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Federal judge rules Pennsylvania prior restraint law unconstitutional

Posted By Jonathan M. Kelley, Thursday, April 30, 2015

On Tuesday, April 28, a federal judge in Pennsylvania struck down the state's "Revictimization Relief Act," agreeing with plaintiffs that it violated the First and Fifth Amendments of the US Constitution.

The law at issue was passed in October 2014, and permitted crime victims to sue convicted offenders to stop "conduct" - including speech - that cause "mental anguish" to the victims. The law was not limited to prisoners - even those completely out of the justice system could be subject to its restrictions. Much of the press surrounding Tuesday's decision focused on controversial prisoner Mumia Abu Jamal, whose commencement address at Goddard College last year took place three days before the bill was introduced and was referenced by then-Governor Tom Corbett when he signed the bill into law.

The case is ​Prison Legal News v. Kane.  (Edited to add: the ruling covered another case as well, ​Mumia Abu Jamal v. Kane​.)

In his decision, U.S. District Court Chief Judge Christopher Conner wrote, “A past criminal offense does not extinguish the offender’s constitutional right to free expression.” Judge Conner dismissed the state’s argument that the law was a mere regulation of conduct with an incidental impact on speech, and noted that even if that had been the case, the law would still be flawed:

Assuming arguendo that the Act or its history revealed a principal intention to regulate behavior and only an incidental regulation of speech, the court‟s holding would remain unaltered. The Supreme Court has held that when a law “generally functions as a regulation of conduct” it is nonetheless subject to strict scrutiny when “as applied to plaintiffs[,] the conduct triggering coverage under the statute consists of communicating a message.” Holder v. Humanitarian Law Project, 561 U.S. 1, 27-28 (2012). 

As reported in the March edition of FTRF News, the Freedom to Read Foundation filed an amicus brief in the case in February, arguing that allowing judges to issue injunctions in accordance with the law constitutes prior restraint "on a limitless range of speech, including matters of public interest, such as deterring crime, rehabilitation of prisoners, prison conditions, and fundamental issues of justice."

You can find the judge's decision here. For more on the ruling, visit Volokh Conspiracy and Philadelphia City Paper (one of the plaintiffs).

The bill's sponsor has indicated he will ask about an appeal and, if the Attorney General declines, will introduce new legislation.

Tags:  ACLU  litigation  Prison Legal News v. Kane  Revictimization Relief Act 

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Antigone update: Judge stays enforcement of AZ "nude image" law

Posted By Jonathan M. Kelley, Wednesday, December 3, 2014

Last Wednesday (November 26), the judge in Antigone Books v. Horne, FTRF's suit challenging Arizona's "nude image" law, entered an order staying enforcement of the law.  The order was issued based on an agreement by plaintiffs and the state, with the understanding that the state legislature will possibly be reconsidering the law in its forthcoming legislative session.

The Media Coailtion, which is coordinating the lawsuit for FTRF and fellow plaintiffs, has issued a  press release about the order.

Additional coverage:

In case you missed it, FTRF developed a fact sheet to provide a detailed explanation for our involvement in the case.

Tags:  Antigone v. Horne  censorship  litigation  Media Coalition 

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Supreme Court hands down decision in SBAL v. Driehaus: victory for FTRF!

Posted By Jonathan M. Kelley, Thursday, June 19, 2014
On Monday, a unanimous US Supreme Court handed down its opinion in SBAL v. Driehaus, a case concerning the ability to bring pre-enforcement (or facial) challenges to laws that could violate First Amendment rights. FTRF was one of several organizations to join an amicus brief filed in March by Media Coalition.

The Court held in this case that the plaintiff's threat of prosecution was "sufficiently imminent" to allow it to move forward.  It will now return to the lower courts to proceed on other issues.  A full analysis of the opinion is available on SCOTUS Blog.

In a press release, Media Coalition executive director David Horowitz said, “We are gratified that the Court today recognized the immense harm that can occur when individuals are required to put their liberty at risk in order to vindicate their free speech rights. This decision affirms the principle that a person, organization or business should not have to risk prosecution to challenge the Constitutionality of a law.”

Media Coalition noted that the Court cited Virginia v. American Booksellers Association, one of many "mini-CDA" internet content cases in which FTRF and other Media Coalition members were plaintiffs, as an example of a case in which a "reasonable fear of prosecution" provided sufficient standing to challenge a statute (that was ruled unconstitutional). 

In April, FTRF provided a rundown of oral arguments in the case.  See also our press release from March after filing the amiucs.

Tags:  litigation  Media Coalition  SBAL v Driehaus  Supreme Court 

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Overview of US Supreme Court arguments in SBAL v. Driehaus

Posted By Jonathan M. Kelley, Wednesday, April 23, 2014
Yesterday the US Supreme Court heard oral arguments in Susan B. Anthony List v. Driehaus, a case in which the Freedom to Read Foundation submitted an amicus brief in February.  The case involves the right to challenge laws, prior to their enforcement, that potential plaintiffs feel could infringe on their First Amendment rights. FTRF wrote about the case in our most recent newsletter.  Yesterday's arguments involved whether Susan B. Anthony List had standing to challenge the constitutionality of an Ohio law on "false" campaign-related speech.

Our friends at Media Coalition have compiled an excellent list of resources to help you understand the case, and the importance of FTRF's involvement:
  • Transcript of oral arguments
  • Q&A with Media Coalition Executive Director David Horowitz
  • SCOTUSBlog has a thorough overview of the oral argument, pointing out that the justices seemed more intent on questioning the constitutionality of the Ohio law than addressing the "standing" question
  • Slate's coverage
  • Wall Street Journal article on Ohio Attorney General Mike DeWine, whose office defended the Ohio elections commission in court even though he submitted a brief challenging the law's constitutionality, as "a representative of the people and the public interest"
  • "And lastly, the case caught the interest of satirist Andy Borowitz, who wrote on his New Yorker column, 'Supreme Court Calls Lying by Politicians an Expression of their Religion.'"
For more information on this case, visit FTRF's Current Litigation page and Media Coalition's SBAL v. Driehaus page, which includes an interactive map of where facial challenges have been brought in federal court.

Tags:  litigation  Media Coalition  SBAL v Driehaus 

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Join us for a FREE webinar with Theresa Chmara on FTRF's litigation efforts

Posted By Jonathan M. Kelley, Friday, March 21, 2014

FTRF members are invited to participate in a FREE live webinar on Tuesday, April 29, featuring FTRF General Counsel Theresa Chmara.  At this one-hour session, Chmara will discuss recent cases in which FTRF has become involved, including Arce v. Huppenthal and Susan B. Anthony List v. Driehaus. She also will take your questions about FTRF's litigation efforts.

The webinar will take place from  noon-1:00 pm EDT (9:00-10:00 am PDT).  It will be recorded for those members unable to participate live.

To register, you must log in to the FTRF site using your username and password.  If you are unsure of either, please 
go here

This session will be open to all current FTRF members.  To join or renew your membership, please visit If you have any questions about your FTRF membership status, please email

Tags:  Arce v Huppenthal  litigation  member benefits  Theresa Chmara  webinar 

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