2. The Act restricts speech based on its supposedly offensive content:
Legislation restricting expression based on content is inherently suspect. As a consequence, such enactments demand the highest level of judicial scrutiny…. [And] the government may not proscribe speech based exclusively on its potential to offend….The attorney general … denounces plaintiffs’ characterization of the statute as a regulation of expression, describing it instead as a limitation of certain “behavior.” The attorney general argues that the law’s primary goal is to eliminate “taunting” or “harassing” behavior toward victims. She emphasizes the statute’s use of the term “conduct” and dismisses any First Amendment infringement as “incidental” to this broader purpose….The act contains no restrictive language supporting the construction urged by the attorney general….. Nor does the act’s legislative history reinforce the attorney general’s interpretation. No supporter spoke of an intent to prevent a convicted rapist from “crank calling” his victim, or a convicted kidnapper from standing outside of her victim’s home for hours on end. Indeed, throughout its brief legislative gestation, the law was championed primarily as a device for suppressing offender speech. The act’s sponsor extolled its capacity to silence Abu-Jamal. The chairman of the house judiciary committee opined that the act would end the “extreme distress” suffered by victims when offenders achieve celebrity, admonishing Goddard College for providing a “cold blooded murderer” with a speaking forum. Sen. Rafferty praised the act for creating a remedy “when the perpetrator of the crime is getting attention that [the victim] may feel is not warranted.” And Gov. Corbett commended the legislature for expeditiously passing a law that quells the “obscene celebrity” of an “unrepentant cop killer.”[Footnote: 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.” Here, the principal effect of the statute as applied to plaintiffs is the stifling of expression. Strict scrutiny thus controls notwithstanding the attorney general’s tenuous assertion that the Act principally regulates “conduct.”]The act’s remedy clearly reflects an intent to inhibit expression based exclusively on content — in particular, the impact that content has on a listener, reader, or other recipient. The act permits enjoinder of offender speech based entirely on its effect on a victim. In this regard, the Supreme Court is unequivocal: a legislative proscription conditioned upon the impact an expression has on its listeners “is the essence of content-based regulation.” …
3. The Act is unconstitutionally vague:
As a threshold matter, the statute does not define the term “offender,” such that the public cannot know whose conduct it regulates. During a legislative judiciary committee meeting, committee counsel opined that the term permits a broad construction to include non-offender third parties who publish offender speech. The attorney general suggests that the term includes even persons who are accused but not yet convicted. It is thus unclear whether an offender includes the accused, the convicted, the exonerated, third parties, or all of the foregoing. As a result, many plaintiffs — prisoners and non-prisoners alike — instantly modified their conduct for fear of falling within the ambit of the act.The act’s primary barometer of actionable expressive activity is equally vague. It refers only to “conduct” that causes “a temporary or permanent state of mental anguish,” but offers no guidance to state courts in determining whether a plaintiff is entitled to relief. It does not specify whether reactions to speech will be measured by an objective or subjective standard, or what level of “anguish” will suffice. See, e.g., Williams, 553 U.S. at 306 (observing that vague statutes include those which define prohibited conduct by terms such as “annoying” or “indecent,” requiring “wholly subjective judgments without statutory definitions, narrowing context, or settled legal meanings.” During oral argument, the Attorney General conceded that her office is uncertain whether even Maureen Faulkner — the victim-catalyst for the legislation — could successfully obtain relief under the act. Such equivocality reflects the impossibility of defending this law: the weight of precedent has forced the attorney general to contort the legislature’s vision so as to render it unrecognizable from its original intent.
4. And, for similar reasons, the act is overbroad — it restricts a substantial amount of constitutionally protected speech:
Plaintiffs argue that the act is boundless in its potential applications, encompassing in its scope virtually any expressive activity by any person who has ever been convicted of a personal injury crime. The attorney general agrees that any conduct which elicits mental anguish in a victim might fall within the act’s inestimable sweep so long as that victim can prove the fact of anguish in court. Hence, the act ostensibly affects protected — and critically important — speech, including: pardon applications, clemency petitions, and any testimony given in connection with those filings; public expressions of innocence, confessions, or apologies; legislative testimony in support of improved prison conditions and reformed juvenile justice systems; programs encouraging at-risk youth to avoid lives of crime; or any public speech or written work whatsoever, regardless of the speaker’s intention or the work’s relation to the offense. Absent well-defined parameters, the four corners of the act will quash important public dialogues, as long as a victim can demonstrate “mental anguish.”The attorney general’s proposed definition of the term “offender” further compounds the overbreadth concerns borne of the statute’s plain language. When pressed at oral argument to define the term, the attorney general suggested that even those who have merely been accused of a crime may be silenced by the act; for example, a pretrial detainee could be subject to civil liability for publicly professing innocence during the colloquially termed “perp walk,” well in advance of any criminal adjudication of guilt. Taken to its logical conclusion, the attorney general’s statutory interpretation would limit an accused person’s right to profess his innocence before he is proven guilty.
The bottom line result and the general analysis strike me as quite correct; the government can’t forbid prisoners’ speech to the public — even if the statute is read as limited to convicted criminals — simply because it offends the victims (however reasonable we might think it is for the victims to feel offended).