Michigan Bans Foreign Language Books in Prison – Constitutional? I Think Not.

by Marc J. Randazza

The Michigan Department of Corrections is banning Spanish or Swahili dictionaries.  Michigan Dep’t of Corrections spokesman, Chris Gautz, claims that it is a matter of public safety.  

“If certain prisoners all decided to learn a very obscure language, they would be able to then speak freely in front of staff and others about introducing contraband or assaulting staff or assaulting another prisoner,” he is quoted as saying.  “When it’s in a language that we don’t have the ability to read ourselves and understand exactly what it is that we’re looking for, we’re not able to allow it in.” (source).

Is this Constitutional?  I think not. The First Amendment protects even a prisoner’s right to read books.

Not to put too dull of an edge on it, but prisons can basically do what they please to inmates – but they still maintain some First Amendment rights. In First Amendment cases, there are typically three levels of scrutiny — strict scrutiny, which is required in clear free speech cases where there is a content-based restriction, intermediate scrutiny which applies usually to commercial speech, non public forum speech and many content-neutral restrictions, and rational basis review, which applies to regulations that have nothing to do with the content. (This is really dumbing it down, but I don’t want to lose your attention span here).

Courts review a prison’s limitation on inmates Constitutional rights under the rule laid down in Turner v. Safley, 42 U.S. 78 (1987) and as modified by Thornburgh v. Abbott, 490 U.S. 401 (1989). The regulation is valid if it is reasonably related to legitimate penological interests. The Court pointed to four factors to determine if the regulation is “reasonable.”

1. There must be a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it. It must be legitimate and neutral.
2. Whether there are alternative means of exercising the right that remain open to prison inmates.
3. The impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally.
4. The absence of ready alternatives is evidence of the reasonableness of a prison regulation. By the same token, the existence of obvious, easy alternatives may be evidence that the regulation is not reasonable, but is an ‘exaggerated response’ to prison concerns.

Looking at this standard, I am confident this regulation could be struck down as violating prisoners’ First Amendment rights.

Prong one – Is the Governmental Objective legitimate, neutral, and rational?

Is the government objective legitimate? The stated objective here is to prevent prisoners conspiring to break the rules, hurt guards, and engage in other forms of mischief. While this sounds like bullshit, I think most courts would take the prison system at its word that this was its objective.

Is it neutral? Here I am more skeptical. Would they ban “A Clockwork Orange” for its use of Nadsat? Or 1984 for use of Newspeak? Are they banning the use of AAVE or other non-standard forms of English, which could be just as unintelligible to a prison guard as Spanish. (For example, Jamaican Creole). Also, while the story only discusses Spanish and Swahili, I question whether they’ve also banned French or Latin or Italian? If so, that might tend to support the government’s claim of neutrality. But, it seems to me that the neutrality here is questionable.

Is the ban rationally related to the prison’s stated objective? I think not, but “rational” is open to interpretation, and if you have a judge who either doesn’t give a shit about prisoners or the First Amendment, I could see a judge calling it “rationally related.” On the other hand, it seems that given the fact that Spanish is the second most spoken language in the world, banning books for learning Spanish doesn’t seem very “rational” when part of the rationale includes a fear of prisoners learning an “obscure” language. Even Swahili is hardly “obscure.” Query whether say Papiamento (a language I am studying right now) or Romansch (a language I can understand a lot of, because I speak Italian) would be a different story. Further, let’s query whether it is rational to keep a Spanish-English dictionary from a prisoner who is trying to learn English rather than the other way around.

Further, I would question whether it is rational to ban books in order to try to prevent prisoners from learning a language as opposed to banning them from using the language in certain ways.

There are a number of cases that do deal with the use of foreign languages in prison — and they recognize that a prison has a legitimate penological interest that could sustain the banning of the use of foreign languages in prison.

In Ortiz v. Fort Dodge Corr. Facility, 368 F.3d 1024 (8th Cir. 2004) the 8th Circuit upheld a prison’s limitation on written communication in a foreign language, if the prisoner could communicate in any other language. Even though Ortiz preferred to write to his sister in Spanish, because that was her first language, the prison had a right to screen incoming and outgoing mail, and doing so in a language other than English was an undue burden on the prison.

