Content Regulation / Censorship, Hate Speech, National Security
Government of Kazakhstan v. Respublika
Decision Pending Expands Expression
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The District Court of Southern New York granted home confinement to Michael D. Cohen, US President Donald Trump’s former personal lawyer, after finding US officials had retaliated against him for exercising his First Amendment rights to publish a book critical of the President and to discuss the book on social media. Cohen had been granted home confinement for the duration of his prison term as he was at high risk for COVID-19, but a condition of his release included a complete bar on speaking to or through any media of any sort, including via a book. After Cohen challenged the conditions, claiming they violated his First Amendment rights, he was remanded back to prison. The Court issued an injunction restraining the United States government from any continuing or future retaliation by which Cohen could be re-confined to prison custody. The Court further directed the parties to conduct negotiations to revise the conditions of his release. In response, the United States Department of Justice assured the Court of the government’s compliance and in particular that it would neither further litigate nor appeal the ruling of the Court and that the specific provisions about Cohen’s contact with the media would no longer be necessary.
The petitioner Michael D. Cohen was a former personal lawyer to Donald J. Trump, the President of the United States. The respondents, who were sued in their official capacities, are William Barr who is the Attorney General of the United States, Michael Carvajal, who is the Director of the Bureau of Prisons and James Petrucci who is a Warden of the Federal Correctional Institution, Otisville. For over ten years, the petitioner was Donald Trump’s personal lawyer and adviser until 2018 when he was convicted of multiple offences and received a three years jail term. The offences included tax evasion, lying to congress and facilitating illegal payments to silence two women who claimed to have had affairs with Donald Trump.
While in custody at FCI Otisville, Cohen commenced writing a book that describes his firsthand experiences and relationship with the President and his family with the working title Disloyal:The True Story of Michael Cohen, Former Personal Attorney to President Donald J. Trump. Working on a book in itself is consistent with BOP’s policies as the BOP has always encouraged “inmates to use their leisure time for creative writing and to permit the direct mailing of all manuscripts as ordinary correspondence.” [Pg.3 of the Memorandum of Law dated 07/20/2020]. The petitioner noted that the “BOP policy provides that “[a]n inmate may prepare a manuscript . . . for publication while in custody without staff approval,” and “may mail a manuscript as general correspondence.” [Pg.3 of the Memorandum of Law dated 07/20/2020]. The manuscript according to the petitioner “provides graphic and unflattering detail about the President’s behavior behind closed doors” [Pg.2 of the Memorandum of Law dated 07/20/2020]. He further stated that the “book will be truthful but unfavorable to President Trump and his administration” [Pg.3 of the Memorandum of Law dated 07/20/2020]. In April 2020 the BOP confirmed that the petitioner was at serious risk of sickness and death should he remain in custody given that about one-half of the prisoners had become infected with COVID-19 and Cohen’s underlying health conditions of severe hypertension and respiratory weakness worsened the risk.
The respondents also determined that, once the petitioner’s term of furlough ended he would be transitioned into home confinement for the remainder of his term of imprisonment. While the petitioner was on furlough, he made public his intention to publish his book. On June 26, 2020, he tweeted #WillSpeakSoon via his twitter handle and on July 2, 2020, he tweeted that he was already finalizing the book which would be a tell-all book about his experience with Mr. Trump. On July 9, 2020, U.S. Probation Officers in downtown Manhattan, working for BOP, presented Mr. Cohen with the Federal Location Monitoring Program Participant Agreement (the “FLM Agreement”) which contains conditions of release to home confinement with a complete bar on speaking to or through any media of any sort, including via a book. This is despite the fact that the BOP itself had earlier stated that transfer to home confinement was necessary for his health. Being conscious of his health and what a further remand to custody could do to him, the petitioner did not refuse the condition but he and his lawyer sought clarification on the limitation of the bar to speaking through the media given his desire to continue working on his book. Even though the Probation Officer told the petitioner that he would make the request on clarification to higher authorities, the petitioner was instead remanded to prison at FC Otisville.
