Twist in inmate-speech case may thwart high court ruling

Wednesday, January 17, 2001

A case testing the First Amendment rights of prison inmates went
before the Supreme Court yesterday. But the arguments took an unusual twist,
casting doubt on whether the court will actually rule in the case.

At issue in Shaw v. Murphy was a ruling by the 9th U.S. Circuit Court of Appeals that declared the
free-speech right of prison inmates to give legal advice to fellow prisoners.
Montana inmate Kevin Murphy, a jailhouse law clerk, was disciplined for writing
a letter to a fellow inmate that contained legal advice, as well as disparaging
comments about a prison guard.

Lawyers for the state of Montana and the federal government attacked
the ruling, saying prisons should be able to impose disciplinary rules on
prisoners even when they affect inmate-to-inmate communications. Jailhouse
lawyers can be a “menace to prison discipline,” said Patricia Millett,
assistant to the U.S. solicitor general.

After the government finished its argument, Murphy’s attorney,
University of Montana law professor Jeffrey Renz, had the opportunity to defend
the 9th Circuit decision. But instead of defending the ruling, Renz suggested
that the appeals court had gone too far in declaring a separate First Amendment
right of inmates to give legal advice. Renz argued that Murphy’s punishment was
unconstitutional under a more modest standard declared by the Supreme Court in
Turner v. Saffley, a 1987 decision
that gives prison officials leeway to restrict inmates’ rights for penological
reasons. But he also said he was not asking the court to revoke the

With no one before them actively defending the 9th Circuit decision or
challenging Murphy’s punishment, several justices expressed concern that the
case was no longer a live dispute. The high court is usually reluctant to rule
in cases in which the parties do not clearly disagree. In such circumstances,
the court sometimes dismisses the case as “improvidently granted.”

The 9th Circuit decision was authored by Judge Betty Fletcher in 1999
on behalf a panel that included Stephen Reinhardt and Sidney Thomas.

Asked directly by Justice Sandra Day O’Connor whether he agreed with
the 9th Circuit that inmates enjoy a “free-standing” First Amendment right to
give legal advice to other inmates, Renz said no.

Chief Justice William Rehnquist, appearing incredulous, said of the
9th Circuit’s finding of a First Amendment right, “That’s the question in this
case.” He read to Renz the question on which the Supreme Court had granted
review, and again asked if he was defending the appeals court’s position. No,
Renz said. “I’m at a loss,” Rehnquist said with resignation in his voice.

“That’s the question we’re interested in,” said Justice Anthony
Kennedy. Without that question in the case, Kennedy said, it becomes a “routine
prison discipline case.”

Asked what remedy he sought, Renz noted that Murphy, still in prison,
would like a declaratory judgment prohibiting future disciplinary action for
his legal advice. But that forward-looking remedy does not fit the kind of suit
Murphy brought, Justice David Souter suggested, adding, “We’re stuck as to what
we can do for you.”

Renz could not be reached following the arguments, but the briefs in
the case foreshadowed the discussion to some extent. Perhaps believing the
court would not embrace the 9th Circuit decision, Renz distanced himself from
the ruling in his brief and asked the Supreme Court to take a much smaller

But he may have asked for so little that the justices were left with
nothing on which to rule. As his half-hour wore on, Renz said he might have
misunderstood the justices’ questions. But he still refused to embrace the 9th
Circuit’s declaration of a special First Amendment right for inmates to give
legal advice to other inmates.

Just before Renz sat down 10 minutes early, Scalia said, “It’s a
strange manner of litigating” when “you don’t care enough about what is
happening to you” to challenge it.

A decision by the court could come anytime before its summer recess
begins in late June or early July.