Beth DeFalco
Associated Press
Dec. 17, 2002 05:08 PM
A federal judge ordered the Department of Corrections to stop enforcing a policy forbidding Arizona inmates from corresponding with, or appearing on, Web sites.
U.S. District Judge Earl Carroll granted an injunction request by the American Civil Liberties Union to stop enforcement of the law, which is the subject of a pending lawsuit.
"Putting free speech behind bars simply because it concerns prisoners sets a dangerous precedent," said Arizona ACLU attorney David Fathi. "The court's decision makes clear that Arizona may not jail the Internet."
The statute, passed by the Legislature in 2000, makes it a misdemeanor for an inmate to communicate with Internet service providers, send a letter to a Web site or to a third party who then forwards it to a Web site or publishes it for the inmate.
Inmates can lose privileges, good-behavior credits or face other punishment for violations, corrections officials said.
The lawsuit was filed by the Canadian Coalition Against the Death Penalty, which is represented by the ACLU.
The group claims the law violates prisoners' constitutional right to free speech and attempts to suppress unfavorable opinions about the Corrections Department.
In his ruling, Carroll wrote that protecting the First Amendment is a "compelling public interest."
Department of Corrections Chief of Staff Gary Phelps said that since the law went into effect, 53 inmates have been cited for violations. However, until a final ruling is made on the case, those citation will not be dealt with or removed from prisoner records.
He said the law is necessary because inmates use the Internet to defraud the public, contact minors and even plan escapes.
The department only investigates inmate Internet publications when information is brought to its attention.
"The Internet in general is difficult to police," Phelps said.
An increasing number of prisoners are going online to post their stories on Web sites.
Debra Jean Milke, the only woman on the state's death row, has a site proclaiming her innocence and soliciting donations for her defense. She was sentenced to die for having her 4-year-old son killed before Christmas 1989.
"The public will surely be disgusted with what they see on the Internet from murderers and rapists," said DOC spokesman Mike Arra. "Many people could, and are, preyed upon by inmates through their Internet games."
The state Legislature passed the 2000 law after being lobbied by Stardust Johnson, whose husband, Roy - a University of Arizona music professor - was murdered after leaving a church recital he had given.
Mrs. Johnson was outraged when she came across a Web site her husband's killer was using to solicit pen pals.
"I was deeply offended at seeing this brutal murderer present himself on the Internet as a nice, lonely man," Mrs. Johnson said Tuesday.
She said she was disappointed but not surprised by the ruling. She said she doesn't believe inmates should have that access to the public.
"When this murderer violated my husband's right to life, he gave up certain rights," Mrs. Johnson said.
Eleanor Eisenberg, executive director of the Arizona ACLU, said the inmate Internet law was created in response to Mrs. Johnson and that prison security arguments were an afterthought.
"I don't mean to sound unempathetic," Eisenberg said. "But there's a powerful tool - it's called the (power) off button."
---
On the Net:
Arizona Department of Corrections: http://www.adc.state.az.us
American Civil Liberties Union: http://www.aclu.org
Canadian Coalition Against the Death Penalty: http://www.ccadp.org
--------------------------------------------------------------------------
From: CCADP Subject: News: Arizona Daily Star - US Judge Bars Law
Keeping Inmates Off Net
U.S. judge bars law keeping inmates off Net
By Howard Fischer
CAPITOL MEDIA SERVICES
PHOENIX - A federal judge barred the state from
enforcing a law
blocking prison inmates from soliciting
correspondence on the Internet.
U.S. District Judge Earl Carroll said the law
illegally infringes on
the First Amendment rights of those with whom the
inmates want to
correspond. He said that while officials from the
Department of
Corrections have legitimate security concerns, they
can be addressed
in less obtrusive ways.
Mike Arra, spokesman for the agency, said attorneys
are studying the
ruling before deciding whether to appeal.
Carroll's decision drew an angry reaction from
Stardust Johnson whose
husband, Ron, a University of Arizona music
professor, was murdered in
1995.