In Thongvanh v. Thalacker, 17 F.3d 256 (8th Cir. 1994) however, a Laotian prisoner was denied the right to communicate with non-inmates in Lao, even though Spanish and German prisoners had both the opportunity to communicate in their native languages and there was a translation service offered to them to translate their letters into English. A jury found that failing to offer similar accommodations to a Lao speaker was a First Amendment violation and the verdict was upheld on appeal.

Kikimura v. Turner, 28 F.3d 592 (7th Cir. 1994) struck down a prison policy of summarily rejecting foreign language publications without an attempt to translate or screen the materials. And in Boriboune v. Litscher, 91 F. App’x 498 (7th Cir. 2003) the court distinguished Kikumura and upheld a prison requirement that a prisoner first obtain approval before communicating on the telephone in a foreign language).

However, I have found no cases that support the proposition that it is permissible to stop a prisoner from merely learning a language.

To help in the analysis, there is another context where First Amendment rights are severely curtailed, but not extinct — schools. Nebraska once had a state law that prohibited teaching of languages other than English to children who had not passed the eighth grade. The Supreme Court held that the statute was arbitrary and without reasonable relation to any legitimate State goal. Meyer v. Nebraska, 262 U.S. 390 (1923). And in another case, a law that prohibited keeping business records in other than specified languages violated Chinese businessmen’s equal protection rights. Yu Cong Eng v. Trinidad, 271 U.S. 500 (1926). Further, at least one case cites the Meyer case for the proposition that the Due Process Clause protects the right “to acquire useful knowledge.” Epperson v. Ark., 393 U.S. 97, 105 (1968) citing Meyer v. Nebraska.

Accordingly, I would find that this regulation fails this prong.

Prong two — Are there alternative means for the prisoners to exercise their rights?

I think the government has even more of a hard time here. There are still First Amendment rights in prison, despite their limitations. There is a right to receive information — in the form of foreign language books. There is at least some right to learn a foreign language, and to acquire knowledge. See Epperson v. Arkansas, supra.

I suppose the prison could claim that if you want to learn Spanish, you can learn it from your cellmate, if he speaks Spanish? I really can’t see any alternative means for a prisoner to either learn Swahili, Hebrew, etc. (And the thought of this impacting religious study creates an even greater problem — how can you practice Judaism in prison without learning Hebrew?) There really does not seem to be any alternative means other than bringing in tutors – but the issue here is that the prison system seems to simply wish to prohibit prisoners from using or knowing languages other than English – it isn’t the books themselves, but the spread of knowledge, and then the fear that this knowledge will be used nefariously.

But ultimately, it does not seem that there are any alternate means for prisoners to learn foreign languages. I could see a reasonable alternative for the inverse — if a Spanish speaker wishes to learn English, then the prison could offer English classes. But, without books to learn it, I can not rationally see a way that prisoners could learn other languages, other than the prison offering courses in them. But then that cuts against the stated purpose — the Bureau of Prisons does not seem to be as concerned about prisoners knowing foreign languages, but rather how they would be used. As discussed below, limitations on using what you learn from a foreign language text might be limited, but I think simply depriving prisoners of the ability to learn them would be a different analysis.

Prong 3 – The impact on guards and other inmates

As discussed in the cases above, prisons can regulate the use of foreign languages for some pretty

Navajo Code Talkers

legitimate reasons. As discussed above, the prison can (and probably should) screen letters and phone calls in and out of the prison. We do not want gangsters running their enterprise from inside the prison by simply using another language. Use of “obscure” languages has a proven track record of being a great way to keep a code unbroken. See, e.g., Navajo Code Talkers in World War II.

However, I can’t see that there is an impact on guards and other inmates inherent in prisoners simply learning another language while in prison.

Prong 4 – Alternatives

It does seem that the prisons could control the issue they are concerned about by requiring that prisoners only communicate in English. “This is America, speak English only” would be constitutionally intolerable in other circumstances, but in the prison context, the BOP’s regulation could make sense. Limiting foreign language use as a means of controlling the prison population and ensuring that prison officials can both govern inside the prison as well as governing how prisoners communicate with the outside world is legitimate and would be upheld. Therefore, the existence of ready and obvious alternatives seems to cut against the reasonableness of the regulation.

