HOSTS

PETER SHAMSHIRI

RHIANNON HAMAM

MICHAEL LIROFF

[ARCHIVE CLIP, Supreme Court: We'll hear arguments next in number 18-74, Jones against North Carolina Prisoners' Union.]

Leon Neyfakh: Hey, everyone. This is Leon from Prologue Projects. On this episode of 5-4, Peter, Rhiannon and Michael are talking about Jones v. North Carolina Prisoners' Labor Union. This case from 1977 is about the First Amendment rights of people in prison—specifically about their right to unionize. In the 1970s, prison inmates in North Carolina formed a labor union to advocate for better conditions. The Department of Corrections allowed the union to exist, but its members were prohibited from recruiting new members or holding union meetings, so the members of the union sued, claiming violations of their First Amendment and equal protection rights. The Supreme Court ruled in favor of the prison administrators on the basis that unions could create divisions among inmates and lead to riots. This is 5-4, a podcast about how much the Supreme Court sucks.

Peter Shamshiri: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have killed off our civil rights like old age killing off congressional Democrats.

Rhiannon Hamam: Oops, oops, oops.

Peter: I'm Peter. I'm here with Rhiannon.

Rhiannon: Hey.

Peter: And Michael.

Michael Liroff: That's three this year. Three in the first five months, four months of their term? Five months? Jesus Christ.

Rhiannon: I'm fun, notwithstanding that, I'm crazy.

Michael: [laughs]

Peter: Gerry Connolly died this morning, the day of recording, Wednesday, May 21. Of course, just a few months after strong-arming AOC out of the oversight position and then having to step down from that position. At the time, a lot of young lefties were like, "Doesn't it make more sense to have an energetic up and comer who isn't about to die in this position?"

Rhiannon: Yeah. He already had cancer. He's in his 70s. Yeah.

Peter: And Nancy Pelosi said, "How fucking dare you? How dare you speak ill of this virile young man?"

Rhiannon: Yeah.

Michael: Don Byer, a rep from Virginia, said—and this is a line that is, like, permanently ingrained in my brain. "Gerry's a young 74, cancer notwithstanding." And ...

Peter: God bless.

Michael: It broke me at the time. It's even worse in retrospect.

Peter: Yeah. I mean, enough has been said about the Democratic gerontocracy that we don't really need ...

Rhiannon: Yeah.

Peter: ... to dive into it. But these people are sick in the head. They are completely unwilling to let go of power, and I think to them, the idea of, like, the young left wing of the Democratic Party gaining power is just as bad as losing power altogether.

Michael: I don't know how you could draw any other conclusion from their behavior. And I don't get—I just—I don't understand. Being a congressman can't be that great. Like, how could it be better than retirement?

Peter: No, they love it.

Rhiannon: No, it's good.

Peter: They like it.

Rhiannon: It's good.

Peter: They like it. They like to go to fundraisers.

Rhiannon: You're getting wined and dined, the lobbyists.

Peter: And DC parties.

Michael: Yeah, but you also have to, like, call up donors and shit and listen to their blab about shit.

Peter: They like that, too. They're like, "I'm talking to my rich friends, you know?"

Michael: What a bunch of sickos. Sickos!

Rhiannon: Yes. And don't forget the sicko revolving door, right? You do a couple terms in Congress, you go to the consultant firm, you go to the lobbyist firm, you go back to represent—quote-unquote "representing people."

Michael: Go on a cruise with your grandkids. Get the fuck out of here.

Rhiannon: [laughs] I know! Go to Disney. Jesus!

Michael: [laughs] God.

Peter: All right. Today's case, Jones v. North Carolina Prisoners' Labor Union.

Rhiannon: I'm so happy we're doing this.

Peter: This is a case from 1977 about the First Amendment rights of prisoners. In the 1970s, some prisoners in North Carolina started a labor union with the broad goal of improving conditions in the prison. The Department of Corrections did not like this. And although they allowed the union to technically exist, they attempted to prohibit solicitation and group meetings and all sorts of like, organizing activities, right?

Rhiannon: Yeah.

