Free Speech Wars
Ozzy Osbourne is notorious ’round these parts for once watering down our shrine of liberty, the Alamo. On April 2, 2004, the Texas Board of Criminal Justice did worse and used the Constitution for toilet paper. For the first time in more than 25 years, Texas prison officials will have the authority to open and read prisoner mail to media and government officials. At first glance, the new rule seems reasonable; however, if you’re a prisoner there is nothing more intimidating to effect your silence than knowing your keepers will be analyzing your writings.
Oh, sure, officials cannot censor a prisoner’s mail without “cause,” but just like the old days in Texas prisons–before the Guajardo v. Estelle First Amendment litigation in 1978 that established the mail rules just now abolished–“cause” is a discretionary matters. “Cause” is personal opinion and justification for “other needs,” including shutting up prisoner writers who “embarrass” the Texas Department of Criminal Justice (TDCJ).
TDCJ also will ban “sexually explicit material,” beginning with personal photos now and publications next year. Again, such a ban sounds morally reasonable but it is actually designed to censor the most widely read critics of TDCJ in the mass media, Playboy and Penthouse magazines, which are gutsy enough to publish politically incorrect investigative reports, including my own.
The last time TDCJ had such wide-ranging power over incoming and outgoing media mail was a disaster for the First Amendment, whistle-blowing prisoners, writers and “writ-writers’ or parale-gals. Without First Amendment transparency, TDCJ was once like Abu Ghraib, with retaliatory and punitive beatings and torture. (Indeed, O. Lane McCotter, a former TDCJ director, was hired by the Bush administration to set up Abu Ghraib and all Iraqi prisons.)
The Texas Daily Newspaper Association says the new rules will have a “chilling effect” on free speech and a free press. It has already occurred, as I predicted to The Houston Chronicle in January 2004 and as the Chronicle reminded readers in its April 3 editions. There also will be a chilling effect on governmental accountability, since TDCJ tells its regulatory Board what to do and thus is virtually uncontrolled, as explained below. Take away the First Amendment and the people’s “check and balance” oversight of government is destroyed.
The rules will eliminate whistle-blowing by subjecting “disloyal” prisoners to prior restraint and retaliatory punishment if critics ignore such restraint. I know because it happened to me last year in a dry run of the new policies It is a conflict of interest when a prison director or warden or other “designee” (including near-illiterate guards with massive chips on their shoulders) is permitted to judge a prisoner’s criticism of the administration or policies. In the 1970s, before the existence of the correspondence rules now eliminated by the Board and TDCJI former warden Jim “Wildcat” Anderson and others routinely beat convicts who communicated abuses to media and government officials.
It is not difficult to lure good Americans into accepting censorship as valid public policy during trying times. Terrorism, the war on terror, a sagging economy, highly publicized crime (even when crime rates are falling), a media “decency war” on uninhibited performers and multiplying fears result in a call for draconian governmental controls. We live in a culture that already (often justifiably) distrusts convicts. TDCJ thus couches its censorship in a populist appeal to our anger and puritanism. The Eighth Amendment notwithstanding, most folks believe the bad guys are sent to the penitentiary not merely as punishment but for punishment. After all, theyre just convicts, so ban all nudity! TDCJ’s sensationalism and play on morality is a cover for what’s really going on here.
Public policy, even in the most obscure, darkest, unseen institutions, does not exist in a vacuum. It arises from many influences, from the personal to the social and political, some of which go unchecked and result in overly restrictive measures. Most folks think prisons somehow exist apart from the Constitution and that proper “punishment” means no free-speech nor due-process rights. The courts soundly rejected this notion long ago but even today’s judges are pressured to make publicly acceptable decisions apart from the rule of law.
Very few people understand that government rules restricting speech and the press in any of our institutions leads to censorship in other spheres of life. When tyranny becomes a part of our lives it is soon accepted, soon entrenched. We are now witnessing a wave of public censorship that knows no ideological bounds or favorites, which means tyranny is now broadly accepted as part of life. It began in our prisons, especially Texas, and now the examples of censorship are endless.
