9th Circuit rejects inmate’s free-speech claim

Monday, April 9, 2012

A federal appeals court avoided the question of whether Oregon prison officials violated an inmate’s First Amendment rights when they punished him for “posting” letters supporting his white-supremacist gang. The 9th U.S. Circuit Court of Appeals simply sidestepped the larger constitutional question by concluding that the prison officials were entitled to qualified immunity because the law was not clearly established.

Jacob Barrett, formerly housed at the Oregon State Penitentiary, contended that officials violated his free-speech rights for disciplining him for the content of his letters. Officials said Barrett, now imprisoned in Oklahoma, had been disciplined for “posting” letters in support of the Aryan Soldiers, a prison gang in which officials believed Barrett was a member. The word “posting” in the opinion leaves it unclear whether Barrett mailed or tried to mail the letters, or whether he displayed them in the prison in some manner.

Barrett argued that the U.S. Supreme Court’s decision in Procunier v. Martinez (1974) supported his claim. In Procunier, the Court invalidated several prison-mail rules of the California Department of Corrections, which had allowed officials to censor inmate mail if it contained “exaggerated complaints, magnified grievances” or “expressions of inflammatory political, racial or religious views.” The Court struck down the rules because they allowed officials to censor any prisoner letters they wanted.

A federal district court rejected Barrett’s claims. On appeal, a three-judge panel of the 9th Circuit unanimously affirmed the lower court in its April 6 decision in Barrett v. Belleque. The 9th Circuit recognized the Procunier precedent but distinguished it from Barrett’s case:

“Procunier … did not address whether inmates can be disciplined for posting letters directing hostile and abusive language to and at prison staff, which the defendants here reasonably believed Barrett to have done.  Rules prohibiting inmates from directing disrespectful comments toward staff indisputably further legitimate penological interests in security, order and rehabilitation.”

However, the appeals court stopped short of addressing the First Amendment claim in detail. Instead, it took a shortcut sanctioned by the U.S. Supreme Court’s decision in Pearson v. Callahan (2009) — a Fourth Amendment case in which the court made it easier for judges to decide cases on qualified-immunity grounds.

“Qualified immunity” means government officials are not liable for constitutional violations unless they violate clearly established constitutional or statutory law. The idea behind qualified immunity is that it would be unfair to impose liability on public officials when they reasonably believed they were acting lawfully.

In Saucier v. Katz (2001), the Supreme Court had ruled that in cases where a qualified-immunity defense arises, a reviewing court must follow a two-step process. First, the court must determine whether the facts as alleged by the plaintiff constitute a violation of a constitutional right. Second, the court must determine whether, at the time of the conduct in question, that right was clearly established.

In Pearson, the Court ruled that judges can avoid the first question — whether a constitutional right has been violated — and simply decide a case on the clearly established grounds. It’s possible that federal judges will rule in at least some First Amendment cases on qualified-immunity grounds by deciding simply whether the right was clearly established — without addressing the question of whether certain government conduct violates the First Amendment in the first place.

That is what happened in Jacob Barrett’s case. The appeals court avoided deciding the First Amendment question — something that could come up in many other prison-mail disputes. Instead, it took the easy way out.

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