Peter: All of the accoutrement of having a union. The prisoners sued, claiming that this violated their First Amendment and equal protection rights. But the Supreme Court, in a 7 to 2 decision, said no dice because prisoners' union would be too dangerous.

Rhiannon: Y'all are criminals. Y'all are criminals.

Michael: Yeah.

Peter: Too dangerous to tolerate. You're fucking criminals!

Rhiannon: Yeah.

Michael: And you want to unionize?

Rhiannon: Yeah.

Michael: The two worst things you can be: a criminal and in a union.

Rhiannon: [laughs]

Peter: They don't even like it when law-abiding citizens unionize.

Rhiannon: Right.

Peter: You think they're gonna let these fucking criminals unionize?

Rhiannon: Yeah.

Michael: Yeah.

Rhiannon: Let's go into some background here. I'm gonna talk, I think, about, like, some political and historical context for prison unions at this time. I think it's really important to see the context from which the North Carolina Prisoners Union comes out of. And so I do want to shout out at the beginning that a lot of this historical information and context we learned from a book called Black Power to Prison Power: The Making of Jones v. North Carolina Prisoners' Union. This was written by Donald Tibbs, so shout out. Just a couple of chapters that I've read are really, really great.

Rhiannon: So okay, let's place ourselves late 1960s, early 1970s. We are seeing the ramping up of the war on drugs, tough on crime policies, and prison populations are skyrocketing across the country. Now that also coincides with prison conditions being terrible and notably dangerous. The violence of guards on prisoners and between prisoners is rampant, especially on racial lines.

Rhiannon: So prisoners start to organize around this time. They're taking up collective action, and they're moving as cohesive political bodies to demand reforms, to demand changes, to demand safety, and to demand justice for the violence that they were experiencing. This is starting up especially in California prisons like Folsom and San Quentin. But this movement spreads quickly. Prisoners at Rikers in New York start taking up collective action, and elsewhere in the country.

Rhiannon: And so these prisoners were putting on effective collective action. They were refusing to work. They were going on hunger strike. They were writing and disseminating, you know, political literature within and outside of prison. They were communicating, you know, consolidated demands to guards and prison officials. At this time, if anybody has heard about this person, the revolutionary George Jackson is in prison. He was famously imprisoned at the age of 18 with an indeterminate sentence for stealing $71 at gunpoint from a gas station. He was involved in the Black Power movement from inside prison, and he organized his fellow prisoners in California.

Rhiannon: In 1970, George Jackson was one of three prisoners who were charged with the murder of a prison guard at Soledad Prison, which was said to have occurred after the shooting deaths of three Black prisoners by a white prison guard a few days before. And in 1971, George Jackson was killed during an escape attempt from San Quentin. You know, these are events that are happening that lead to even further prisoner organization.

Rhiannon: So prisoners are organizing. They're creating unions at California prisons, like I said, and that quickly spreads. Prisoner literature started to include printouts for how to organize a prisoner union. This literature was reaching thousands of prisoners across the country. And so in early 1973, prisoners in North Carolina at Central Prison in Raleigh invited prison union representatives to visit them. And they described how political activists in prison in North Carolina were being punished, the horrific prison conditions, but also the way that Black political activists outside of prison were being punished with harsh prison sentences and being sent to prison as well. That this was an issue that prisoners from inside wanted to oppose, wanted to confront, and wanted to organize around.

Rhiannon: The conviction of Black political activists called the Wilmington 10 in North Carolina, galvanized, really was a kind of lightning rod issue for prisoner organization in that state. It was a shoddy trial, unnamed witnesses, racist prosecution up and down. And so that draws support from across the country as well, not just from prisoner unions, but labor unions, the AFL-CIO, and others. This is a really important moment in which these collective bargaining, collective action, organized political bodies are coming together around important issues of the time.

Rhiannon: And I want to read just a quote from that book, Black Power to Prison Power, about what the Wilmington 10 kind of represented, and other cases like this where Black political activists were being prosecuted. "The circumstances surrounding the cases told a very familiar story about not only who goes to prison, but also why they're incarcerated, how Black radicals are criminalized, and what North Carolina prison inmates were interested in doing about the situation complexly and simply. Complexly, they were ready and willing to organize in order to challenge anti-Black racism in North Carolina's criminal justice system. But first they would need to build a coalition of supporters inside and outside of Central Prison."

