A Former Prisoner Sues North Carolina for Violating His First Amendment Rights | North Carolina | Indy Week

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A Former Prisoner Sues North Carolina for Violating His First Amendment Rights

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In most respects, Roy Askey is your typical twenty-six-year-old Raleighite.

He likes eating ham and cheese croissants from Hereghty Heavenly Delicious. He's studying political science at Wake Tech and works part-time at The Station. He posts selfies on Facebook with goofy captions. He's close to his mom.

And he's suing North Carolina's Department of Public Safety for violating his First Amendment rights while he was behind bars.

In 2008, Askey was charged with multiple counts of breaking and entering, as well as robbing a Han-Dee Hugo's on Southwest Cary Parkway with a firearm. His mugshot shows a shaggy-haired kid with glasses and a tie-dyed shirt. Askey was convicted; he spent a chunk of his formative years being shuffled around various correctional institutions across the state until he was released last year.

"I was a dumb kid," he says. "Anybody can look me up and see that, at eighteen, I committed armed robbery. I mean job searches, I can't get an apartment. I'm house-sitting right now, because they say you have to wait ten years after your felony was committed to get an apartment, and it depends on the crime."

While Askey was locked up, he made a point of educating himself. He read widely, learned about his rights, and assisted other prisoners with their legal cases.

In the process, he developed a keen interest in the politics of incarceration. He sought access to reading materials on this subject, which he says aroused his jailers' ire, leading to frequent cell searches, harassment, and long stints in isolation. On one occasion, he says, he received a "theoretical political journal where 'America' was spelled with a 'k,'" which compared mass incarceration to the Jim Crow era. A guard made a snide remark about that journal, Askey says. When Askey talked back, he says, the guard broke his nose.

Last May, before his release, Askey filed a federal lawsuit over several instances in which he was prohibited from receiving issues of Under Lock and Key, a bimonthly newsletter designed for prisoners and published by the California-based MIM(Prisons)/MIM Distributors. (The group has a website as well: prisoncensorship.info.)

Under Lock and Key contains politically charged language and describes inmates' struggles in prisons across the country. ULK, a publication of the Maoist Internationalist Ministry of Prisons, calls itself "the voice of the anti-imperialist movement."

"ULK serves as a forum to develop and promote agitational campaigns," states a disclaimer that appears in each issue. "Our current battles in the United States are legally permitted. We encourage prisoners to join these battles while explicitly discouraging them from engaging in any violence or illegal acts."

Five issues of Under Lock and Key were placed on the DPS's master list of disapproved publications in 2014, though neither the newsletter's publisher, Jay Summers, nor Askey felt he was given a good reason why. As of May 2015, other publications on the list include sexually explicit materials and publications that could incite violence or devious behavior (Mein Kampf and Basic Wiring Techniques, for example), though relatively benign books and magazines (an issue of Allure magazine with Jennifer Anniston on the cover, a New Orleans cookbook) appear as well. So does Michelle Alexander's seminal book on mass incarceration, The New Jim Crow.

"We have to give prisoners their due process rights," says Brad Batch, a program administrator at the N.C. Department of Public Safety. "So they don't abandon all their First Amendment rights, but they are restricted."

North Carolina has a seventeen-point policy that outlines what kinds of material prisoners can and cannot receive and which prisoners can receive what. Banned publications include those that encourage violence and all pornography; high-risk inmates can also be barred from receiving hard-bound books.

But there is precedent in numerous court rulings that the government cannot regulate speech based on the political message it conveys—even for people behind bars.

Askey's lawsuit names one employee and one former employee of the DPS. (Samantha Cole, a spokeswoman for the N.C. Department of Justice, which is defending the employees, declined to comment because the case is pending.) Askey calls the lawsuit "a labor of love." Though he's trying to raise the $30,000 he needs to retain an attorney—he's working on a GoFundMe page—so far he's representing himself.

