Kane Brief (1)

IN THE UNITED STATES DISTRICT COURTFOR THE MIDDLE DISTRICT OF PENNSYLVANIA

MUMIA ABU JAMAL, et al., : No. 1:14-CV-2148Plaintiffs, :

: (Chief Judge Conner)v. :

:KATHLEEN KANE and R. SETH WILLIAMS,

::

Defendants. :

PRISON LEGAL NEWS, et al., : No. 1:15-CV-0045Plaintiffs, :

: (Chief Judge Conner)v. :

:KATHLEEN KANE and R. SETH WILLIAMS,

::

Defendants. : Electronically Filed Document

DEFENDANT KATHLEEN KANE’S BRIEF IN SUPPORT OF HER MOTIONS TO DISMISS AND IN OPPOSITION TO THE

MOTIONS FOR PRELIMINARY INJUNCTION

KATHLEEN G. KANE Attorney General

M. ABBEGAEL GIUNTAOffice of Attorney General Senior Deputy Attorney General15th Floor, Strawberry Square Attorney ID 94059Harrisburg, PA 17120Phone: (717) 787-1179 KENNETH L. JOELFax: (717) [email protected]

Chief Deputy Attorney GeneralChief, Litigation Section

DATE: February 6, 2015 Counsel for Defendant Attorney General Kathleen Kane

Case 1:15-cv-00045-CCC Document 33 Filed 02/06/15 Page 1 of 43

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TABLE OF CONTENTS

TABLE OF AUTHORITIES .................................................................................. iii

I. PROCEDURAL HISTORY .......................................................................... 1

II. STATEMENT OF FACTS............................................................................ 2

III. ARGUMENT................................................................................................. 3

A. Plaintiffs’ Claims Should Be Dismissed As There Is No CaseOr Controversy Against The Attorney General. ................................. 3

B. Plaintiffs’ Claims Should Be Dismissed As They Are Not Ripe for Review................................................................................... 8

1. There is no adversity of interest................................................ 9

2. There is no conclusiveness...................................................... 11

3. A judgment would not have utility. ........................................ 12

C. Plaintiffs’ Motions For A Preliminary Injunction Should Be Denied And Defendant Kane Is Entitled To Dismissal Of TheClaims Against Her. .......................................................................... 13

1. Plaintiffs’ claims are unlikely to succeed on the meritsand should be dismissed for failure to state a claim uponwhich relief may be granted.................................................... 15

a. The Revictimization Relief Act is not overbroad. .................. 15

b. The Revictimization Relief Act is not content based. ............ 18

c. The Revictimization Relief Act is not vague.......................... 23

d. The Revictimization Relief Act is not a prior restraint........... 26

e. Plaintiff Abu Jamal’s retaliation claim must fail. ................... 28


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2. Plaintiffs Will Not Suffer Irreparable Harm. .................................... 30

3. Harm To The Defendants And The Public Interest. ......................... 31

IV. CONCLUSION............................................................................................ 32

CERTIFICATE OF SERVICE


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TABLE OF AUTHORITIES

Cases

1st Westco v. School District of Philadelphia, 6 F.3d 108 (3d Cir. 1993) .................5

Alexander v. U.S., 509 U.S. 504 (1993)............................................................ 26, 27

American Telephone & Telegraph Co. v. Winback and Conserve Program, Inc., 42

F.3d 1421 (3d Cir. 1994) ......................................................................................13

Babbitt v. Farm Workers, 442 U.S. 289 (1979).........................................................4

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)....................................................14

Brown v. City of Pittsburgh, 586 F.3d 263 (3d Cir. 2009) ................... 15, 16, 21, 22

Clark v. Community for Non-Creative Violence, 468 U.S 288 (1984)....................19

Cmwlth. v Duncan, 239 Pa.Super. 539 (1976).........................................................18

Cmwlth. v. Schierscher, 447 Pa.Super. 61 (1995) ...................................................18

Colburn v. Upper Darby Township, 838 F.2d 663 (3d Cir. 1988) ..........................14

Common Cause of Pennsylvania v. Com. of Pennsylvania, 558 F.3d 249

(3d Cir. 2009).....................................................................................................4, 5

Continental Group, Inc. v. Amoco Chemicals, Corp., 614 F.2d 351

(3d Cir. 1980)........................................................................................................30

Danvers Motor Co. v. Ford Motor Co., 432 F.3d 286 (3d Cir. 2005).................4, 30

F.C.C. v. Fox Television Stations, Inc., 132 S.Ct. 2307 (2012) ..............................24

Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46 (1989) .........................................27


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Frank's GMC Truck Center, Inc. v. General Motor Corp., 847 F.2d 100 (3d Cir.

1988) .....................................................................................................................13

Hill v. Colorado, 530 U.S. 703 (2000) ....................................................................19

Hohe v. Casey, 956 F.2d 399 (3d Cir. 1992) ...........................................................15

Hoxworth v. Blinder Robinson & Co., 903 F.2d 186 (3d Cir. 1990).......................14

Landmark Communications, Inc. v. Virginia, 435 U.S. 829 (1978)................. 27, 28

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ................................................4

McTernan v. City of York, 486 F. Supp. 2d 466 (M.D. Pa. 2007)...........................13

Merchants & Evans, Inc. v. Roosevelt Bldg. Products Co., 963 F.3d 628

(3d Cir. 1992)........................................................................................................13

Morse v. Lower Merion Sch. Dist., 132 F.3d 902 (3d Cir. 1997)............................14

Neb. Press Ass’n v. Stuart, 427 U.S. 539 (1976).....................................................26

Perry Ed. Assn. v. Perry Local Educators' Assn., 460 U.S. 37 (1983) ...................20

Philips v. County of Allegheny, 515 F.3d 224 (3d Cir. 2008) .................................14

Pic-A-State Pa., Inc. v. Reno, 76 F.3d 1294 (3d Cir. 1996) ......................................9

Pittsburgh Mack Sales & Serv. Inc., v. Int’l Union of Operating Eng’rs. Local

Union, 580 F.ed 185 (3d Cir. 2009) .......................................................................8

Planned Parenthood of Central New Jersey v. Farmer, 220 F.3d 127

(3d Cir. 2000)...........................................................................................................4


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Presbytery of N.J. of the Orthodox Presbyterian Church v. Florio, 40 F.3d 1454

(3d Cir. 1994) ...................................................................................................9, 11

Rode v. Dellarciprete, 845 F.2d 1195 N. 9 (3d Cir. 1988)........................................5

Salvation Army v. Dept. of Community Affairs of N.J., 919 F.2d 183 (3d Cir. 1990)

..........................................................................................................................9, 11

Simon & Schuster v. Members of the NY State Crime Victims Board, 502 U.S. 105

(1991)....................................................................................................................19

Sprint Commc’ns Co. v. AP-CC Servs., Inc., 554 U.S. 269 (2008)...........................3

Step-Saver Data Sys., Inc. v. Wyse Tech., 912 F.2d 643 (3d Cir. 1990) .......... 11, 12

Taliaferro v. Darby Tp. Zoning Bd., 458 F.3d 181 (3d Cir. 2006)............................5

Texas v. United States, 523 U.S. 296 (1998) .............................................................8

