New York Dept. Of Corrections Bets On Prior Restraint, Adds Shackles To Certain Forms Of Personal Expression
from the shut-up,-they-policied dept
There have been plenty of laws passed to keep prisoners from profiting from depictions of their crimes, encompassing not only their own recountings, but those put together by others. These so-called “Son of Sam” laws got their name from serial killer David Berkowitz, who authorities speculated was going to sell off the rights to his life story for an immense amount of money. This deal never materialized, but the New York State Legislature passed the first “Son of Sam” legislation anyway.
Other states have passed similar legislation. While it might seem wise to prevent prisoners from profiting from the misery they’ve inflicted on others, the laws are often read to prevent prisoners from engaging in any sort of personal expression for profit, whether or not it’s tied to the crimes for which they were convicted.
Consequently, these laws have been frequently challenged in court. The New York law was ruled unconstitutional by none other than the US Supreme Court, which found that the law — while possibly well-intended — would have prevented the publication of everything from Malcolm X’s autobiography to The Confessions of St. Augustine, a 4th century recounting of a canonized saint’s life of (extremely mild) crime prior to his conversion.
Having been proven wrong once, the New York State Department of Corrections is now striving to be proven wrong twice. As NY Focus reports, the DoC has issued a new internal policy that forbids prisoners from engaging in journalism or any other artistic expression that might possibly result in them getting paid for their work.
The Department of Corrections and Community Supervision’s directive, which went into effect on May 11, establishes a stringent, months-long approval process for people in its custody to publish creative work, including books, art, music, poetry, film scripts, and other writing. It gives prison superintendents the power to block work from publication if it violates any of a number of broad rules — including bans on mentioning the artist or author’s crime and portraying doccs in a way that could “jeopardize safety or security.” And it stipulates that incarcerated people can’t be paid for their creative work without permission.
It’s pretty much prior restraint, but couched in cautious language over the course of four pages. It doesn’t strictly forbid protected expression. It simply says the prison will decide whether or not the expression can be published. And it strictly forbids profiting from any creative work without the DoC’s permission — permission it’s unlikely to extend no matter how worthy of payment or devoid of objectionable content the creative work is.
While it seems like the sort of thing necessary to deter prisoners from selling shocking stories to the highest bidder, the reality is much more banal. And much more evil in its banality. For instance, it would have prevented prisoner John J. Lennon from providing an insider’s view on the societal issues facing released prisoners, like a lack of housing and steady employment — views most recently published by none other than New York’s Paper of Record.
And it will affect others, like one of Lennon’s colleagues, Freddy Medina:
Like Lennon, Freddy Medina nurtured his passion for writing while in prison. Before his release last September, he wrote an essay and began reporting an article for New York Focus.
Second only to getting his bachelor’s and master’s degrees, “being published while I was incarcerated was one of the single most important things to happen to me,” he said. “I’d been wanting to be a writer since I was a child.”
It’s unclear whether his work — on hunger in prisons and guns in schools — would’ve made it past the new directive. New York Focus definitely wouldn’t have been allowed to pay him for it before his release.
That’s the banality of the new policy [PDF]. Here’s the evil lurking behind the banality:
Per the directive, they can block pieces that “promote sexual activity,” depict symbols of “unauthorized group activity,” “advocate rebellion against government authority,” or appear to be “written in code.”
Officials can also forbid publication of work that portrays “law enforcement officers or doccs in a manner which could jeopardize safety or security.” When New York Focus asked doccs to clarify this point, the department simply repeated it.
It’s not enough to control every aspect of a prisoner’s life. The DoC feels it must also control the narrative, even when it’s a direct contributor to these narratives. The blanket ban on discussing anything that might “jeopardize safety or security” means prison officials are free to reject anything that discusses any aspect of prison life. “Safety/security” is a blanket justification for acts of law enforcement violence. This is the flip side: a justification for any censorship of anything that realistically depicts prison life.
These aren’t the sort of restrictions that can survive a constitutional challenge:
- Incarcerated creative arts projects shall not:
a. Include depictions or descriptions of the incarcerated individual’s crime or
crime victims.
b. Depict hand signs, insignias, graffiti, or any other identifiers depicting or
pertaining to a gang or unauthorized group activity.
c. Promote sexual activity.
d. Contain information that appears to be written in code.
e. Portray individuals of a religion or protected class in a negative light.
f. Advocate rebellion against government authority.
g. Portray law enforcement officers or DOCCS in a manner which could
jeopardize safety or security.
That covers a lot of what prison journalism or other expression might involve. You can’t discuss prison life without discussing crime, crime victims, gang activity, or antipathy towards corrections officers. The policy allows the DoC to make all of these determinations without seeking the input of any impartial party. The final call will be made by the entity with a vested interest in only allowing the most positive portrayals of prison life to escape its literal walls. It sets itself up as the final arbiter of speech, which is definitely going to cause it problems in court should any prisoners sue over these highly arbitrary restrictions.
Only prisoners can inform the rest of the world about prison life and life beyond prison. Telling them they simply can’t talk about it while still behind bars isn’t the way the First Amendment works, especially when compensation (whether or not legally barred by “Son of Sam” laws) appears to be only a secondary concern. And if that’s the case, this is nothing more than the DoC finding yet another way to silence incarcerated critics from finding a sizable un-incarcerated audience for their expression.
Filed Under: 1st amendment, ny state department of corrections, prior restraint, prisoners, publishing