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SPECIAL TO THE NATIONAL LAW JOURNAL Stardust Johnson wanted never again to see the face of Beau John Greene after he was led away in handcuffs in 1996 to await execution for the murder of her husband. She didn’t get her wish. Johnson says she was appalled in 1999 when she saw a photograph of Greene holding a kitten on a Web site he maintained to solicit pen pals. Determined to do something about it, Johnson persuaded the Arizona Legislature in 2000 to make it a misdemeanor for prison inmates to communicate with Internet service providers, either directly or through a third party. The Canadian Coalition Against the Death Penalty, an advocacy group that creates Web pages for death row inmates and links them to sympathetic pen pals, successfully challenged the law in federal court on First Amendment grounds, arguing that the law infringes on free speech rights not of inmates but of groups such as themselves. Canadian Coalition Against the Death Penalty v. Ryan, No. CV02-1344 PHX EHC. The suit is one of many legal disputes between prison administrators, who have long-established authority to limit inmate speech, and civil-liberty and prison-reform advocates who argue that curtailing inmate communication via the Internet abridges the First Amendment rights of people outside prison walls. Texas, California, Washington, Wisconsin and Colorado have been battlegrounds. So far, the legal tide is running in favor of the activists. In Arizona, a federal court has enjoined enforcement of the law pending appeals by both sides. Another federal judge enjoined a regulation banning inmates at California’s ultra-maximum security Pelican Bay prison from receiving information that people outside the prison download from the Internet, print and mail to them. Clement v. California Department of Corrections, 220 F. Supp. 2d 1098 (C.D. Calif. 2002). There is mounting opposition to a Texas bill that would forbid inmates to use Web sites to profit from telling the stories of their crimes, similar to so-called Son of Sam laws precluding convicted criminals from profiting from books or movies detailing their crimes. The Canadian Coalition Against the Death Penalty successfully challenged the Arizona law in federal court on First Amendment grounds, arguing that the law infringes on speech rights not of inmates, but of groups such as themselves. “The idea that the Arizona Legislature can tell people in New York or Canada or Sweden what they can or cannot put on their Web site is absurd,” said David Fahti, an attorney with the American Civil Liberties Union (ACLU), who argued the case for the coalition. Arizona authorities, who are pursuing a summary judgment to overturn the injunction and uphold the state law, argue that the state has never tried to limit the speech of anyone outside prison. The real concern, the state asserts, is that even indirect access to the Internet allows inmates to thwart the controls on communications with the outside that have long been accepted as valid management tools. Jim Morrow, an attorney with the Arizona attorney general’s office, said that the statute and the prison policies built on it meet the criteria for curtailing inmates’ First Amendment protection established by a U.S. Supreme Court decision that allows restrictions to deter crime or to maintain security. Turner v. Sasley, 482 U.S. 78. “The Internet is an important means for people to interact with society,” Morrow said. “Prison is about taking people out of society. If we allow them to interact with society in the same way you and I do in the normal course of business on the Internet, we have lost that avenue for making prison life different from the life of a law-abiding citizen.” Gary Phelps, chief of staff at the Arizona Department of Corrections, said the use of the Internet has been a concern there since 1997, when a death row inmate and the woman he had married after meeting her through a Web site were both killed in a violent escape attempt. The investigation revealed what Phelps called “a death row subculture” in which inmates, with the help of outside parties, use the Internet to woo women. Broad bans problematic Bill Rich, a constitutional law professor at Washburn University School of Law in Topeka, Kan., with a specialty in prison issues said inmates retain limited First Amendment protections but prison authorities can restrict speech for “a legitimate penological interest.” Establishing a legitimate purpose is harder when restrictions are imposed by a legislature instead of prison administrators, he said. “The courts tend to bend over backward when prison administrators demonstrate a legitimate concern that inmate communications can lead to further criminal acts or disturbances within the prison,” Rich said. “Where the legislature enacts broad bans, I would expect the courts to be much more skeptical about the argument that there is a legitimate interest rather than a desire to punish by restricting speech.” Administrators at the Pelican Bay prison in California declared hard copies of downloaded material to be contraband, but enforcement of the regulation is on hold by a federal court order. “This is a regulation that defies belief,” said attorney Ann Brick of the ACLU of Northern California in San Francisco. “Prisoners were not allowed to receive anything in the U.S. mail, including legal papers, that had been downloaded from the Internet, but the same thing photocopied from hard copy is allowed.” Holly Jordan, spokeswoman for the California prison system, said the ruling, which is being appealed, is so broad that “it would allow a prisoner to download tips on how to escape or kill a corrections officer.” Meredith Martin Rountree, director of the Prison and Jail Accountability Project at the ACLU of Texas, said she is watching a bill that would prohibit inmates from profiting from Web sites that detail their crimes. “Some legislators think this will prohibit Web sites for communicating with pen pals and that sort of thing, but I don’t think the bill covers that and I am skeptical of the constitutionality of any bill that would,” she said. Duane Gallagher, chief of staff to the bill’s sponsor, Republican state Representative Sid Miller, said the bill will not keep inmates off the Internet. “Our bill does not prohibit inmates from having Web sites or telling their life story or soliciting funds for appeals, but they cannot sell a re-enactment of the crime,” he said. Page’s e-mail is

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