Prison Book Purge

[Brownstein, Alan]

Is the government purging only religious books or is it limiting access
to secular books  that it deems dangerous as well? If non-religious
books are also being purged, then we have to ask what standard of review
would be applied to these content-based decisions under  the  Free
Speech clause. If the answer to that is something less than strict
scrutiny - because fundamental rights receive less protection in prisons
- and the prison authorities are able to satisfy this less rigorous
standard of review, than there may be a serious problem in applying the
compelling interest standard of RFRA in this case to challenge the purge
of the religious books. It may be argued that a federal statute (RFRA)
that provides greater protection to religious speech than secular speech
is viewpoint discriminatory and violates the Free Speech Clause (Good
News Club)  or arguably the Establishment Clause (Texas Monthly).

 

Alan Brownstein

 

From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Tuesday, September 11, 2007 10:22 AM
To: religionlaw at lists.ucla.edu
Subject: Re: Prison Book Purge

 

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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