Michigan court says gag orders and sentences don't necessarily mix

The other day, I wrote of the plight of Bob Newland, a drug-policy reform advocate who, as part of his sentence for pot possession, has been forbidden to publicly advocate marijuana legalization for a year. Now, a Michigan case (PDF) overturning a gag order on a preacher raises further doubt about the propriety of the muzzle placed on the marijuana activist.

Newland was forbidden to speak out on a core matter of public policy -- an area in which his political views irked the judge. By contrast, the Rev. Edward Pinkney was jailed for violating his probation by penning a fiery editorial explicitly criticizing the judge in his case and calling down the wrath of God on the man's head.

That the appeals court backed Pinkney and found that his free speech rights had been violated suggests that Newland's sentence is well out of bounds.

Pinkney had been found guilty of buying votes in a the recall election of a local politician. He was sentenced to probation subject to certain conditions, one of which forbid him to "engage in any assaultive, abusive, defamatory, demeaning, harassing, violent,
threatening, or intimidating behavior, including the use, through any electronic or print media
under [his] care, custody or control, of the mail, e-mail or internet."

Nevertheless, Pinkney wrote an OpEd, published in a monthly newspaper, calling the judge in his case, "racist" and "corrupt" and paraphrasing Deuteronomy to instruct the judge:

[I]f thou continue not to hearken unto the voice of the Lord thy God to observe to do all that is right; which I command thee this day, that all these Curses shall come upon you and your family, curses shalt be in the City of St. Joseph and Cursed shalt thou be in the field, cursed [sic] shall come upon you and your family and over take thee; cursed shall be the fruit of thy body. The Lord shall smite thee with consumption and with a fever and with an inflammation and with extreme burning. They the demons shall Pursue thee until thou persist.

For his troubles, the preacher was sent to the cooler for violating the "no defamation" clause in his probation.

In its opinion, the Michigan Court of Appeals noted:

A probation condition may impinge on a probationer’s First Amendment rights... However, such a condition is subject to careful review... The condition must be narrowly tailored...and be primarily designed or directly related to the rehabilitation of the defendant and to the protection of the public. ... The condition must be “narrowly drawn to protect the public from a situation that might lead to a repetition of the same crime.”

Calling the judge in his case unpleasant names and damning him to Hell posed no threat of causing more vote-buying, or, as the court put it:

The 15th condition of defendant’s probation prohibited defendant from engaging in defamatory and demeaning communications. The condition was a blanket prohibition on such behavior; defendant was prohibited from making defamatory or demeaning communications about any person, including coworkers, neighbors, and congregants. Such a blanket prohibition is not directly related to defendant’s rehabilitation of the election law crimes he committed, which impugned the integrity of the electoral process, or to the public’s protection from a repetition of the crimes.

Since the muzzling probation condition went beyond proper limits and violated Pinkney's free speech rights, the state had no right to jail Pinkney for his words.

The Michigan decision raises interesting questions about Newland's sentence because the words he's forbidden to utter also have no relation to his crime. Yes, the activist was sentenced for illegal possession of marijuana, but under the gag order he's forbidden not just to solicit further legal violations, but also to advocate changing the law through means established to accomplish just such an end so that his actions would have been perfectly legal.

Such a gag order isn't "narrowly drawn to protect the public from a situation that might lead to a repetition of the same crime” since the opinions he's barred from voicing are aimed at eliminating the crime itself.

Of course, a Michigan state court decision isn't binding upon the courts of South Dakota, where Newland was convicted and sentenced. But many of the principles and precedents cited by the court -- some established by federal courts, including the U.S. Supreme Court -- are.

If Bob Newland wants to go to bat for his free speech rights, his arguments have already been written by some highly placed judges in Michigan.