Consider how five peace activists were convicted in President Bush’s hometown of Crawford, Texas, of violating a city ordinance against demonstrations. Their car was pulled over at a police roadblock and they were discovered to be wearing political buttons on their clothing! Consider how U.S. marshals confiscated and destroyed reporters’ tapes belonging to the Associated Press and The Hattiesburg American after a public speech by Supreme Court associate Justice Antonin Scalia Consider how federal Superintendent Stephen Adams somehow “waived the First Amendment for the grand opening” of the Brown v. Board of Education National Historic Site, banning protestors, according to his spokesman. Not that I ever would, but I can “waive” my own First Amendment rights, thank you very much!
Speakers on college campuses are heckled down. Campus newspapers are stolen and torched. Small, heavily regulated “free speech zones” are established on campuses and at political conventions as the only places for open debate. In Texas, homemakers are prosecuted for hosting private, adult-themed product parties. When Susan Sarandon visited a death-row prisoner in Texas and purchased his greeting cards, TDCJ threatened to punish the prisoner for “trafficking and trading” or “running a business.” As Pulitzer Prize-winning columnist Leonard Pitts of The Miami Herald declared, “These are ominous times for freedom. You might want to speak out while you can.”
As goes public policy for the least of our citizens, then–whether in orphanges, old folks homes, colleges or prisons–so goes public policy for all Americans. It is a basic principle acknowledged by the American Civil Liberties Union, which keeps the ACLU quite low on many uninformed Americans’ “most valuable lawyers” lists.
Only government possesses the raw power to destroy free speech or a free press. For this reason every act of government that restrains the people must be found to be absolutely necessary or tossed out. Only the press ultimately preserves free speech, because the ACLU cannot be everywhere at once nor does unpopular First Amendment litigation always succeed, particularly since the battleground is in the government’s courts.
It may be too late for Texans, who have lost all say-so over TDCJ during the Bush governorship and now in his presidency. According to prisoner rehab specialist Chuck Hurt of Riverside, Texas and Pacifica Radio’s “The Prison Show” (KPFT-FM, Houston), TDCJ general counsel Carl Reynolds wrote the new rules and TDCJ executive director Gary Johnson commanded the Board to approve them. TDCJ’s regulatory authority thus takes its marching orders and policy directives from the very agency it is charged by law to oversee. In this way TDCJ preserves its legacy of unending scandal, with which most Texans are uncomfortably too familiar and which other writers have elsewhere detailed.
Power corrupts, and the unregulated power of TDCJ has rotted it and the vast system that protects it from accountability. Manipulation of widespread fear is the sine qua non of tax-and-spend fiefdom builders of both political parties. Fear fed the mania underlying the “war on drugs” and the “war on crime,” the first PC-titled wars on unnamed enemies. This fear is perpetuated by Texas judges and district attorneys elected on their “conviction” rates–rates inflated by mass plea bargaining. This technique clears the books, rewards career criminals with short prison terms, turns prison gates into revolving doors, keeps TDCJ rolling in tax dough1 and destroys the rule of law by eliminating trial by jury. The rarity of jury trials and the laxity of plea— bargained sentences causes Texas juries to impose maximum terms on those defendants who dare to rely on the constitutional right of jury trial. The vicious circle continues, as fear of juries leads to even more plea bargaining.
This criminal-injustice system nearly bankrupted Texas with 70 new jails and prisons in the ’90s. Worse, operational costs dwarf new construction costs. What to do with rising fears and deficits in the Land of 105 State Prisons? As I write, the Texas legislature failed once but is considering a second special legislative session to try to save spending for public education threatened by 15 years of prison expansion. Taxes will be raised. The debate over whom to tax and how is both informative and sickening, with testimony before the legislature revealing details of just how evil and destructive taxes are in the lives of people who cannot afford them.
Last year Gov. Rick Perry ordered all state agencies to cut their budgets. TDCJ claimed imperial privilege, bitterly balking until the last moment, slashing its long-compromised food budget. It’s still not enough. The new mail rules gut the due-process protections under the Fourteenth Amendment, making many clerks obsolete. Call it TDCJ’s version of outsourcing, or in its case, “not-sourcing” It is the Bush legacy in Texas, now bequeathed nationwide, leaving bills well be paying a generation after he’s gone.
