Inmate Internet Ban Lifted

Judge halts law banning inmates on the Internet

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."

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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

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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.

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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

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© 2002 The Reporters Committee for Freedom of the Press

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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."

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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

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