EDITORIALS

Free speech may be limited for prisoners, but not taken away

Posted June 22, 2015, at 1:24 p.m.

Like many inmates before him, Randall Daluz, convicted of murdering three people, says he has found God, and he wants to share his insights with others. Working through a Christian couple who visit inmates at the Penobscot County Jail, Daluz’s writings are currently shared on his website, The Journal of a New Creation.

But when Daluz is moved to the state prison system after he is sentenced, his writings can no longer be posted to the website, corrections officials have warned.

The state’s policy of forbidding prison inmates from publishing their work “under a byline” stems from a similar federal prohibition. But that prohibition was removed from the federal Bureau of Prisons regulations in 2012, after a federal court ruled it violated the First Amendment of the U.S. Constitution.

“Based upon the evidence in the record, the Court cannot find that there is any particular security risk associated with an inmate publishing under a byline in the news media that is not present with other inmate publications,” Judge Marcia Krieger, a judge for the U.S. District Court for the District of Colorado, wrote in the 2007 opinion. Krieger found no security risk that justified the chilling of the speech rights of more than 198,000 federal inmates.

This eight-year-old finding should prompt Maine’s Department of Corrections to revisit its byline prohibition, which former Corrections Commissioner Joseph Ponte made clear applied to online sites in a March 2014 memo. Daluz doesn’t have access to the Internet at the Penobscot County Jail. The wife of his spiritual advisor created the site, and Daluz sends her his writings by mail. She transcribes them and posts them on the website under his name.

“He’s not running a website per se from our facility,” Penobscot County Sheriff Troy Morton said. “People have a right to exercise their religious beliefs.”

It is understandable — and reasonable and proper — for prison officials to put limits on prisoner behavior, both to maintain prison security and to shield victims and their families from harassment, for example. However, courts have made it clear that such restrictions must be weighed against prisoners’ rights — and be narrowly tailored.

In a 1987 case involving restrictions on prison inmates in Missouri sending letters to one another, the U.S. Supreme Court set up a four-part test for First Amendment claims. The Turner test asks: 1) Is the restriction related to a neutral government interest, such as maintaining prison security; 2) Does the regulation leave alternate means to exercise constitutional rights; 3) Does enforcing the rule require staff time and prison expense or pose a risk to other prisoners; and 4) Are there “easy alternatives” to accomplish the same goals as the regulation but without constraints on prisoners’ rights?

A further consideration is that Daluz’s writings are often of a religious nature. Like free speech, courts have upheld prisoners’ rights to practice their religion. It is less clear what protections apply to religious writings that aren’t integral to the practice of religion.

Based on these considerations and court rulings, a peremptory ban on the posting of all of Daluz’s writings seems broad and unnecessary. Plus, it would appear to put Maine on shaky legal ground.

 

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