Activist Loses Appeal for Free Speech in Prison

MANHATTAN (CN) — An environmental activist thrown in solitary confinement for sharing his politics in online magazines does not have a First Amendment case against his former prison officials, the Second Circuit ruled Tuesday.

Daniel McGowan, a former member of the Earth Liberation Front, was involved in the arsons of two Oregon-based lumber companies in 2001.

Four years would pass, however, before McGowan's foray into radical activism caught up with him.

The FBI eventually closed the loop on McGowan's case during "Operation Backfire," an investigation that the bureau described as a crackdown on "eco-terrorism," which critics cast as a green version of the Red Scare.

McGowan insists that he had renounced his affiliation with the group long before authorities arrested him at work, but his later disavowal of their methods did not provide him with any mercy at his criminal prosecution.

In 2007, a federal judge would apply a so-called "terrorism enhancement" in sentencing him to spend seven years in prison.

Initially designated as a low security prisoner, McGowan claimed in a federal lawsuit that officials at FCI Sandstone in Minnesota assigned him to a so-called Communication Management Unit, or CMU, a year into his sentence to squelch his online journalism.

Prison documents reprinted in his lawsuit justified his placement there by citing McGowan's bylines in a handful of movement outlets, including Portland Independent Media, Bite Back and Earth First! Journal.

McGowan received higher-profile media attention after being featured in the Oscar-nominated documentary, "If a Tree Falls: A Story of the Earth Liberation Front."

The Huffington Post later invited him to write about life in the CMU in articles accusing prison officials of violating his constitutional rights, but he has had trouble convincing judges that his speech deserved protection.

Upholding a Brooklyn federal judge's ruling, the Second Circuit dismissed McGowan's lawsuit on Tuesday.

"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.

Judges Robert Katzmann, Jonathan Sack and Raymond Lohier are named as authors of the 19-page opinion.

Their ruling expressed sympathy with the justifications some prisons floated for preventing prisoners from having journalistic bylines.

"For example, in litigating the constitutionality of the byline regulation in the District of Colorado, the government took the position that allowing inmates to publish bylined articles could create security problems by permitting such inmates to become 'big wheels' in the prison community, or could incite violence, or could intimidate prison staff members," the opinion states.

"Whether or not we would agree with that analysis is beside the point," the ruling continues. "We conclude only that, in light of the different interests at stake, our case law establishing a prisoner's right to file a lawsuit or grievance does not clearly establish a prisoner's right to publish an article under a byline."

McGowan's attorney Alexander Reinart, a professor at Yeshiva University's Cardozo Law, said in a phone interview that he is "disappointed" in the ruling.

"We're reviewing all of our options right now," he said.

A spokeswoman for the U.S. Attorney's office for the Eastern District of New York declined to comment on the ruling.

Meanwhile, McGowan is named as a co-plaintiff in another active lawsuit in Washington that attacks the constitutionality of CMUs.

Created during the George W. Bush administration, CMUs place prisoners under constant surveillance and radically restrict their contact with the outside world. Civil libertarians have long denounced these units as unconstitutional overreaches in the name of fighting terror.

The Center for Constitutional Rights, a New York-based advocacy group, noted in their lawsuit that 60 percent of prisoners in CMUs are Muslim, even though only 6 percent of the U.S. prison population practices that religion.

The lawsuit lists McGowan among the minority of non-Muslim CMU inmates, largely held in these units for their political affiliations.

The D.C. Circuit has yet to issue a ruling on the case, led by Yassin Muhiddin Aref, who is serving a 15-year sentencing in connection with a counterterrorism sting operation.

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