Thomas v. Independence Tp., 463 F.3d 285 (3d Cir. 2006) ....................................29

Turner Broadcasting System, Inc. v. F.C.C., 512 U.S. 622 (1994) .................. 19, 20

U.S. v. O’Brien, 391 U.S. 367 (1968)......................................................................20

United States v. Salerno, 481 U.S. 739 (1987)................................................. 15, 16

United States v. Stazola, 893 F.2d 34 (3d Cir. 1990) ..............................................14

United States v. Williams, 553 U.S. 285 (2008) ......................................... 23, 24, 25

Village of Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489 (1982) ....24

Ward v. Rock Against Racism, 491 U.S. 781 (1989) ........................................ 19, 22

Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442 (2008)..........16


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Whitmore v. Arkansas, 495 U.S. 149 (1990) .........................................................4, 7

Wilmac Corp. v. Bowen, 811 F.2d 809 (3d Cir.1987) ...............................................8

Zubik v. Sebelius, 911 F.Supp.2d 314 (E.D.Pa. 2012).............................. 8, 9, 11, 12

Statutes

18 P.S. §11.101 ......................................................................................................1, 2

18 P.S. § 11.103 .......................................................................................................26

18 P.S. § 11.1304 .................................................... 2, 5, 6, 10, 12, 13, 16, 18, 20, 25

118 Pa.C.S.A. § 2706.................................................................................................3

18 Pa.C.S.A. § 2709...................................................................................... 3, 17, 18

Fed.R.Civ.P. 12(b)(6)...............................................................................................14


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I. PROCEDURAL HISTORY

On November 10, 2014, Plaintiffs Mumia Abu Jamal, Robert L. Holbrook,

Kerry Shakaboona Marshall, Prison Radio, the Human Rights Coalition, and

Educators for Mumia Abu Jamal filed a civil action challenging the

constitutionality of section 11.1304 of the Crime Victims Act, 18 P.S. § 11.101, et.

seq. and naming Attorney General Kathleen Kane, and the District Attorney of

Philadelphia, R. Seth Williams as defendants. Thereafter, an amended complaint

was filed adding two additional plaintiffs, Donnell Palmer, and Anthony Chance

(collectively, with the original Plaintiffs, referred to as “the Jamal Plaintiffs”) to

the litigation.

On January 8, 2015, a second complaint was filed challenging the

constitutionality of section 11.1304 of the Crime Victims Act, and naming

Attorney General Kane and District Attorney Williams as defendants. Plaintiffs in

the second action are Prison Legal News, Daniel Denvir, Philadelphia City Paper,

Christopher Moraff, Pennsylvania Prison Society, Solitary Watch, Professor

Regina Austin, Steven Blackburn, Wayne Jacobs, Edwin Desamour, and William

Cobb (collectively “the PLN Plaintiffs”).

Also on January 8, 2015, the Jamal Plaintiffs and the PLN Plaintiffs filed

separate motions for a preliminary injunction. The matters were consolidated for

briefing. Defendants Kane and Williams have filed motions to dismiss the actions


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against them. This is Defendant Kane’s brief in support of her motion to dismiss

and her brief in opposition to the motions for preliminary injunction.

II. STATEMENT OF FACTS

On October 21, 2014 section 11.1304 of the Crime Victims Act, 18 P.S. §

11.101, et seq. was signed into law. Section 11.1304, titled “Revictimization

relief” (the “Revictimization Relief Act”), permits the victim of a personal injury

crime to “bring a civil action against an offender in any court of competent

jurisdiction to obtain injunctive and other appropriate relief…for conduct which

perpetuates the continuing effect of the crime on the victim.” 18 P.S. § 11.1304(a).

This section of the Crime Victims Act also permits the district attorney of the

county in which a personal injury crime took place or the Attorney General, after

consulting with the district attorney, to institute a civil action against an offender

for injunctive relief for conduct which perpetuates the continuing effect of the

crime on the victim. 18 P.S. § 11.1304(b). Thereafter, “upon a showing of cause

for the issuance of injunctive relief, a court may issue special, preliminary,

permanent or any other relief as may be appropriate…” 18 P.S. § 11.1304(c).

“Personal injury crime” and “victim” are defined in section 11.103 of the

Act. Additionally, “conduct which perpetuates the continuing effect of the crime

on the victim” is defined within section 11.1304 as conduct which causes a

temporary or permanent state of mental anguish. 18 P.S. § 11.1304(d).


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It appears that the Revictimization Relief Act -- providing for a statutorily

based tort cause of action for this type of conduct -- is the first of its kind.

However, there are numerous criminal statutes (See, e.g., 18 Pa.C.S.A. § 2706

(terroristic threats); 18 Pa.C.S.A. § 2709 (harassment); 18 Pa. C.S.A. § 2709.1

(Stalking)) and common law torts (intentional infliction of emotional distress,

negligent infliction of emotional distress) that are similarly aimed at thwarting

conduct that causes emotional harm or distress to a victim.

Plaintiffs sue Attorney General, Kathleen Kane in her official capacity, and

allege that she has the power to enforce the Revictimization Relief Act. (See Jamal

Plaintiffs’ Doc. 12 at ¶ 14; PLN Plaintiffs’ Doc. 1 at ¶ 11.) Nowhere have

Plaintiffs alleged that the Attorney General has consulted a district attorney about

enforcing the Act, has threatened to enforce the Act, or has actually enforced the

Act. See generally Jamal Plaintiffs’ Doc. 12; PLN Plaintiffs’ Doc. 1.

III. ARGUMENT

A. Plaintiffs’ Claims Should Be Dismissed As There Is No Case Or Controversy Against The Attorney General.

As the Supreme Court articulated in Sprint Commc’ns Co. v. AP-CC Servs.,

Inc., 554 U.S. 269, 273 (2008):

Article III, § 2 of the Constitution restricts the federal “judicial Power” to the resolution of “Cases” and “Controversies.” That case-or-controversy requirement is satisfied only where a plaintiff has standing.


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See also Common Cause of Pennsylvania v. Com. of Pennsylvania, 558 F.3d 249,

257-58 (3d Cir. 2009); Planned Parenthood of Central New Jersey v. Farmer, 220

F.3d 127, 146-47 (3d Cir. 2000). To establish standing, then, a plaintiff must

show: (a) an injury in fact; (b) that the injury is traceable to the defendant’s

conduct; and (c) that the requested relief is likely to redress the injury. Planned

Parenthood, 220 F.3d at 146-47. An injury in fact, is “an invasion of a legally

protected interest that is (a) concrete and particularized, and (b) actual or

imminent, not conjectural or hypothetical.” Danvers Motor Co. v. Ford Motor

Co., 432 F.3d 286, 290-91 (3d Cir. 2005) (citing Lujan v. Defenders of Wildlife,

504 U.S. 555, 560-61 (1992)). Furthermore, an injury in fact “must be concrete in

both a qualitative and temporal sense. The complainant must allege an injury to

himself that is ‘distinct and palpable,’ as opposed to merely ‘abstract,’ and the

alleged harm must be actual or imminent, not ‘conjectural’ or ‘hypothetical.’”

Whitmore v. Arkansas, 495 U.S. 149, 155 (1990) (internal citations omitted).

