The First Amendment protects the right not to be a prison informant

The Court of Appeals has recognized a new constitutional right for prisoners. It holds that inmates have the right not to serve as prison snitches at the insistence of correction officers. However, this right is so new that the Court also grants the individual defendants qualified immunity, as no one violated a clearly-established right.

The case is Burns v. Martuscello, decided on May 9. According to the plaintiff, the guards told plaintiff that if did not agree to lie for them as an informant, they would banish him to Involuntary Protective Custody. Plaintiff said he would not snitch. Is this free speech? If it was not clear in the past that this was free speech, it is now.

The Court of Appeals runs through the right not to speak, under the compelled speech doctrine. This goes way back, and includes the Pledge of Allegiance cases from the Supreme Court in the 1940s, and the "Live Free or Die" case where the Supreme Court said New Hampshire cannot force people to drive around with license plates carrying that slogan. The Second Circuit most recently handled this issue in the employment context in Jackler v. Byrne, 658 F.3d 225 (2d Cir. 2011) (a case I argued), where it held a police officer could not suffer retaliation for refusing to lie in a police report to protect a sergeant who subjected someone to excessive force. The Court says, "The right not to speak . . . safeguards a humble but vitally important restraint on the government's coercive powers. 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." That right now extends to the prison context, at least when the prison guards want to plaintiff to lie for them. Except that this holding is not limited to lies, but truthful snitching. "We find that Burns held a strong First Amendment interest in refusing the demands of the guards that he provide both false information, and truthful information on an ongoing basis."

What complicates this case is that prisoners have fewer rights than the rest of us, as the jailkeepers need to maintain order inside the Big House. Your instinct might say that the guards need informants to keep them apprised of inmate misconduct at the jail. But the Court of Appeals identifies an inmate's superior interest in not exposing himself to violence if other inmates find out he is a snitch.

This is all great for inmates, but it does not really help plaintiff because the Court of Appeals has never reached this holding before. That means the defendants get qualified immunity, which protects governmental defendants from suits for money damages if the law was not clearly established at the time of the rights violation. The next inmate who brings a suit like this will benefit from this holding.