Pennsylvania just passed an awful new law that bars convicts from publicly discussing their crimes if doing so could cause victims “a temporary or permanent state of mental anguish.” Journalist Christopher Moraff is part of a group that’s suing to have the law overturned. At the Daily Beast, he explains why striking down the law, which he calls the “Silencing Act,” is so important.
Never mind that the Supreme Court has ruled on numerous occasions that the mere incitement of emotional distress is insufficient grounds for quashing protected speech – the Silencing Act goes even further. It violates constitutional prohibitions against prior restraint by censoring speech that has yet to be uttered based solely on the criminal histories of those planning to utter it.
Adding insult to injury, the law makes no effort to define exactly what type of speech would qualify for an embargo, leaving that rather critical detail up to the discretion of individual judges.
Given the intimate link between free speech and a free press, it doesn’t take much effort to connect the dots and see how the Silencing Act will impact the journalism profession. For reporters who cover the criminal justice system, the law amounts to a standing gag order on an entire population of potential sources.
The speed with which this flawed piece of legislation was conceived, considered, passed and signed into law is nearly unprecedented for the Pennsylvania General Assembly – which just spent an entire year failing to pass a watered-down medical marijuana bill that had bi-partisan support and 85 percent voter approval.
By contrast it took just 15 days for the Silencing Act to sail through the legislature, riding the coattails of outrage over a college commencement address delivered at the end of the summer by convicted cop-killer Mumia Abu-Jamal.
As a journalist who writes about the criminal justice system, I can’t express enough alarm about the danger of this law. I can think of numerous articles I’ve written that could conceivably violate such a law — for example, the dozens of articles and blog posts about the case of Cory Maye, a Mississippi man who was sentenced to death for shooting and killing police officer Ron Jones during a botched drug raid. There’s no question Maye shot Jones. But Maye maintains that he didn’t know Jones was a police officer. He thought he was defending himself and his daughter from criminal intruders.
Today Maye is free, but only after he served 10 years in prison and was allowed to plead down to manslaughter. The articles in which Maye asserted his innocence undoubtedly caused anguish for the Jones family. If Mississippi had Pennsylvania’s law, state officials could have attempted to bar the articles’ publication or their distribution within the state. In fact, the same is true of virtually any article that calls a conviction into question.
More from Moraff:
To avoid the law’s reach, journalists working on stories that involve sources who have been convicted of a violent crime will now face the additional burden of not only ascertaining the potential impact of that source’s testimony on their victims, but determining whether their victims are still alive and/or whether or not they have family members who might find the public testimony distressing. Added to that will be the ethical dilemma of deciding whether to notify inmates or ex-offenders who are unaware of the Silencing Act that what they are saying could be grounds for a lawsuit, or whether to contact victims for comment on a story knowing that they may take an adversarial position against publication of the final product.
We need to dispense with this anti-liberal notion that there is some right to not be offended. Whether it’s speech codes on college campuses, anti-blasphemy and anti-hate speech laws in Europe, or so-called victims’ rights laws like this one, you can’t enforce these laws without crushing free expression and stifling speech.
You can have a free, open society that protects speech, or you can have an enforceable right to not be offended. You can’t have both.