Vulgar TP note not protected speech

June 8, 2009 2:02:55 PM PDT
A vulgar note written on a piece of toilet paper by a Texas inmate and sent to a prosecutor is not constitutionally protected free speech, a federal appeals court ruled Monday. The 5th U.S. Circuit Court of Appeals, upholding a lower court, said Texas prison administrators were within their authority when they docked George Morgan 15 days of good time credits for sending the note to an assistant Texas attorney general.

The credits could advance the parole eligibility date for Morgan, a 41-year-old convicted East Texas drug dealer.

"Morgan's note demonstrated a completely unjustified disrespect for authority, expressed in the most unacceptably vulgar form, which would be offensive in mainstream society," the court wrote.

Morgan, incarcerated since 2002, is serving a 23-year term from Nacogdoches County for possession of cocaine with intent to deliver.

In 2005, reacting to a motion from the state lawyer who urged an appeal in his case be dismissed, Morgan mailed her the note on toilet paper. The note told her essentially to use the paper it for its intended purpose and also what he thought of her motion to dismiss. Then he signed it.

Another assistant attorney general returned the note to the warden of the prison where Morgan was incarcerated and Morgan was charged with violating Texas Department of Criminal Justice rules governing use of indecent or vulgar language. Among his penalties was the 15-day loss of good time credits.

Morgan appealed within the prison system and lost, then took his arguments to the federal courts, insisting the First Amendment "protects his vulgar pen from penalty and that the Fourteenth Amendment protects his good time credits from loss," according to the 5th Circuit's description of the case.

A district judge rejected Morgan's case. On appeal, the 5th Circuit eventually granted him a certificate of appealability allowing him to proceed.

The New Orleans-based court said Monday it was "well-established" a prisoner retains certain First Amendment rights but that lawful incarceration "brings about the necessary withdrawal or limitation of many privileges and rights."

"It is generally recognized that security, order, and rehabilitation are legitimate penological objectives," the court said. ""We decide that the Texas Department of Criminal Justice has a legitimate penological interest in rehabilitation that justified disciplining Morgan."

The court also denied a claim from Morgan that he was denied due process at his prison disciplinary hearing.

Morgan first became eligible for parole in 2007. He remains at the Stevenson Unit outside Cuero in South Texas.

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