Already in 2003, the Board obeyed TDCJ orders and scrapped Saturday mail pick-up and delivery, jeopardizing timely attorney-client-court legal mail that still operates in the real world on the schedule of the United States Postal Service. (If you think TDCJ extended the visiting hours to make up for the lost day of mail, or perhaps installed pay phones for the first time, you think wrong.) TDCJ also ended the 25-year “clip rule” for publications, which means that even a single, tiny “objectionable” word or image in any size book or magazine excludes that entire publication from Texas prisons forever. It doesn’t matter anymore if a publication otherwise contains exclusive, important information or redeeming content.
TDCJ also eliminated prisoner-to-prisoner correspondence, ending class-action litigation threats and destroying friendships that substitute family-like relationships. TDCJ also limited prisoner postage possession to 30 stamps, including one- and three-cent stamps used to save money on parcels and fat legal packages. Under the old correspondence rules a prisoner was permitted and even encouraged to correspond with as many folks as possible. No more. Now TDCJ virtually admits by its new rules that free speech and a free press aredestructive to the bureaucratic process of main- taming and enlarging the 105-institution empire. Already, in the summer of 2004, TDCJ’s strongest advocates in the Texas legislature floated the trial balloon of expanding the empire with another round of new prison construction. Meanwhile, prisoners cannot draw images of prison life or even love on the outside of their envelopes, nor can they even give instructions to the post office (e.g., Priority Mail), so fearful are Texas prison officials of the messages from inside voices. Envelopes found to be in violation are confiscated and prisoners are not reimbursed for the confiscated postage.
These changes, and more, violated state mandates and a federal consent decree still in place in 2003. The Guajardo v. Estelle decree was lifted in March 2004. Its doctrines and dicta are still intact and controlling1 especially for the Fifth Circuit states, but TDCJ believes it is free to revert to pre-Guajardo censorship. TDCJ believes, for example, it is free to cut mail volume and procedures by any means necessary to generate cost savings. Until taxpayers can be hoodwinked again into sacrificing schools for the Texas prison-justice-industrial complex, it’s all about creative “rules” to save TDCJ’s sprawling spoils system.
Budget problems do not properly constitute a “legitimate penological objective,” which is the Supreme Court’s standard of review of censorship under Turner v. Safley. Indeed, abandoning Guajardo, which was determined under that standard, TDCJ’s new rules fail the Supreme Court’s four-pronged test at every point. Gary Johnson justifies the rules by claiming, “We’re trying to change the culture in our institutions–to a better culture for our staff, especially the female correctional officer. . . .” It is a sly employee relations tactic, probably designed to keep guards from effective unionizing, but it is hardly a legitimate security matter. In fact, it is looking like a blow-by-blow replay of the California Department of Corrections’ censorship tactics.
In California, the CDC admitted that its ban on nude images was a reaction to the demands of female guards. Several of them had successfully sued the CDC as a result of sexual harassment by male staff, not prisoners. In the benchmark policy states of California and Texas the censorship issue is clouded by the feminization of male-oriented institutions and the failure of prison administrators to deal with employee issues. Instead, they blame the prisoners for everything.
We are talking prison here, not kindergarten. Prison is the quintessential “man’s world” for staff and convicts alike, in our history, culture, and law. There is only so much meddling social scientists, lobbyists, ill-informed unions, feminists, and politically correct change-agents can do before they remake men into mentally, socially, and sexually demented robots, programmed by moment-to-moment regulation and micromanagement, incapable of independent judgment and perpetually institutionalized. It is not a legitimate penological objective to destroy men or turn them into eunuchs nor to sterilize a man’s mind and environment.
The “common sense” TDCJ approach to censorship soothes the best intent in us all: We want criminals to be punished and we don’t want our prisons to become Holiday Inns. Wardens have better things to do, however, than answer stacks of inmate requests for permission to buy more than 30 one-cent stamps. When I was at the Wynne Unit in Huntsville, Texas, administrators were so burdened with the myriad of regulation enforcement that it became more important to make sure convicts never hung a clothesline to dry their clothes, despite selling them the clothes and the detergent to wash them. While guards were pressured to enforce Administrative Directive 03.72 (and a dozen others like it), one escapee roamed the grounds for hours, never missed through several counts, and another drove a truck through two fences to freedom. When the Texas Seven escaped, resulting in the largest prisoner manhunt in U.S. history, Wynne Unit convicts spraypainted a message across the side of a building visible from Interstate 451: “Go Texas Seven!” But at least the clotheslines were down. Ain’t micromanagement cool?