“Allegations of possible future injury do not satisfy the requirements of Article III.

A threatened injury must be ‘certainly impending’ to constitute injury in fact.”

Whitmore, 495 U.S. at 158 (quoting Babbitt v. Farm Workers, 442 U.S. 289, 298

(1979)).

“Absent Article III standing, a federal court does not have subject matter

jurisdiction to address a plaintiff’s claims, and they must be dismissed.” Common


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Cause of Pennsylvania, 558 F.3d at 257 quoting Taliaferro v. Darby Tp. Zoning

Bd., 458 F.3d 181 (3d Cir. 2006). In the current action, the Plaintiffs lack standing

with regard to their claims against the Attorney General because they cannot

demonstrate an injury in fact or that any alleged injury is traceable to the Attorney

General.

While a plaintiff challenging the constitutionality of a statute may bring his

claim against the official who is charged with the statute’s enforcement but not if

the official has not enforced, or threatened to enforce the statute against the

plaintiff. 1st Westco v. School District of Philadelphia, 6 F.3d 108, 113 (3d Cir.

1993) (citing Rode v. Dellarciprete, 845 F.2d 1195, 1209 N. 9 (3d Cir. 1988)). In

this case, the Attorney General has neither enforced nor threatened to enforce the

Revictimization Relief Act against the Plaintiffs.

In their complaints, the Plaintiffs have not identified any specific

involvement by the Attorney General in the enforcement of the Revictimization

Relief Act. Instead, they rely completely upon their fear that someone may sweep

them within the Act, and that the Attorney General’s authority to take civil action

under the Act will at some future time occur against them.

It is of note, that the Attorney General is not the primary person with whom

enforcement authority of the Revictimization Relief Act is entrusted; rather, the

victims are first given that authority. 18 P.S. § 11.1304(a). Second, the district


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attorney is given authority to take action pursuant to the Act. Thereafter, the

Attorney General, after consulting with the district attorney, may take action. 18

P.S. § 11.1304(b). However, Plaintiffs fail to allege, because they cannot, that any

authorized party, let alone the Attorney General, has taken any action against them.

Further evidence of Plaintiffs’ lack of standing is that Plaintiffs have failed

to plead within their respective complaints that they have suffered an injury in fact.

They have likewise failed to plead that they are in imminent danger of such

enforcement. Rather, they baldly assert that a hypothetical “threat of enforcement”

(of which no supporting facts have been pleaded) exists and that they “fear” that

enforcement. (Jamal Plaintiffs Doc. 12 at 64, 73; PLN Plaintiffs Doc. 1 at 53, 85).

In neither case have Plaintiffs claimed that enforcement is “certainly impending,”

only that they fear at some future time someone may enforce it against them. A

sampling of the plaintiffs’ allegations within their complaints exemplifies the

speculative nature of their claims:

63. Abu-Jamal faces a credible threat that Defendants in this litigation will file an enforcement action pursuant to 18 P.S. § 11.1304.

73. Given that Holbrook writes on matters of public concern that rouse intense passions, including issues pertaining to sentencing juvenile offenders, he has a credible fear that 18 P.S. § 11.1304 will be used to censor him.

Jamal Plaintiffs’ Doc. 12 at ¶¶ 63, 73 (emphasis added); see also ¶¶ 81, 102,

113, 125.


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45. Now that the [Revictimization Relief Act] has taken effect, the prospect of its enforcement-and the injunctive and monetary relief that the law authorizes-looms for thousands of implicated individuals and organizations.

63. But given the broad definition of personal injury crime “victim” for [Revictimization Relief Act] purposes, and given the natural sensitivity of many such victims to learning of speech by a person convicted of the crime, Denvir reasonably believes that criminal justice reporting that he wants to publish in the future quoting Pennsylvania inmates convicted of personal injury crimes in Philadelphia or elsewhere in Pennsylvania will fall within the Act’s scope.

64. Denvir intends to continue to rely on and include in his criminal justice reporting interviews with and comments from Pennsylvania inmates convicted of personal injury crimes in Philadelphia and elsewhere in Pennsylvania, but reasonably fears that the [Revictimization Relief Act] will be used in an effort to enjoin him from, or penalize him for, publishing such reporting.

PLN Plaintiffs’ Doc. 1 at ¶¶45, 63, 64 (emphasis added). Such claims of

“abstract,” “conjectural,” or “hypothetical” harm at some future time are wholly

insufficient to establish Article III standing. Whitmore at 155.

Additionally, the PLN Plaintiffs’ claim that they are injured because they

“cannot afford to devote resources to defending against [Revictimization Relief

Act] lawsuits or to paying awards of attorneys’ fees, court costs, or damages under

the Act,” should the Act be enforced against them at some point in time, is

insufficient. (PLN Plaintiffs’ Doc. 1 at 54, 66, 74). “Mere economic uncertainty

affecting the plaintiff’s planning is not sufficient to support premature review.”


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Zubik v. Sebelius, 911 F.Supp.2d 314, 329 (E.D.Pa. 2012) (quoting Wilmac Corp.

v. Bowen, 811 F.2d 809, 813 (3d Cir.1987) (internal quotations omitted)).

Plaintiffs clearly cannot prove an injury in fact, and they have failed to plead

that defendant Kane has taken, or has threatened to take, enforcement action

against them under the Revictimization Relief Act. Accordingly, there is no case

or controversy between the Plaintiffs and the Attorney General, and therefore, the

claims against Attorney General Kane should be dismissed.

B. Plaintiffs’ Claims Should Be Dismissed As They Are Not Ripe For Review.

As discussed above, Plaintiffs’ claims rely upon the possibility that future

enforcement actions may be taken against them. As such, it is clear that their

claims are not ripe for this Court’s review.

“A claim is not ripe for adjudication if it rests upon contingent future events

that may or may not occur as anticipated, or indeed many not occur at all.” Zubik

v. Sebelius, 911 F.Supp.2d 314, 324 (2012) (quoting Texas v. United States, 523

U.S. 296, 300 (1998) (internal quotations omitted)). The task of pinpointing the

degree of ripeness of a claim is particularly difficult in declaratory judgment

actions “because they are often sought before a completed injury as occurred.”

Zubik, 911 F.Supp.2d at 324 (citing Pittsburgh Mack Sales & Serv. Inc., v. Int’l

Union of Operating Eng’rs. Local Union, 580 F.ed 185, 190 (3d Cir. 2009)). The

Third Circuit Court of Appeals has instructed that to review a statute in a


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declaratory judgment action prior to enforcement, the Court shall look “to (1) the

adversity of the parties’ interests, (2) the conclusiveness of the judgment, and (3)

the utility of the judgment.” Zubik at 325 (citing Pic-A-State Pa., Inc. v. Reno, 76

F.3d 1294, 1298 (3d Cir. 1996)).

1. There is no adversity of interest.

For there to be an actual controversy, the defendant must be situated such

that the parties have adverse legal interests. Presbytery of N.J. of the Orthodox

Presbyterian Church v. Florio, 40 F.3d 1454, 1463 (3d Cir. 1994). If a potential

harm is contingent upon a future event occurring, it will likely not satisfy the

adversity of interest prong of ripeness. Zubik, supra, at 325. Where the litigation

seeks a declaratory judgment with regards to a state statute, even where it is

grounded in the First Amendment, “there must be a ‘real and immediate’ threat of

enforcement against the Plaintiff.” Presbytery of N.J., 40 F.3d at 1466 (quoting

Salvation Army v. Dept. of Community Affairs of N.J., 919 F.2d 183, 192 (3d Cir.

