A three-strikes provision of the Prison Litigation Reform Act (PLRA) does not violate the First Amendment, a federal appeals court has ruled. The appeals court also determined that the three strikes provision did not infringe on the “breathing space” principle in First Amendment jurisprudence.
Waseem Daker, a Georgia prisoner serving a life sentence, has filed numerous lawsuits in at least nine different federal courts. In the civil rights lawsuit, he alleged that Fulton County Jail violated the First Amendment by banning hardcover books. He also contended that the jail violated his First Amendment-based right to access the courts because the jail’s mailroom staff returned his legal mail.
A federal district court dismissed his lawsuit based on the following provision of the PLRA:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on three or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.
This provision means that an inmate cannot file a claim in forma pauperis (IFP, as an indigent). In other words, to continue, an inmate would have to pay court costs and filing fees that other litigants have to pay.
The federal district court applied the three-strikes provision because it found that Daker had filed at least seven actions that were declared frivolous or without merit.
Daker appealed to the U.S. Court of Appeals for the Eleventh Circuit, which affirmed the lower court in its Nov. 15, 2019 decision in Daker v. Jackson.
Daker contended that the three-strikes provision infringed on the breathing space principle of First Amendment jurisprudence. The U.S. Supreme Court developed the breathing space in the civil rights-era cases NAACP v. Button (1963) and New York Times Co. v. Sullivan (1964), holding that erroneous and false speech sometimes needs to be protected in order to ensure the protection of truthful speech.
Daker argued that the three-strikes provision violated the breathing space principle because it does not provide any margin of error to inmates and other pro se litigants who may make honest mistakes rather than just intend to abuse the legal system.
The Eleventh Circuit rejected the application of the breathing space principle in this context. The Eleventh Circuit explained: “The concern that justifies the ‘breathing space’ principle — the desire to prevent a chilling effect on speech and thereby promote public debate — is not implicated by a rule that determines whether an individual has to pay a filing fee in order to bring a lawsuit.”
The appeals court concluded that the three-strikes provision of the PLRA was constitutional.
David L. Hudson Jr. is a First Amendment Fellow at the Freedom Forum Institute, and a law professor at Belmont University who publishes widely on First Amendment topics. He is the author of a 12-lecture audio course on the First Amendment titled, “Freedom of Speech: Understanding the First Amendment” (Now You Know Media, 2018). He also is the author of many First Amendment books, including “The First Amendment: Freedom of Speech” (Thomson Reuters, 2012) and “Freedom of Speech: Documents Decoded” (ABC-CLIO, 2017).