor is there any evidence that they were “intended

to harass or cause alarm” in Officer Galle.'’ JA 59, 61. The

prison’s expansive view of the regulatior’would mean that any

time a prisoner complained about a corrections officer to

anyone, he would be deemed “Insolent.”

The prison also concluded that Mr. Murphy violated the

rule against “Interference with Due Process Hearings.” JA 61.

That rule prohibits “Intimidating or tampering with an

informant or witness; tampering with or destroying evidence;

interfering with an employee in the process of writing a conduct

report; making a false statement of misconduct against another

inmate or staff which could result in a disciplinary violation.”

‘Although the Court has applied the vagueness doctrine less

rigorously outside the context of criminal law, see NEA v. Finley, 118 S. Ct.

2168, 2179 (1998), the penalties imposed in prison, such as isolated

punitive confinement, are “more akin to criminal rather than civil

penalties.” Chatin v. Coombe, 186 F.3d 82, 86 (2d Cir. 1999).

The evidence against Mr. Murphy on both counts consisted

solely of the infraction reports, JA 52, 54; Mr. Murphy’s letter, JA 50; and

his written statements, JA 59,61. See JA 59,61. None of these documents

display any indication of intent to harass or cause alarm in Officer Galle (or

any evidence that Mr. Murphy’s statements were false).

30

JA 22. The prison contends that he violated the rule in two

respects: by providing information to Mr. Tracy with respect to

his court hearing (JA 54); and by stating that Officer Galle had

retaliated against him and sexually harassed prisoners. JA 62.

Nothing in the rule notifies prisoners that it forbids

exchanging relevar.t information about pending court cases.

The rule appear to be addressed exclusively to internal

proceedings, but even if it is not, it simply cannot be the basis

for Mr. Murphy’s discipline, as he had no way to know his

letter to Mr. Tracy would violate this rule.

Nor can Mr. Murphy’s statements be punished under the

other prong of the rule, which prohibits “making a false

statement of misconduct” against a staff member. Even in a

prison disciplinary proceeding, there must be “some evidence”

to support the charges. Superintendent v. Hill, 472 U.S. 445,

457 (1985).'® There is no evidence whatsoever that Mr.

Murphy’s statements were false or malicious. See n.17, supra.

Thus, the discipline imposed on Mr. Murphy is unconstitutional

regardless of the Court’s resolution of the substantive First

Amendment issues presented.

CONCLUSION

The judgment of the court of appeals should be

affirmed.

'*It is doubtful that “some evidence” would suffice, even in prison,

to support punishment for speech addressing about official misconduct. See

New York Times v. Sullivan, 376 U.S. at 285-86 (requiring “convincing

clarity” and showing of actual malice to support defamation finding against

public official). How ver, in this “no evidence” case, the Court need not

reach the question.

December 2000

31

Respectfully submitted,

DANIEL L. GREENBERG

JOHN BOSTON

Counsel of Record

MARY LYNNE WERLWAS

Legal Aid Society of New York