Lawsuit challenging Pennsylvania’s “Mumia Gag Order” overlooks copyright protection

901451The Pennsylvania legislature unanimously passed a bill, the “Revictimization Relief Act,” in the wake of Mumia Abu-Jamal’s commencement speech delivered at Goddard College. The rationale for the bill is to suppress conduct that would cause “mental anguish” for victims of crime. Mumia Abu-Jamal, a prolific writer and speaker, is convicted of killing a police officer in 1982 and has maintained his innocence throughout his continuing legal saga. Gov. Tom Corbett signed the bill into law prior to being voted out of office.

This week, the Abolitionist Law Center filed a typical First Amendment lawsuit on Mumia Abu-Jamal’s behalf, raising the obvious (and likely successful) claims that the government is vaguely targeting certain speakers in violation of their 14th Amendment right to equal protection.  Such an argument is incomplete, however, and Mumia should consider amending the complaint to ensure these gag tactics become abandoned.  They are not only impeding Free Speech; Pennsylvania is illegally encroaching upon the federal power to regulate copyrights.  A deeper analysis of copyright and prisoners can be read in Making a Record With a Criminal Record.

This bill is not the first time states have attempted to suppress such speech. The “Son of Sam” lineage of state laws grew out of New York City’s infamous subway shooter, David Berkowitz. When the New York legislature learned Berkowitz was negotiating the rights to his story,[1] they passed a broad law preventing people from capitalizing on writings about their crime.[2] The “Son of Sam” law was later replicated, including federally.[3] Pennsylvania passed their own law in 1995 allowing the state, and victims, to claim the profits of a convicted person (Pa. Stat. Ann. tit. 42 § 8312).

Commenters and lawyers tend to focus exclusively on the obvious Free Speech issues, yet fail to include intellectual property rights.   These writings are more than speech, they are copyrighted material, and the federal Copyright Act and Dormant Commerce clause should be invoked to block states from impeding this area of law. Furthermore, the overt targeting of Abu-Jamal suggests the law is a thinly veiled, and unconstitutional, Bill of Attainder- a law targeting one individual.

goodfellasposterOver a decade after “Son of Sam,” Simon and Schuster contracted Nic Pileggi to co-author “Wise Guy,” a book with mobster Henry Hill (ultimately turned into the movie “Goodfellas”). New York intervened and the case proceeded to the U.S. Supreme Court based on a Free Speech argument. The Court ultimately struck down the original “Son of Sam” law with language suggesting a more tailored law would survive such challenges. Since the Schuster decision, other state laws have been successfully challenged.[4] Some states amended their law, such as New York, while California’s was struck down and abandoned.

Pennsylvania’s new law applies to those who are victims of a personal injury crime, which could be as expansive as every simple assault or domestic violence case. It allows for injunctive or “any other appropriate” relief, meaning the judge could award monies or attempt to order a third party to suppress speech. The civil violation would be to engage in conduct that continues to perpetuate the effects of the crime, and this includes “temporary mental anguish.” Such a law is both vague and overly broad, placing judges in a precarious position of deciding whether someone’s subjective anguish is sufficient. What if the conduct is holding a job, finding a residence, or appearing before a parole hearing? Would a judge be expected to eliminate those things?

51c4FHWCJ-L._SY344_BO1,204,203,200_Laws impeding on copyright and free speech have no effect if they are not also multi-jurisdictional. But this creates further federal complications. For example, in 1991 Sammy “The Bull” Gravano pled guilty to federal racketeering charges in New York. “Underboss” was published in 1997, and eventually Gravano was arrested for drug distribution in Arizona. Arizona brought suit against entertainment titans Harper Collins, Twentieth Century Fox, and International Creative Management, and alleged the creation of an elaborate scheme to avoid “Son of Sam.”[5] The Arizona court upheld a seizure of “Underboss” royalties even where the crime and victims were in New York.[6]

To curtail conduct under the Revictimization Relief Act, the state would need to control a person’s actions. In Mumia Abu-Jamal’s case, this may require holding him incommunicado with the outside world in a similar vein as those accused of high-level Al Qaeda operations. This could then trigger other Eighth Amendment claims of cruel and unusual punishment.

2014-09-30-FNC-KF-Kelly_FaulknerThe Copyright Act preempts state laws controlling Abu-Jamal’s commencement address

It is likely that Pennsylvania strategically chose to ban “conduct” rather than “speech” or “writings.” The First Amendment stops the government from controlling the content of speech, and ensures that public safety regulations on the time, place, or manner of speech be as slight as possible. But in terms of who owns written or recorded speech, who controls it, who benefits- this is the field of copyright. Mumia Abu-Jamal’s controversial commencement speech was actually a recording. Once digitally fixed and memorialized, it became copyrighted material.