On July 20, 2020 the petitioner and American Civil Liberties Union Foundation (ACLU) filed a Verified Petition for Writ of Habeas Corpus and Memorandum of Law in support of the Petitioner’s Emergency Motion for a Temporary Restraining Order. In response, the respondents filed a Memorandum of Law in Opposition To the Petitioner’s Emergency Motion for a Temporary Restraining Order and the Declaration of Jon Gustin on July 22, 2020. The petitioner argued that remanding him was an act of retaliation for the publication of his book about President Donald Trump and that such acts would have a chilling effect on the exercise of First Amendment rights by ordinary citizens. The petitioner further stated that he had been chilled from further exercising his First Amendment rights and that he continued to be chilled by furtherance of his continued detention in custody.
In support of his application for injunctive relief sought, the petitioner cited the cases of Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) and Yang v. Kosinski, 960 F.3d 119, 127–28 (2d Cir. 2020) where four requirements of obtaining injunctive relief were established as: (1) likely to succeed on the merits; (2) to suffer irreparable harm in the absence of preliminary relief; (3) balance of equities tips in their favor; and (4) an injunction is in the public interest. In establishing that he is entitled to the injunctive relief sought, the petitioner argued as follows:
Likelihood of Success
The petitioner argued that for a claimant on a retaliation claim to succeed, such a claimant must show that the ‘(1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action against the petitioner, and (3) that there was a causal connection between the protected speech and the adverse action.’” Espinal v. Goord, 558 F.3d 119, 128 (2d Cir. 2009) (quoting Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir. 2004)).
The petitioner argued that writing a book is protected speech under the First Amendment. The petitioner further argued that the First Amendment guarantees petitioner’s right to freedom of speech. The petitioner submitted that “drafting a book for publication is speech protected by the First Amendment. The FirstAmendment encompasses the freedoms “to speak, write, print [and] distribute information or opinion,” Schneider v. State of New Jersey, Town of Irvington, 308 U.S. 147, 160 (1939), and “the right to publish is central to the First Amendment and basic to the existence of constitutional democracy.” Branzburg v. Hayes, 408 U.S. 665, 727 (1972)”. [Pg.13 of the Memorandum of Law dated 07/20/2020]. The petitioner also submitted that the “Supreme Court has long made clear “that the free publication and dissemination of books and other forms of the printed word” are First Amendment “protected freedoms.” Smith v. People of the State of California, 361 U.S. 147, 150 (1959)”. In making robust submissions in this regard, the petitioner argued that his “manuscript, which is critical of the President and promises to reveal new information damaging to the President, sits at the zenith of First Amendment protection. The First Amendment reflects our profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials”—including the President. New York Times Co. v. Sullivan, 376 U.S. 254, 269(1964). Such speech “is more than self-expression; it is the essence of self-government.” Garrison v. Louisiana, 379 U.S. 64, 74–75 (1964)”
Furthermore, the petitioner argued that the prisoners regardless of their status retain the right to write and publish a manuscript. In Shaheen v. Filion, No. 9:04 Civ. 625 (FJS/DRH), 2006 WL 2792739, at *3 (N.D.N.Y. Sept. 17, 2006) the court held that “writing of articles critical of . . . officials” is “clearly [an] assertion of [a prisoner’s] constitutional rights protected by the First Amendment.” Arguing further along this line, the petitioner submitted that a prisoner’s “[f]reedom of expression encompasses the publication and dissemination of written materials,” and courts have decided in Jordan v. Pugh, 504 F. Supp. 2d 1109, 1118, 1126 (D. Colo.2007) that BOP’s attempts to prohibit prisoners from writing for publication would “violate the First Amendment rights of . . . inmates in federal institutions, and the press.”