It was Stardust Johnson who spurred lawmakers to
enact the ban after
seeing a Web site set up on behalf of Beau Greene,
the man convicted
of her husband's killing.
She said that without the legal barriers inmates,
including
pedophiles, can make contact through the Internet
with people who are
unaware of the crimes they committed.
Johnson had particularly harsh words for one of the
three
organizations that sued, the Canadian Coalition
Against the Death
Penalty. "They ought to go back to Canada and take
care of their own
business there," she said.
Johnson said Greene's Web site was misleading at best.
"It gave no clue he was a brutal murderer," she said.
"Instead he
presented himself as a lonely man holding a cuddly
kitten who was
misunderstood."
Ron Johnson disappeared after an organ performance at
a Green Valley
church. He was found beaten to death four days later,
face-down in a
muddy wash west of Tucson. Greene was sentenced to
die for Johnson's
murder.
Inmates have no direct Internet access. But various
groups, like the
Canadian Coalition, make Web pages available for
inmates who send them
information about themselves, either seeking to tell
their story or
looking for pen pals to write them through the
regular mail system.
The 2000 law closed that avenue by making it a crime
for inmates to
send information that would be posted on the Internet.
In defending the law, the state said the restrictions
are necessary to
prevent attempts to defraud the public and preclude
"inappropriate
contact" with minors, victims or other inmates.
Carroll, however, said there are other ways to do
that, pointing out
that inmates have no direct Internet access.
He noted that prison staffers can open incoming and
outgoing mail and
examine it for contraband. And letters that are not
privileged may be
read to determine if the contents "might facilitate
criminal activity."
The judge also said current prison regulations permit
staff members to
monitor and record inmates' telephone calls.
Carroll also said this is not strictly about the
rights of inmates. He
said those who wish to communicate with inmates also
have a right to
do so - and that the ban on inmates' sending or
receiving mail from
groups that post information on their Web pages
infringes on those
rights.
David Fathi, an attorney representing the three
organizations, said
the law amounted to Arizona trying to impose its
restrictions on what
others outside the state could post on their Web
sites.
But Assistant Attorney General Jim Morrow said the
only bar was to
inmates' sending information. He said nothing
precluded inmate rights
groups from posting stories about Arizona inmates.
Arra said there are other reasons to limit what
inmates can post.
"Many inmates put advertisements seeking pen pals on
the Internet and
seek donations to their causes or to their defense
funds," he said.
"But there's really no authority that is monitoring
where that money
might go other than the inmate himself."
Arra acknowledged that the law covers only Internet
postings - and
never precluded inmates from doing the same thing in
individual
letters or even through ads in commercial
publications.
--------------------------------------------------------------------------
From: CCADP Subject: News: Law Barring Online Info About Prisoners
Enjoined
Law barring online information about prisoners enjoined
* Although prisoners do not have access to the
Internet, the law
would prevent communication between advocacy
groups and the
prisoners they sought to assist.
Under a recent state law, prisoner and civil rights
groups had a choice:
They could either delete information they published on
their Web sites
about Arizona prisoners or risk punishment of those
prisoners they are
trying to help.
But for now, this is not a choice the groups will have
to make.
Recognizing that this law implicated First Amendment
rights, federal
judge Earl Carroll temporarily enjoined enforcement of
the law, which
punishes prisoners if they write to an Internet site
provider, if any
person accesses a Web site at a prisoner's request, or
if prisoners have
access to the Internet.
Carroll's Dec. 16 order came after the American Civil
Liberties Union,
on behalf of the Canadian Coalition Against the Death
Penalty, Stop
Prisoner Rape, and Citizens United for Alternatives to
the Death
Penalty, filed suit to declare the law unconstitutional
and moved to
stop enforcement of the law.
The law was enacted in January 2000 to maintain prison
security, but
plaintiffs argue that it goes too far.