"I could actually make a change, even though there're really no rights, only power struggles," Askey says. "We really take our rights for granted, speech rights, press rights. It's just a given that they're there, that we'll always have them. But they have to start eroding somewhere, and usually it's around the edges. For a neglected population, the prison population, they don't necessarily have a bastion of support."

According to public records, ULK publisher Summers corresponded with Cynthia Bostic, the assistant director of support services for prisons, about why different issues of the publication had been censored in North Carolina prisons between 2011 and 2014. (These issues were later added to the state's master list of banned publications.)

The chairwoman of the state's three-person Publication Review Committee at the time, Fay Lassiter, told Summers in 2013 that the publication violated the DPS's guidelines for what prisoners can receive.

Summers wasn't satisfied with Lassiter's explanation. "It seems [Lassiter] is claiming that the newsletter promotes criminal activity or breaking the law," Summers wrote to Bostic in May 2013. "Every issue ... states on page 2, 'we encourage prisoners to join these battles while explicitly discouraging them from engaging in any violence or illegal acts.'"

After a few more exchanges, Bostic wrote in June 2014 that two issues had been banned for encouraging prisoners to "boycott the commissary," "stop ordering packages from the state-approved vendor," and file more civil suits.

During this period, Askey repeatedly received Under Lock and Key through the mail in the dozen or so prisons in which he did time. At some prisons, guards would find issues in his cell and confiscate them, he says. At others, they wouldn't make it out of the mailroom.

Hoping to resolve the matter, Askey filed a grievance to the state's five-member Inmate Grievance Resolution Board in December 2013, when he was incarcerated at Hyde Correctional Institution, asking for access to and copies of all records of independent reviews of disapproved mail from MIM Distributors. When he received the records, he asked the board to cite specific examples of language that warranted disapproval. The board's response, he says, was inadequate.

"They rubberstamped the decision [from Hyde] that the mailroom had been breached and it threatened the institution's safety and security," he says. "That [ULK] contains information that disrupts the normal order of prison. Those answers were vague in nature; there were no quotations or page numbers. It was like they were just throwing it out there: 'We determined this, but won't tell you why.'"

Askey's grievance resulted in a fifteen-day stint in isolation, he says. After that, he was transferred to a different housing unit with a sergeant "who was more proactive, more aggressive." "They would constantly enter my cell, toss it, do a search, flipping the mattress, getting your books," he says.

Bostic is still employed as the assistant director of support services for prisons; she did not return messages seeking comment. Lassiter, who is retired, declined to comment.

The state's Publication Review Committee was established to screen publications for approval following a 2007 federal-class action lawsuit against the state's Department of Corrections, brought by North Carolina Prisoner Legal Services. NCPLS claimed the DOC was unreasonably denying North Carolina prisoners access to incoming publications, and, in 2008, the state revised its policies.

According to Cole, the DOJ spokeswoman, "the number of publications-related cases are drastically fewer ever since." Cole says attorneys who handle litigation from state prisoners "could not immediately recall any other recent publications cases besides the one that is pending," though she noted that inmates have sued recently on grounds of religious liberty.

In December 2015, U.S. District Court Judge Louise Flanagan ruled that Askey's lawsuit was not frivolous and directed U.S. marshals to serve Bostic and Lassiter with the complaint. Earlier this year, both asked that the case be dismissed; the court hasn't ruled on those requests. Each side has until November to gather evidence. A trial date has not been set.

Askey says he wants several things. He wants an acknowledgment that his rights were violated. He wants the DPS to explain what specifically is objectionable when materials are banned. He wants an independent board, not composed of state employees, to review publications. And he wants a jury trial and at least $20,000 in damages.

Over the next few months, Askey will try to raise money to obtain legal assistance.

"The paper trail makes it an open-and-shut case," he says. "But such is the nature of justice in this country, when money is the only way to make a judge rule in your favor."

This article appeared in print with the headline "Dangerous Minds"

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