Other considerations

In the context of jury selection, foreign language use has been held to be a proxy for racial discrimination. Further, I think there are significant equal protection and First Amendment problems here, over and above the issue of whether prisoners have an inherent right to learn a foreign language. As I alluded to above, how could a prisoner either convert to, or practice Judaism while being prohibited from learning Hebrew? I am no expert on Third Wave American (or “Native” if you’re into that term) religious practices, but I presume that there are spirits who would rather be spoken to in Navajo rather than English. When it comes to endangered languages, I have an even greater concern — some Third Wave languages are nearing extinction, as is Texas German or even the aforementioned Romansch. If some prisoner wants to spend their time learning such an obscure language, they could wind up becoming a very valuable resource for the preservation of that language.

Ultimately, this regulation seems steeped in over-reaction, prejudice, and irrationality. I’d find that it should be struck down as violating the prisoners’ First Amendment rights, and let the prison deal with its concerns by limiting how foreign languages can be used, not simply depriving prisoners of the opportunity to learn them at all.

Jail For Laughing Protester Is An Outrage

Marc Randazza’s most recent CNN column analyzes the recent conviction of Code Pink Protestor Desiree Fairooz after the media suggested she had been arrested merely for, “laughing at Jeff Sessions” during a Congressional hearing.

There is, of course, more to the story.

See: Jail for laughing protester is an outrage

When Fairooz laughed loudly during Session’s confirmation hearing, Officer Coronado removed her, which caused Fairooz to protest loud enough to disrupt the session. Fairooz was charged with, “disorderly and disruptive conduct and parading or demonstrating on Capitol grounds.”

However, it didn’t end there: Marc Randazza notes that a jury of her peers actually convicted her of these crimes.

Marc Randazza says, “Several jurors said they sympathized with Fairooz, but because the law is so broad that they felt they had no option but to convict.”

“[F]or Fairooz to be facing prison for her conduct is outrageous,” asserts Marc Randazza.

Marc Randazza reminds us that, “the notion of an American citizen going to jail for a nonviolent political protest is utterly antithetical to what this country is all about.”

But why?

As Marc Randazza points out, this has nothing to do with Ms. Fairooz’s message—as he admits he often does not agree with the message of Code Pink—this is about Free Speech and the First Amendment.

For Marc Randazza, it is not the message that deserves protection, it is the speech itself.

“The wall that protects the First Amendment is not manned with pretty happy smiling thoughts and easy-to-love characters. That rampart is manned by the ugly, the impolite, the impolitic, the disturbing image, and the thoughts that you may swallow no easier than if they were made from crushed glass.”

Read the rest here.

Fourth Circuit Delivers First Amendment Ass-Kicking

This is not a Star Trek order.  There are no pithy jokes here.  There is, however, a shocking exposé of just how insidious the government can be in coercing silence when you speak out against outdated, incorrect, and even dangerous “conventional wisdom.”

Cooksey v. Futrell, et al., Case No. 12-2084, 2013 WL 3215240 at *1 (4th Cir. June 27, 2013).

Steve Cooksey ran a blog advocating a low-carbohydrate, high-protein diet.  This diet and its permutations are generally known as known as a “paleo,” “primal” or “caveman” diet, and is based on eliminating historically recent additions to the human diet, such as processed grains.  This more or less inverts the USDA’s food pyramid (or triangle, depending on what generation you are), putting meat at the base of the pyramid with rough, leafy greens, and treating carbohydrate-laden foods like bread as less important.  Like anything people feel strongly about, the ambassadors of the paleo diet can be abrasive and annoying.  But, it works.

Cooksey’s backstory is remarkable, but surprisingly common among health advocates.  A Type II (adult-onset) diabetic, Cooksey was rushed to a hospital on the verge of a coma in 2009.  His dietitians advised him to eat a diet high in carbohydrates.  Cooksey, however, investigated matters himself and arrived at a diet high in protein and low in carbohydrates.  His blood sugar normalized and he was able to stop using insulin.  With a combination of diet and exercise (rather than, say, “fat acceptance”), Cooksey lost 78 pounds and felt better than ever before.

