Second Circuit Holds No First Amendment Claim for Prisoner's Journalistic Publication

Professor Ruthann Robson, City University of New York (CUNY) School of Law

Daniel McGowan was incarcerated in the federal Bureau of Prisons (BOP), but had been transferred to the Brooklyn House Residential Reentry Center (“RRC”) near the end of his sentence with work passes and other privileges.  McGowan is well known as an environmental activist and featured prominently in the 2011 documentary, If a Tree Falls: A Story of the Earth Liberation Front. 

While at RCC in April 2013, McGowan published an article on Huffington Post entitled "Court Documents Prove I was Sent to Communication Management Units (CMU) for my Political Speech."  This article caused the RCC manager to essentially revoke the RRC status and remand McGowan back to the Bureau of Prisons - - - in solitary confinement -  - - for an infraction of a regulation that provided “an inmate currently confined in an institution may not be employed or act as a reporter or publish under a byline.”

Daniel McGowan via

But this "byline regulation" had been declared unconstitutional by a federal district court, Jordan v. Pugh, 504 F. Supp. 2d 1109, 1124 (D. Colo. 2007).  Soon thereafter, the BOP had instructed staff not to enforce it.  In 2010, the BOP issued an interim regulation rescinding the byline regulation; in 2012 it issued the final rule.

McGowan's lawyers soon figured out the byline regulation under which he had been charged was no longer in force and McGowan was returned to the RRC.

McGowan sued the RCC personnel for a violation of the First Amendment, but the Second Circuit, affirming the district judge, rejected the claim in its opinion in McGowan v. United States, concluding that the BOP was insulated by qualified immunity.  Qualified immunity protects the government from liability for violation of a constitutional right unless that right was "clearly established" at the time of the violation.  Here, despite the conclusion of a district judge six years prior that the byline regulation was unconstitutional and the rescission of the byline regulation by the BOP, the Second Circuit held that the right the byline regulation infringed was not clearly established:

We conclude that, at the time the alleged violation occurred, our case law did not clearly establish that McGowan had a First Amendment right to publish his article. The Supreme Court has held that “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987)). This test is “particularly deferential to the informed discretion of corrections officials” where “accommodation of an asserted right will have a significant ‘ripple effect’ on fellow inmates or on prison staff.” Id. at 90. For example, the Supreme Court has upheld “proscriptions of media interviews with individual inmates, prohibitions on the activities of a prisoners’ labor union, and restrictions on inmate‐to‐inmate written correspondence.” Shaw v. Murphy, 532 U.S. 223, 229 (2001) (citations omitted).

In short, the " only authority that McGowan has identified that involved expression similar to that at issue in this case is a district court opinion, which, of course, is not binding."

The court also rejected claims sounding in tort regarding the BOP's failure to follow its own regulations.

Thus, McGowan has no remedy for the BOP enforcing a rescinded and it seems unconstitutional regulation that caused his removal from a work program to solitary confinement.