Rhiannon: So the prisoners in North Carolina at Central Prison organized the NCPLU, the North Carolina Prisoners' Labor Union. They elected representatives and leadership. They boasted thousands of members, and operated more like a labor union than other prisoners unions because they focused on labor issues inside the prison, in addition to things like prisoner rights and prisoner advocacy. You know, the first labor issue they took up was fair wages for working prisoners who at the time were building the highways in North Carolina. They were entitled to a dollar per day, but often never received financial compensation at all. The NCPLU also set up a grievance committee where the grievance and complaint system at the prison that was already set up was woefully insufficient, woefully unjust and unfair. People's grievances were completely ignored, you know, outright, like, laughed at, basically. So they set up their own grievance committee. And so in terms of prison officials and prison leadership, you know, they're totally against the formation of a prisoner's union in North Carolina. And like Peter said, they didn't technically, like, outlaw the union itself, but de facto the policies that they put in place, you know, basically barred union activity. And it was an attempt at disbanding the union.

Peter: You can be in the union, it's just that that doesn't mean anything.

Rhiannon: Yeah, you can't do anything.

Peter: You can't invite people to join you. You can't have meetings. You can't do any sort of organizing or promotional activity.

Rhiannon: Yeah, they prohibited the prisoners from soliciting other prisoners to join the union. They barred union meetings. They barred bulk mailings about the union from inside and outside of prison. And, you know, so the prisoners start to think about this. They are an organized formation, they're associated with outside labor unions. You know, they are a legal organization. Like, they had established themselves as a—as an official union. And so they have legal rights. And they're saying, "Look, the First Amendment protects the right to petition the government for redress. That's in the amendment. It protects the right to association and speech. The 14th Amendment provides for equal protection. And we're watching other organizations be allowed in the prison, and other mailings and speech from service organizations like the Boy Scouts coming in and throughout prison. And so where's the equal protection there?" And so they sue. They sue, they get a favorable ruling in the lower courts. But of course, North Carolina prison officials, state officials, appeal that up to the Supreme Court.

Peter: Yeah. So let's talk about the law here. These prisoners, again, are saying that they have a constitutional right to organize within the prison. They have First Amendment rights of free speech, free assembly, rights of petition, and the prison is intruding upon those rights. Now I think we can basically agree that if you are placed in prison, you necessarily lose some rights, right? For example, you have a right to free association under the First Amendment. But when you're in prison, you're not able to freely associate with people outside of the prison, right? It's necessarily inhibited.

Peter: And then there are other rights you have that aren't necessarily lost when you enter prison, but tend to be lessened because we need to balance prisoners' rights with the realities of prison administration. So you have Fourth Amendment rights against search and seizure, for example. If you're in prison, though, the prison will generally retain the right to search your person and your cell at least much more often than they would be able to if you were not in prison, right? And the basic reason for this is that the logistics of prison arguably require it. Certain rights must be sacrificed to maintain order and safety.

Peter: So the question here is essentially where does a prisoner's right to organize fit into this? Obviously, they have a right to do so under the First Amendment, but do they still retain that right in prison? William Rehnquist writes the opinion, and he says no. He wrote up a first draft, handed it to a clerk. He said, "Take out the slurs and hand it back to me."

Michael: [laughs]

Peter: He points out that various prison officials testified that these prison unions were quote, "fraught with potential dangers." He quotes some of those officials. Quote, "The creation of an inmate union will naturally result in increasing the existing friction between inmates and prison personnel. It can also create friction between union inmates and non union inmates." Another quote. "The existence of a union of inmates can create a divisive element within the inmate population. In a time when the units are already seriously overcrowded, such an element could aggravate already tense conditions. After the inmate union has become established, there would probably be nothing this department could do to terminate its existence, even if its activities became overtly subversive to the functioning of the department. Work stoppages and mutinies are easily foreseeable, riots and chaos would almost inevitably result."

