Free Speech Also Protects Sealed Lips, Second Circuit Says

(CN) – In an expansion of inmate rights, the Second Circuit ruled Wednesday that the First Amendment protects speech and, in some cases, silence.

“To force a person to speak, and compel participation, is a severe intrusion on the liberty and intellectual privacy of the individual,” U.S. Circuit Judge Rosemary Pooler wrote this morning for a three-judge panel.

“Just as compelled silence will extinguish the individual’s right of expression, compelled speech will vitiate the individual’s decision either to express a perspective by means of silence, or to remain humbly absent from the arena.”

The case came before the Manhattan federal appeals court after inmate Mark Burns alleged in a federal complaint that guards punished him for refusing to turn snitch.

Though he was paroled last year, prison records show, Burns was serving a nearly 20-year stretch at the time for manslaughter and arson convictions.

He says he had just been transferred in 2010 to Coxsackie Correctional Facility, just south of Albany, when he got a black eye in the prison commissary because a can had fallen on him.

As Burns tells it, correctional officers approached him the next day, saying his wife had complained that another inmate caused Burns’ injury.

Though Burns insisted that it was only a can that gave him the black eye, he says the officers made an offer: face a stint in involuntary protective custody or IPC, “for his safety,” or agree to inform for the guards.

IPC in many cases involves a heavy dose of solitary confinement, and Burns spent over six months on highly restrictive status because he refused the offer.

Though the Second Circuit’s ruling Wednesday marks a boon for inmate rights, the federal appeals court affirmed dismissal of Burns’ case on the basis of qualified immunity.

Noam Biale, an attorney for Burns with the firm Sher Tremonte, nevertheless applauded the outcome.

“We are pleased that the court recognized the fundamental right of every person not to be conscripted into becoming an informant for the government, regardless of whether that person is  incarcerated or at liberty,” Biale said in an email.

Pooler’s opinion cites hundreds of years of U.S. history as justification for the First Amendment holding, noting that the coercive and invasive tactics of British troops during the Revolutionary War helped guide “the Framers in crafting the Bill of Rights.”

“In the case of the unconfined individual, she may walk away [from police questioning],” wrote Pooler. “But in the case of the prisoner, she cannot walk away, as she is physically incarcerated within the institution. Thus her only recourse is in speech: she may decline to answer.”

Christopher Dunn, associate legal director of the New York Civil Liberties Union, had a mixed take on the court’s ruling.

“The Second Circuit’s recognition that the First Amendment shields prisoners from being forced into being snitches or sources of false information is an important step towards protecting inmates from coercive practices,” Dunn said in an email Wednesday. Criticizing the decision to offer the guards qualified immunity, Dunn said that doctrine allows “far too many government officials [to] get away with unconstitutional conduct.”

This is the first time a court has ruled on the specific right of prisoners to refuse to provide false information to the government. It qualified that in an emergency or a few other situations, the First Amendment may not apply.

“The right not to speak derives largely from the notion, central to our system of government, that the individual’s right to ‘freedom of mind’ must be jealously guarded,” Pooler wrote.

“In our view, compelled speech presents a unique affront to personal dignity.”

The New York State Attorney General’s office, which represented the defendants, did not immediately respond to a request for comment Wednesday.

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