The difficult truth for most Americans who favor punitive treatment of prisoners, including censorship, is that almost all convicts are eventually released. Minimal rehabilitation is necessary if society is to be safer when that day comes, but an emotionally hardened man pummeled by micromanagement is not a reformed man. Criminal justice fails for all when the rule of law is compromised along the way for either the victim or the perpetrator, and that includes the denigration of the First Amendment. As much as we may feel criminals (or prisoners of war!) deserve it, we cannot deal with them by means of hypocrisy and contradiction. We must not become the bad guys in the process of dispensing justice to the bad guys.
As for what Mr. Johnson claims for TDCJ’s inner “culture,” there are dozens of existing fire, safety and other institutional rules, even disciplinary rules, plus state laws, already preventing female guards from coming into contact with “objectionable” material. If/when they do, guards have a plethora of offense rules to charge unruly, individual prisoners without also punishing and censoring prisoners who have done nothing wrong but read or write for a magazine. Before the advent of the new rules, perverts who foisted themselves on staff were disciplined and/or prosecuted under this protective maze. Again, however, the budget no longer allows for invidualized treatment and punishment: It casts TDCJ approximately $90 in man-hours and supplies to process a minor disciplinary infraction and $200 for the average major case. To save this money TDCJ will now punish all 150,000 inmates, before any actual offense, by blaming the cause of all misbehavior on nude images and banning all publication content even loosely associated with those images.
The new ban will have no effect resolving the problem of the real origin of sex offenses against staff or others. I am talking about TDCJ’s protected snitches. They have license to offend in exchange for their information–information that is often bogus or developed in improper sting operations. Snitches are also protected unofficially when used in officer-against-officer feuds, including ostracized female staff who reject propositions or harassment from male guards.
These snitches skate through their typically short, plea-bargained sentences with unjustly pristine disciplinary records, despite many outrageous offenses behind bars, and are back in Texas neighborhoods to reoffend in no time. If female guards are clamoring for tighter controls of the “culture,” what they really mean is elimination of TDCJ’s snitch system and punishment of sexual harassment by fellow staffers and their pet prisoners.
More directly on the question of nudity in publications in the penitentiary, TDCJ began allowing publications containing same more than 25 years ago as an accommodation under the First Amendment, since TDCJ provides no alternatives to men’s interests or needs (i.e., conjugal visits). Female guards did not exist then, but prisoner rape immediately plummeted, as did voluntary homosexual relations. The only clinical study I am aware of on the subject, involving prisons in Thailand, shows that the elimination of alternatives to heterosexual relations (including fantasy through publications) leads to the very negative outcomes TDCJ claims it wants to stop in the “culture,” including sexual assaults of staff and prisoners.
Love letters, photos, visits and publications are part of an ever-shrinking safety net for amorous cons who would never otherwise consider an “inappropriate,” even voluntary hook-up or relationship with female staff. Texas has no pay phones, no weekday visitation, no extended hours visitation, no conjugal visitation, no nude photos now, and no “offensive” publications in the near future. Several former wardens have admitted they quit or took early retirement because TDCJ is taking away all their “carrots and sticks” for managing behavior on an individual basis.
The new one-size-fits-all censorship punishes and frustrates everyone and allows the real rule breakers to go unpunished. The very notion of collective punishment without regard for due process and evidence consideration is un-American. The corrections professionals who are quitting TDCJ know it backfires in the prison environment. Why not punish those relatively few pervs to the fullest extent possible, including suspension of their photo and/or publication privileges? The answer, again, is that individualized due process, treatment, tracking, etc., requires man-hours, a no-no in today’s budgetary environment in Texas, the rule of law be damned.
Any enlightened policy regarding long-term incarceration acknowledges the imperfect but undeniable nature of many men’s sexual psyches or make-up. Constructive alternatives to actual relations must be allowed, if we claim the title of “civilization.” This ain’t Baghdad. This ain’t church, either, as Gary Johnson apparently wants to declare.
