Home » News » Inmate has a First Amendment right not to be a snitch, 2nd Circuit Court rules

By David L. Hudson Jr., published on June 10, 2018

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(Prisoner image photo by Rainerzufall1234 via Wikimedia Commons, CC by SA-4.0)

A prison inmate has a First Amendment right not to serve as a snitch and a First Amendment right not to provide false information, a federal appeals court has ruled. However, in the very same case, the appeals court ruled that because this was a newly recognized constitutional right, the prison officials in question were entitled to qualified immunity.


Mark Burns, an inmate at Coxsackie Correctional Facility in New York, said that while working in the commissary, a can fell from a high shelf and cut him on his face. Two prison guards approached Burns and told him that if he did not agree to serve as their information, they would recommend that he be placed in Involuntary Protective Custody (IPC). The guards claimed that Burns’ wife had called the prison and said that Burns had been cut by another inmate. According to Burns, the cut came from the falling can in the commissary, not from another inmate.


Burns refused the guards’ request to be a snitch. The guards then filed paperwork to have Burns moved to IPC, a move that Burns contested. A hearing officer approved Burns’ placement in IPC, a status which requires an inmate to remain in his cell for 23 hours a day. Burns also contended that the guards continually asked him to be a snitch in exchange for removing him from IPC.


Burns eventually sued in federal court, alleging several constitutional claims. Among these claims was the contention that his refusal to be a snitch and his refusal to provide false information about his injury were forms of protected speech under the First Amendment.


A federal district court rejected Burns’ First Amendment claims, contending that he had not engaged in any protected speech. Burns appealed to the 2nd U.S. Circuit Court of Appeals.


In its May 2018 decision in Burns v. Martuscello, the 2nd Circuit ruled that Burns did state a cognizable First Amendment claim based on the compelled speech doctrine. “In our view, compelled speech presents a unique affront to personal dignity,” the 2nd Circuit wrote. “The decision to withhold speech depends on views and calculations known only to the individual.” The 2nd Circuit relied on the U.S. Supreme Court’s flag-salute decision in West Virginia State Board of Education v. Barnette (1943) and the license plate case of Wooley v. Maynard (1977). In those decisions, the Court ruled that the government violated the First Amendment by compelling students to salute the flag and to fine a person for covering up the state motto on his license plate.


The prison officials countered that those U.S. Supreme Court decisions did not involve prisoners, who are entitled to a lesser degree of First Amendment protections. The 2nd Circuit recognized prison officials’ strong interest in prison security but still found that Burns had a First Amendment right not to speak. “The right not to speak . . . safeguards a humble but vitally important restraint on the government’s coercive powers,” the 2nd Circuit wrote. “And, in light of the unobtrusive but foundational nature of the right not to speak, we think it clear that inmates generally retain a First Amendment interest in declining to speak.”


The 2nd Circuit also determined that Burns had a First Amendment-based right not to provide false information. “No legitimate penological objective is served by forcing an inmate to provide false information,” the court wrote. “Truth is vital to security.”


However, the prison guards still prevailed because of the doctrine of qualified immunity, which protects government officials from liability unless they violated clearly established constitutional or statutory law. The 2nd Circuit reasoned that the prison guards were entitled to such immunity because the law was not clearly established at the time of their unconstitutional conduct.


David L. Hudson, Jr. is a First Amendment attorney and author who has written, co-written, or co-edited more than 40 books, including First Amendment: Freedom of Speech (Thomson Reuters, 2012) and Documents Decoded: Freedom of Speech (ABC-CLIO, 2017).



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