1990)). There is no “real and immediate” threat of enforcement against the

Plaintiffs in the current cases.

First, despite Plaintiffs assertions that they have engaged in and will

continue to engage in actions that they fear may be determined to violate the

Revictimization Relief Act, there has been no enforcement action or private suit


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commenced against them.1 (See, e.g., Jamal Plaintiffs’ Doc. 12 at ¶¶ 61, 67, 69,

78, 95, 107; PLN Plaintiffs’ Doc. 1 at ¶¶ 52, 61, 72, 84, 94, 103, 112). Therefore,

there cannot be an adverse interest between the parties.

Second, given the nature of the conduct reviewed under the Revictimization

Relief Act, and the intervening Court examination built into the civil injunction

process, there is no actual or imminent threat of enforcement against the Plaintiffs.

The language of the Revictimization Relief Act makes clear that only “conduct

which perpetuates the continuing effect of the crime on the victim,” explained

further as conduct “which causes a temporary or permanent state of mental

anguish,” can give rise to the civil right of action available through the Act. 18

P.S. § 11.1304(d). The Act then goes further to explain that “[u]pon a showing of

cause for the issuance of injunctive relief, a court may issue special, preliminary,

permanent or any other injunctive relief as may be appropriate under this section.”

18 P.S. § 11.1304(c)(emphasis added). Therefore, only after a court determines

that there is cause for the issuance of injunctive relief will offenders sued under the

Act be injured. This intervening determination of whether the conduct has caused

temporary or permanent mental anguish would remove the threat of enforcement

1 Plaintiff Mumia Abu Jamal continues to publish writings and lectures on an almost daily basis (as recently as February 1, 2015, Abu Jamal published 14 audio recordings to PrisonRadio.org in a single day), yet there has been no enforcement action or private civil suit commenced against him pursuant to the Revictimization Relief Act. See www.PrisonRadio.org/media/audio/mumia?page=1


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against Plaintiffs and makes clear their allegations are speculative. A Court must

not address a speculative controversy when an intervening event removes the “real

and immediate” threat of enforcement. Salvation Army, 919 F.2d at 192.

Accordingly, where the threat of enforcement is speculative at best, there is

no adversity of the parties to establish ripeness.

2. There is no conclusiveness.

The second factor in determining ripeness requires that the Court determine

whether “judicial action at the present time would amount to more than an advisory

opinion based upon a hypothetical set of facts.” Presbytery of N.J. at 1468. “A

declaratory judgment is conclusive if it definitively decides the rights of the

parties.” Zubik at 326 (citing Step-Saver Data Sys., Inc. v. Wyse Tech., 912 F.2d

643, 649, n. 9 (3d Cir. 1990)). However, “[i]f a declaratory judgment is based on a

contingency…it fails to change the parties’ legal status, and becomes an exercise in

futility.” Zubik at 327 (citing Step-Saver, 912 F.2d at 649).

A judicial action by the Court at this time would be wholly based upon the

hypothetical fears and concerns of the Plaintiffs that they may be subject to the

Revictimization Relief Act for some type of conduct at some future date. The

current facts are that Plaintiffs have not been threatened with enforcement, nor has

any enforcement action or private action been taken against them. Furthermore,

any injury to Plaintiffs is contingent upon a finding by a court that their conduct


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“causes a temporary or permanent state of mental anguish.” 18 P.S. § 11.1304(c)-

(d). Therefore until such action has been taken and a finding has occurred, the

issuance of a declaratory judgment would be futile and advisory in nature.

Therefore, the second prong of the ripeness inquiry is not met.

3. A judgment would not have utility.

The final prong of the ripeness review is a determination of whether the

entry of a judgment resolving the facial challenge to the Revictimization Relief Act

would affect the parties’ plans of actions. Step-Saver, 912 F.2d at 649. Plaintiffs

at this time face no threat of injunction under the Act. Their allegations are

speculative and are not based in actual fact. “[T]he mere fact that a declaratory

judgment would be useful to assist Plaintiffs in making upcoming operational

decisions is insufficient to overcome the fact that no actual controversy yet exists

between the parties.” Zubik at 327. Any judgment at this stage would be of very

little utility and therefore does not lend itself to ripeness of this case for

disposition.

Based upon a review of each of the factors for determining ripeness,

Plaintiffs’ claims do not satisfy those requirements and therefore their case is not

ripe for review. Therefore, the cases should be dismissed for lack of subject matter

jurisdiction.


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C. Plaintiffs’ Motions For A Preliminary Injunction Should Be Denied And Defendant Kane Is Entitled To Dismissal Of The Claims Against Her.

Both sets of plaintiffs have filed motions seeking a preliminary injunction to

enjoin defendants from enforcing the Revictimization Relief Act, 18 P.S.

§11.1304. A preliminary injunction is a form of extraordinary relief “which should

be granted only in limited circumstances.” American Telephone & Telegraph Co.

v. Winback and Conserve Program, Inc., 42 F.3d 1421 (3d Cir. 1994) (quoting

Frank's GMC Truck Center, Inc. v. General Motor Corp., 847 F.2d 100, 102 (3d

Cir. 1988)), cert. denied, 514 U.S. 1103 (1995). Such relief should only be

granted if the moving party can demonstrate that: (1) he has a reasonable

probability of success on the merits; (2) he will be irreparably injured by denial of

the relief; (3) the granting of a preliminary injunction will not result in even greater

harm to the non-moving party; and (4) granting the relief is in the public interest.

McTernan v. City of York, 486 F. Supp. 2d 466 (M.D. Pa. 2007).

An injunction should be issued only if the moving party produces evidence

sufficient to convince the Court that all four factors favor preliminary relief.

Merchants & Evans, Inc. v. Roosevelt Bldg. Products Co., 963 F.3d 628, 632-33

(3d Cir. 1992). A district court may not grant interim injunctive relief absent proof

of the likelihood of success on the merits or immediate irreparable injury by the


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denial of the relief sought. United States v. Stazola, 893 F.2d 34, 37 n.3 (3d Cir.

1990); Hoxworth v. Blinder Robinson & Co., 903 F.2d 186, 197 (3d Cir. 1990).

Likewise, a party may not prove a likelihood of success on the merits if they

cannot overcome a 12(b)(6) challenge for failure to state a claim upon which relief

may be granted. A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) should be

granted where if, accepting as true all the facts alleged in the complaint, a plaintiff

has not pleaded “enough facts to state a claim to relief that is plausible on its face,”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), meaning enough factual

allegations “to raise a reasonable expectation that discovery will reveal evidence

of” each necessary element. Philips v. County of Allegheny, 515 F.3d 224, 234 (3d

Cir. 2008) (quoting Twombly, 550 U.S. at 556). All factual allegations in a

complaint reviewed in considering a motion to dismiss must be accepted as true,

and all reasonable inferences from the allegations must be viewed in the plaintiff’s

favor. Colburn v. Upper Darby Township, 838 F.2d 663 (3d Cir. 1988), cert.

denied, 489 U.S. 1065 (1989). However, the Court is not required to give credit to

“bald assertions” or “legal conclusions” contained in the Complaint. Morse v.

Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997).

For the following reasons, it is clear that Plaintiffs’ claims should be

dismissed, and that Plaintiffs have failed to prove that all four factors favor

preliminary relief.


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1. Plaintiffs’ claims are unlikely to succeed on the merits and should be dismissed for failure to state a claim upon which relief may be granted.

Both the Jamal Plaintiffs and the PLN Plaintiffs bring facial challenges to

the Revictimization Relief Act for vagueness and overbreadth. They also allege

that it is a content based restriction upon speech in violation of the First

Amendment. The Jamal Plaintiffs allege that the Act further violates the First

Amendment as it retaliates against Mumia Abu Jamal. Also, the PLN Plaintiffs

challenge the Act as a restriction on prior restraints. However, the statute is not

directed at speech at all, is content-neutral and is neither vague, nor overly broad.

For the following reasons, Plaintiffs’ claims should be dismissed for failure to state

a claim upon which relief may be granted, and as such, their claims are clearly

unlikely to succeed on the merits.

a. The Revictimization Relief Act is not overbroad.

Both the Jamal Plaintiffs and the PLN Plaintiffs allege a facial challenge to

the Revictimization Relief Act. The Third Circuit has indicated that it:

will not invalidate a statute on its face simply because it may be applied unconstitutionally, but only if it cannot be applied consistently with the Constitution.” ... Thus, plaintiff['s] facial challenge will succeed only if [the statute in question] “is unconstitutional in every conceivable application, or ... it seeks to prohibit such a broad range of protected conduct that it is constitutionally ‘overbroad.’

Brown v. City of Pittsburgh, 586 F3d 263, 269 (3d Cir. 2009) (quoting Hohe v.

Casey, 956 F.2d 399, 404 (3d Cir. 1992)). In United States v. Salerno the Supreme


16

Court held that a successful facial challenge requires the challenger to “establish

that no set of circumstances exists under which the Act would be valid.” 481 U.S.

739, 745 (1987). The Supreme Court has since suggested that the bar may be

slightly lower. Brown, 586 F.3d at 269 (citing Wash. State Grange v. Wash. State

Republican Party, 552 U.S. 442 (2008)). However, even under the newer

formulation, “a facial challenge must fail where the statute has a plainly legitimate

sweep.” Id. (internal quotation marks omitted). The Plaintiffs have failed to

shoulder their burden to demonstrate that the Revictimization Relief Act is

“facially” unconstitutional as it has a “plainly legitimate sweep.”

A review of the Revictimization Relief Act demonstrates that it is not

directed toward speech at all, but is directed at conduct – conduct that causes

emotional distress. 18 P.S. § 11.1304(a). Certainly, within its sweep, the Act does

incidentally restrict some speech, but it focuses more on governing types of

unprotected conduct. The Revictimization Relief Act’s purpose is to protect

victims of personal injury crimes from conduct by their offenders that would cause

them renewed mental anguish and to provide them with a civil remedy to stop that

conduct. For example, it is plainly legitimate for the General Assembly to provide

a method of civil relief to a rape victim who is forced to relive her assault because

her offender is repeatedly calling her home. These telephonic communications

could involve nothing more than breathing on the other end of the telephone line,


17

or silence and the offender hanging up; however, should the offender continuously

attempt to speak to the victim, the fact that speech is incidentally involved in this

harassing behavior does not invalidate the constitutionality of the Act.

Similarly, it is plainly a legitimate sweep of the Act for it to provide a civil

remedy for the spouse of a vehicular homicide victim to stop the offender from

following them and attempting to make physical contact if it is causing the victim

to experience renewed mental anguish. Should the offender’s attempts to follow

the victim and to make physical contact also include repeated attempts to verbally

apologize, the mere fact that the anguish-producing conduct included speech would

not invalidate the Act.

In short, the Revictimization Relief Act covers numerous non-speech acts

that are plainly within the legitimate sweep of the Act. The Act provides a

separate civil remedy for victims of personal injury crimes to protect themselves

from conduct that in some cases can be similar to, but not quite to the level of, the

crimes of stalking or harassment. Policing this type of conduct is surely a

legitimate undertaking as it has been previously determined that statutes of a

similar nature are not unconstitutional.

Pennsylvania’s statute 18 Pa.C.S.A. § 2709.1(a)(1) defines the offense of

stalking as when “a person engages in a course of conduct or repeatedly commits

acts toward another person, including following the person without proper


18

authority, under circumstances which demonstrate either an intent to place such

other person in reasonable fear of bodily injury or to cause substantial emotional

distress to such other person.” Id. (emphasis added). The language of the statute

mirrors the Revictimization Relief Act’s restraint upon conduct by an offender

which causes a temporary or permanent state of mental anguish upon the victim.

18 P.S. § 11.1304. The stalking statute, and others like it, have been previously

reviewed by Pennsylvania Courts and found to withstand facial challenges to their

constitutionality. See Cmwlth. v Duncan, 239 Pa.Super. 539 (1976) (ruling

harassment provision of 18 Pa.C.S.A. § 2709(a) is constitutional); see also

Cmwlth. v. Schierscher, 447 Pa.Super. 61 (1995) (holding that the PA statutes

defining offenses of harassment and stalking were not facially unconstitutional).

Like these statutes, the Revictimization Relief Act has a plainly legitimate sweep.

Although its sweep may occasionally also involve speech related conduct, the Act

is not overbroad and should withstand Plaintiff’s facial challenge.

b. The Revictimization Relief Act is not content based.

Both the Jamal Plaintiffs and the PLN Plaintiffs challenge the Act and allege

that it is a content based restriction upon speech in violation of the First

Amendment. (Jamal Plaintiffs’ Doc. 12 at ¶ 166; PLN Plaintiffs’ Doc. 1 at Count

II). “The principal inquiry in determining content-neutrality in speech cases

generally, and in time, place, or manner cases in particular, is whether the


19

government has adopted a regulation of speech because of disagreement with the

message it conveys.” Hill v. Colorado, 530 U.S. 703, 719 (2000) (quoting Ward v.

Rock Against Racism, 491 U.S. 781, 791 (1989)). “The government's purpose is

the controlling consideration.” Ward, 491 U.S. at 791. “The purpose, or

justification, of a regulation will often be evident on its face.” Turner

Broadcasting System, Inc. v. F.C.C., 512 U.S. 622, 642 (1994). “But while a

content-based purpose may be sufficient in certain circumstances to show that a

regulation is content based, it is not necessary to such a showing in all cases.” Id.

(citing Simon & Schuster v. Members of the NY State Crime Victims Board, 502

U.S. 105, 117 (1991) (“illicit legislative intent is not the sine qua non of a violation

of the First Amendment”) (internal quotation omitted)). “A regulation that serves

purposes unrelated to the content of expression is deemed neutral, even if it has an

incidental effect on some speakers or message but not others.” Ward at 791.

