SF BayView, August 26, 2012
by Randall
“Sondai” Ellis, Mutope Duguma and Sitawa Nantambu Jamaa
Greetings.
The struggle is long and arduous, and sometimes we do etch out significant
victories, as in the case of our Brotha Mutope Duguma in In re Crawford, 206
Cal.App.4th 1259 (2012).
It’s
important to emphasize that this victory is a significant step in reaffirming
that prisoners are entitled to a measure of First Amendment protection that
cannot be ignored simply because the state dislikes the spiel. New Afrikan
prisoners have a right to identify with their birthright if they so choose, as
does anyone else for that matter – Black, White or Brown.
In fact,
more than 40 years ago the United States Supreme Court addressed this very
issue in Pell v. Procunier, 417 U.S. 817 (1974), stating: “We proceed upon the
hypothesis that under some circumstances the right of free speech includes a
right to communicate a person’s views to any willing listener, including a
willing representative of the press for the purpose of publication by a willing
publisher.”
That same
year the U.S. Supreme Court also decided Procunier v. Martinez, 416 U.S. 396
(1974), holding that: “Censorship of prisoner mail is justified if the
regulation or practice in question furthers an important or substantial
governmental interest unrelated to the suppression of expression, and
limitation of First Amendment freedoms is no greater than is necessary or
essential to the protection of the particular governmental interest involved.
Prison officials may not censor prisoners’ mail simply to eliminate
unflattering or unwelcome opinions or factually inaccurate statements.”
California
has long been a leading opponent of the First Amendment rights of prisoners,
spawning both the rulings of Pell and Martinez. However, in the decades to
follow, courts would literally fall silent in their enforcement and protection
of these very important constitutional rights.
This
landmark, precedent-setting decision won by Mutope Duguma (s/n James Crawford)
from the Pelican Bay SHU recognizes the First Amendment rights of prisoners –
even those condemned to solitary confinement torture.
Thus, today
prison officials and the prison intelligence unit have attempted to create a
fallacious narrative in order to suppress our creative thought and our ability
to collectively develop solutions for the many social ills afflicting our
communities, particularly speaking of New Afrikans.
They have
gone so far as to boldly proclaim that the term New Afrikan was created by the
Black Guerilla Family (BGF) and that those who identify as or use the term are
declaring their allegiance to the BGF, which has been declared a prison gang. They
have sought to suppress its usage by validating (i.e. designating as a gang
member or associate) anyone who uses the term or who dares mention the name
George Jackson.
In Harrison
v. IGI, 2010 WL 653137 (N.D.Cal., Feb. 22, 2010, they argued, “Black August,
New Afrikan Revolutionary Nationalism, The New Afrikan Collective Think Tank
(NCTT), George Jackson University (GJU), and the New Afrikan Institute of
Criminology 101 all promote the BGF.” They offered no proof of their outrageous
allegations, and Judge Susan Illston found that defendants take a very
expansive view of what might “promote” a prison gang’s illicit activities and
apply it with gusto, when the First Amendment requires a more nuanced approach
(Harrison, supra, 2010 WL 653137, at p. 6).
Judge
Illston further found that it appeared that prison officials had taken a
race-based approach and banned all things Afrikan-American under the guise of
controlling the BGF.
Even still,
the silence as it relates to the First Amendment continued. The prison
intelligence unit continued its quest to criminalize ideological thought, and
courts continued engaging in fallacious reasoning in order to uphold a blatant
perversion of the First Amendment.
Judge
Illston further found that it appeared that prison officials had taken a
race-based approach and banned all things Afrikan-American under the guise of
controlling the BGF.