Paying it forward, Cooksey opened his blog, diabetes-warrior.net, in early 2010.  Cooksey used the blog to talk about his diet and lifestyle changes. He even included a disclaimer that he was not a licensed medical profession and had no medical qualifications – similar to how legal bloggers are quick to reminder readers that nothing they say online is legal advice.  The overarching theme of Cooksey’s blog was that high-carbohydrate diets caused more diabetes.  During the months of December 2011 and January 2012, Cooksey’s blog had 20,000 unique visitors.

Then Cooksey made the mistake all new red-pill types do: He explained his views to a weak and deliberately helpless public.  In July 2012, Cooksey attended a nutritional seminar for diabetics.  The seminar’s speaker advocated a high-carbohydrate diet for diabetics; Cooksey responded by advocating a low-carbohydrate diet instead.  An attendee at the seminar was so “””offended””” that he or she reported Cooksey to the North Carolina Board for Dietetics/Nutrition (the “Board”), claiming Cooksey’s advocacy was actually the unlicensed practice of dietetics.  Under North Carolina law governing dietetics, only licensed dietitians may provide nutrition care services, which have a broad definition that includes:

a. Assessing the nutritional needs of individuals and groups, and determining resources and constraints in the practice setting.
b. Establishing priorities, goals, and objectives that meet nutritional needs and are consistent with available resources and constraints.
c. Providing nutrition counseling in health and disease.
d. Developing, implementing, and managing nutrition care systems.
e. Evaluating, making changes in, and maintaining appropriate standards of quality in food and nutrition services.

Under North Carolina law, each and every act of unlicensed practice of dietetics is a separate misdemeanor.

The Board contacted Cooksey.  It told him that he would need to change his website.  It also told him that it was statutorily entitled to get an injunction against him.  Cooksey, fearing civil action, reluctantly complied with the Board’s initial demands to change his website, removing parts that might have been considered “advice” to visitors.

The Board told Cooksey it would review his website and tell him what he could and couldn’t say without a dietitian’s license.  After reviewing Cooksey’s site, the Board got back to him with pages and pages of comments.  The Board’s message was clear: Fix it – or else.  Again, Cooksey acquiesced – this time in fear of civil and even criminal penalties.  Despite not communicating with the Board, it nevertheless sent Cooksey a letter, noting that he had made the requested changes, and tacitly warning Cooksey that it would “continue to monitor the situation.”

After receiving this letter, Cooksey filed suit under 42 U.S.C. § 1983 for the Board’s actions chilling his First Amendment protected speech.  He also sought a declaratory judgment that North Carolina’s statutes were unconstitutional both facially and as-applied.  The Board moved to dismiss under Fed. R. Civ. P. 12(b)(1) for lack of standing and lack of ripeness, and 12(b)(6) for failure to state a claim.  The district court granted the motion, holding that “voluntarily removing parts of one’s website in response to an inquiry from a state licensing board is not a sufficient injury to invoke Article III standing.”  The court also found that Cooksey was not subject to actual or imminent enforcement of the Board’s draconian laws.

At first blush, it seems that the district court took an unusually charitable view toward the Board’s actions.  Many who read this blog would disagree with the outcome.  Cooksey disagreed.  And so, too, did the United States Court of Appeals for the Fourth Circuit.

The Fourth Circuit’s panel – which included former United States Supreme Court Justice Sandra Day O’Connor sitting by designation – reviewed the dismissal de novo, or anew (conducting a new, independent analysis of the facts that were before the district court).  The Court of Appeals embarked on an analysis of justiciability with two old law school (and in one case, law practice) favorites, standing and ripeness.  The analysis is considerable, going on for many pages.  Some highlights are excerpted below:

On the question of standing:

In First Amendment cases, the injury-in-fact element is commonly satisfied by a sufficient showing of “self-censorship, which occurs when a claimant is chilled from exercising h[is] right to free expression.” Benham v. City of Charlotte, 635 F.3d 129, 135 (4th Cir. 2011) (internal quotation marks omitted).