“Government regulation of expressive activity is content neutral so long as it is

justified without reference to the content of the regulated speech.” Id. (quoting

Clark v. Community for Non-Creative Violence, 468 U.S 288, 293 (1984) (further

citation omitted)).

The Supreme Court has set precedent to apply the most exacting scrutiny to

regulations that suppress, disadvantage, or impose differential burdens upon speech

because of its content. See Simon & Schuster, supra, 502 U.S. at 115, 125-126;


20

Perry Ed. Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 45 (1983). “In

contrast, regulations that are unrelated to the content of speech are subject to an

intermediate level of scrutiny…because in most cases they pose a less substantial

risk of excising certain ideas or viewpoints from the public dialogue.” Turner

Broadcasting at 642 (internal quotation omitted). As the Revictimization Act is

focused upon purposes unrelated to the content of expression, it is properly

reviewed under an intermediate level of scrutiny.

As stated earlier, the Revictimization Relief Act is not directed toward

speech at all, but is rather focused upon conduct – conduct that causes emotional

distress. 18 P.S. § 11.1304(a). The Act was adopted to regulate offensive

behavior, not speech. The plaintiffs’ continuous reliance upon restrictions that the

Act may impose on speech are misplaced as those potential restrictions are purely

incidental to the overall intent of protecting the Commonwealth’s already

victimized individuals from continuing to be victimized through the conduct of

their offenders. The Jamal and PLN Plaintiffs make more to the process leading to

the legislation than is helpful or necessary. “Inquiries into congressional motives

or purposes are a hazardous matter.” U.S. v. O’Brien, 391 U.S. 367, 383 (1968).

“What motivates one legislator to make a speech about a statute is not necessarily

what motivates scores of others to enact it, and the stakes are sufficiently high for

us to eschew guesswork.” Id. at 384. The motivation behind Representative Mike


21

Vereb in proposing the Revictimization Relief Act, which is repeatedly cited to by

both Plaintiffs, may not be what motivated its enactment. Accordingly, what is

relevant is that the Act was adopted to protect victims from mental anguish and

trauma caused by conduct; conduct that may occasionally incidentally involve

speech.

This is similar to the ordinance at issue in Brown v. City of Pittsburgh, 586

F.3d 263 (3d Cir. 2009). In Brown, the Plaintiff challenged an ordinance that

established a fifteen-foot “buffer zone” and a 100 foot “bubble zone” around

hospitals, medical offices, and clinics, under the First Amendment because she

alleged that it prevented her “sidewalk counseling” of women to dissuade them

from undergoing abortions. Id. at 267. The Third Circuit reviewed the restrictions

imposed by the ordinance and noted that the zoning was not a regulation of speech,

but rather a regulation of the places where speech may occur. Id. at 272. The

ordinance was therefore held to be content-neutral. Id. at 275.

Similarly, the Revictimization Relief Act is intended to further the legitimate

content-neutral goal of protecting victims of personal injury crimes from being put

through mental anguish by the harassment, nuisance, following, or implied threats

of their offenders. This is not a regulation of speech, although at times it may

incidentally involve speech, but is rather a regulation of conduct and the manner in

which it may occur. Accordingly, the Act is constitutionally permissible if it is


22

“narrowly tailored to serve the government’s legitimate, content-neutral

interests…and leave[s] open ample alternative channels for communication.”

Brown, 586 F.3d at 271 (internal citation omitted) (citing Ward, 491 U.S. 781).

The requirement of narrow tailoring is satisfied if the regulation promotes a

substantial government interest that would be achieved less effectively absent the

regulation. Ward at 799. It may be sufficiently tailored even if it is not the “least

restrictive or least intrusive means of serving the government interests at stake.”

Id. at 798.

Here, the Revictimization Relief Act is narrowly tailored as it promotes the

government’s substantial interest in protecting victims of personal injury crimes

from further anguish and trauma by their offenders. Without the regulation, these

victims would not have a civil remedy available to them to stop the harassing,

threatening or nuisance behavior of their offenders. Think, for example, of a

kidnapping victim, or the victim’s parent, whose offender, now released from

prison, loiters around the victim’s home. Unless, or until that offender commits a

crime, there is no recourse available to the victim without the Act. The victim is

left with no remedy to stop the taunting or harassment. However, because of the

Act, the victim, or their parent, could file a civil suit to enjoin the offender from

coming near the victim’s home if it causes the victim mental anguish.


23

Furthermore, this content-neutral legislation leaves open numerous avenues

of communication. First, it must again be noted that the Act does not target

speech. But any speech not incidental to the foreclosed conduct is available and

unencumbered by the Revictimization Relief Act. The best examples are those

claimed by the plaintiffs in the litigation: innocuous graduation commencement

speeches; Mumia Abu Jamal’s audio recordings regarding political issues and

figures of our time; news articles covering crimes and arrests; and motivational

speeches by former prison inmates. The clearest evidence that these forms of

communication remain open and available under the Act is that they have not

fallen subject to civil suit under it, nor do Plaintiffs allege that they have.

Accordingly, the Revictimization Relief Act is not content-based, and is

narrowly tailored to serve the government’s legitimate interest.

c. The Revictimization Relief Act is not vague.

As an alternative ground for facial invalidation of the Revictimization Relief

Act, the Plaintiffs have claimed that the Act is vague. Vagueness is an outgrowth

of the due process clause of the Fifth Amendment, rather than the First

Amendment. United States v. Williams, 553 U.S. 285, 304 (2008). As the

Supreme Court has stated:

What renders a statute vague is not the possibility that it will sometimes be difficult to determine whether the incriminating fact it establishes has been proved; but rather the indeterminacy of precisely what that fact is.


24

Thus, we have struck down statutes that tied criminal culpability to whether the defendant’s conduct was “annoying” or indecent”- wholly subjective judgments without statutory definitions, narrowing context or settled legal meanings.

Williams, 553 U.S. at 306. The Revictimization Relief Act is not vague because it

“give[s] the person of ordinary intelligence a reasonable opportunity to know what

is prohibited, so that he may act accordingly.” Village of Hoffman Estates v.

Flipside, Hoffman Estates, 455 U.S. 489, 498 (1982). A regulation is not vague

because at time it may be difficult to prove a fact, but is vague because it is unclear

regarding what fact must be proved. F.C.C. v. Fox Television Stations, Inc., 132

S.Ct. 2307, 2317 (2012).

Plaintiffs allege that the Act is vague because it leaves unanswered

“questions about what conduct – and even whose conduct – it actually reaches.”

(PLN Plaintiffs’ Doc. 6, pg. 16). There is no such indeterminacy here. The

Revictimization Relief Act requires that in order for a court to issue an injunction

or other remedy, a victim must show that the offender of a personal injury crime

has committed conduct which perpetuates the continuing effect of the crime upon

them. These are factual determinations. The subjects are defined, and the

requirements are clear. Plaintiffs’ concern with the further definition of

“continuing effect of the crime” as causing temporary or permanent state of mental

anguish is baseless. The common usage of the term anguish leaves clear the level


25

of torment that must be suffered by the victim. Further, the Supreme Court has

previously stated that courts make determinations every day on “…the state of

men’s minds – having before them no more than evidence of their words and

conduct, from which, in ordinary human experience, mental condition may be

inferred.” Williams, 553 U.S. at 306. Therefore there is no mystery from which a

person of ordinary intelligence could not determine what conduct is to be enjoined

by the Act.