Peter: So to be clear, the testimony being cited here is wild speculation by prison officials that the union would, quote, "inevitably lead to riots and chaos." There's no real evidence put forth that this might happen, right? It's not like they can say, "Hey, there was a prison union in New York, and that resulted in chaos and riots," or whatever, right? They're just saying, "Ooh, this could happen." It's just some prison officials talking out of their asses. But Rehnquist says it's important to defer to prison administrators who have the experience with this stuff. We must defer to the prison officials.

Peter: Now I want to pause here for a second. The idea that giving people rights might pose a risk to the government and even to other citizens is not in and of itself an argument against giving people rights, right? If you give people speech rights, assembly rights, rights against search and seizure, gun rights, that can all be dangerous, right? That can all lead to agitation and violence. That's why the rights exist, right? We've decided that the trade off in many cases is worth it to live in a free society. So you can say, "Hey, giving these people these rights might be dangerous." That's worth thinking about for sure. But if that were on its own a reason to deny someone constitutional rights, we wouldn't have any constitutional rights. And you can imagine how conservatives would react if you brought this up in the gun context, right? The idea that inherently downstream of gun rights is gun violence, which is a fact, an undisputed fact. If you brought that up in court, they would shoot you dead on the spot.

Michael: [laughs] With their concealed carry.

Rhiannon: You know, also this idea, like, this fear mongering they're doing about, like, a union leading to chaos and riots and that kind of thing, completely ignoring what a union does, which is, like, organize political energy into, like, an organized body that has process and procedure and is about addressing chaos.

Michael: Right. Yeah, I was gonna say the union—like, reading this book, it's, like, clear that the union movement within prisons was in part in response to Black activists being frustrated about existing chaos within the prison system and wanting a sense of order in there.

Rhiannon: Yes.

Michael: And knowing it's not coming from the administrators, it's not coming from the guards. And so hey, maybe we can create a sense of order. Maybe we can create a sense of justice by organizing and unionizing.

Peter: I mean, you can see it in the prison official's quote, right? Where he's like, "This might contribute to the tense environment that we've created via overcrowding."

Michael: Yeah. Yeah, exactly.

Rhiannon: Yeah.

Peter: So rather than address the overcrowding issue, you want to quell the potential unrest by just limiting their speech rights? That's the solution?

Rhiannon: Yeah.

Michael: Yeah.

Peter: Now, keep in mind, the prison has not, quote-unquote, "banned" the union, right? They have not forbid the union. They're just forbidding union activities like solicitation. So here's Rehnquist. Quote, "Solicitation of membership itself involves a good deal more than the simple expression of individual views as to the advantages or disadvantages of a union or its views. It is an invitation to collectively engage in a legitimately prohibited activity." Now what he's saying here is untrue.

Michael: Yeah.

Peter: Because again, the prison does not prohibit being in the union. They only prohibit union activities like solicitation.

Rhiannon: Yeah.

Peter: So asking someone to join isn't an invitation to engage in a prohibited activity like Rehnquist is saying, it's an invitation to engage in a totally legitimate activity.

Michael: Have you considered, Peter, that being in this legitimate activity inevitably leads to chaos and riots, which are prohibited?

Peter: So true.

Michael: So when you think about it, by soliciting someone to join a union, you're really soliciting them to join a riot.

Rhiannon: Yeah. It's a sort of convenient, like, slip of the tongue or, like, a revealing position.

Peter: This is what the lower courts had focused on. Like, it's inherently absurd to be like, "Yeah, you can be in the union, but you can't ask someone else to join." Right? And even Rehnquist himself is like, "Well, being in a union like this, right? There's no dues. It's almost like your belief system, right? So that's your First Amendment right to believe in this union. But asking someone to join, that's like an action."

Michael: [laughs]

Peter: That's not First Amendment activity. It's just—it's absurd.

Michael: It's nonsense.

Peter: And what's underpinning this analysis is that Rehnquist wants the lowest standard of review for prisoners' rights—rational basis review. Under this standard, the government can limit your rights as long as they provide some rational explanation for it, even if that explanation isn't compelling, even if it lacks evidence. So this standard is famously low. So what Rehnquist is advocating for here, functionally, is a world where prisoners have constitutional rights in theory, but not in practice.