History and legal precedent further instruct us that TDCJ’s term in its new rules, “sexually explicit material,” is a loaded one intended to impress the angry public more than it is meant as an enforceable regulation. After all, TDCJ admits that sexually suggestive and even explicit depictions (e.g., bare buns) will continue to be allowed. Erotic art will be judged on an individual basis by censors; yet one man’s erotica is another man’s porn is another man’s “sexually explicit material,” etc. In the real world of actual enforcement, employees will have widely variant notions as they censor the printed page, regardless of any detailed policy definition. The wet T-shirts, bikinis, blocked-out nipples or genitals, etc., will lead to inconsistent applications of the ban, further vagueness, confusion, and wider censorship, proving the wrong-headedness of the term and rule in the first place.
Why do Reynolds, Johnson and their lapdog Board select a few publications by their definition of “sexually explicit material” for their ban, while allowing others that also contain sexually explicit images? The answer is that TDCJ projects a moral ruse as a cover for immoral purposes, like the proverbial TV evangelist caught with his britches down. The new rules are actually a pretext and follow-through for punitive censorship begun last year in response to negative media stories, including mine published in Playboy and Penthouse.
When I began writing about the recruitment of radical Muslims in Texas prisons, about repetitious violent escapes, about the way administrators encourage racial conflict as a management and PR tool for expanding the budget, and about censorship, I was hauled into prison court and effectually sentenced to another year behind bars. The story was picked up by the Associated Press and others, so I’ll spare the reader a retelling here, except to say that the offense report charged me with “writing articles for publication.” There is no such rule or law. Nor is there any procedure whereby a prisoner-writer may somehow apply for “permission” or “approval” or “authorization” to write. I have been doing so for 17 years and was never punished until I wrote about Texas prisons.
It is no coincidence TDCJ’s ban applies to the two magazines I was writing for, Playboy and Penthouse. They are TDCJ’s biggest nemeses in the mass press. Since Texas media seem to avoid homestyle exposes as a matter of political commandment and plutocracy, publications like Playboy and Penthouse are often the lone critics of TDCJ. Between them they have published seven negative reports about TDCJ since 2000. They have been marked for retaliation and censorship for a long time. Last year it was only I who was nailed; beginning in 2005 the free presses of Playboy and Penthouse are frozen and quiet, so far as TDCJ’s 150,000 prisoners are concerned.
When a federal judge ruled a quarter-century ago that these two magazines in particular must be delivered to Texas prisoners free from all censorship, TDCJ agreed. There has been no security-related problem with them in more than 25 years, so why does TDCJ now claim a content problem? If nudity was a genuine concern, why not ban those titles today, rather than next year, when the new rules affecting publications goes into effect (and after I am released)? If 9/11 and the Texas Seven taught us anything, real security problems demand an immediate fix.
TDCJ’s claim that “sexually explicit material” is a threat is a hoax. It is fraudulent and preposterous–not merely unconvincing–but demonstrably false, even as TDCJ intimates in its wishy-washy defense of “changing the penitentiary culture.” TDCJ aims to slam shut the gates of incoming and outgoing media (and government) communication by monitoring all such mail and banning the most critical publications. The safety valves of human expression, including sexuality, are welded shut.
All Americans will pay a great price for Texas’s trashing of the First Amendment. The heavy-handed tactics of government power imposed by the Bush administration were first practiced in Texas. With Bush’s ongoing national example, Texas is now enlarging upon those policies back home. It appears likely that broader public policy at the various state and national levels will target other disfavored persons or publishers, even as the FBI is rounding up dissident voices just prior to the Republican convention in August in New York. Is what we’ve witnessed in Iraq, with the shutdown of newspapers and torture of prisoners, a warm-up for domestic policy in America?
Perhaps the price to be paid by all Americans will come in the form of higher taxes to fund government censorship and snooping, or maybe even federal litigation costs for the same kinds of First Amendment lawsuits TDCJ has already lost. Res judicata or stare decisis, anyone?
Or maybe the cost will be in more crimes committed by the dehumanized monsters deposited into our neighborhoods after being shapened into lower animals inside the walls of the Texas prison system for 20 or 30 years.
I think the price will include all of these itemizations and more. The vicious circle will become even more vicious as the public wrongly reacts to TDCJ propaganda for even more censorship and more punitive treatment of criminals. In Texas the Alamo and its legacy are disappearing as TDCJ bureaucrats and politicians keep piling it higher and deeper.