Pennsylvania's Revictimization Relief Act Struck Down: Deemed 'Manifestly Unconstitutional'
The Act permitted courts to enjoin and penalize “conduct” by an “offender” that caused “mental anguish” to a “personal injury crime victim” or otherwise “perpetuate[d] the continuing effect of the crime on the victim.”
Originally published in the MLRC MediaLawLetter June 2015.
On April 28, 2015, Chief Judge Christopher C. Conner of the United States District Court for the Middle District of Pennsylvania struck down Pennsylvania’s six-month-old Revictimization Relief Act as "manifestly unconstitutional." Abu-Jamal v. Kane.
Drafted in response to the selection of Mumia Abu-Jamal—in prison for life for the murder of a Philadelphia police officer—as a Vermont college’s commencement speaker, the Act permitted courts to enjoin and penalize "conduct" by an "offender" that caused "mental anguish" to a "personal injury crime victim" or otherwise "perpetuate[d] the continuing effect of the crime on the victim." Further, according to the legislative history, the Act applied to third parties—like the press—who publish such speech. After a consolidated bench trial on the merits for two separate lawsuits challenging the Act’s constitutionality, the Court permanently enjoined its enforcement, deeming the law "unlawfully purposed, vaguely executed, and patently overbroad in scope." (Op. at 2.)
The Act and Its Genesis
On September 29, 2014, Goddard College, a small school in Vermont, announced that the undergraduate graduating class had chosen Abu-Jamal, a Goddard alumnus, to deliver a pre-recorded commencement address. Just three days later, Pennsylvania State Representative Mike Vereb introduced the Revictimization Relief Act, imploring his fellow legislators that "[a] convicted murderer is still traumatizing the victim’s family[,] it needs to stop[, and w]e need to ensure this doesn’t happen to any other victim or their family." Within three weeks, on October 21, the Government signed the Act into law.
The Revictimization Relief Act, which was enacted as an amendment to Pennsylvania’s 1998 Crime Victims Act, provided in full:
(a) ACTION.-- In addition to any other right of action and any other remedy provided by law, a victim of a personal injury crime may bring a civil action against an offender in any court of competent jurisdiction to obtain injunctive and other appropriate relief, including reasonable attorney fees and other costs associated with the litigation, for conduct which perpetuates the continuing effect of the crime on the victim.
(b) REDRESS ON BEHALF OF VICTIM.-- The district attorney of the county in which a personal injury crime took place or the Attorney General, after consulting with the district attorney, may institute a civil action against an offender for injunctive or other appropriate relief for conduct which perpetuates the continuing effect of the crime on the victim.
(c) INJUNCTIVE RELIEF.-- Upon a showing of cause for the issuance of injunctive relief, a court may issue special, preliminary, permanent or any other injunctive relief as may be appropriate under this section.
(d) DEFINITION.-- As used in this section, the term "conduct which perpetuates the continuing effect of the crime on the victim" includes conduct which causes a temporary or permanent state of mental anguish.
18 Pa. C.S. § 11.1304. As this reproduction of its entire text makes clear, the Act did not define the term "offender." In addition, while the Act stated that "conduct which perpetuates the continuing effect of the crime on the victim’ includes conduct which causes a temporary or permanent state of mental anguish," it was silent about what else "conduct which perpetuates the continuing effect of the crime on the victim" "includes."
The definitions section of the Crime Victims Act does not clarify either of these issues, but does contain three other relevant definitions that collectively broadened the scope of the Revictimization Relief Act beyond its plain language. First, the Crime Victims Act defines "personal injury crime" as "[a]n act, attempt or threat to commit an act which would constitute a misdemeanor or felony" under the sections of the Pennsylvania Crimes Code relating to "criminal homicide," "assault," "kidnapping," "sexual offenses," "arson and related offenses," "robbery," "victim and witness intimidation," and various vehicular crimes resulting in death or bodily injury. 18 Pa. C.S. § 11.103. Second, the Crime Victims Act defines "victim" to include all of the following:
(1) A direct victim.
(2) A parent or legal guardian of a child who is a direct victim, except when the parent or legal guardian of the child is the alleged offender.
(3) A minor child who is a material witness to any of the following crimes and offenses . . . committed or attempted against a member of the child’s family: . . criminal homicide [,] aggravated assault[,] rape[.]
(4) A family member of a homicide victim, including stepbrothers or stepsisters, stepchildren, stepparents or a fiancé . . . except where the family member is the alleged offender.
