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Fifth Circuit: No First Amendment Right to Use Vulgarity in Legal Mail
By Matt Clarke
On June 8, 2009, the Fifth Circuit court of appeals held that a Texas prisoner has no First Amendment right to use profanity in legal mail directed at opposing counsel and the Fourteenth Amendment did not protect his good time credits from forfeiture in disciplinary action resulting from said profanity. George Morgan, a Texas state prisoner, filed a habeas corpus action in federal district court pursuant to 28 U.S.C. §2254. In response to the motion to dismiss, he wrote Assistant Texas Attorney General Susan San Miguel a note on toilet paper stating: "Dear Susan, Please use this to wipe your ass, that argument was a bunch of shit! You[rs] Truly, George Morgan."
The note was returned to the warden of the Stevenson Unit where Morgan was incarcerated. Morgan was charged with violating Rule 42.0 of the Texas Department of Criminal Justice (TDCJ) Disciplinary Rules and Regulations, which prohibits "use of indecent or vulgar language or indecent or vulgar gestures in the presence of or directed at an employee or any other person who is not an offender." Morgan was found guilty and punished with, among other things, forfeiture of fifteen days of good conduct time.
Morgan filed another federal petition for a writ of habeas corpus, this time alleging that the disciplinary proceedings violated his First Amendment free speech rights and Fourteenth Amendment due process rights. The district court granted summary judgment for the respondent and denied Morgan a certificate of appealability (COA). He appealed and the Fifth Circuit granted COA.
The Fifth Circuit held that for a prison regulation to infringe on a prisoner's First Amendment rights, it must bear a "reasonable relation" which is "more than a simple logical relation" to a legitimate penological interest. In this case, respondent claimed that Rule 42.0 was intended to foster rehabilitation: preparing prisoners to return to society by "correcting behavior that mainstream society deems unacceptable."
The Fifth Circuit noted that it had previously rejected order and security as justifications for suppression of speech in outgoing prison mail, McNamara v. Moody, 606 F.2d 621 (5th Cir. 1979), but had never addressed whether rehabilitation could justify it. In differentiating this case from McNamara, the Fifth Circuit noted that McNamara had mailed a private letter to his girlfriend with vulgar comments about a guard whereas Morgan wrote an unsolicited, harassing and possibly threatening note directed at a public official. This behavior would not be tolerated had the note been sent by an attorney or non-prisoner pro se litigant. Therefore, the Fifth Circuit concluded that "TDCJ had a legitimate penological interest in rehabilitation that justified the disciplinary action" and "Rule 42.0, as applied to Morgan's mailed note, was not an impermissible infringement of his First Amendment right to free speech."
The Fifth Circuit also overruled Morgan's due process claims that he was not allowed to call an Assistant Attorney General or mail room supervisor as a witness and that his disciplinary officer was allegedly biased. The district court's judgment was affirmed. See: Morgan v. Quarterman, 570 F.3d 663 (5th Cir. 2009).
On June 8, 2009, the Fifth Circuit court of appeals held that a Texas prisoner has no First Amendment right to use profanity in legal mail directed at opposing counsel and the Fourteenth Amendment did not protect his good time credits from forfeiture in disciplinary action resulting from said profanity. George Morgan, a Texas state prisoner, filed a habeas corpus action in federal district court pursuant to 28 U.S.C. §2254. In response to the motion to dismiss, he wrote Assistant Texas Attorney General Susan San Miguel a note on toilet paper stating: "Dear Susan, Please use this to wipe your ass, that argument was a bunch of shit! You[rs] Truly, George Morgan."
The note was returned to the warden of the Stevenson Unit where Morgan was incarcerated. Morgan was charged with violating Rule 42.0 of the Texas Department of Criminal Justice (TDCJ) Disciplinary Rules and Regulations, which prohibits "use of indecent or vulgar language or indecent or vulgar gestures in the presence of or directed at an employee or any other person who is not an offender." Morgan was found guilty and punished with, among other things, forfeiture of fifteen days of good conduct time.
Morgan filed another federal petition for a writ of habeas corpus, this time alleging that the disciplinary proceedings violated his First Amendment free speech rights and Fourteenth Amendment due process rights. The district court granted summary judgment for the respondent and denied Morgan a certificate of appealability (COA). He appealed and the Fifth Circuit granted COA.
The Fifth Circuit held that for a prison regulation to infringe on a prisoner's First Amendment rights, it must bear a "reasonable relation" which is "more than a simple logical relation" to a legitimate penological interest. In this case, respondent claimed that Rule 42.0 was intended to foster rehabilitation: preparing prisoners to return to society by "correcting behavior that mainstream society deems unacceptable."
The Fifth Circuit noted that it had previously rejected order and security as justifications for suppression of speech in outgoing prison mail, McNamara v. Moody, 606 F.2d 621 (5th Cir. 1979), but had never addressed whether rehabilitation could justify it. In differentiating this case from McNamara, the Fifth Circuit noted that McNamara had mailed a private letter to his girlfriend with vulgar comments about a guard whereas Morgan wrote an unsolicited, harassing and possibly threatening note directed at a public official. This behavior would not be tolerated had the note been sent by an attorney or non-prisoner pro se litigant. Therefore, the Fifth Circuit concluded that "TDCJ had a legitimate penological interest in rehabilitation that justified the disciplinary action" and "Rule 42.0, as applied to Morgan's mailed note, was not an impermissible infringement of his First Amendment right to free speech."
The Fifth Circuit also overruled Morgan's due process claims that he was not allowed to call an Assistant Attorney General or mail room supervisor as a witness and that his disciplinary officer was allegedly biased. The district court's judgment was affirmed. See: Morgan v. Quarterman, 570 F.3d 663 (5th Cir. 2009).
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Related legal case
Morgan v. Quarterman
| Year | 2009 |
|---|---|
| Cite | 570 F.3d 663 (5th Cir. 2009) |
| Level | Court of Appeals |
| Injunction Status | N/A |