Home » News » Inmate punished for non-threatening sexual content in letter had First Amendment rights violated, yet loses on appeal

By David L. Hudson Jr., published on June 17, 2020

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A federal inmate who was disciplined for writing in a letter about his attraction to a female prison guard had his constitutional rights violated, according to a federal appeals court. The court said the letter contained no sexual threat and, therefore, was a form of protected speech. However, the judges still ultimately ruled in favor of prison officials because of the doctrine of qualified immunity.


In March 2015, prison officials summoned inmate Dwayne Bacon, who was confined at the Federal Correctional Institution in Ray Brook, N.Y., to investigate what he had written in a letter to his sister. It is not clear how officials became aware of the contents.


Bacon’s letter stated in part: “[T]here is only one Black Woman here. I believe she is an Indian. She is very beautiful and healthy. I do want her but I want a few other Women as well.” During his interview, Bacon admitted that he was referring to a female prison guard named Ferland.


Using the letter as evidence, prison officials charged him with “making sexual proposals or threats to another.” At a disciplinary hearing, Bacon argued that his letter was not a proposal or threat toward Officer Ferland. The hearing officer ruled against Bacon, and he was sentenced to 30 days in the prison’s special housing unit, 90 days’ loss of privileges, and 27 days’ loss of good-behavior credits toward a reduction of his sentence. Bacon was also transferred twice to other prisons.


In July 2015, a regional director reversed the disciplinary sanctions against Bacon and expunged them from his record, writing that “a thorough review of the record revealed questions concerning the evidence relied upon.” However, Bacon had still served time in isolation in the special housing unit.


Bacon filed a federal lawsuit, alleging that prison officials had violated his First Amendment rights. A federal district court rejected Bacon’s First Amendment claims, finding that his letter contained a sexual threat and, therefore, was not protected speech.


On appeal, a three-judge panel of the 2nd U.S. Circuit Court of Appeals disagreed that Bacon’s letter was not protected speech, but in its June 8, 2020, decision in Bacon v. Phelps ultimately reached the same result as the lower court owing to qualified immunity.


Qualified immunity is a doctrine that shields government officials from liability unless they violate clearly established law. The 2nd Circuit panel proceeded to a qualified-immunity analysis that consisted of two parts: (1) Was there a violation of a constitutional right?; and (2) Was this right clearly established at the time of the discipline?


On the first question – whether there was a constitutional violation – the 2nd Circuit panel ruled that there was. The panel wrote that there was not “anything remotely threatening about the letter” and also that the prison officials had no legitimate penological reason to punish Bacon for writing it.


However, on the second question – whether the right was clearly established – the 2nd Circuit ruled that it was not. The panel reasoned that there were no U.S. Supreme Court or 2nd Circuit decisions that could have provided guidance on this question to prison officials.


The panel concluded: “We hold that the First Amendment protects a prisoner’s right to express non-threatening sexual desire in communications with a third party outside the prison. Nonetheless, we conclude that the defendants are entitled to qualified immunity.”


David L. Hudson Jr. is a professor at Belmont University College of Law who writes and speaks regularly on First Amendment issues. He is the author of First Amendment: Freedom of Speech (2012), of a 12-part lecture series titled Freedom of Speech: Understanding the First Amendment (2018), and of a 24-part lecture series, The American Constitution 101 (2019).



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