Id. Third, the Crime Victims Act defines "family," "when used in reference to an individual"—as in the fourth part of the "victim" definition—to encompass:
(1) anyone related to that individual within the third degree of consanguinity or affinity;
(2) anyone maintaining a common-law relationship with that individual; or
(3) anyone residing in the same household with that individual.
Id.
What is more, the Revictimization Relief Act’s legislative history shows the Act was intended to reach not only "offenders" themselves, but also third parties who publish "offender" speech. Indeed, when asked this very question during the House Judiciary Committee hearing on the law, the Committee Counsel said that "the court would have broad power to stop a third party who is the vessel of that conduct or speech from delivering it or publishing that information."
The Lawsuits
In short order, two groups of plaintiffs filed lawsuits in federal court in Harrisburg against the Pennsylvania Attorney General and the Philadelphia District Attorney—both charged with enforcing the statute—contending that the Act was unconstitutional due to its content-based restriction of speech, its vagueness, and its overbreadth. The two suits featured between them 19 plaintiffs who frequently engage in public speaking of one kind or another—including Abu-Jamal and four other current Pennsylvania inmates, four formerly incarcerated individuals who share their own experiences with a wide range of audiences to help reduce crime and facilitate successful prisoner reentry, and ten advocates and journalists who rely on and publish speech by Pennsylvania inmates in order to inform the public and spur government action regarding issues of public concern. The current and former inmates sued based on the Act’s restriction of their own First Amendment right to free expression. The third parties did so, too, in addition to arguing that the Act chilled their "offender" sources from speaking with them and thus also restricted their First Amendment right to listen.
The Reporters Committee for Freedom of the Press, the Pennsylvania NewsMedia Association, American Booksellers for Free Expression, and the Freedom to Read Foundation joined the effort as well, filing an amicus brief that highlighted the threat that the Act posed to criminal-justice-related journalism.
All nineteen plaintiffs survived a motion to dismiss by the Attorney General for lack of standing. Even though the Act had never been enforced, the Court held there to be a credible threat of future enforcement by the Attorney General sufficient to constitute "injury in fact" for Article III standing purposes. In so holding, the Court stressed that the offender plaintiffs were the explicit target of the Act, the Attorney General refused to foreswear future enforcement against any of the plaintiffs, and the Act’s mere existence had already chilled plaintiffs—both offenders and third parties—from exercising their First Amendment rights. (The Court did dismiss the District Attorney, who, unlike the Attorney General, disavowed any intent to enforce the Act unless and until a court found it to be constitutional.)
'Manifestly Unconstitutional'
The Court consolidated the two suits into a single, March 30, 2015, bench trial on the merits. Four weeks later, the Court issued its opinion, holding the Act "manifestly unconstitutional" for the three independently sufficiently grounds on which the plaintiffs had focused. (Op. at 2.) First, emphasizing that "[t]he Supreme Court unfailingly rebukes attempts to censure speech based solely on its potential to hurt, disgust, or offend," the Court found the law to be an unconstitutional "embodiment of a content-based regulation of speech." (Id. at 12-13.) Second, the Court ruled that the Act was unconstitutionally vague, given its lack of an "offender" definition and the fact that its "central limitation turn[ed] on the unknowable emotive responses of victims." (Id. at 16-18.) Third, the Court determined that the Act was unconstitutionally overbroad in light of the virtually limitless array of "offender" speech that might cause a victim mental anguish. (Id. at 18-19.)
Finally, in his conclusion, Judge Conner included powerful prose that is a welcome and versatile addition to the tool belts of First Amendment litigators—including those of us who represent media clients:
Free expression is the shared right to empower and uplift, and to criticize and condemn; to call to action, and to beg restraint; to debate with rancor, and to accede with reticence; to advocate offensively, and to lobby politely. . . . The First Amendment does not evanesce at any gate and its enduring guarantee of freedom of speech subsumes the right to expressive conduct that some may find offensive.
(Id. at 23-24.) The Attorney General chose not to appeal.
The plaintiffs in Abu-Jamal v. Kane were represented by a team that included David Shapiro of Northwestern University Law School and Bret Grote of the Abolitionist Law Center. The plaintiffs in Prison Legal News v. Kane were represented by a team that included Eli Segal and Amy Ginensky of Pepper Hamilton LLP and Vic Walczak and Sara Rose of the ACLU of Pennsylvania.
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