That is,
until the ruling in Brotha Duguma’s case In Re Crawford, filed June 4, 2012,
and certified for publication June 13. In a brilliant piece of judicial
reasoning, a panel of justices in a 3-0 decision finally reaffirmed a
prisoner’s First Amendment right to free speech and expression, stating:
“Freedom of speech is first among the rights which form the foundation of our
free society. ‘The First Amendment embodies our choice as a nation that, when
it comes to such speech, the guiding principle is freedom – the unfettered
interchange of ideas – not whatever the State may view as fair.’ (Arizona Free
Enterprise Club v. Bennett (2011) 131 S.Ct. 2806). ‘The protection given speech
and press was fashioned to assure unfettered interchange of ideas for the
bringing about of political and social changes desired by the people … All
ideas having even the slightest redeeming social importance – unorthodox ideas,
controversial ideas, even ideas hateful to the prevailing climate of opinion –
have the full protection of the guaranties, unless excludable because they
encroach upon the limited area of more important interests.’ (Roth v. United
States (1957) 354 U.S. 476, 484.”
“Freedom of
speech is first among the rights which form the foundation of our free
society.”
The
programs embodied in the New Afrikan Collective Think Tank, New Afrikan
Institute of Criminology 101, the George Jackson University and the New Afrikan
ideology itself are inclusive programs emphasizing a solution-based approach to
carnage in the poverty striken slums from where many of us come. The CDCR
Prison Intelligence Units (PIU) have sought to suppress these initiatives simply
because they do not like the message. They have marched into court after court
with one standard line: New Afrikan means BGF and these initiatives are
promoting the BGF.
“As
recently noted by Chief Justice Roberts,” the ruling in In re Crawford
continues, “’[t]he First Amendment reflects “a profound national commitment to
the principle that debate on public issues should be uninhibited, robust, and
wide-open.” [Citation.] That is because “speech concerning public affairs is
more than self-expression; it is the essence of self-government.” [Citation.]
Accordingly, “speech on public issues occupies the highest rung of the
hierarchy of First Amendment values, and is entitled to special protection.”’
(Snyder v. Phelps (2011) 562 U.S. _,_ [131 S.Ct. 1207, 1215].”
The programs embodied in the New Afrikan Collective Think Tank, New Afrikan Institute of Criminology 101, the George Jackson University and the New Afrikan ideology itself are inclusive programs emphasizing a solution-based approach to carnage in the poverty striken slums from where many of us come. The CDCR Prison Intelligence Units have marched into court after court with one standard line: New Afrikan means BGF and these initiatives are promoting the BGF.
In re
Crawford is a very important ruling because the justices said these protections
apply to prisoners as well. Now contrast this with the ruling in Ellis v.
Cambra, 2010 U.S.Dist.Ct. Lexis 110956, WL 4137150 (E.Dist.Cal., Oct. 19,
2010). There the court permitted this writer to be punished based on his speech
that offended prison officials. They were permitted to use the gang validation
procedures to shield their retaliatory conduct, essentially justifying the
punishment for legitimate First Amendment activity, even though the case did
not challenge a gang validation.
The court
there said this writer did not have a right to keep his own thoughts, and that
this writer was properly held liable “for writing with admiration about a
prison gang founder, George Jackson,” and that any notion of PIU being
motivated by their hatred of George Jackson was all in this writer’s head.
It is
judges like these who engage in fallacious reasoning and pervert the law, who
bend over backwards to make excuses for prison officials who routinely violate
the First Amendment. It is judges like these who we must hold accountable by
exposing their fallacious rulings and disrespect for constitutional principles
to the public, so the people can see the arbitrary nature of their system of
justice and perhaps get a glimpse at what makes so many of us believe that the
Constitution should have been written on toilet paper.
Because up
until the ruling in In Re Crawford, 206 Cal.App.4th 1259 (2012), justice truly
had been blind, refusing to recognize the First Amendment rights of prisoners
despite Pell and the Martinez Supreme Court rulings. See In re Furnace (2010)
185 Cal.App.4th 649, 659.
Here a
hostile Fifth Appellate District Court of Appeals permitted Mr. Furnace to be
validated because of his listening to audio tapes of George Jackson, which he
had been permitted to purchase from his prison cell, approved by prison staff.
