OUTSIDER SPEECH: THE PLRA, AEDPA, AND ADJUDICATIVE EXPRESSION.

• Author: Carter, William M., Jr.
• Position: Prison Litigation Reform Act, Antiterrorism and Effective Death Penalty Act - AEDPA and the PLRA After 25 Years

INTRODUCTION I. THE PLRA AND AEDPA: BACKGROUND II. LITIGATION AS EXPRESSION III. HISTORY'S ECHOES: ENSLAVED PERSONS' ADJUDICATIVE SPEECH IV. A DOCTRINAL DETOUR: THE PLRA AND AEDPA THROUGH A FIRST AMENDMENT LENS A. Content-Based Restrictions on Expression B. Viewpoint-Based Restrictions on Expression C. Speaker-Based Restrictions on Expression CONCLUSION "By taking the right to speak from some and giving it to others, the Government deprives the disadvantaged person or class of the right to use speech to strive to establish worth, standing, and respect for the speaker's voice."

--Citizens United v. FEC, 558 U.S. 310, 340-41 (2010).

INTRODUCTION

The Prison Litigation Reform Act (1) and the Anti-Terrorism and Effective Death Penalty Act (2) imposed sweeping new restrictions upon incarcerated persons' access to and use of the federal courts. The PLRA and AEDPA contain many troubling specific provisions; this Essay, however, will focus holistically upon the effects of these statutes in limiting incarcerated persons' access to the federal courts and cabining the claims that incarcerated persons may assert in federal courts. Taken as a whole, these statutes "were intended to, and did in fact, make it harder for prisoners to advance constitutional claims in federal court." (3)

Federal laws that raise (or lower) the barriers to entry for certain claims in federal courts are neither per se unusual nor inherently troublesome. From the basic rules of practice and procedure (4) to more targeted provisions regulating perceived excesses in litigation generally (5) or certain types of litigation specifically, (6) legislation and court rules often regulate litigation and access to the court system. (7) Seldom, however, does legislation single out a specific class of people--incarcerated persons, in the case of the PLRA and AEDPA--and target them for restrictions upon their access to and use of the courts that are both wholesale and sui generis to the class. (8) Indeed, Human Rights Watch has noted that it is unaware "of any other country in which national legislation singles out prisoners for a unique set of barriers to vindicating their legal rights in court." (9)

Indiscriminate class-based legislation of this nature is unusual. It is not unprecedented, however: similar restrictions were imposed upon enslaved persons as well as free Black people during the pre-Civil War legal regime. (10) To be clear at the outset: this Essay does not contend that incarcerated persons are slaves. Nor does this Essay seek to analogize incarceration to enslavement or to argue that the conditions that incarcerated persons face are the same as those faced by enslaved persons. (11) Rather, this Essay examines the PLRA and AEDPA through the lens of the American slave system's limitations upon access to the courts by enslaved persons and free Black persons. Doing so helps to illuminate the ways in which the former replicates the latter for a similarly racialized (12) and socially alienated group deemed outcasts from civil society.

1. THE PLRA AND AEDPA: BACKGROUND

   Taken together, "[t]he PLRA and AEDPA both constitute multipronged attacks on the ability of prisoners to secure relief from federal courts for claimed violations of their constitutional rights." (13) As relevant to this Essay, these statutes constrain incarcerated persons' (14) access to the courts by, inter alia: requiring the payment of court filing fees even in cases brought by indigent prisoners; (15) imposing a new limitations period of one year for habeas corpus claims; (16) strictly limiting the filing of multiple habeas petitions; (17) imposing new statutory limitations upon federal-court habeas review of state-court decisions; (18) and capping attorney's fees in a manner likely to diminish the willingness of counsel to represent incarcerated persons or to affect the quality of representation by those attorneys who do so. (19) In addition to their instrumental effects in deterring litigation by incarcerated persons (including litigation that may well be fully meritorious), scholars have argued that these statutes also have the effect--and perhaps the intent--of serving as an additional form of punishment by demeaning and degrading the individual's worth by subjecting them to a different set of rules conveying their lesser status as members of society. Under this view, the process is itself punishment, amounting to "a separate and unequal system of court access that applies only to prisoners." (20)

