PLN editor quoted on free speech, restrictions on prisoners' writing
Sorry, inmate. Your blog is now illegal.
My name is Randall Daluz. I am thirty-seven years old and I am currently awaiting sentencing for triple murder and arson.”
These words mark the beginning of the “Redemption” section of a blog written by an inmate in Penobscot County Jail in Maine. Started in 2014 while Daluz was standing trial for killing three people and burning their bodies in a car, the religious blog is maintained with the help of a jail volunteer’s wife, who transcribes his handwritten writings into blog posts detailing the Christian reawakening he has undergone behind bars.
Daluz has no internet connection in jail, but Penobscot County Sheriff Troy Morton recently said that there’s nothing wrong with him having the writings posted online, so long as someone else does it. “He’s not running a website per se from our facility,” he told a local paper. “People have a right to exercise their religious beliefs.”
But once he gets transferred to state prison, which could happen shortly, Daluz’ “The Journal of a New Creation” blog—now with 78 posts—will likely have to stop publishing. The issue: last year, the Maine Department of Corrections instituted a new policy, which bans inmates from publishing works from state facilities.
The policy is testing the bounds of a prison system’s right to limit freedom of expression, First Amendment and prison-rights experts say.
Maine’s policy, instituted by former DOC commissioner and current New York City DOC commissioner Joseph Ponte, states that “under no circumstance is a prisoner to act as a reporter, publish under a byline, host or be a guest on a broadcast,” Assistant Attorney General Jim Fortin wrote Bangor Daily News in an email. Daluz’s blog, written under his name, would “constitute publishing under a byline,” he added. The office declined to further comment on Daluz’s case for this story, saying it would be “premature,” since Daluz is not currently in DOC custody.
In a memo written to staff in March of last year, Ponte said that violators would be punished, and that inmates found to have “already engaged in this activity would have to “notify the person(s) who did any posting to remove them immediately,” reported the daily paper.
“Prisons are allowed to limit speech under very narrow circumstances,” Ken Paulson, president of the First Amendment Center at the Newseum, told Fusion. “They generally have to show strong justification for limiting speech that has nothing to do with the speech itself, and they need to prove that it somehow has to do with the security within the prison.”
If a prisoner were to write a column for a local paper mocking prison officials and fellow inmates, he said, then there could be a strong case for limiting speech, because it could cause unrest within the prison.
“But with this case, let’s recap: the state would try to prevent someone from telling the world about what his experiences, about his spiritual awakening. How can the government limit that?” Paulson asks rhetorically.
“It would never stand if brought to trial,” he said.
If you send a letter or a package to a friend in jail, there’s no guarantee they will receive it. Prisons are notoriously picky about the limitations of incoming mail, which can contain contraband, weapons, or coded messages. But if an inmate sends outgoing mail, it is almost certain that it will go out.
In recent months, significant developments regarding prisoners and the use of publishing technology have touched on the tensions between inbound/ outbound communications.
An investigation by the Electronic Frontier Foundation found that hundreds of South Carolina inmates were sent to solitary confinement for illicitly posting to Facebook from state facilities. Separately, early this month, Facebook changed its policy about removing profiles that were reported to be administered “either by or on behalf of inmates.” Rather, prison officials would have to prove a specific law or Facebook policy was being broken that would necessitate the takedown.
Access to social media networks, if achieved by inmates themselves, can pose an issue to prison security specifically because it is both incoming and outgoing, says Paulson. “It could be a very effective way of planning an escape,” he suggested. That’s why prisons have cracked down on cell phone usage across the country, as evidenced in a Fusion investigation released in February.
But while strictly outgoing communications, like the blog Daluz is running through proxy, have usually been left alone, at times they have been limited. Nevertheless, prison writings form part of a vibrant American tradition, ranging from an a cappella song featured on a multi-platinum Outkast album, to Martin Luther King Jr.’s monumentalLetter From a Birmingham Jail—considered one of the seminal documents of the Civil Rights era.
Like King in his time, writing and publishing from behind bars has often been one of the only acts of resistance offered to political prisoners and prisoners of conscience. “Paper, any paper, is about the most precious article for a political prisoner… For the urge to write is almost irresistible,” writes Ngugi Wa Thiong’O, a Kenyan writer who has frequently been subjected to imprisonment, in his memoir, Detained.