The petitioner must also show that the protected speech led to the respondents’ adverse action(s). In this regard, the record strongly shows that Mr Cohen’s announcement of his book led to his being remanded in custody by the respondents. On July 2, 2020, the petitioner tweeted that he was already finalizing the book which would be a tell-all book about his experience with Mr. Trump, and on July 9, 2020 he was remanded by the respondents. In Espinal v. Goord, 558 F.3d 119, 129 (2d Cir. 2009) the court held that “A Petitioner can establish a causal connection that suggests retaliation by showing that protected activity was close in time to the adverse action.” Espinal v. Goord, 558 F.3d 119, 129 (2d Cir. 2009). The court further held that even with the passage of six months between protected conduct and adverse action, causation can still be inferred. The petitioner therefore submitted that that his book and announcement about it led to his re-confinement to custody by the respondents.
The petitioner went on to cite the case of Ragbir v. Homan which is very relevant to this case. In the Ragbir’s case a well-known immigration activist filed a habeas petition alleging that the federal government sought to remove him from the United States in retaliation for his public criticism of U.S. immigration officials and systems. The Second Circuit held that a “plausible, clear inference is drawn that Ragbir’s public expression of his criticism, and its prominence, played a significant role in the recent attempts to remove him because of statements government officials made about the activist’s protected protests” [Pg.20 of the Memorandum of Law dated 07/20/2020]. The petitioner therefore submitted that respondents were aware that the petitioner was writing a book critical of the President and the actions they took remanding him to prevent publication obstructed the exercise of his First Amendment right. The petitioner therefore submitted that he would likely succeed on merits.
The petitioner herein stated that “irreparable harm” is the most important prerequisite in obtaining a preliminary injunction. Firstly, it has been established by the courts that a violation of constitutional rights constitutes irreparable harm in law. See Conn. Dep’t of Envtl. Prot. v. OSHA, 356 F.3d 226, 230–31 (2d Cir. 2004). The Petitioner also cited the case of Coronel v. Decker, No. 20 Civ. 2472 (AJN), 2020 WL 1487274, at *3 (S.D.N.Y. Mar. 27, 2020). In submitting that irreparable harm will be established where “the petitioner faces imminent risk to their health, safety, and lives.” In the instant case, the BOP determined that the petitioner was a serious health risk should he continue in detention and that the best decision was to transfer the petitioner to home confinement for the completion of his prison term. In Helling v. McKinney, 509 U.S. 25, 33 (1993) the court held that “It would be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening condition in their prison on the ground that nothing yet had happened to them”. Even in Basank v. Decker, No. 20 Civ. 2518 (AT), 2020 WL 1481503, at *2 (S.D.N.Y. Mar. 26, 2020) the court held that the risk of harm to a detainee constitutes irreparable harm.
Balance of Equities and Public Interest
In making his submissions under this sub-heading, the petitioner argued that where the government is the respondent the last two factors in obtaining a preliminary injunction always go together. In establishing this position, the petitioner cited the case of Coronel v. Decker, No. 20 Civ. 2472 (AJN), 2020 WL 1487274, at *7 (S.D.N.Y. Mar. 27, 2020) where it was held that “Where the Government is the opposing party, the final two factors in the temporary restraining order analysis—the balance of the equities and the public interest—merge.” Firstly, the fact that the BOP has already determined that continued detention of the petitioner at FCI Otisville poses a serious health risk to him shows that the balance of equities already tilts in favour of the petitioner. On the strength of the petitioner’s constitutional claim, he submitted that the public interest will be served if the relief sought is granted. In addition, the book which is critical of President Donald Trump in an election year is consistent with the right to know of the American public and the continued detention of the petitioner threatens that right.
