RADICAL POLITICAL LITERATURE
The Impact Litigation Clinic, headed by JON ROMBERG and staffed by
students, Keith Hovey and Gargi Pahuja, won an important victory in
a published, precedent-setting First Amendment case of first
impression in the United States Court of Appeals for the Second
Circuit in December. The clinic represented an inmate who is a black
nationalist. Prison officials had seized radical political
literature he was carrying on three occasions, punishing our client
with more than 15 months in solitary confinement for simply
possessing the documents. Prison officials stated, for example, that
the literature was “anti-establishment” and “generally anti-our
democracy.” Prison hearing officials found that the political
literature was “unauthorized gang or organizational material”
because it had not been issued by any organization that the prison
had pre-approved. Moreover, prison officials refused, despite our
client’s request, to send the literature to be reviewed by the
prison committee that had been established by state regulation to
review political literature in order to balance freedom of speech
against concerns for institutional security.
On appeal, the Center for Social Justice argued successfully that
our client stated a viable First Amendment claim. The Second Circuit
agreed, holding that “an across-the-board exclusion of materials of
‘unauthorized organizations’ may not be related to any governmental
objective.” The court was concerned, as the Impact Clinic had urged,
that our client’s First Amendment right to possess unpopular
political literature may well have been abridged by the use of the
“unauthorized organizational material” regulation to short-circuit
First Amendment review. The policies challenged in the case had been
applied by the New York prison system over a number of years to
circumvent full First Amendment protection for inmates’ political
literature. The proper review likely to follow from the case will
ensure institutional security, while also ensuring that inmates,
just as other citizens, are free to possess materials espousing
unpopular political beliefs, without concern that they may spend
years in punitive isolation based on the arbitrary, subjective
determinations of a single prison official.
The case was featured as the lead story on the front page of the New
York Law Journal.
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