Rhiannon: Yeah.

Michael: I think that's right. And I think the Chief Justice Burger's concurrence sort of very much is along these lines, but is a little more overt about it. It's kind of shocking. It's only two paragraphs long, but the amount of racism and classism he manages to squeeze in here surprised me. There's a sentence that I want to read where he says, "Prisons, by definition, are closed societies populated by individuals who have demonstrated their inability or refusal to conform their conduct to the norms demanded by a civilized society." This is just a polite way of saying these are savages in a state of nature, right? Like, you think itself a separate society with separate rules, populated by people who cannot be civilized.

Rhiannon: Yeah.

Peter: Right. Meanwhile, there's a guy in there just, like, serving a year for simple battery or something. Like, what are you talking about? He's like—I feel a little cringey when I say this, but, like, the "othering" is so over the top and aggressive that it's just like, it's not a separate type of human being in a prison.

Michael: Right.

Peter: It's preposterous to think that. And, like, even the system itself does not accept that philosophy, which we know, because prison isn't a place that you go to forever.

Michael: Right.

Peter: You have sentences, right? There are people there serving limited sentences. You can't just be like, "They're no longer part of society." A lot of these guys are gonna be back in society in the next few years. So what then? How does your philosophy operate vis-à-vis these people at that point?

Michael: Like, you can't even, like, fully admit this because even, you know, Burger has to admit, like, yeah, look, the Constitution doesn't stop at the prison gates. So it's not a completely separate society. It's not an enclosed separate society. But ...

Peter: And if it is, why can't they start their own country and have their own Constitution?

Michael: [laughs] Yeah.

Peter: It's a totally separate society. However, we rule over it, FYI. And here are the rules.

Michael: Right. And then the slipperiest thing he does is he's like, "Yeah, the Constitution doesn't stop at the gates. But look, we have to be realistic here." And part of being realistic is to understand that, quote, "Needed reforms in the area of prison administration must come from not the federal courts, but from those with the most expertise in this field: prison administrators themselves."

Peter: Yeah. Expertise. Have a conversation with a prison administrator and then tell me that's expertise.

Michael: Yeah. Fuck. These motherfuckers could not ...

Peter: These are literally—I mean, they're just people that are too dumb to be regular cops.

Rhiannon: Yes.

Peter: Like, "Sorry, you failed the State Trooper exam. You want to go be a prison official?"

Michael: Yeah. And on top of that, it's like, whether or not prisons require reform, and whether or not the Constitution applies are two very separate questions, right? Like, if the Constitution applies then the Constitution applies. That's not a needed reform, that's the fucking Constitution applying. Like, what are we talking about? It's really nasty. It's a really nasty concurrence that's literally just like these people are inherently criminal, and the only people who we trust to manage them are prison administrators.

Rhiannon: Yeah. Dehumanizing, infantilizing, right? Like, they can't make decisions for themselves, they can't be good, they can't—they don't have goodness, they don't have decision-making capability, they don't have autonomy, they don't have dignity is what Burger is saying.

Michael: Do you know what's great evidence to the contrary? They organized a fucking several-thousand-person-strong union to non-violently advocate for themselves. Like, what are you talking—obviously they're—it's so ridiculous. It's so ridiculous.

Peter: Yeah, this is such a distinctive feature of conservatism, and I think that the modern Trump era has made it very obvious, but it was just as true at the time that conservatives just believe that certain types of people exist outside of the protection of the law. And the law serves primarily as a barrier between us and them. And you have the majority and the concurrence here essentially saying prisoners do not get meaningful constitutional rights in the way that the rest of us do. The main difference between then and now is that, like, the group of people who are in the in group is just getting smaller, right? The fascist in-group is constantly shrinking. And so while they used to grant a lesser legal status to prisoners and certain minorities, now that includes liberals, journalists, Democratic politicians, right? But the underlying philosophy is basically the same, that there are people outside of the protection of the law, and that's these people.

