Green Activist Challenges Free-Speech Setback

MANHATTAN (CN) — An environmental activist thrown into solitary confinement for a Huffington Post article urged the Second Circuit to reconsider its ruling that threatens to chip away at First Amendment protections prisoners have earned over decades.

Daniel McGowan, a former member of the Earth Liberation Front, had been one of the central figures in an FBI clampdown on radical environmentalists and animal-rights activists code-named "Operation Backfire."

In 2007, a federal judge sentenced McGowan to seven years in prison for his involvement in the arsons of two lumber companies, and the Brooklyn-born activist wrote about his political beliefs in a smattering of movement outlets, including Portland Independent Media, Bite Back and Earth First! Journal.

More mainstream media attention followed when an Oscar-nominated documentary "If a Tree Falls: A Story of the Earth Liberation Front" profiled his movement in the context of the FBI's post-9/11 clampdown on what authorities called "eco-terrorists."

Believing his public visibility worried prison authorities, McGowan wrote a Huffington Post article claiming to find proof that authorities assigned him to the so-called Communications Management Unit — a highly restricted area typically reserved for terrorists — in retaliation for his speech.

Weeks after publishing this article in April 2013, McGowan was moved from a halfway house in Brooklyn to Metropolitan Detention Center's Special Housing Unit, where he spent a little less than a day in solitary confinement before his lawyers intervened.

McGowan sued a little more than a year later in Brooklyn Federal Court for a violation of his First Amendment rights.

Roughly two years after McGowan's stint in solitary, U.S. District Judge Brian Cogan found that prisoners have no right to bring a Bivens claim — named after a landmark Supreme Court case against officers for violation of a civil right — under the First Amendment.

The Second Circuit quickly disposed of McGowan's appeal, finding the Brooklyn halfway house official whom he sued qualified for immunity.

"We conclude that, at the time the alleged violation occurred, our case law did not clearly establish that McGowan had a First Amendment right to publish his article," a three-judge panel unanimously found.

The appellate court did not address the district court's finding that such a right does not exist.

McGowan's attorney Alexander Reinert, a professor at Yeshiva University's Benjamin N. Cardozo School of Law, told the Second Circuit on Tuesday that its decision flouts precedent and "leaves thousands of prisoners vulnerable for abuse."

"When one steps back to consider the different kinds of speech by prisoners that have been given First Amendment protection by the Supreme Court, this court, and other circuits, there is no credible argument that a reasonable official could maintain that publishing a blog post is meaningfully different," he wrote in a 22-page petition for a rehearing.

One of those cases, Reinert said, was the 1974 case of Pell v. Procunier, which struck down a California regulation preventing four prisoners from communicating with three journalists who joined their lawsuit.

The Second Circuit found 15 years later that prisoners who "wrote letters to a local newspaper, various officials and public interest groups" were protected by the First Amendment in the case of Meriwether v. Coughlin.

These precedents, for Reinert, leave no doubt that McGowan had a right to his Internet bylines.

To find otherwise, the petition states, "One would have to accept that a prisoner has a First Amendment right to be quoted extensively in a Huffington Post article without fear of retaliation from prison officials, but not write a post under a byline for the same website."

Although McGowan spent only 22 hours in solitary confinement, Reinert noted that his client was fortunate to have attorneys from the Center for Constitutional Rights secure his prompt release.

"Other prisoners will not be so lucky and will suffer by the panel leaving intact the district court's erroneous Bivens holding," the petition states.

One such prisoner, Demetrius Hill at the Metropolitan Correctional Center, claims that guards threatened him with a noose to prevent him from filing grievances.

Prosecutors cited McGowan's case to throw out Hill's pro se petition.

In a phone interview, Reinert said he filed a friend-of-the-court brief that helped keep Hill's case alive, and that the Second Circuit should be aware of the reverberations of its McGowan decision.

"I think it is important for them to understand that there are consequences to them leaving the district court decision intact," he said. "Sometimes you can do quite a bit by doing nothing, and I fear that is what is happening here."

The Second Circuit rarely accepts petitions for an appeal en banc, a hearing that takes place before a full, 13-judge panel of the court. But Reinert said he believes that McGowan's challenge deserves their reconsideration.

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