# Amicus Curiae Brief — Shaw v. Murphy

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0362%3A12

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2001
- **Citation:** 532 U.S. 223

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0362%3A12. Public record. Not legal advice.