Prison Book Purge

[Douglas Laycock]

  All serious questions, although much too complicated for newspaper
audiences.  I was thinking through the case for the first time, and
although I was talking to a good reporter, she had no legal training
and no little or no experience with law-related stories; we were at
the limit of legal complexity that she could handle.

  I think there is a decent chance of getting to the compelling
interest test under RFRA, or even under the Free Speech and Free
Exercise Clauses, because 1) the government is removing books, not
failing to acquire them (most of the books were apparently donated
over the years; the original plan was to destroy them, but they are
now in storage pending the litigation); and 2) the government is
making content decisions not just about dangerousness (that would be
entailed in eliminating books that promote violence), and not just
about but content decisions based on religion (because it is trying
to choose the 150 best or most useful or most appropriate books for
each faith.

  Quoting "Conkle, Daniel O." <conkle at indiana.edu>:

> Assuming the media reports are accurate, I think the government's
purge
> of religious books is outrageous.  That said, I'm wondering about
the
> legal framework for analysis.  Doug is quoted in the N.Y. Times as
> saying that the government's justification must be compelling.  I
can
> see how that might be the test, assuming RFRA is triggered, but I
wonder
> if there is a substantial burden in not being provided with a
religious
> library with a particular set of books?  (I take it that prisoners
who
> can afford them can buy additional books on their own.)  Is the
claim of
> substantial burden enhanced by a claim of religious
> discrimination--i.e., the government's picking and choosing of
religious
> texts--potentially implicating the Free Exercise Clause itself,
> notwithstanding Smith?   Cf. Lukumi; but cf. Locke v. Davey.  Also,
> thinking of some of Alan Brownstein's previous postings to the
list, I
> wonder if any claim under RFRA or under the Free Exercise Clause
should
> be considered in light of more general Free Speech doctrine, as
applied
> in the prison setting.  If Pico suggests that public school
libraries
> can remove library books limited only by a prohibition on narrowly
> partisan decisionmaking (that's how I read the case, although I
could be
> mistaken), then what is the proper standard for a prison library? 
Or is
> the argument here that the government is essentially deciding what
> counts as "good religion," at least for prisoners, implicating the
> (Establishment and/or Free Exercise) principle that the government
> cannot itself resolve theological questions?
> Dan Conkle
> *******************************************
> Daniel O. Conkle
> Robert H. McKinney Professor of Law
> Indiana University School of Law
> Bloomington, Indiana  47405
> (812) 855-4331
> fax (812) 855-0555
> e-mail conkle at indiana.edu
> *******************************************
>
>
>
>

Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713
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