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High court turns deaf ear to prison-music case

By David L. Hudson Jr.
First Amendment scholar

The U.S. Supreme Court has turned away a Pennsylvania inmate’s claim that political motivations were behind the closing of a prison music program that made national news after a VH-1 documentary series.

The case of Young v. Beard involved a prison music program at Graterford State Prison in Montgomery County. In October 2002, VH-1 aired a documentary series, titled “Music Behind Bars,” that examined prisoner bands across the country. Political commentator Bill O’Reilly denounced the prison program, criticizing the fact that convicted murderers could play music behind bars.

The day the VH-1 program aired, Gov. Mark Schweiker ordered the cessation of the program. A few days later, state Department of Corrections Secretary Jeffrey Beard complied and eliminated the program.

In June 2004, inmate Richard Glenn Young — who played in the prison band Dark Mischief under the now-defunct music program — sued in federal court seeking to have the program reinstated, claiming a violation of prisoners’ free-expression rights.

Both a federal district court and federal appeals court in Young v. Beard rejected Young’s claims based on the deferential legal standard articulated by the high court in Turner v. Safley (1987). That standard provides that prison officials do not violate the constitutional rights of inmates when their justifications are “reasonably related to legitimate penological concerns” such as rehabilitation or safety.

On April 27, the Supreme Court refused to hear Young’s appeal.

Young had argued that Beard did not have a legitimate reason for shutting down the program. Rather, Young claimed that Beard shut down the program simply because of political pressure from the governor. U.S. District Judge Paul S. Diamond recognized that Beard “initially suspended the performance of music at Graterford in reaction to the VH-1 controversy.” However, Diamond deferred to Beard’s justification that the program was shut down because of legitimate concerns over improper supervision of inmates.

Jennings Durand, Young’s attorney, said that he was “disappointed that the courts have allowed prison officials to restrict my client’s (and many others’) First Amendment rights not due to any real concerns with ‘security’ but instead due to public distaste for the inmates’ ability to express themselves via band performances. In my view, this is precisely the type of prison official ‘decision-making’ that deserves no deference whatsoever from the courts.”

The petition before the Supreme Court in Young v. Beard argued that some lower courts do not ask the question identified in Turner v. Safley — whether prison officials’ restrictions on inmate expression are an “exaggerated response” to penological concerns. In Safley, the Court said that if there were easy alternatives to the speech-restriction under challenge, that would be evidence the prison regulation being challenged was an “exaggerated response.”

Durand argued in briefs submitted to the high court that prison officials could have reduced the number of bands playing at one time and, therefore, have a better ratio between inmates and guards. There was no need to completely eliminate the music program when there were several other alternatives. The prison officials responded, and the 3rd U.S. Circuit Court of Appeals agreed, that there was no constitutional requirement that prison officials adopt the best policy.

Young’s petition also argued that the high court should resolve a split in the circuits as to whether a prison official “must actually be motivated by a legitimate penological interest, or can he act on improper motives so long as his attorneys can later proffer post hoc legitimate penological interest that might justify the decision.”

Young agreed prisoner rehabilitation and prison security are valid, rational penological concerns but contended that those justifications should also motivate the prison officials.

The issue is important not just because of a former prison music program in Pennsylvania, but also because it impacts other areas of First Amendment law. For example, in adult-entertainment litigation, lower courts are divided on whether city officials must present evidence of actual harmful, secondary effects caused by adult businesses or whether city officials can offer secondary effects as a post-hoc justification arising from studies from other jurisdictions.

Despite the fact that the Supreme Court refused to hear Young’s petition, Durand said: “I remain hopeful that the pending Seventh Circuit en banc decision in Hammer v. Ashcroft will state a clear rule that at the time prison officials make a decision that restricts an inmate's First Amendment rights, those officials must be subjectively motivated by the supposed concerns that they put forward as the basis for the decision.

“I also remain hopeful that Pennsylvania prison officials will reinstate the prison band program (or something like it) — not due to court order but rather because they genuinely believe that the band program is a productive outlet for inmates' expressive energies and an activity which brings inmates together to work toward a positive end,” Durand said.

“That was the very reason why Graterford offered the recreational band program for decades prior to the VH-1 documentary and the resulting outcry by Bill O'Reilly and his viewers.”

Ruling against expression is no music to inmates’ ears
By David L. Hudson Jr. 3rd Circuit defers to Pennsylvania prison officials's claims that allowing inmates to play in independent bands posed security risk. 07.23.08

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