Summary

Pennsylvania House Bill 2533 and Senate Bill 508 would allow a victim of a personal injury crime to bring a civil action against any offender to obtain injunctive relief for “conduct which perpetuates the continuing effect of the crime on the victim.”

“Conduct which perpetuates the continuing effect of the crime on the victim” is defined as anything that causes a temporary or permanent state of mental anguish. The bills also allow the Attorney General or a district attorney to sue on behalf of the crime victim. The cause of action is not limited to the offender’s term of incarceration.

Status

Gov. Tom Corbett signed S.B. 508 into law.

In April 2015, the U.S. District Court for the Middle District of Pennsylvania struck down the law as unconstitutional.

Analysis

The legislation is a prior restraint on speech in that it prevents publication or distribution, rather than imposing a financial penalty after distribution. It is also a content-based restriction on speech, because it requires a court to consider the content of the speech to impose an injunction.

In 1991, the Supreme Court struck down New York’s “Son of Sam” law that sought to ensure any income derived by a person convicted of a crime be set aside to compensate the victim of the crime as an unconstitutional content-based restriction. The Court acknowledged the states’s compelling interest in protecting victims but held that the state cannot suppress speech in order to do so.

The bills would also have a substantial chilling effect on First Amendment-protected works. It would allow a crime victim to seek injunctive relief barring a person convicted of a personal injury crime to talk to a journalist, author or film director, significantly inhibiting the ability to produce books, movies and other media. Books like In Cold Blood, The Executioner’s Song and Helter Skelter were written by authors who spoke with the perpetrator of the crime, and the autobiographies of Malcolm X and Rubin “Hurricane” Carter were about convicted criminals. It would also affect movies such as The Hurricane, based on Carter’s autobiography and Goodfellas, which is based on a book written with the cooperation of a convicted felon. There are also several instances in which crime documentaries uncover new evidence and can lead to convictions being overturned, such as The Thin Blue Line and films about the West Memphis Three.

History

  • On October 3, 2014, H.B. 2533 [3] was introduced, which provided the cause of civil action described above. It was referred to the House Judiciary Committee.
  • On October 7, 2014, S.B. 508 [4] was amended in the House Judiciary Committee and rewritten with the same language as H.B. 2533. The bill was originally introduced in February 2013 as a bill to create new provisions for victim testimony at parole hearings.
  • On October 9, 2014, Media Coalition submitted a memo in opposition to the bills [2], explaining the constitutional issues.
  • On October 14, 2014, both bills were re-referred to the House Appropriations Committee.
  • On October 15, 2014, the bills were approved by the House Appropriations Committee. S.B. 508 passed in the Pennsylvania House, with a vote of 197-0.
  • On October 16, 2014, S.B. 508 passed in the Pennsylvania Senate, with a vote of 37-11. The bill was sent to Gov. Tom Corbett for his signature.
  • On October 17, 2014, Media Coalition sent a letter [1] to Gov. Corbett urging him to veto S.B. 508.
  • On October 21, 2014, Gov. Corbett signed S.B. 508 into law. The bill goes into effect immediately.

Subsequent litigation

S.B. 508 was enacted into law on October 21, 2014. The bill went into effect immediately.

On November 10, 2014, the Abolitionist Law Center filed a federal challenge to the law on behalf of Mumia Abu-Jamal, two Pennsylvania inmates, Prison Radio, Human Rights Coalition and Educators for Mumia Abu-Jamal.

On January 8, 2015, a second challenge was filed by the American Civil Liberties Union of Pennsylvania on behalf of Prison Legal News, Philadelphia City Paper, two journalists, a University of Pennsylvania criminal justice professor, the Pennsylvania Prison Society, Solitary Watch and four men who were convicted and finished serving their prison sentence. Both lawsuits were filed in the U.S. District Court for the Middle District of Pennsylvania.

On February 17, 2015, two Media Coalition members, the American Booksellers for Free Expression and the Freedom to Read Foundation, joined an amicus brief urging the U.S. District Court to block enforcement of the legislation.

On April 28, 2015, the U.S. District Court for the Middle District of Pennsylvania struck down the law as unconstitutional.