There is likewise no mystery to whose conduct the Act reaches either. The

Act’s purpose – to protect victims from reliving trauma caused by the offenders of

their personal injury crimes – makes obvious the persons whom the Act is intended

to target. Again, the common usage as well as the legal definition of the word

“offender” obviates at whom the Act is aimed: “an accused defendant in a criminal

case or one convicted of a crime.” See http://legal-

dictionary.thefreedictionary.com/offender. The Jamal Plaintiffs have been able to

delineate to whom they believe “offender” refers, and noted as much within their

brief when they refer to “offender[s]” as criminals “whether or not they have

completed their sentence.” (Jamal Plaintiffs’ Doc. 19, pg. 10). It is therefore clear

that there is not genuine question regarding the definition of “offender.”

Additionally, the act makes no mention of victims bringing civil actions

against third parties – only “against an offender.” 18 P.S. § 11.1304. The Act also


26

specifically delineates those personal injury crimes that the “offender” must have

committed in order to fall within the Act’s purview. 18 P.S. § 11.103. There is no

lack of clarity from which a reasonable individual could mistake the intent of the

Act or those persons who fall within its legislation. Accordingly, the

Revictimization Relief Act is not vague, but rather is narrowly tailored and clearly

constructed to give a person of ordinary intelligence a reasonable opportunity to

know what conduct is prohibited. Therefore, Plaintiffs’ vagueness claims must

fail.

d. The Revictimization Relief Act is not a prior restraint.

The PLN Plaintiffs (alone) allege that the Revictimization Relief Act is a

prior restraint on speech. As previously argued, the Act is not focused on speech,

but rather on conduct. “[P]rior restraints on speech and publication are the most

serious and least tolerable infringement on First Amendment rights.” Neb. Press

Ass’n v. Stuart, 427 U.S. 539, 559 (1976). However, the First Amendment

provides lesser protection from subsequent punishments than prior restraints.

Alexander v. U.S., 509 U.S. 504, 554 (1993). There is no prior restraint on speech

in this matter, nor is there a subsequent punishment for speech. Rather, there is the

availability of subsequent punishment for conduct. The fact that speech may at

times be incidentally intertwined with conduct under the Revictimization Relief

Act’s purview should not trigger a First Amendment review. Even if speech


27

incidental to the conduct within the Act could trigger First Amendment protection,

the Act will survive because its subsequent punitive measures are necessary to

further the government’s interests. Landmark Communications, Inc. v. Virginia,

435 U.S. 829, 843 (1978).

A recurring theme in prior restraint cases is that the action is taken against

the restrainee without the requisite procedural safeguards. Alexander, 509 U.S. at

552.2 For example, in Alexander v. U.S. the Supreme Court discussed their prior

finding that the pretrial seizure of certain expressive material without a “prior

judicial ‘determination of whether the seized items were obscene or that a RICO

violation ha[d] occurred’” was a prior restraint. Id. (quoting Fort Wayne Books,

Inc. v. Indiana, 489 U.S. 46, 66 (1989)). In contrast, the Court in Alexander held

that the RICO seizure of magazines and videotapes after a full criminal trial on the

merits in which the Government proved their obscenity and that they were linked

to racketeering offenses was not a prior restraint on speech but a subsequent

punishment for past conduct. Alexander at 552-553 (emphasis added).

The matter at hand is similar to the subsequent punishment in Alexander

with the exception that the Act deals with conduct, not speech. The

Revictimization Relief Act is aimed at protecting victims from certain conduct.

2 This is why many prior restraint cases involve permitting or licensing frameworks pursuant to which a speaker must ask permission first (by way of securing the permit or license) before engaging in the speech. The Act is not such a law.


28

The Act provides that a court will determine whether injunctive relief shall be

issued upon a showing of cause. Therefore, an offender can only be enjoined from

conduct after a judicial review of the conduct and whether the moving party has

shown that the conduct perpetuates the continuing effect of the crime on the

victim. As a judicial review must occur first, any action taken to enjoin the

offender’s conduct is clearly not a prior restraint.

Additionally, to the extent the Act deals with speech incidental to conduct

that causes mental anguish to the victim, the Act satisfies constitutional standards.

The enjoinment of conduct that causes mental anguish and the perpetuation of the

continuing effect of the crime on the victim is necessary to further the

Commonwealth’s interest in protecting victims of personal injury crimes from their

further harm by their offenders. Landmark Communications, Inc., supra, 435 U.S.

at 843. Therefore, as the Revictimization Relief Act is not a prior restraint on

speech, and the punitive action is necessary to further the government’s interests,

the PLN Plaintiffs’ claim must fail.

e. Plaintiff Abu Jamal’s retaliation claim must fail.

In addition to challenges to the constitutional validity of the Revictimization

Relief Act, Plaintiff Mumia Abu Jamal alleges a First Amendment retaliation

claim. (Jamal Plaintiffs’ Doc. 12 at ¶ 167). Abu Jamal alleges the Act was

enacted in retaliation for his exercise of his First Amendment rights. In order to


29

state a constitutional First Amendment retaliation claim Abu Jamal must allege

three things: (1) that the activity in question is protected by the constitution, (2)

that the adverse action was sufficient to deter a person of ordinary firmness from

exercising his constitutional rights, and (3) that a causal link exists between the

protected conduct and the retaliatory action. Thomas v. Independence Tp., 463

F.3d 285, 296 (3d Cir. 2006). Abu Jamal cannot satisfy these requirements.

Quite obviously, Abu Jamal cannot satisfy the second element because the

enactment of the Revictimization Relief Act has not deterred him from exercising

his First Amendment rights. Since the signing of the Act on October 21, 2014,

Abu Jamal has delivered a commencement speech, has recorded approximately

seventy (70) speeches and published them on PrisonRadio.org, and published his

book, “Writing on the Wall: Selected Prison Writings from Mumia Abu Jamal,” on

December 22, 2014 (See http://www.citylights.com/book/). This is clear evidence

that a person of ordinary firmness, Abu Jamal, was not in the least deterred from

exercising his First Amendment rights in reaction to the Act.

Additionally, the mere enactment of the statute has not created any adverse

action or harm to Abu Jamal. The Revictimization Relief Act has yet to be utilized

in a civil action against Abu Jamal, or anyone else for that matter. Further, as there

has been no adverse action, or injury in fact, Abu Jamal lacks standing pursuant to

§ 1983 to even bring his claim for retaliation against the Attorney General. As


30

argued previously, an injury in fact, requires “an invasion of a legally protected

interest that is (a) concrete and particularized, and (b) actual or imminent, not

conjectural or hypothetical.” Danvers Motor Co., supra, 432 F.3d at 290-91.

Where, as here, there is no actual or imminent injury, nor threat of injury from the

Attorney General, Abu Jamal lacks standing to bring his claim for retaliation.

Abu Jamal’s retaliation claim must be dismissed, and is clearly unlikely to

succeed, because he cannot satisfy the requirements of a First Amendment

retaliation claim.

