By Jeff Birren, Senior Writer
Weston Stow wrote a letter to NFL Commissioner Roger Goodell, complaining about players who did not stand during the National Anthem. He asked someone to make a copy of the letter. That was done, but another copy went to Dr. Anne Davis. Davis read the letter and “wrote a disciplinary report against Stow, threatening to harm another person or property in the letter” and that “allegedly violated” their rules. The letter was sent, but no sanctions were imposed. Stow filed a civil lawsuit, alleging among other things, that his First Amendment rights were violated by Davis and others. None of this would make much sense, except that Stow is a convicted felon, “in the custody of the New Hampshire Department of Correction” (Stow v. Davis, Case No. 1:18-cv-768-JL (D.N.H.) (“Stow”) (3-30-21)).
Facts
Stow’s “convictions resulted from an incident which occurred in Nashua on July 22-23, 1988” (State v. Stow, 136 N.H. 598 (2-12-93)). On July 29, 1988 he was arrested in Massachusetts for “a parole violation stemming from the New Hampshire incident.” In October he was indicted on the New Hampshire charges. Stow’s criminal trial was in December 1990, “which resulted on the instant convictions.” That included guilty verdicts on “one count of kidnapping, six counts of aggravated felonious sexual assault and one count of attempted aggravated felonious sexual assault.” The New Hampshire Supreme Court unanimously upheld the convictions (Id.).
Stow began to file pro se lawsuits. One “frivolous” case lost in the First Circuit (Stow v. Susan Grimaldi, et al, 993 F. 2d. 1002 (1St Cir. 1993). Several remaining pending, and the day of the Stow hearing, he lost a summary judgment motion in another case. That judge dismissed the federal claims and declined supplemental jurisdiction over the state law claims (Stow v. McGrath, Case. No.17-cv-088-LM (D.N.H.) (3-29-21)).
Stow wrote the letter to NFL Commissioner Goodell on August 25, 2017. He said that he was “unhappy with the actions of NFL players electing not to stand during the pregame playing of the National Anthem and wanted to express this displeasure” to Goodell (Stow at 2). The letter is “four, single-spaced, handwritten pages.” Stow “quoted from a movie line in which a character says ‘your [sic] going to acquire courage or I’m going to stick this steel leg of mine up your ass-you feel me.” He “told the Commissioner that this ‘message’ applies to him, ‘only it will be the public that sticks a negative balance sheet up your ass’” (Id.).
Stow asked a “corrections employee to make him a photocopy of the letter and its attachments.” That was done, but a copy was sent to the prison librarian, who forwarded it to “New Hampshire State Prison Education Department Principal Dr. Davis for review.” Davis “wrote a disciplinary report against Stow” that was “ultimately filed without prejudice to Stow. Because there was no guilty finding, no sanctions were imposed against Stow as a result of the disciplinary report. Dr. Davis’s actions did not delay or prevent Stow from sending the letter out of the prison” (Id.).
Stow filed his Complaint on August 23, 2019, and an Amended Complaint nearly two years later. An “Order” dismissed two claims and all defendants but Davis (Doc. #32 (8-11-20)). The Amended Complaint alleged a violation of Stowe’s First Amendment rights for “illegal censorship” and four state law claims (Stow at 1/2).
Davis filed a motion to dismiss on August 20, 2020 (Doc. #34). She asserted that that “her conduct does not constitute actionable censorship as a matter of law” and if the Court dismissed the claim, it “can decline to exercise supplemental jurisdiction over the state law claims” (Id. at 2). Stow opposed the motion. The Court held a 12-minuted video conference hearing on March 29, 2021. Stow appeared pro se (Minute Entry (3-29-21)). The Court issued its opinion the following day.
The Court’s ‘Analysis’
Davis’s argument for dismissal was “simple.” She asserted that the “alleged conduct—reviewing an inmate’s outgoing non-legal mail and issuing a disciplinary report based on the content of the mail—does not constitute censorship that implicates the First Amendment” (Stow at 2). The Court agreed that inspecting an “inmate’s outgoing non-legal mail generally does not constitute censorship” and the Supreme Court has never held that this activity violates the First Amendment. Moreover, Stow did not allege that Davis “altered his letter to a level that would be considered censorship or even prevented the letter from being mailed.”
What he alleged was that the “filing of a disciplinary report (containing allegedly false statements) against him based on the contents of the letter separately qualifies as unlawful censorship” (Id.). Davis responded by stating that counsel could not identify “any case holding that the mere initiation of a disciplinary proceeding” in this context “can constitute actionable censorship under the First Amendment” (Id. at 3). However, the Court cited cases that supported Stow’s theory, one each from the Third, Ninth and Tenth Circuits.
The Court found “that the alleged censorship implicates Stow’s First Amendment rights.” The Court did not decide “whether the censorship is justified” under a Supreme Court opinion, as Davis “has not raised or developed that argument in her motion papers.” “Prison officials may not censor inmate correspondence simply to eliminate unflattering or unwelcome opinions or factually inaccurate statements.” Rather, they must show that the action “furthers one or more of the substantial government interests of security, order and rehabilitation” and that the “limitation of First Amendment freedoms must be no greater than is necessary or essential to the protection” of that interest. First Amendment rights may be implicated by “prison disciplinary actions arising from inmate correspondence” (Id.).
The Court dismissed Stow’s assertion that placing colored dots on the letter constituted censorship “because the dots do not have appeared to have altered the letter” nor did the Court address Stow’s argument that “reading the letter in violation of prison policy separately constitutes censorship” (Id., FN 5).
Davis also argued that when inmates use the “guise” of personal correspondence “as a means to be verbally abusive to prison staff,” “disciplinary measures taken to preserve the prison’s security interests do not offend the First Amendment.” However, that “scenario is not presented here” (Id. at 4). Stow wrote Goodell, not prison staff. He heaped scorn on NFL players, not prison staff nor “otherwise present a security concern to the staff or other inmates” (Id.).
The ‘Ruling’
The Court ended by stating that there “may be other grounds for dismissing” Stow’s federal claim, but that would be “at a later procedural posture with the benefit of a more robust factual record and more developed legal arguments.” It denied the motion and “will continue to exercise supplemental jurisdiction over Stow’s state law claims” (Id.).
The litigation related to Stow’s letter to Goodell thus continues. Stow, the pro se litigant, will now seek discovery, likely including an attempt to depose Goodell via teleconference. That would be interesting, but the NFL will endeavor to prevent it. Bring your popcorn!
