No clear case for inmate who was retaliated against for Huffington Post article

A federal inmate wrote an article for Huffington Post under his own byline. The article accused prison management of retaliating against him for his free speech. After that article appeared, he was sent to a detention center for violating rules that prohibit inmates from publishing articles under a byline. He brings a federal lawsuit, but the case is dismissed.

The case is McGowan v. United States of America, decided on June 7. What makes this case interesting is that the rules that prohibit inmates from publishing under a byline were declared unconstitutional by a federal court in Colorado six years earlier. When that happened, the Bureau of Prisons sent out a memo telling the prisons not to enforce the byline rule. Yet, it was enforced against McGowan.

It all sounds like a great case: McGowan (who was convicted for environmental arson with the Earth Liberation Front) and  is charged with violating a rule that was previously declared unconstitutional under the First Amendment. But a great case does not mean you have a case. Here again, we run into a qualified immunity problem. Government officials are immune from lawsuits unless they violate clearly-established constitutional rights. Clearly-established means the Court of Appeals or Supreme Court has said in a similar case that what happened to the plaintiff is illegal. If the state of the case law was too fuzzy, the government defendant cannot be sued, on the theory that he would not have been on notice that he was violating the Constitution.

The Court of Appeals (Katzmann, Sack and Lohier) says there is no clearly established law that says an inmate cannot be punished for publishing a by-lined article. Yes, there are cases that generally say that inmates cannot be retaliated against for engaging in free speech inside the jail, but that it not quite this case, which involves free speech outside the jail, which might conceivably "permit[] such inmates to become 'big wheels' in the prison community, or could incite violence, or could intimidate prison staff members," at least according to the government. Ultimately, the fact that no appellate court has decided a case like this means that McGowan cannot show the law was clearly-established.