The hard
and courageous work of jailhouse lawyers like Mutope, Sondai and Sitawa will
enable the promise of “Equal justice under the law,” etched into the wall of
the U.S. Supreme Court, to break through prison walls.
While the
court appointed counsel to represent Mr. Furnace, counsel neglected to employ
an expert witness to debunk the fallacious opinion of the PIU and to put forth
that the political thought of George Jackson does not promote criminal gang
activity.
The PIU
have put forth a narrative that George Jackson’s books are “must read” for
members of the BGF and members of the BGF often quote from George’s books. This
is exactly why prisoners need our professors, intellectuals and historians to
step up to stop this assault on legitimate historical content.
People from
all walks of life who embark upon a study of history come across many books
that are characterized as “must read.” Does this alone qualify as gang
activity? In Hawkins v. Russell (E.Dist.Cal. 2011, 2011 WL 1299939), the PIU
admitted that there were many legitimate reasons why a prisoner would want to
read George Jackson’s books.
Unfortunately
for Mr. Furnace, he suffered the same fate as this writer, being in the hostile
Fifth Appellate District where the Constitution is as good as a two-ply piece
of toilet paper!
The
three-judge panel ruled in Mutope’s case: “Indeed, the measure of our resolve
as a society to protect free expression must be our willingness to tolerate
unpleasant speech by those speaking from the margins of political opinion. As
Justice Kennedy has pointed out, ‘[t]he First Amendment is often inconvenient,
but that is beside the point. Inconvenience does not absolve the government of
its obligation to tolerate speech’ (International Soc. for Krishna
Consciousness, Inc. v. Lee (1992) 505 U.S. 672, 701 (concurring opinion of
Kennedy, J.).) … ‘[T]he government may not prohibit the expression of an idea
simply because society finds the idea itself offensive or disagreeable.’ (Texas
v. Johnson (1989) 491 U.S. 397, 414.)”
Contrast
that with Hawkins v. Russell (E.Dist.Cal. 2011) 2011 WL 1299939. There the
court permitted the confiscation of George Jackson’s book “Blood in My Eye,”
again accepting any excuse prison officials could conjure up. Even when their
excuses proved to be false, the court simply gave them another bite at the
apple to come up with a better excuse.
The three-judge panel ruled in Mutope’s case: “Indeed, the measure of our resolve as a society to protect free expression must be our willingness to tolerate unpleasant speech by those speaking from the margins of political opinion.”
Any
information prison officials find objectionable is automatically attributed to
the BGF for validation purposes, the Hawkins court ruled. It was alleged that
the book “Blood in My Eye” and two other documents were BGF material. The court
accepted this at face value. The court asked few questions and didn’t require
an answer! And in a twisted opinion, summary judgment was awarded to the state
– another fallacious opinion, dooming Brotha Hawkins for his possessing any
political thought the state finds objectionable.
Brotha
Mutope in In re Crawford, 206 Cal.App.4th, 1259 (2012), has broken through the
code of silence that was permitting an entire class of New Afrikan Black
prisoners to be punished simply for possessing a thought about their/our
struggles in this society, country and world and for daring to speak about it.
And the courts remained silent refusing to even entertain a First Amendment
argument, instead opting to accept the notion put forth by the Prison
Intelligence Unit that New Afrikan equals BGF, thereby criminalizing an entire body
of history under the guise of gang activity.
George
Jackson cannot be removed from the fabric of the people’s struggles in this
society any more than Malcolm X can or Medger Evers or Dr. Martin Luther King,
Jr. or Harriett Tubman or Sojourner Truth or Ida B. Wells, Rosa Parks or
Frederick Douglass, or the countless others who’ve fought and struggled for a
brighter future for generations to come.
Brotha Mutope in In re Crawford has broken through the code of silence that was permitting an entire class of New Afrikan Black prisoners to be punished simply for possessing a thought about their/our struggles in this society, country and world and for daring to speak about it. And the courts remained silent refusing to even entertain a First Amendment argument.
