By Kenneth Lipp and Dustin Slaughter
Counsel for Pennsylvania Attorney General Kathleen Kane and Philly District Attorney Seth Williams, defendants in a lawsuit brought by local journalists over the recently-passed and Constitutionally-questionable Revictimization Relief Act (RRA), filed motions to dismiss the suit last week (posted below).
The plaintiffs, which include Prison Legal News (named in the defendants’ motions as PLN), the Pennsylvania Prison Society, and Philadelphia-based journalists Daniel Denvir, Christopher Moraff, among others, are seeking an injunction based on their belief that the RRA will endanger the free speech rights of prisoners because it potentially targets speech based on content, and impact journalists’ ability to talk to sources for stories – and in so doing, create a chilling effect throughout the journalistic profession. The plaintiffs dubbed the law “the Silencing Act” in their initial filing and have used it interchangeably with the act’s formal name, and it will receive the same treatment here.
Kane writes in her motion that though the plaintiffs named her as defendant because the AG has statutory power to enforce the law, that they did not allege any act or statement on her part indicating she would pursue enforcement of the act against the plaintiffs or other party.
The Attorney General argues that the plaintiffs in the case do not have standing because their fear of the law is “abstract” and “hypothetical.”
She also claims that the Silencing Act itself is not “ripe for review,” in that the law’s passage has yet to have direct consequence as it has yet to be enforced, and thus the plaintiffs claims must be dismissed as “contingent on future events.”
AG Kane’s filing names what she determines to be legitimate cases for use of the act, such as prevention of harassment of rape victims. But there are laws which already protect victims of personal injury crimes from being demonstrably revictimized by convicted offenders, as Kane notes herself in her motion: “It appears that the Revictimization Relief Act — providing for a statutorily based tort cause of action for this type of conduct — is the first of its kind. However, there are numerous criminal statutes (See, e.g., 18 Pa.C.S.A. § 2706 (terroristic threats); 18 Pa.C.S.A. § 2709 (harassment); 18 Pa. C.S.A. § 2709.1 (Stalking)) and common law torts (intentional infliction of emotional distress, negligent infliction of emotional distress) that are similarly aimed at thwarting conduct that causes emotional harm or distress to a victim.”
Her motion cites Mumia’s regular publication to Prison Radio News since the law’s enactment as evidence that the plaintiffs, and Abu Jamal especially, have no reasonable fear that the act will be used to restrict their speech unlawfully.
Philly DA Seth Williams claims that his disposition toward the First Amendment should be trusted, when it comes to his decision of when to pursue enforcement of a law that allows injunctive relief against the potentially massive and intrinsically subjective category of “conduct which perpetuates the continuing effect of the crime on the victim.”
The District Attorney says in his brief that he will not enforce the law while the current litigation is pending, but makes no assurances that he will not employ it should this case be dismissed or adjudicated in his favor.
Both ignore the elephant that will be in the room for life without the possibility of parole – that the passage of the Revictimization act was in direct response to a case of protected speech that hurt someone’s feelings. It was not verbal harassment of the Faulkner family by Mumia Abu Jamal that the Silencing Act’s champions sought to mute. The law’s supporters wish to remedy personal offense taken to the fact that Mumia’s lawful speech was given a public platform. Indeed, the Fraternal Order of Police and others are likely to treat anything but the immediate carrying out of Jamal’s now-commuted death sentence as a direct attack on the widow of Daniel Faulkner and on police officers everywhere.
That the law has yet to be used to prevent Jamal’s routine publication to prison media website is little comfort, as it is not feared or alleged that the Silencing Act will be employed wholesale or with consistency, but on the contrary that it will be wielded selectively, with no small influence from special interest groups and the political cycle.
The Plaintiffs response to Kane and Williams’ motion for dismissal:
“…it should not be left to the government, when it has not disavowed an intent to enforce the law, to determine if and when to give a court the opportunity to strike the law down. The Silencing Act—enacted in response to a commencement speech by Mumia Abu-Jamal—is unconstitutional due to its vagueness, its content-based regulation of speech, its overbreadth, and its authorization of prior restraints.”
The injury, and it’s to everyone, is the passage and tacit acceptance of an unconstitutional statute that directly threatens convicted persons with legal consequences for an indefinable region of expression.
It is not necessary to present evidence of pending or imminent enforcement of law passed as a reckless political “hail mary,” and with the potential to coerce silence of offensive but lawful speech. What is enactment of law if not a threat of its enforcement (save public repudiation of the act by both Kane and Williams)?
District Attorney Seth Williams’ Brief in Motion to Dismiss
Attorney General Kathleen Kane’s Brief in Motion to Dismiss
PLN, et. al Response to Motion to Dismiss