A Wisconsin-based inmate did not have a First Amendment right to help another inmate draft a group petition, a federal appeals court has ruled. The decision is disturbing and shows the lack of respect that some courts have for inmates’ free-speech rights.
The case began when Lebbeus Brown, a prison captain at the Wisconsin Secure Program Facility, discovered three letters in inmate’s Oscar Garner’s cell. Brown believed that the letters showed that the Gangster Disciplines, a well-known gang inside and outside of the prison system, were planning a group disturbance.
Garner informed Brown that another inmate, a high-ranking member of the Gangster Disciples, had given him the letter to make it sound better. Garner, who is not a member of the Gangster Disciples, was a jailhouse lawyer and sometimes helped inmates with their writings.
The letter in question contained the phrases “we ask” and “we propose” and signed “the prisoners of WSPF.” Brown believed that the letter was evidence of a possible pending disturbance by the Gangster Disciples and placed Garner in temporary lockup.
Brown cited Garner for violating a prison rule that prohibits inmates from filing group petitions except through the formal grievance process. Garner requested that Brown attend his disciplinary hearing. The hearing officer approved the request but Brown was not working on the day of the disciplinary hearing.
The hearing officer determined that Garner had violated the rule against informal group petitions and ordered Garner to 120 days of disciplinary segregation. The warden intervened, believing that officials had violated Garner’s due-process rights by holding his hearing despite Garner’s request to have the captain present.
The net result was that the charges were dismissed and Garner spent two days in disciplinary segregation. However, Garner then filed a lawsuit in federal court, contending that Brown, the hearing officer, and two other prison officials violated his First Amendment rights.
A federal district court dismissed Garner’s suit, finding that the letter in question was inconsistent with the prison’s legitimate penological interest in safety. The district judge noted that the prison officials’ fears of the letter leading to a disturbance were “tenuous” but still sided with the prison officials. The district judge also pointed out that there seems to be two prison rules in tension – the rule requiring inmates to informally request change first before filing a group petition through the formal grievance process and the rule prohibiting informal group petitions.
On further appeal, a three-judge panel of the 7th Circuit unanimously affirmed in its November 2, 2018, decision in Garner v. Brown. The panel rejected Garner’s appeal, because it determined that his letter was not a form of protected speech.
“Filing a non-frivolous grievance is activity protected by the First Amendment,” the panel wrote. “But Garner’s letter was not a grievance – not even he claims it was – so it cannot be protected speech on that basis.”
Instead, the panel credited Brown’s testimony that group petitions, particularly by gang members, could lead to riots, disrespect of guards, and other security problems.
The court’s reasoning is troubling. The letter merely contains language such as “we ask” and “we propose.” This does not sound anything remotely approaching a threat. There was no evidence that Garner himself was involved in any gang activity of any sort. He merely was helping another inmate write a better letter.
Furthermore, the prison’s rules border on the irrational. On the one hand, the prison rules require that inmates first informally request relief before filing a group petition through the grievance process. However, on the other hand, the rules also prohibit inmates from filing group petitions outside the formal grievance procedure.
The 7th Circuit attempted to avoid this conflict in the rules by reasoning that an inmate can request informal relief individually before engaging in a formal grievance process.
This is unsatisfying to anyone concerned with fairness and the ability of inmates to express concerns about the conditions of their confinement. Inmates should not be punished for legitimate and peaceful requests about problems with their conditions.
Furthermore, a letter is a form of speech. It makes little sense to say that Garner was not engaged in protected speech when he was punished for helping another inmate write a letter.
The reality is that inmate Garner suffered retaliation and the appeals court showed a fundamental lack of respect for the free-speech rights of inmates. As I explained in a 2011 commentary for the Freedom Forum Amendment Institute, prisoners are human beings who should not lose all of their free-speech rights.
David L. Hudson, Jr., a Visiting Associate Professor of Legal Practice at Belmont University College of Law, is a First Amendment attorney and author who has written, co-written, or co-edited more than 40 books, including First Amendment: Freedom of Speech (Thomson Reuters, 2012) and Documents Decoded: Freedom of Speech (ABC-CLIO, 2017).