What CDCR
and its Prison Intelligence Unit are trying to do is make an end run around the
First Amendment by shielding its suppression activity under the guise of gang
activity, just as they tried to do historically, which gave rise to Procunier
v. Martinez (1974) 416 U.S. 396, 413.
In In re
Crawford, CDCR argued for an exception to the Martinez test for validated gang
members. The court declined to make such an exception, holding: “Gang related
correspondence is not within the exception to the First Amendment test for
censorship of outgoing inmate mail.”
[illustration: Mumia
Abu-Jamal, who spent 30 years on Death Row, celebrates – and instructs –
jailhouse lawyers in his recent book.]
The fact
that they even argued for such an exception shows their mindset, their
intentions to suppress that which they believe to be repugnant, offensive and
that which they believe a prisoner ought not be thinking! Because we in their
minds have no right to think or possess ideas, concepts or vision beyond that
which they believe we should possess.
Until In Re
Crawford, these highly educated judges were sanctioning this nonsense with
twisted, perverted rulings permitting a newspaper article or magazine layout or
book to be used against a prisoner for validation purposes. They issued twisted
rulings like those in Ellis v. Cambra or Hawkins v. Russell and In Re Furnace,
where this writer was told he has no right to his thoughts and the First
Amendment only protects a prisoner’s right to file a 602.
These kinds
of fallacious rulings ought to be publicized so as to show the skillful manipulation
of the law by those sworn to uphold it. In Re Crawford reestablishes that First
Amendment protections apply to prisoners and that we too enjoy a measure of
free speech and expression and that we ought not be punished with fabricated
notions of gang activity for merely a thought!
However, if
we are to continue to meet with success, we need our professors, historians and
intellectuals to step up and provide declarations that we can use in our
litigation, defending our right to read, write and study all aspects of a
people’s history, like Professor James T. Campbell did in In Re Crawford. This
is the only way a prisoner can challenge the opinion of a prison official.
Until now,
the Prison Intelligence Unit (PIU) has been falsely claiming that the term New Afrikan
and the ideology New Afrikan Revolutionary Nationalism (NARN) was the creation
of the BGF and any prisoner or person who uses the term is showing his
allegiance to the BGF. This standard line has been their position in every
validation involving the usage of these terms.
In Re
Crawford reestablishes that First Amendment protections apply to prisoners and
that we too enjoy a measure of free speech and expression and that we ought not
be punished with fabricated notions of gang activity for merely a thought!
Well,
Professor Campbell provided expert testimony in In re Crawford, showing that
the terms are ubiquitous in Black urban life and have no particular connections
to prison gangs. “Oh what a tangled web we weave, when first we practice to
deceive.”
In Harrison
v. IGI, at the evidentiary hearing in Del Norte Superior Court, the Prison
Intelligence Unit’s correctional specialist Devin Hawks represented to the
court that George Jackson University was really a drop box for the BGF but
couldn’t produce a single piece of evidence to prove this outrageous claim.
That prompted the judge to say how angry he was; it had been represented to him
that this was a drop box, he said, and we get here today and there’s no drop
box.
These kinds
of exaggerations are common and they’re usually able to shield themselves using
confidentiality. The PIU have given at least three different excuses to try and
place George Jackson in the sphere of being a gang founder, and I’m sure other
prisoners have received other excuses. All are relevant and important.
[illustration: Observing
Black August and studying Black history is severely punished in California
prisons and most prison systems in the U.S. – Drawing: Rashid Johnson]
Their
latest narrative, used in Hawkins v. Russell, is that George Jackson founded
the BGF in 1966. This information comes from a document written in the 1990s by
a SHU prisoner who was preparing to debrief. He was permitted to pass around
copies of these deceptive documents in the SHU. I personally spoke to some of
the elders about these documents and was told that the information in them was
flawed and that the connections it attempted to make simply do not jibe with
recorded history. This is all I’ll say about this for now.