“Laws that limit inmates’ writing can absolutely have a chilling effect on dissent,” Paul Wright, editor of Prison Legal News, told Fusion. He estimates that about 90 percent of the magazine’s authors are current or former inmates.
“The whole purpose of those laws is not just to censor inmates, but also to prevent people on the outside to see what’s happening in the inside,” he said.
Ten years ago, a U.S. Bureau of Prisons law that is similar to the Maine law which bans inmates from publishing under a byline was deemed unconstitutional by a federal court. The court’s opinion claimed that it violated not only the plaintiff’s freedom of speech, but “the speech of the more than 198,000 other federal inmates” for whom the only way “to be certain to avoid punishment is to not submit an article to the news media for publication.”
Wright says that for that reason, he is surprised that Maine would even propose the policy in the first place. Requests for comment from the Maine Department of Corrections and Joseph Ponte’s current office in NYC were not returned for this story. A spokesperson from American Civil Liberties Union in Maine says the organization is considering representing Daluz in court, should the inmate decide to make a legal challenge against the policy.
At times, laws have been passed that would limit the right of prisoners to write about their own experiences, in an effort to prevent them from profiting from their crimes. The nickname of these laws—”Son of Sam laws”—came after rampant speculation suggested that David Berkowitz, the infamous New York serial killer from the late 70s, was getting huge offers from publishers to tell his story. The original “Son of Sam law,” enacted in New York in 1977, was deemed unconstitutional in 1991, in a case regarding the publication of the book Wiseguys, which became the basis for the classic film the Goodfellas.
Ironically, Berkowitz himself has been running a religious website, called “Arise and Shine,” by proxy for years now, where he offers advice for parents and troubled teens. On one part of his website, he features an “Apology,” where he writes: “I am deeply sorry for the pain, suffering and sorrow I have brought upon the victims of my crimes.”
Similar to Berkowitz, Daluz of Maine is far from a poster child for freedom of speech. Both are mass murderers, and it can be tough for the public to find sympathy for their causes.
Yet Prison Legal News’ Wright says that if even they are barred from publishing with a byline from within prison, it could have profound implications to the First Amendment as we know it. “At the end of the day, this comes down to the fact that the government doesn’t get to tell writers and publishers what they can and can’t publish,” he said.
“In a sense,” he followed, “the government prohibiting a byline is as offensive a concept as requiring a byline. Can you imagine the uproar if the government required anonymous whistleblowers or sources to publish a byline with their commentaries? You lose an element of free speech if you require anonymity when you publish things.”
In a more and more connected age, having a friend or family member maintain social media accounts while you sit behind bars is becoming the new norm, especially for those who get locked up with an already high number of followers. We see this in cases as disparate as a rapper who was charged with shooting a police officer in Miami, to political prisoners being held in Venezuela and elsewhere.
It’s easy to see how that reality can be uncomfortable for authorities, especially when dealing with potentially cultish figures. If influential serial killers like Ted Bundy and Charles Manson could instantaneously dispatch messages to thousands of their obsessed fans in their times, it could have posed real societal issues.
But again and again, the courts have found those concerns secondary to the human right to self-expression, a right which is not stripped from an inmate once they go inside the system. This is especially true when thinking about the rights of inmates that will some day be released from prison.
In an early case from 1974 that struck down a California Department of Corrections policy that censored “inflammatory” ideas from inmates’ outgoing mail, Justice Thurgood Marshall commented: “Prison walls serve not merely to restrain offenders, but also to isolate them. The mails provide one of the few ties inmates retain to their communities or families — ties essential to the success of their later return to the outside world,” he wrote.
“When the prison gates slam behind an inmate, he does not lose his human quality; his mind does not become closed to ideas; his intellect does not cease to feed on a free and open interchange of opinions; his yearning for self-respect does not end; nor is his quest for self-realization concluded,” he said. “If anything, the needs for identity and self-respect are more compelling in the dehumanizing prison environment.”
In response to a locally published article about his impending legal battle with the state of Maine over keeping his blog alive, Daluz’s most recent blog post touches on these issues, as well as his impulse to stay connected to the world by whatever means available to him.
“I have learned that the state prison will attempt to stop me from writing about my Lord on this site,” he says, claiming that he has been threatened with solitary confinement in an effort to silence him.
“Yet, I shall never stop. As long as I draw breath, I will spread God’s message of salvation. I don’t care how deep they bury me or how much I am threatened and mocked,” he writes.