CHICAGO (CN) – Prison guards did not violate free-speech rights by confiscating a copy of the Black Panthers’ Ten-Point Plan from Wisconsin inmate and punished him for possessing “gang literature.”
Toni Toston, 29, is serving a 32-year prison sentence at the Waupun Correctional Institute after pleading guilty to murder and armed robbery in 2001. At least one-third of inmates at Waupun are gang-affiliated, and Toston was believed to be a member of the Gangster Disciples.
In 2009, Toston checked out a copy of “To Die for the People: The Writings of Huey P. Newton” from the prison library. Newton was the founder of the Black Panthers.
The book contained the Panthers’ Ten-Point plan, interspaced with explanations of each point. Point Eight calls for “freedom for all Black men held in federal, state, county, and city prisons and jails.” While the book explains that Newton’s objections to black imprisonment derive from his belief of an unfair trial process, Toston’s copy excluded the annotations.
“Indeed, although Newton’s book advocates revolution, it could no more be regarded as a criminal incitement than the Communist Manifesto could be. But this underscores the difference between a book as a whole and an arguably inflammatory nugget plucked from it,” Judge Richard Posner wrote for a three-member panel.
During a random search of Toston’s room, guards discovered the paper and placed Toston in disciplinary segregation for 90 days.
Toston filed suit, alleging violations of his First Amendment and due-process rights. Though prison security interests can justify the limitation of inmate speech, Toston claimed that the list could not be a concern because it came from a prison library book.
A federal judge in Milwaukee dismissed the due-process claim and granted summary judgment for the defendants on the free-speech claim, but the federal appeals court affirmed only the First Amendment finding.
“The Black Panther Party is history,” Posner wrote. “But the Ten-Point Program could be thought by prison officials an incitement to violence by black prisoners – especially since there is a ‘New Black Panther Party,’ active today, which claims descent from the original Black Panthers and like its predecessor both advocates and practices violence.”
Prison administrators deserve deference, according to the nine-page ruling.
Warden Turner determined that, “if left unchecked, the dissemination of a document such as the Ten-Point Program that was seized from the plaintiff could lead to the structuring and organizing of a gang within the institution and represent a threat to the security, orderly operation, discipline or safety of the institution,” Posner wrote.
“Freedom of speech is not absolute, and the curtailment challenged in this case is slight and the justification adequate, though not ample.”
But the court was more sympathetic to Toston’s claims under the due-process clause.
“The district judge made no findings that would enable an inference that the plaintiff’s 90-day sentence to segregation was, or was not, a deprivation of liberty within the meaning of the cases,” Posner wrote.