Prison Book Purge

[Douglas Laycock]

  Good question, and/ /I don't know the answer.  But the only purge
that was mentioned or described to me was of religious books.

  Quoting "Brownstein, Alan" <aebrownstein at ucdavis.edu>:

> 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
>
>

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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