Responding to the petitioner’s case, the respondents argued that decision whether or not to transfer the petitioner to home confinement was not subject to judicial review. The respondents argued that governing statute 18 U.S.C. § 3621(b) provides that BOP “shall designate the place of the prisoner’s imprisonment,” and this designation “is not reviewable by any court.” The respondents also cited the decision of a Louisiana District Court in Livas v. Myers, No. 20 Civ. 00422, 2020 WL 1939583, at *6-8 (W.D. La. Apr. 22, 2020) in a challenge to the COVID-19 conditions at a federal prison, where the court noted that “[b]oth placement in a Residential Reentry Center (“RRC”) (more commonly known as a halfway house) and on home confinement are within the BOP’s discretion.” The respondents therefore submitted that the decision of the respondents on where the petitioner should complete his jail term is subject only to the unreviewable discretion of the respondents. The respondents submitted that the petitioner failed to prove an irreparable harm that would be result if the injunctive relief was not granted. The respondents argued that the petitioner was bound to provide evidence of such irreparable harm and that it could not be a speculative harm. The respondents cited the holding of court in Freedom Holdings, Inc. v. Spitzer, 408 F.3d 112, 114 (2d Cir. 2005) where the court held of parties seeking to succeed in a claim for injunctive relief that “they will suffer an injury that is neither remote nor speculative, but actual and imminent, and one that cannot be remedied if a court waits until the end of trial to resolve the harm.”
The respondents also argued that the petitioner had not shown the likelihood of his success on the merits. The respondents stated that petitioner’s claim to his re-confinement at FCI Otisville as being retaliatory was without basis. The respondents further argued that the decision to remand the petitioner to FCI Otisville on July 9, 2020, was also devoid of any nefarious motive pertaining to the petitioner’s book but as a result of his being defiant when being presented with conditions contained in the FLM Agreement for transfer to home confinement. The respondents finally argued that the Attorney General and BOP have the statutory powers to manage the affairs of prisoners and ordering that transfer of the petitioner to home confinement would be tantamount to interference with the BOP’s ability to manage the Prisons’ operations. For all these reasons the respondents finally submitted that the balance of equities rather tilts in their favour.
Judge Alvin K. Hellerstein delivered the Order of the District Court of the Southern District of New York in this case. The main issue for the Court was whether the petitioner was entitled to a preliminary injunction against the respondents, in other words whether it was justified in moving him back to custody from home confinement for exercising his First Amendment rights to write a book and notify the public about it on social media. The Court found that the motive for transferring the petitioner back into custody was retaliatory.“The Court finds that respondents’ purpose in transferring Cohen from release on furlough and home confinement back to custody was retaliatory in response to Cohen desiring to exercise his First Amendment rights to publish a book critical of the President and to discuss the book on social media” [Pg.1], Judge Hellerstein said. He granted an injunction restraining the respondents from any further act of retaliation and directed that the petitioner be released from custody to any member of his family at the place of detention not later than 2:00pm on July 24, 2020, after a COVID-19 test had been carried out and results made known to the petitioner and his probation officer promptly.
The Court further ordered that upon release of the petitioner from prison into home confinement he would be subject to the conditions of release specified in the Federal Location Monitoring Agreement save that any engagement with the media must take account of thee petitioner’s first amendment rights. The Court ordered the parties to conduct negotiations on the conditions of the petitioner’s release within one week effective from the date of the Court’s order and file a proposed order to the Court by July 31, 2020. The Court noted that the order given in the case was final and that a written decision comprising a fuller statement of findings and conclusions would be made available when ready. The learned judge meanwhile reserved the right to continue to exercise jurisdiction in the matter if need be in particular to resolve any disputes in settling and enforcing an order.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Court expands expression by granting the preliminary injunction sought by Michael Cohen to restrain the United States government from any continuing or future retaliation by which he could be re-confined to prison custody. Further, the decision expressly identifies rights to publish a book critical of the President and to discuss the book on social media as First Amendment rights. The fact that the Court ordered the conditions of release to be consistent with the First Amendment and the order was complied with by the respondents as reflected in the United States Department of Justice letter dated July 30, 2020, confirms the inviolability of free speech as protected by the First Amendment.
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