2. Plaintiffs Will Not Suffer Irreparable Harm.

Plaintiffs allege they will suffer irreparable harm because the

Revictimization Relief Act violates the First Amendment and due process.

However, the Act does not violate the First Amendment or Plaintiffs’ due process

rights as argued above. Further, the Plaintiffs have suffered no harm at all, nor

have they experienced the threat of harm. All Plaintiffs have put forth so far is a

remote possibility that they may become subject to the Act’s legislation. This is

insufficient to require a preliminary injunction.

A preliminary injunction requires evidence of “immediate irreparable

injury” or “a presently existing actual threat.” Continental Group, Inc. v. Amoco

Chemicals, Corp., 614 F.2d 351, 359 (3d Cir. 1980) (citations omitted). An

injunction cannot be used to eliminate the possibility of a remote future injury. Id.


31

Plaintiffs have only argued speculation that they could possibly suffer a future

injury.

Furthermore, Plaintiffs’ future injury is even more hypothetical. In order for

an injunction to be issued against them, a court of law must make a determination

that the victim has shown cause that the offender’s conduct has caused the victim

mental anguish. This added step of review makes the Plaintiff’s potential for

future injury even more remote.

Additionally, Plaintiffs’ claims that the remote, and highly speculative threat

of injury from enforcement of the Act will cause injury because their speech is

chilled is baseless. The Plaintiffs have each separately indicated their continued

intent to speak in public and publish books in the face of the Act. (Jamal

Plaintiffs’ Doc. 12 at ¶¶ 51, 69, 7895, 109; PLN Plaintiffs’ Doc. 1 at ¶¶ 61, 69,

112, 130, 138, 145). Plaintiff Mumia Abu Jamal has continued publishing his

speeches that are released almost daily on the Prison Radio website. See

www.PrisonRadio.org/media/audio/mumia?page=1. Despite the continuing speech

of the Plaintiffs, no action has been threatened or taken against them under the Act.

This flies in the face of Plaintiffs’ contentions that their speech has been chilled.

Accordingly, neither the Jamal Plaintiffs, nor the PLN Plaintiffs can prove

irreparable harm and therefore no preliminary injunction may be issued.


32

3. Harm To The Defendants And The Public Interest.

Plaintiffs allege that there will be no harm to defendants if they were

enjoined from utilizing the Revictimization Relief Act and that public interest

weighs in favor of invalidating the Act. However, such an action by the Court

would cause great harm to the defendants and the public. If the defendants are

enjoined from enforcement of the Revictimization Relief Act the government’s

interest in protecting its vulnerable citizens is thwarted. Further, the public interest

weighs in favor of supporting our victimized citizens from being further accosted

by their offenders. Without the Act, rape victims will have no civil course of

action against their rapist if they are receiving repeated hang-up calls from them;

the relatives of vehicular homicide victims will have no course of action if the

offender continuously attempts to apologize for the homicide; kidnapping victims

will be unable to stop their offender from standing outside their place of business

watching them; and arson victims will be unable to put an end to the arsonist

mailing them photos of the burned property. The public interest weighs heavily in

favor of protecting these victims.

IV. CONCLUSION

Accordingly, based upon the arguments above, it is clear that Plaintiffs,

cannot meet the four requisite factors to necessitate a preliminary injunction and

Defendant Kane has proven that Plaintiffs’ claims fail to state a cause of action


33

upon which relief may be granted. Therefore the Motions to Dismiss should be

granted, and the Motions for Preliminary Injunction should be denied.

Respectfully submitted,

KATHLEEN G. KANEAttorney General

By: s/ M. Abbegael GiuntaM. ABBEGAEL GIUNTA

Office of Attorney General Senior Deputy Attorney General15th Floor, Strawberry Square Attorney ID 94059Harrisburg, PA 17120Phone: (717) 787-1179 KENNETH L. JOELFax: (717) [email protected]

Chief Deputy Attorney GeneralChief, Litigation Section

DATE: February 6, 2015 Counsel for Defendant Attorney General Kathleen Kane


34

CERTIFICATE OF SERVICE

I, M. Abbegael Giunta, Senior Deputy Attorney General for the

Commonwealth of Pennsylvania, Office of Attorney General, hereby certify that

on February 6, 2015, I caused to be served a true and correct copy of the foregoing

document titled Defendant Kathleen Kane’s Brief in Support of the Motions to

Dismiss and in Opposition to the Motions for Preliminary Injunction to the

following:

VIA ELECTRONIC FILING:

Bret D. Grote, EsquireAbolitionist Law CenterP.O. Box 8654Pittsburgh, PA [email protected]@abolitionistlawcenter.org

Ashley K. Henderson, EsquireAmistad Law ProjectP.O. Box 9148Philadelphia, PA [email protected]

Deneekie Grant, EsquireAmistad Law ProjectP.O. Box 9148Philadelphia, PA [email protected]

Counsel for Plaintiffs Mumia Abu-Jamal, Robert L. Holbrook, Kerry Shakaboona Marshall, Donnell Palmer, Anthony Chance, Prison Radio, Human Rights Coalition,

Amy B. Ginensky, EsquirePepper Hamilton, LLP3000 Two Logan Square18th & Arch StreetsPhiladelphia, PA [email protected]

Eli Segal, EsquirePepper Hamilton, LLP3000 Two Logan Square18th & Arch StreetsPhiladelphia, PA [email protected]

Thomas B. Schmidt, III, EsquireTucker R. Hull, EsquirePepper Hamilton, LLP100 Market Street, Suite 200P.O. Box 1181Harrisburg, PA [email protected]@pepperlaw.com


35

Educators for Mumia Abu-Jamal

Lance Weber, EsquireSabarish Neelakanta, EsquireHuman Rights Defense CenterP.O. Box 1151Lake Worth, FL [email protected]@humanrightsdefensecenter.org

Counsel for Plaintiffs Prison Legal News, Daniel Denvir, Philadelphia City Paper, Christopher Moraff, Pennsylvania Prison Society, Solitary Watch, Regina Austin, Steven Blackburn, Wayne Jacobs, Edwin Desamour, William Cobb

Sara J. Rose, EsquireWitold J. Walczak, EsquireAmerican Civil Liberties Foundation of PA313 Atwood StreetPittsburgh, PA [email protected]@aclupa.org

Seth F. Kreimer, Esquire3400 Chestnut StreetPhiladelphia, PA [email protected]

Bryan C. Hughes, EsquirePhiladelphia District Attorney's OfficeCivil Litigation, 13th FloorThree South Penn SquarePhiladelphia, PA [email protected] for Defendant R. Seth Williams

VIA FIRST CLASS MAIL:

David Shapiro, EsquireNorthwestern University School of Law375 E. Chicago AvenueChicago, IL 60611Counsel for Plaintiffs Mumia Abu-Jamal, Robert L. Holbrook, Kerry Shakaboona Marshall, Donnell Palmer, Anthony Chance, Prison Radio, Human Rights Coalition, Educators for Mumia Abu-Jamal

Dustin McDaniel, EsquireJules Lobel, EsquireAbolitionist Law CenterP.O. Box 8654Pittsburgh, PA 15221


36

s/ M. Abbegael GiuntaM. ABBEGAEL GIUNTASenior Deputy Attorney General


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