Arizona prisoners do not have access to the Internet;
however, by
writing to an advocacy group that maintains a Web site,
inmates are able
to have information about themselves or their case
published online.
In their motion to enjoin enforcement of the new law,
the plaintiffs
argued that the law violated the First Amendment
because prisoners are
punished when their names are mentioned on a Web site,
even if the
prisoner was not responsible for the material.
The law also violates prisoners' rights because it
prohibits them from
writing to advocacy groups about their innocence or
sexual assault while
in prison, and could be used to punish prisoners when a
Web service
provider publishes an account of their case that
differs from that
offered by the Arizona Department of Corrections, they
argued.
In addition, plaintiffs argued that the law burdens the
speech of
Internet service providers because they must regulate
the circumstances
under which free persons can access their Web sites to
ensure that no
one is accessing the Web site at the request of a
prisoner.
As applied, the law "will inhibit communication between
plaintiffs and
the very population they wish to reach," argued
attorneys for the ACLU.
"With no audience, and severed from the people for whom
they advocate,
plaintiffs' political speech is significantly chilled."
The court found that there is a strong likelihood that
the restrictions
are "not rationally related to legitimate penological
objections" and
ordered the Arizona Department of Corrections not to
enforce the law.
The Department of Corrections argued that the law was
necessary to
prevent crime victims from encountering information
about prisoners on
the Internet that would cause them further pain.
However, "the fact that someone is offended by speech
does not give that
person a veto on the speech," said Alice Bendheim,
co-counsel for the ACLU.
The court also rejected the department's argument that
the law is
necessary to prevent fraud by prisoners or
inappropriate contact with
the public since these concerns are already addressed
by existing
department policies and criminal statutes.
The temporary injunction will remain in effect until
the court has a
full hearing on the issue.
According to the ACLU, Arizona is the only state in the
country to have
enacted a statute that imposes such severe restrictions
on the First
Amendment rights of inmates and non-inmates.
(Canadian Coalition Against the Death Penalty v.
Stewart: Counsel: David
Fathi, ACLU National Prison Project, Washington, DC;
Ann Beeson, ACLU
Technology & Liberty Program, New York, NY; Pamela K.
Sutherland,
Arizona Civil Liberties Foundation, Phoenix, Ariz.;
Alice L. Bendheim,
Alice L. Bendheim P.C., Phoenix, Ariz.) -- ST
http://www.rcfp.org/news/2002/1218canadi.html#init
------------------------------------------------------------------------
© 2002 The Reporters Committee for Freedom of the Press
______________________________________________________________________
From: CCADP Subject: NEWS: Judge Blocks Attempt By Arizona To Ban
Prisoners From Cyberspace
Judge Blocks Attempt By Arizona To Ban Prisoners From
Cyberspace
http://www.thedeathhouse.com/deathhousenewfi_337.htm
By Robert Anthony Philips Dec 17, 2003
Death Row inmates and other state prisoners banned from
cyberspace are
now back in - probably permanently.
A federal judge Monday temporarily stopped prison
officials from
enforcing a law that forbids prisoners
http://www.thedeathhouse.com/deathhousenewfi_109.htm
from sending
information, pictures and stories about their cases or
themselves to Web
sites that publish them.
District Judge Earl Carroll issued the temporary
injunction on the
Arizona law, enacted in 2000 to protect families of
murder victims,
saying the law violates freedom of speech.
David Fahti, staff counsel with the American Civil
Liberties Union's
National Prison Project and co-counsel on the legal
challenge, said the
"battle is over" and doubts whether Arizona will push
to have the
statute upheld and enforced.
"The judge's opinion makes very clear he thinks this
statute is
unconstitutional," Fahti said. "I doubt there is
anything the state can
do to change his mind...At some point, the preliminary
injunction will
turn into a permanent injunction with either the
state's agreement. As
of today, the state cannot enforce the statute."
A spokeswoman for the Arizona Attorney General's office
did not
immediately return a telephone call for comment Tuesday
morning.