Rhiannon: Yeah. I would also say that a big difference between then and now is that they aren't expressing themselves in the way that Burger is in this concurrence. Instead they can say, "Well, there's been decades of precedent that bar and restrict all of these people's rights. And this is just the law."

Peter: Right.

Michael: Yeah, that's right. And I do think—I just want to—I want to loop back to Rhi's background here and, like, race isn't mentioned at all in this. But I think understanding this moment in a racial context is important.

Rhiannon: Yes.

Michael: For understanding who and what Burger's talking about when he says, you know, TThese people can't conform to civilized society, and must be contained in their own separate society run by prison administrators."

Rhiannon: Meanwhile, the KKK is rampaging across the South at this time still into the '70s.

Michael: Right. Right. [sighs] So Stevens has a concurrence. It's—I don't even get, like, what—it's like a partial concurrence, partial dissent. I don't even get what he's doing. It's like one paragraph, and he's like—he basically makes the point Peter made, which is like, look, the union's not prohibited activity. So I agree that you can—it's the solicitation of legitimately prohibited activity, but that doesn't include the union, so we should modify the order to allow union solicitation. Why is that a partial concurrence? Why isn't that just a dissent? Like, what are you doing? Like, that's the whole nut of the thing. Like, you're like, "My dispute is very narrow, but the narrowness is the important part of it."

Rhiannon: Why concur? Why concur?

Michael: We've had a few of these recently when we've been doing these '70s, '80s cases where, like, Stevens just feels, like, a little naïve at this stage.

Peter: Well, yeah. Well, you know how the brain doesn't fully develop until you're 25. For Supreme Court justices, it's actually 60.

Rhiannon: Yeah.

Michael: Yeah, yeah.

Peter: That's actually probably wrong. He was probably 60. I don't know how old Stephen was here. I mean, he was old.

Michael: Yeah. [laughs]

Rhiannon: There is a dissent. Two people in dissent here. Justice Thurgood Marshall writes the dissent; he's joined by Brennan. And Marshall is advocating for a much more rigid, and he argues consistent First Amendment jurisprudence. You know, he says, "First of all, while y'all are dicking around in the majority, like, kind of saying, like, 'Yeah, the Constitution applies,' no, the First Amendment applies to prisoners, full stop. Constitutional rights apply to prisoners, full stop. We should be moving from that foundation of granting the rights by default."

Peter: What if the Constitution applied to vulnerable groups? You guys—you guys thought about this?

Rhiannon: Exactly. Exactly. He goes through the lower court opinion and the evidence that was presented in the lower courts in a really revelatory way, in a way that is not addressed at all by the majority. He says, "There is not a scintilla of evidence that prisoner union activity in this prison in North Carolina was dangerous at all, or would lead to danger or violence or chaos or rioting." There was no evidence presented. The appellate court said this. There is no evidence that this is what would happen, even though prison officials, you know, are just wildly speculating that it would. And that's the basis of the majority opinion here. Marshall also quotes the lower court in their, you know, kind of thinking through the issue between, like, can you be a member of a union versus soliciting, inviting other people to join the union? The lower court said, quote, "To permit an inmate to join a union and forbid his inviting others to join borders on the irrational."

Rhiannon: Like, just, you know, Marshall's hitting throughout this dissent, like, this majority opinion, he says, is an aberration. This is inconsistent with First Amendment jurisprudence. It is irrational. It does not make sense. Y'all are talking crazy. Two expert witnesses at the trial who were prison officials who had worked with prison reform organizations, organizations of prisoners taking up collective action in prisoners, had testified that often these organizations, in their experience, played a constructive role inside prisons. This is evidence on the record in this case, right?

Peter: Yeah. But you also have evidence from the prison officials saying that this will lead to riots.

Michael: Right.

Rhiannon: Because I think so.

Michael: And you also have the very racist vibes of the interior life of William H. Rehnquist.

Peter: Right.

Michael: And you have to consider that, too.

Rhiannon: Yes.

Peter: "In the opinion of me, the most racist and dumbest guy in my 11th grade class, after which I dropped out, I do believe this will lead to riots."

