How a 2012 legal ruling justified the prison state’s war on Black Panther literature

By now it is well-established that one of the easiest ways for inmates in the US prison system to be put in solitary confinement for tortuous lengths of time is possession of “gang materials,” which is often defined by prison officials as literature by black nationalists, leftists and prisoner rights groups (See: Mother Jones, November/December 2012; Solitary Watch, 19 March 2013). The official reasoning and justification for this policy are hard to come by, but a Wisconsin lawsuit originally filed in 2010 has eventually compelled a three-judge panel serving the US Appeals Court for the Seventh Circuit to issue a 9 page ruling in 2012 that provided a rationale for depriving prisoners of such materials (Courthouse News Service, 9 August 2012).

Toni Toston is an inmate currently serving a 32-year sentence at Waupun Correctional Institute for murder and armed robbery. On 15 July 2009, a search of his cell turned up a version of the Black Panther Party 10-Point Program that he hand-copied from a book freely avaliable in the prison library. After being charged by prison officials with violating prison policy and going through a hearing process, Toston was found guilty and sentenced to 90 days in disciplinary segregation. The US Appeals Court ruling on the matter, written by Richard Posner, provides an insight as to why prison authorities routinely feel the need to restrict access to black nationalist and left-wing literature:

Point 8 of the Ten-Point Program is a call for “freedom for all Black men held in federal, state, county and city prisons and jails.” The plaintiff is a black man in a state prison, and the Black Panthers were implicated in many acts of violence, including murder. Huey Newton himself may have killed a police officer. Hugh Pearson, The Shadow of the Panther: Huey Newton and the Price of Black Power in America 145-46 (1995); see also People v. Newton, 87 Cal. Rptr. 394 (Cal. App. 1970). Black Panther leader Richard Moore was convicted of shooting two New York police officers. People v. Moore, 366 N.E.2d 1330 (N.Y. 1977). Eldridge Cleaver was convicted of assault in a shootout between Black Panthers and Oakland police officers. Cleaver v. Superior Court, 594 P.2d 984, 985-86 (Cal. 1979); In re Cleaver, 72 Cal. Rptr. 20, 23-24 (Cal. App. 1968). The “Black Panther Coloring Book” depicted children murdering police officers. Hampton v. Hanrahan, 600 F.2d 600, 654 (7th Cir. 1979) (dissenting opinion).

As a historical note: the “Black Panther Coloring Book” originally was considered “inappropriate for young people” by the BPP’s Central Committee and ordered to be destroyed by Bobby Seale. It was later mass disseminated by likely infiltrator and agent provocateur Larry Clayton Powell as part of an FBI effort to discredit the party.

Also of note is Posner’s citation of the dissenting opinion in Hampton v. Hanrahan for this (inflammatory and distorted) factoid. The majority opinion in this case reinstated the civil rights lawsuit filed by Fred Hampton‘s family against the Chicago PD, Cook County DA Edward Hanrahan and the FBI for the murderous 1969 raid in which Hampton, then deputy chairman of the Illinois BPP, was shot twice in the head at point blank range by Chicago police. The dissenting opinion was written by judge Wilbur Frank Pell, Jr., a Nixon appointee who was himself a former FBI agent.

More from Posner:

The Black Panther Party is history. But the Ten-Point Program could be thought by prison officials an incitement to violence by black prisoners—especially since there is a “New Black Panther Party,” active today, which claims descent from the original Black Panthers and like its predecessor both advocates and practices violence. Southern Poverty Law Center, “New Black Panther Party,” (visited July 27, 2012); “There Is No New Black Panther Party: An Open Letter From the Dr. Huey P. Newton Foundation,” (visited same day).

This is simply boggling. The statement that Posner cites from the Huey P. Newton Foundation is a repudiation of the New Black Panther Party as a bunch of clownish hate-filled buffoons and likely provocateurs. Despite this he still uses their existence as a point in favor of restricting material from the original Black Panthers.

Posner also quotes at length from an affidavit submitted by Wisconsin state prison officials:

In the United States, two main organizations that monitor intolerance and hate groups are the Anti-Defamation League (ADL) and the Southern Poverty Law Center (SPLC) [and they] have deemed the New Black Panther Party as a hate group…. [T]here would be no other purpose . . . in the Ten-Point Program other than recruiting group members and establishing, reinforcing and maintaining an organizational structure for furthering gangs . . . . If left unchecked, the dissemination of a document such as the Ten-Point Program that was seized from the plaintiff could lead to the structuring and organizing of a gang within the institution and represent a threat to the security, orderly operation, discipline or safety of the institution . . . . Isolating the Ten-Point Program from these library books allows it to be taken out of context, easily circulated and simultaneously possessed by gang members and changed or adopted for the specific needs and activities of the group.

Once again, it’s simply maddening that the New Black Panthers’ hateful nonsense is being used to tar the original Black Panthers and to justify the censorship of their material.

The Appeals Court ruling dismissed Toston’s free speech claims but remanded his due process claims to the lower court. If the lower court finds that his time in isolation was needlessly protracted or unreasonably harsh he may be entitled to some form of relief.


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