   The PLRA's and AEDPA's limits upon incarcerated persons' use of the courts may well have led to meritorious claims of serious constitutional violations or personal injuries going unredressed. (21) But even assuming for the sake of argument that all of the claims disallowed, restricted, or otherwise burdened by these statutes would have been unsuccessful (a highly unlikely scenario), this Essay suggests that something has been lost nonetheless: namely, the ability of incarcerated persons to be treated with equal worth and dignity in seeking to utilize the courts to redress their perceived grievances and to communicate those grievances to the government and the public through the courts. (22) The next section of this Essay examines the literature regarding litigation as a form of expression.

2. LITIGATION AS EXPRESSION

   The American constitutional tradition values freedom of expression for several independent reasons, two of which are especially pertinent to adjudicative speech. The first relates to the democratic process. In Justice Brandeis's famous formulation:

   [The Framers] believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government. (23) Adjudicative speech can relate to the democratic process in several ways: among them, it can serve as a form of dissent against the government; (24) as a means to galvanize political change through "persistent and persuasive appeals to the public consciousness"; (25) as a way to "force the government's attention on the claims of the governed when no other mechanism could"; (26) and, in the case of collective litigation, allowing like-minded persons to amplify their voices through association, in a manner akin to a political party. (27) Indeed, the Supreme Court's pre-PLRA jurisprudence explicitly recognized that incarcerated persons' adjudicative speech can be an alternate form of participation in the political process, stating that "[b]ecause a prisoner ordinarily is divested of the privilege to vote, the right to file a court action might be said to be his remaining most 'fundamental political right, ... preservative of all rights.'" (28)

   Freedom of expression is also valued as an aspect of the individual's dignity and autonomy. Protecting speech for its own sake, separate from any instrumental value that it may have, "sees expression as intrinsically important" (29) to all persons, and especially to persons belonging to subordinated groups whose voices tend to be undervalued. This view was noted in Justice Marshall's concurrence in Procunier v. Martinez. (30) Procunier involved a First Amendment challenge to a prison policy requiring incarcerated persons' incoming and outgoing mail to be screened by prison staff for prohibited content, such as letters in which a prisoner was deemed to "'unduly complain' or 'magnify grievances,'" or letters deemed to be "contraband writings 'expressing inflammatory political, racial, religious or other views or beliefs....'" (31) In finding the policy unconstitutional, the majority opinion focused on the First Amendment rights of non-incarcerated persons, reasoning that:

   [C]ensorship of prisoner mail works a consequential restriction on the First and Fourteenth Amendments rights of those who are not prisoners. ... [T]he First Amendment liberties of free citizens are implicated in censorship of prisoner mail. We therefore turn for guidance, not to cases involving questions of "prisoners' rights," but to decisions of this Court dealing with the general problem of incidental restrictions on First Amendment liberties imposed in furtherance of legitimate governmental activities. (32) The majority opinion therefore strongly indicated that it might have viewed the issue differently were it framed in terms of the incarcerated person's rights. Justice Marshall, by contrast, writing for himself and Justice Brennan, called for a different understanding, one grounded in the dignity and autonomy of incarcerated people themselves. Justice Marshall noted that "[a]lthough the issue of the First Amendment rights of inmates is explicitly reserved by the Court, I would reach that issue and hold that prison authorities may not read inmate mail as a matter of course." (33)

   Justice Marshall reasoned that:

   The First Amendment serves not only the needs of the polity but also those of the human spirit--a spirit that demands selfexpression. Such expression is an integral part of the development of ideas and a sense of identity. To suppress expression is to reject the basic human desire for recognition and affront the individual's worth and dignity.... When the prison gates slam behind an inmate, he does not lose his human quality; his mind does not become closed to ideas; his intellect does not cease to feed on a free and open interchange of opinions; his yearning for self-respect does not end; nor is his quest for self-realization concluded. If anything, the needs for identity and self-respect are more compelling in the dehumanizing prison environment. (34) Justice Douglas joined in the operative...