Rhiannon: Yes. Yeah. Basically, Marshall's, like, pointing this out, right? And, you know, he addresses the point that, you know, giving prisoners power in the form of, you know, like, recognizing the union and allowing them to invite other people to join the union and disseminate their literature, that like, somehow, especially leadership, the prison officials allege, leadership of these organizations will, like, misuse that power to then, like, influence that organization to take up violent collective action or something like that. Marshall points out, like, look, you know, it's kind of in line with what you were saying earlier, Peter, like, that's an inherent risk to any organization inside a prison or not, that, like, people at the top will misuse their power or misuse their influence. Sorry, but the First Amendment still applies. You can't bar an organization doing constitutionally protected speech and association, right?

Peter: Yeah. We can protect their ideas, but what if they come up with bad ideas?

Rhiannon: Yeah. Yeah.

Peter: And then they share those ideas with others?

Rhiannon: Yeah, that's the argument.

Peter: The safest thing to do would be to not allow anyone to share ideas at all.

Rhiannon: Yes. Yeah. And it's like, that's actually what the First Amendment protects.

Peter: It's like the right in the heart of it, when you think about it.

Rhiannon: Bread and butter.

Michael: That's what it's about.

Rhiannon: Yes, exactly. So it's a good dissent here. Wild that it's two people in dissent. And yeah, Marshall just kind of laying it out really rationally and clearly.

Peter: Yeah. Now I want to circle back to the idea that we can't give prisoners these rights because it might lead to violence. Because everyone here agrees that soliciting people to join your union is not violent, nor is membership in the union inherently violent. It's also not very proximate to violence, right? You could argue that owning a gun or buying a gun is proximate to violence. You're taking a very conscious step where you're saying, "I might use this for violence," right? I might need to use this for violence. This is something completely different. This only has this, like, tenuous, speculative connection to any sort of violence. And I think it's worth reflecting on how willingly the court uses the prospect of violence and disorder to shut down what everyone agrees is nonviolent activity. And, like, how clearly can you see that today when it comes to, like, Palestinian activists who get accused of, for example, just supporting Hamas, right? And then more than that, because even supporting Hamas is not inherently violent if it's just your belief that Hamas is, like, in the right or whatever, right?

Michael: Mm-hmm.

Peter: You support their ideological mission or whatever. They have to imagine that people who support the Palestinian cause are, in fact, materially connected to Hamas, such that the connection to violence is real. And all of a sudden you go from an op ed about a genocide to this person has material connections to terrorism.

Rhiannon: Yeah. And this person's ideas are detrimental to the foreign policy of the United States.

Peter: Right.

Rhiannon: This is that same speculation, wild speculation without evidence.

Peter: Right. We've sort of created a world where there's this willingness to tie very clearly nonviolent actions to violence off in the distance somewhere. And the court's willingness to do that here is, like, incredibly dangerous, an incredibly slippery slope. And, you know, something that you saw very sharply after 9/11, but pops its head up all the time in various circumstances, where if you are a disfavored group, your non-violence doesn't mean anything to them because they fear your violence. They fear the day that you might become violent.

Michael: Right.

Peter: And that, to them, is enough.

Rhiannon: Yeah. I actually would add to that and say that, like, their fear of the violence and the argument put forth that this will turn violent or we think it might turn violent is actually a cover for—actually what we don't want is the political action, is them taking up collective action. We don't want to deal with it. We don't want to recognize these rights, because what are rights really? You talked about how, you know, conservatives view rights and the Constitution mostly as, like, actually restricting other people or a tool to restrict people's rights. When actually, what are rights? Rights are a restriction on the government. Our rights are a restriction on what the government can do to us. And so what they are actually saying, just because the threat of violence is compelling, they're using that fear, but what they're actually trying to do is avoid any real collective action is the actual exercise of people's constitutional rights.