But it
appears that the PIU has gotten so desperate to now try and put forth a flawed
narrative that the court accepted without question in Hawkins, even after CDCR
admitted there that George’s books did not pose a security threat to California
prisons and that there were many legitimate reasons why a prisoner may want to
read those books.
At a
minimum, if a court is going to accept an infringement upon First Amendment
freedoms it ought to at least do what the court in In re Crawford did and
appoint counsel who can secure expert testimony so that a court’s decision can
be well informed and not simply some rote process of exclusion because of
whatever contempt a court might have for the prisoner.
Mutope’s
victory in In re Crawford, 206 Cal.App.4th, 1259 (2012), is significant. It
reaffirms our right to speak, it gives value to our ideas and opinions and,
more importantly, it breaks the code of silence that had swept through the
courts about prisoners and the First Amendment. “If there is a bedrock
principle underlying the First Amendment, it is that the government may not
prohibit the expression of an idea simply because society finds the idea itself
offensive or disagreeable” (Texas v. Johnson, 491 U.S. 397, 414; In re
Crawford, 206 Cal.App.4th 1259 (2012) (“these protections apply to prisoners as
well”)).
Much work
remains to be done, like stopping the bogus validations based on legitimate
First Amendment material. We know that many individuals are falsely validated
simply for reading George’s books or a newspaper article, for observing Black
August or for simply trying to get in touch with one’s cultural identity.
Mutope’s
victory in In re Crawford reaffirms our right to speak, it gives value to our
ideas and opinions and, more importantly, it breaks the code of silence that
had swept through the courts about prisoners and the First Amendment.
These
legitimate expressions should carry no penalty at all. You’re not doing
anything wrong, and a lot of brothas who’ve been validated simply shouldn’t be.
Nor should folks be frightened away from reading or studying any aspect of
history simply because the state doesn’t like its content. And judges who issue
fallacious opinions permitting prisoners to be punished for reading a George
Jackson book or researching your history should be exposed.
Literary
content and cultural and historical materials are not the activities of a gang;
they are political and social activities that we have a right to express,
according to the unanimous decision in In re Crawford.
The First
Amendment campaign continues to forge ahead, although we still don’t have a
lawyer. The campaign still exists, and we anticipate even greater successes in
the future.
Much work
remains to be done, like stopping the bogus validations based on legitimate
First Amendment material. We know that many individuals are falsely validated
simply for reading George’s books or a newspaper article, for observing Black
August or for simply trying to get in touch with one’s cultural identity.
We can’t be
intimidated into silence by unfounded accusations of gang activity. We believe
the First Amendment ought to live up to what it says it is. We believe it is
important to be able to participate fully in the marketplace of ideas, because
we agree that “the First Amendment reflects a profound national commitment to
the principle that debate on public issues should be uninhibited, robust and
wide-open” (Justice Roberts [Roth v. United States] (1957) 354 U.S. 476).
Ellis v.
Brandon, et al., C-10-2952-THE (PR), the case reported in our last First
Amendment campaign update, was settled in March 2012 for far less than what it
was worth. But among other things, the major influence in my decision to settle
the case was my inability to secure an expert witness declaration, which is the
only way I felt we could be successful in summary judgment, so it cannot be
stressed enough about our intellectuals, professors and historians being
available to give their expert opinion on historical matters.
Literary
content and cultural and historical materials are not the activities of a gang;
they are political and social activities that we have a right to express,
according to the unanimous decision in In re Crawford.
Many thanks
to Professor James T. Campbell for providing his learned, expert opinion and
historical analysis as it relates to Afrikan-Amerikan history that the PIU had
been successfully criminalizing. And a clenched fist salute to Brotha Mutope
Duguma for his fine work in breaking the code of silence. Finally, we’d be
remiss if we didn’t thank his legal team for its excellent work.
We’ve
cracked one layer of a thick wall. Now all prisoners should take advantage of
this brilliant ruling and reassert your rights to study your heritage, Black,
White or Brown.