The Arizona law banned prisoners from posting
information about their
cases on the Web or corresponding using a remote
computer service or
communication service provider. Various anti-death
penalty groups and
other prisoner rights sites frequently provide inmates
with Web space to
tell about their cases, post pictures and solicit
pen-pals.
Under the law, prisoners who kept information on the
Web were subject to
disciplinary measures and criminal prosecution. Fahti
said that although
no prisoner was criminally charged, some did loose
prison privileges for
having information posted about themselves on Web sites.
Prisoners Disciplined
The ACLU argued that the law had a chilling effect on
advocacy groups
who give prisoners Internet space and also sought to
punish prisoners
who spoke out. The ACLU had challenged the law on
behalf of anti-death
penalty and other advocacy groups
The groups involved include the Canadian Coalition to
Abolish the Death
Penalty and the Florida- based Citizens United for
Alternatives to the
Death Penalty http://www.cuadp.org/ both of which
maintain prisoner
pages.
"Arizona's attempt to censor Internet content was a
frightening step
toward government repression of free speech," said
Eleanor Eisenberg,
the executive director of the ACLU of Arizona, in a
prepared statement.
"Today's court order puts a timely and immediate stop
to this
ill-conceived law."
"Prisoners should not be punished for making public
their claims of
innocence," said Abe Bonowitz, director of Citizens
United for
Alternatives to the Death Penalty. "Today's decision is
a tremendous
victory for civil liberties and freedom of speech. And
it's not just
about prisoners. This benefits everyone."
Killer's Picture On Net Sparked Push For Law
Attempting to restrict prisoner speech is not a new
battleground and
prison systems across the Untied States have been given
wide leeway in
the courts, under the guise of security, to prohibit
certain activities
by inmates.
In September, a U.S. district court judge in California
ruled that
prisoners have a First Amendment right to receive mail
that contains
material printed from the Internet.
Gary Phelps, the chief of staff for the Arizona
Department of
Corrections, said in a interview with The Death
House.com last July that
the cyberspace ban was put in place to prevent victims
from coming
across the pictures and reading letters from the men
and women who
committed crimes against them.
Phelps said the law was proposed after relatives of a
Tucson man who was
murdered came across a Web site portraying the man
convicted of the
killing as a caring person and included a photo of him
holding a cat.
He said the law was enacted by legislature, and not
proposed by the
Arizona Department of Corrections.
Stardust Johnson, the widow of the man killed,
testified on behalf of
the bill, saying that prisoners are sometimes
manipulators, sociopaths
and pscyhopaths who want to prey on people - and the
Internet is a good
way for them to do it.
"I think its a shame that this judge has determined
that prisoners can
have access," said State. Rep. Linday Gray, a
Republican lawmaker from
Phoenix who co-sponsored the legislation that led to
the ban. "Because
of their offenses against society, they should lose the
priviledges that
the rest of free American enjoys."
But, apparently not to say what they want on Web sites.
Feisty Anti-Death Penalty Site
Fahti said the genesis of the law proves that it was to
"surpress
unpopular speech" and not enacted for any legitimate
security concern.
Prisoners, especially death row inmates who are held in
isolation most
of the day, frequently write to the sites requesting
pen-pals,
soliciting donations for defense funds or proclaiming
their innocence.
Some letters even tell of the inner workings of prison
systems and
alleged abuses. Many of the inmates also have their
pictures posted on
the sites.
On the forefront of the battle was the Canadian
Coalition to Abolish the
Death Penalty http://ccadp.org/arizona.htm a feisty
group that refers
to Oklahoma Gov. Frank Keating as "Killer Keating" and
rips President
George Bush, who the coalition accuses of "homicide,"
for okaying
executions while governor of Texas.
After the Arizona law was enacted, the CCADP stated
that an "Iron
Curtain (was) emerging around America's death camps."
