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Thursday, June 25, 2009

Ind. Decisions - 7th Circuit en banc overturns panel in Hammer

David Paul Hammer v. Ashcroft (SD Ind., Judge Tinder)

Before EASTERBROOK, Chief Judge, and BAUER, POSNER, KANNE, ROVNER, WOOD, EVANS, and SYKES, Circuit Judges. Circuit Judges F laum, Williams, and Tinder did not participate in the consideration or decision of this appeal.

See Judge Rovner's opinion for the Jan. 15th, 2008 3-judge panel here. See also this entry from Jan. 19, 2008.

Judge Rovner, with whom Judge Bauer joins, writes in a dissent that begins [at p. 15]:

The original panel’s opinion was firmly rooted in the Supreme Court’s long-standing rule that a prison regulation infringing on an inmate’s constitutional rights is valid only if “it is reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987). When a prisoner challenges a prison policy on constitutional grounds, the government must put forward a “legitimate” government interest to justify the restriction. Id. Suppressing speech because government officials find the content offensive is not a legitimate penological interest. Id. at 90. The original panel concluded that David Paul Hammer presented evidence that created a question of material fact that the district court overlooked: is the jailhouse-celebrity concern articulated by the warden “legitimate,” or is it simply a convenient explanation to justify a policy designed to control the speech content of a particular subset of prisoners? Given the fact dispute, the original panel reached the limited—indeed, even pedestrian— conclusion that a trier of fact must resolve the conflict.

Today’s en banc opinion is almost entirely unmoored from the original panel’s narrow treatment of the issues presented in this appeal. With scarcely a reference to Turner, today’s opinion holds that a ban on face-toface interviews in the prison system is justified if a judge can “imagine” a legitimate basis for its existence, glosses over facts regarding the application of the relevant policies, and concludes with the astonishing proposition that the government may limit a prisoner’s access to the media based on its distaste for the anticipated content of the prisoner’s speech. The en banc opinion thus authorizes the government to deny the public a chance to hear directly from prisoners who can offer a glimpse of situations that may embarrass the government, such as torture and prisoner abuse, by invoking pretextual justifications for policies that are unrelated to security. For the reasons set forth in the original panel’s opinion, I dissent. I write separately only to memorialize my additional disagreement with the unexpected breadth of the en banc opinion.

Judge Wood's dissent begins [at p. 23]:
Although I agree with much of Judge Rovner’s dissent, I write separately in order to highlight my own concerns with the majority’s opinion. Briefly put, they are as follows: first, the record does not support certain key assumptions made in the majority’s opinion; second, and related to the first point, it was error to grant summary judgment in favor of the defendants without permitting the plaintiff, David Hammer, to develop the record properly; and third, the majority has erred by adopting a rule permitting wholesale censorship in prisons—one that goes much farther than anything the Supreme Court sanctioned in Pell v. Procunier, 417 U.S. 817 (1974), or Saxbe v. Washington Post Co., 417 U.S. 843 (1974).

Posted by Marcia Oddi on June 25, 2009 10:59 AM
Posted to Ind. (7th Cir.) Decisions