Sexual thoughts and the First Amendment

Mr. Bacon, a guest of the government at Ray Brook Federal Correctional Institution, wrote to his sister about the guards, “There 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.”

Far from appreciating Mr. Bacon’s praise of their staff, the prison authorities sentenced him to 30 days in the box, 90 days’ loss of phone and commissary privileges, 27 days’ loss of time credited towards release and transfer to a higher security prison.

When Mr. Bacon protested that this violated his First Amendment rights, the federal court explained that he wasn’t disciplined for writing a letter, but only for what the letter said. You know, like Peter Zenger wasn’t tried for publishing a newspaper, but only for what the newspaper said. Anyway, Bacon’s letter “was perceived as a sexual threat” and “inappropriate, disrespectful and derogatory language.” So much for the First Amendment, which protects only speech that no one perceives as objectionable.

Last week a higher court disagreed, pointing out that Bacon’s letter was “a mere expression of attraction communicated by a person confined in an institutionalized setting” to a third person outside.  “Even using considerable imagination and affording substantial deference to the professional judgment of prison officials,” said the court, there was nothing remotely threatening about the letter.

The court gave examples of male prisoners’ letters to female guards that were punishable speech. Some are too steamy to be reproduced in this family-oriented blog and we’re surprised that The Federal Reporter doesn’t come with trigger warnings.

But one case mentioned by the court deserves Squawk scrutiny: where a Mr. Nawatha Slaton was punished for giving a greeting card and a comic strip to a woman guard.

Prisoner Slaton, thinking to cheer up Officer Franson who seemed to be having a bad day, left a “To Someone Very Nice” greeting card on her desk. On the inside he wrote a verse: “Ms. Franksen, it is hard to find the words thats nice enough for you./ But if these you are reading does what they are supposed to do./ Then nobody will have a nicer day than you. / From a fan of yours, ?? Guess who?” Enclosed, according to the court’s description, was a “romantic comic strip.”

When Mr. Slaton asked Officer Franson how she liked the card, she answered that she was reporting him for “making sexual proposals or threats.” In vain, he protested that it was a joke and asked her to forget it.

Since it would take “considerable imagination” to read a sexual proposal or threat into a wish for a nice day, the offending message must have been the  “romantic comic strip.” What could it have been? Porno manga?

Nope. It was Miss Peach, a long-running comic strip dating from the 1950’s (later updated to Ms. Peach) about a young schoolmarm and her kids. Here she is in her classroom:

A recurring theme is little Marcia’s constant putdown of Ira, which nowadays would probably get her expelled for bullying:

But Ira is besotted with Marcia:

The offending comic, as described by the court, shows Ira saying, “Marcia, I love you. Are you ready to make a commitment?”  Mr. Slaton had crossed out “Marcia” and substituted “Franksen.”

Marcia answers Ira, “Yes, you. To an institution.”

Get it? Then you’re smarter than the federal court.


About Appellate Squawk

A satirical blog for criminal defense lawyers and their friends who won't give up without a squawk.
This entry was posted in First Amendment, Law & Parody, Prisoners' rights and tagged , , . Bookmark the permalink.

6 Responses to Sexual thoughts and the First Amendment

  1. One wonders what they would have done if he’d given her a video of Eve Arden. (I recognize that the comment won’t be understood by your youthful fans. Their loss.)


  2. Peter G says:

    Thanks, Squawk, for bringing Miss Peach back to my mind for the first time in many decades. I am smiling. And I do hope that Mr. Bacon can parlay the First Amendment decision in his favor into a restoration of his lost good time and a transfer back to lower security, at least, even though the Second Circuit denied him damages by applying the pernicious qualified immunity doctrine, and he can never recover the time spent in the hole or the denial of visits and phone calls.


  3. Don Rehkopf says:

    But . . . did anyone check with the female CO???


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