One need not be a citizen to hold copyright, and international treaties serve to protect even “stateless” persons. Although significant rights are lost, or temporarily taken, by being in prison, Abu-Jamal’s writings and recordings are legally his own.

Federal copyright law should override and condemn the “Mumia Law” and the “Son of Sam” laws as state interference under Field Preemption, meaning the feds own the field.   The Constitution mandates federal law as the supreme law of the land, superseding any state law to the contrary.[7]   Where Congress creates comprehensive regulations, states are precluded from legislation in this field unless explicitly allowed. Immigration laws are a prime example.[8] The Supreme Court has, however, expressed latitude where states have historically held a degree of power.[9] Recent state laws relaxing drug enforcement illustrate the tension of state’s rights within federal prohibition under the power of the Commerce Clause.[10]

The Copyright Act covers, among other things, songs, movies, and books, i.e. the same material listed within “Son of Sam” statutes, and the same “conduct” discussed in relation with Abu-Jamal.[11] These state laws refer to all financial compensation, including all “royalties.” The legal basis for a royalty is drawn from copyright and the rights of reproduction and distribution.[12] States passing laws that duplicate or encroach upon copyrightable material are explicitly annulled under Section 301. Thus, once created, the state would have no power to control the work.

Lacking the power to create an equivalent right, states have blatantly intruded upon the rights of authors to preemptively seize royalties in an attempt to control the work. The Act bars all involuntarily transfers of copyright.[13] Congress made one exception to this provision, regarding seizure of assets under the Bankruptcy Act.[14] This specific cross-referenced exception excludes other vague exceptions.

Courts protect the financial incentive to create and disseminate ideas by stopping copyright infringement. This requires standing, counsel, and an incentive to file suit. Under “Son of Sam,” however, these things remain unclear (and even hazier under “Mumia.”) Any judgment for damages would likely be owned by the state, and copyright attorneys would require an explicit contractual arrangement to be paid. The state holds all power regarding copyright infringement protection. Thus, the right to exclude others has been expropriated or abandoned.

constitution.republic.1916_theusindependentInterstate Activity is governed by the federal Commerce Clause

Imagine a former Pennsylvania prisoner moving to Texas. She signs with an agent in New York, and a recording contract in Tennessee. After her album is released, Pennsylvania’s attorney general determines that the songs create temporary mental anguish for the victim of a personal injury. Furthermore, the state attempts to seize all royalties under the “Son of Sam” law and the attorney general files various injunctions in various jurisdictions. Because she is on a national tour, her record label, agency, and every local vendor is expected to comply.

In such a morass of litigation, some entities may try to comply and yet not know how. Others may feel the creative material does not fall under the statute. Others may believe Pennsylvania lacks jurisdiction to enforce any orders, outside their own state. This is clearly interstate commerce, being regulated and burdened with an obstacle by state statutes. It is for just such a reason that the federal government holds exclusive powers to regulate.[15]

The “Mumia” Law is simply unconstitutional on multiple grounds

The state has a legitimate interest in compensating the victims of crime. It is more challenging to stop all mental anguish through the power of the courts. Furthermore, it makes no sociological or historical sense to suppress the creativity and insights of convicted artists and intellectuals. Where states have legitimate interests, they also have a responsibility to pursue them in ways least offensive to constitutional principles of Copyright, First Amendment, Due Process, and Equal Protection.

The issue is a classic slippery slope. Whether complicated by exonerations, repealed laws, drug prohibition (and legalization), political acts, or controversial convictions,[16] there are many people potentially exposed to “Son of Sam” and the new Pennsylvania “Mumia” law.[17] To avoid a legal quagmire, state laws of this nature should be repealed or abandoned through litigation or legislation.  Whereas Mumia Abu-Jamal has long represented a test case for the rights of incarcerated people to speak, his claims (along with Robert Holbrook and Kerry Shakaboona) should include Pennsylvania’s unlawful encroachment on federal copyright protections.

Read the complete legal article, “Making a Record With a Criminal Record” HERE.

[1] In years past, it was common for attorneys in such cases to take over such rights in exchange for representation. The Code of Ethics has been modified, as this practice carries the potential to influence the lawyers’ behavior to make a better story.