In response to the ban, the CCADP announced that it had
put the all
Arizona death row prisoners online "to ensure they were
not effectively
silenced by the law."
______________________________________________________________________
From: CCADP Subject: NEWS: AZ Daily Star Editorial - Unlock Free
Speech - A badly crafted AZ law trampled 1st Amendment
rights
http://www.azstarnet.com/star/today/21219editinmates.html
Tucson, Arizona Thursday, 19 December 2002
http://cgi.azstarnet.com/cgi-bin/print/print.cgi
Unlock free speech
A badly crafted Arizona law trampled First
Amendment rights.
A federal court judge has temporarily blocked an
Arizona law that
aimed to keep sympathetic information about
inmates off the
Internet. Critics view the injunction as an early
Christmas gift
to some of the worst felons in Arizona's prison
system - a view
that completely misses the point.
In limiting the information about inmates on the
Internet, the Arizona
law also limits the free speech rights of anyone -
inmate, lobbyist or
ordinary citizen - who would put information about the
convict on the
Internet. For that reason, the law is likely to be
found unconstitutional.
The American Civil Liberties Union, acting on behalf of
the Canadian
Coalition Against the Death Penalty, filed a lawsuit
against the Arizona
Department of Corrections last July. It contended the
state law
illegally seeks to regulate free speech outside prison
walls.
Some critics of the temporary injunction, issued
Tuesday by U.S.
District Judge Earl H. Carroll, are no doubt under the
impression that
inmates in Arizona prisons have direct access to the
Internet. They do not.
Inmates are not sitting in their cells with a personal
computer and an
Internet connection. They cannot surf the net or
exchange e-mail with
anyone.
What they can do, however, is send information about
themselves to the
Canadian group, which then sets up a Web site for that
prisoner. Inmates
can use the space to discuss their cases or request pen
pals. Anyone who
wanted to do so could then write to the inmate through
the regular mail.
Arizona law says that if information about a prisoner
appears on the
Internet, the inmate can be punished. One of the
attorneys who
challenged the law says that potential punishment in
effect imposes
restrictions on what those outside the state can
publish on their Web
sites. The punishment can be severe: It includes
reducing or eliminating
early release time the prisoner has earned.
The Canadian coalition has been publishing Web sites
for each inmate on
Arizona's Death Row, whether or not the inmate requests
it. It says
Arizona's law embodies a double standard by permitting
the Department of
Corrections to post inmate records on its Web site but
making it illegal
for anyone else to post any other version of the
inmate's information on
another Web site.
The Arizona law that is now blocked from enforcement
was a poorly
crafted bill that resulted from the emotional appeal of
a Tucson woman
whose husband had been murdered. Stardust Johnson's
outrage at
discovering her husband's killer portrayed on the
Internet as a kindly
animal-lover is entirely understandable, but it is not
grounds for
disassembling the First Amendment rights of people who
are not killers.
Mrs. Johnson is the widow of University of Arizona
music professor Ron
Johnson, who was murdered in 1995. The Web site
dedicated to the
convicted killer, Beau Greene, "gave no clue he was a
brutal murderer,"
Mrs. Johnson said in a story in Wednesday's Star.
"Instead he
represented himself as a lonely man holding a cuddly
kitten who was
misunderstood."
Any victim, or any member of a victim's family, would
likely react with
the same degree of anger. Mrs. Johnson channeled her
outrage into the
law, which the federal court has now temporarily
blocked. That law says
"An inmate shall not send mail to or receive mail from
a communication
service provider or remote computing service."
By temporarily blocking Arizona from enforcing that
law, Judge Carroll
wisely noted that the law infringes upon the First
Amendment rights of
those who have created the Web sites. We do not
minimize the despair of
those who were victimized by brutal, remorseless
felons, but emphasis
should be placed on controlling those felons in ways
that do not violate
the constitutional rights of free citizens or groups
with whom officials
may happen to have political or philosophical
differences.
http://cgi.azstarnet.com/cgi-bin/print/print.cgi