However, this anticipated cannot just be speculative or the fruit of conjecture.  The appeals court quickly outlined how Cooksey’s case allowed him to have standing, largely due to the Board’s aggression:

In the present case, we not only have evidence of specific and — unlike NCRL — unsolicited written and oral correspondence from the State Board explaining that Cooksey’s speech violates the Act, but we also have a plaintiff who stopped engaging in speech because of such correspondence, and an explicit warning from the State Board that it will continue to monitor the plaintiff’s speech in the future. See J.A. 18 (Compl. ¶ 63-64) (Burill told Cooksey “that he and his website were under investigation” and that the State Board “does have the statutory authority to seek an injunction to prevent the unlicensed practice of dietetics.”); id. at 39 (red-pen review) (“You should not be addressing diabetic’s specific questions. You are no longer just providing information when you do this, you are assessing and counseling, both of which require a license.”); id. at 66 (Burill email) (“[W]e would ask that you make any necessary changes to your site, and moreover, going forward, align your practices with the guidance provided.”); id. at 105 (Burill letter) (“[T]he Board reserves the right to continue to monitor this situation.”). Therefore, we have no trouble deciding that Cooksey’s speech was sufficiently chilled by the actions of the State Board to show a First Amendment injury-in-fact.

The Board’s aggression was also helpful to Cooksey in showing a credible threat of prosecution.  From there, his complaint easily satisfied the requirements of causation – that his injury was caused by the conduct he complained of – and redressibility, which requires a non-speculative likelihood that his injury would be redressed by a favorable judicial decision.

Unfortunately, the opinion gave some daylight to the Board’s position.  If the laws the Board enforces are professional regulations that do not abridge the First Amendment, such as certain limited limitations placed on attorney speech by state professional conduct rules, then Cooksey may ultimately not prevail.  However, because that is question of the case’s merits – how the facts and the law mesh in court – rather than one of standing, or Cooksey’s ability to bring his claim to Court in the first place, this potential defense cannot keep Cooksey out of court (for now).

As for ripeness:

Much like standing, ripeness requirements are also relaxed in First Amendment cases. See New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1500 (10th Cir. 1995) (“The primary reasons for relaxing the ripeness analysis in th[e] [First Amendment] context is the chilling effect that potentially unconstitutional burdens on free speech may occasion[.]”). Indeed, “First Amendment rights . . . are particularly apt to be found ripe for immediate protection, because of the fear of irretrievable loss. In a wide variety of settings, courts have found First Amendment claims ripe, often commenting directly on the special need to protect against any inhibiting chill.” Id. (internal quotation marks omitted).

The Court then gave the Board a little more abuse for soiling its own bed.

In the same way, Cooksey’s claims present the question of whether the Act and actions of the State Board unconstitutionally infringe on Cooksey’s rights to maintain certain aspects of his website. No further action from the Board is needed: it has already, through its executive director, manifested its views that the Act applies to Cooksey’s website, and that he was required to change it in accordance with the red-pen review or face penalties.

In its conclusion, the court of appeals vacated the district court’s order dismissing Cooksey’s complaint and remanded the case for a proceeding on the merits.  The Board can always ask the Fourth Circuit to stay its mandate and grovel with thousands of others to be the 1% whose cert petition the Supreme Court grants.  If nothing else, it will buy them time.  Hopefully, this opinion will leave a mark on the Board and make abusive government entities everywhere think twice before making any “suggestions” to the lowly citizenry they benevolently manage.  Specifically for the Board, its bad dream just got another life, Freddy Krueger-style.

A closing thought: North Carolina does not have an Anti-SLAPP law – not even a mediocre one that could be made good, like Nevada’s (which, starting October 1, 2013, gets a nice octane boost).  While § 1983 claims allow prevailing non-governmental parties to seek their attorneys’ fees under § 1988(b), those fees are discretionary, while prevailing Anti-SLAPP fees are mandatory – and more expeditiously awarded.  While state law-based Anti-SLAPP laws do not always work as drafted in federal court, there is a serious question whether such a statute’s existence or use would have led to a different outcome without an appeal – or any litigation at all.

Springsteen on Marriage Equality

Like many of you who live in New Jersey, I’ve been following the progress of the marriage-equality legislation currently being considered in Trenton. I’ve long believed in and have always spoken out for the rights of same sex couples and fully agree with Governor Corzine when he writes that, “The marriage-equality issue should be recognized for what it truly is — a civil rights issue that must be approved to assure that every citizen is treated equally under the law.” I couldn’t agree more with that statement and urge those who support equal treatment for our gay and lesbian brothers and sisters to let their voices be heard now. (source)