[2] The Son of Sam law supplements pre-existing statutory schemes authorizing the Board to compensate crime victims for their losses, see: N.Y. EXEC. LAW § 631 (McKinney 1982 and Supp. 1991), permitting courts to order the proceeds of crime forfeited to the State; N.Y. CIV. PRAC. LAW §§ 1310–1352 (McKinney Supp. 1991), providing for orders of restitution at sentencing, N.Y. PENAL LAW § 60.27 (McKinney 1987), and affording prejudgment attachment procedures to ensure that wrongdoers do not dissipate their assets, N.Y. CIV. PRAC. LAW §§ 6201–6226 (McKinney1980 and Supp. 1991). The escrow arrangement established by the Son of Sam law enhances these provisions only insofar as the accused or convicted person earns income within the scope of § 632–a(1). See: Simon & Schuster, Inc. v. Members of New York State Crime Victims Bd., 502 U.S. 105, 111 (1991)

[3] 18 U.S.C.A. § 3681 (West).

[4] See below.

[5] Id., at 323. Other defendants in this case are Peter Maas, the author of the book, T.J.M. Productions, Inc. (which the Board alleges Maas created in order to funnel compensation to Gravano for his work on the book and a movie) and International Creative Management, Inc., agent for T.J.M. and Maas as well as Gravano.

[6] State ex rel. Napolitano v. Gravano, 60 P.3d 246 (Ariz. Ct. App. 2002), holding: (1) application of forfeiture statutes to royalties from book did not violate constitutional free speech guarantees; (2) royalties had causal connection with racketeering as required for forfeiture; and (3) state had jurisdiction over forfeiture proceeding. Incidentally, the New York Crime Victims Board unsuccessfully brought a claim against Gravano, with the New York appellate court holding that the Board, itself, has no standing to bring a cause of action because a victim is needed. New York State Crime Victims Bd. v. T.J.M. Prods., Inc., 705 N.Y.S.2d 320 (2000).

[7] U.S. CONST. Art. VI.

[8] Most recently in Arizona, where certain portions of a law aimed at immigrants were struck down, while others were left untouched. The Supreme Court decided to wait and see how the state applied the law. See: Arizona v. United States, 132 S. Ct. 2492, 567 U.S. ___ (2012). Cf. Chamber of Commerce of U.S. v. Whiting, 131 S. Ct. 1968, 179 L. Ed. 2d 1031 (2011) (Provision of Arizona law allowing suspension and revocation of business licenses fell within Immigration Reform and Control Act’s (IRCA) explicit savings clause.)

[9] Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947).

[10] Gonzales v. Raich, 545 U.S. 1 (2005).

[11] e.g. NY EXEC. LAW §632-a (McKinney).

[12] 17 U.S.C.A. § 106 (1982).

[13] § 201(e). The Act provides in pertinent part:

“Involuntary Transfer. When an individual author’s ownership of a copyright, or of any of the exclusive rights under a copyright, has not previously been transferred voluntarily by that individual author, no action by any governmental body or other official or organization purporting to seize, expropriate, transfer, or exercise rights of ownership with respect to the copyright, or any of the exclusive rights under a copyright, shall be given effect under this title except as provided under Title 11.” The exception for Title 11 allows a bankruptcy court to transfer copyrights.

The Copyright Act was amended by Pub. L. No. 95-598, § 313, 92 Stat. 2676 (1978); Bankruptcy Act: 11 U.S.C.A. §§ 101-1,330 (Supp. 1988).

[15] U.S. CONST. Art. I § 8

[16] e.g. Mumia Abu Jamal, Leonard Peltier, the “Angola Three,” and Mike Tyson.

[17] Some artists who were convicted of crimes that involve a victim include Jay-Z, 50 Cent, Immortal Technique, Sid Vicious (Sex Pistols), Chuck Berry, Lisa “Left Eye” Lopes (TLC), Johnny Paycheck, Jim Gordon (Derek and the Dominoes; co-writer of “Layla”), James Brown, Merle Haggard, Leadbelly, Rick James, Phil Spector, David Allan Coe, Wilson Pickett, The Prisonaires, Saigon, Big Lurch, C-Murder, and Styles P; as well as notables such as O.J. Simpson, and political figures such as George Jackson, Martin Luther King, Jr., and Malcolm X.

About Bruce Reilly

Bruce Reilly is the Deputy Director of Voice of the Ex-Offender in New Orleans, LA. He is a graduate of Tulane Law School and author of NewJack's Guide to the Big House. Much of his writing can be found on
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