Rhiannon: You know, the First Amendment doesn't just protect the, you know, political opinion and political expression of individuals, the right to assembly, the right to freely associate with political organizations, with like-minded individuals, with collective formations, that's also protected by the First Amendment. And it is incredibly important for all of us that people, including prisoners, and maybe especially prisoners in the context of the cage, in the context of all kinds of other liberties being stripped from you, it's incredibly important that all of us exercise and are able to exercise collective action. This is a method of protecting and enforcing all rights. If you cannot organize as a collective, there is no organization and protection of collective rights, of rights in a mass sense. And if prisoners are not allowed to unionize, if prisoners aren't allowed to organize and take up collective action, there is no pathway to organizing at all, to protecting their rights at all. This is about actually making sure that prisoners are isolated, individualized, and do not have the power to effectuate change in prison.

Peter: Not to mention that prisoners are frequently denied the right to vote.

Rhiannon: Yeah.

Peter: Which means they can't affect change at all, right. They're not allowed to affect change in the government. They're not allowed to affect change in their local community, the conditions in which they actually exist at all. It's being completely removed from democratic participation at every single level.

Rhiannon: Yeah. Yeah, think about what these prisoners are doing in this case. They're entitled—the policy is that they make a dollar a day for building North Carolina's fucking highways, and they're not even getting that. They're trying to just be in a group to get that, a dollar a fucking day, that is on the books that they're not getting through the traditional grievance process. This is an exercise of collective action that is incredibly important for all of society, and the exercise of this collective action is an exercise of collective political agency, which I think is really important in prisoner context. Because to the extent that you view prisoners, racial minorities, maybe people who live in poverty, to the extent that you view them as either criminals or victims of a system in this, like, broad sense, strips these people of their political agency, strips them of the power that they can exercise in collective formations. And, you know, to take up this kind of action, to take on your political agency from inside a cage, is incredibly, incredibly, like I said, important to everybody in society, and is an affirmation of your dignity and your existence, not as an individual to which systems just do things to and prison guards just beat up, but that you are a person exercising your personhood and dignity and autonomy to the extent that you can, and in fact, pushing the government to recognize that and to restrict the government's infringement of your political agency. This is really important. If you've heard me talk on my other podcast, Popular Cradle, I've talked about the Palestinian prisoners' movement.

Peter: Oh, you gotta pay for ads.

Rhiannon: [laughs] I've talked about the Palestinian prisoners' movement there extensively. You know, worldwide, prisoners lead a front for enforcing and protecting everybody else's rights. This is worldwide and this is historical. To take up a hunger strike, which is what prisoners were doing across the country at this time in the United States, to take up a hunger strike to say, "You know what? You can strip me of all of my rights. I have my body and I will put my body on the line then. What is the most fundamental right I have? Bodily autonomy. I will put my body on the line for myself and for others." This is the exercise of political agency, which is what we should be always, always, always pushing and arguing that the Constitution fundamentally protects.

Peter: Next week we're gonna have Alec Karakatsanis back on the show to talk to us about Copaganda, the propaganda that the police push through the media, how to spot it, how to think about it. Maybe we talk more about police SAT scores.

Rhiannon: Maybe it says something about our society.

Peter: Follow us on social media @fivefourpod. Subscribe to our Patreon, Patreon.com/fivefourpod—all spelled out for access to premium and ad-free episodes, special events, our Slack, all sorts of shit. We'll see you next week.

Rhiannon: Bye, y'all!

Michael: Bye, everybody.

Michael: 5-4 is presented by Prologue Projects. This episode was produced by Dustin DeSoto. Leon Neyfakh provides editorial support. Our website was designed by Peter Murphy. Our artwork is by Teddy Blanks at CHIPS.NY and our theme song is by Spatial Relations. If you're not a Patreon member, you're not hearing every episode. To get exclusive Patreon-only episodes, discounts on merch, access to our Slack community and more, join at Patreon.com/fivefourpod.

Peter: Do you guys remember that scene in The Departed when he tries to be a state trooper, and then Mark Wahlberg and who is it, Martin Sheen, bring him in. And they're like, "You got a 1400 on your SATs, kid. You're—you're not a state trooper. You're an astronaut."

Michael: [laughs]

Peter: They do that with prison officials, but it's a 900 on the SATs.

Michael: [laughs]

Rhiannon: 850. That's cumulative? That's both of—that's the math and the reading.

Peter: You got a 925, kid. You're not a prison official. You're like the president.