Kane Brief

Case 1:15-cv-00045-CCC Document 33 Filed 02/06/15 Page 1 of 43
IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MUMIA ABU JAMAL, et al.,
: No. 1:14-CV-2148
Plaintiffs, :
: (Chief Judge Conner)
v.
:
:
KATHLEEN KANE and R. SETH
:
WILLIAMS,
:
Defendants. :
PRISON LEGAL NEWS, et al.,
: No. 1:15-CV-0045
Plaintiffs, :
: (Chief Judge Conner)
v.
:
:
KATHLEEN KANE and R. SETH
:
WILLIAMS,
:
Defendants. : Electronically Filed Document
DEFENDANT KATHLEEN KANES BRIEF IN SUPPORT OF
HER MOTIONS TO DISMISS AND IN OPPOSITION TO THE
MOTIONS FOR PRELIMINARY INJUNCTION
KATHLEEN G. KANE
Attorney General
Office of Attorney General
15th Floor, Strawberry Square
Harrisburg, PA 17120
Phone: (717) 787-1179
Fax: (717) 772-4526
mgiunta@attorneygeneral.gov
DATE: February 6, 2015
M. ABBEGAEL GIUNTA
Senior Deputy Attorney General
Attorney ID 94059
KENNETH L. JOEL
Chief Deputy Attorney General
Chief, Litigation Section
Counsel for Defendant Attorney General
Kathleen Kane
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 Case

Or Controversy Against The Attorney General. ................................. 3
B.
Plaintiffs Claims Should Be Dismissed As They Are Not

Ripe for Review................................................................................... 8
C.
1.
There is no adversity of interest................................................ 9
2.
There is no conclusiveness...................................................... 11
3.
A judgment would not have utility. ........................................ 12
Plaintiffs Motions For A Preliminary Injunction Should Be

Denied And Defendant Kane Is Entitled To Dismissal Of The
Claims Against Her. .......................................................................... 13
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.................................................... 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 Jamals retaliation claim must fail.................... 28

i
IV.
2.
Plaintiffs Will Not Suffer Irreparable Harm. .................................... 30
3.
Harm To The Defendants And The Public Interest. ......................... 31
CONCLUSION............................................................................................ 32
CERTIFICATE OF SERVICE
ii
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
iii
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 Assn 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. Intl Union of Operating Engrs. 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
iv
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 Commcns 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. OBrien, 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
v
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
vi
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
1
against them. This is Defendant Kanes 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 relieffor 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).
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 Commcns 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 caseor-controversy requirement is satisfied only where a plaintiff has
standing.
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 defendants
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 plaintiffs claims, and they must be dismissed. Common
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 statutes 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 Generals 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
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.
6
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 Acts 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 plaintiffs planning is not sufficient to support premature review.
7
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 Courts 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. Intl
Union of Operating Engrs. 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
8
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
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
10
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
contingencyit 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
11
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.
12
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
13
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 plaintiffs
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.
14
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
15
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 Acts 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,
16
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 offenders 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.
Pennsylvanias 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
17
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 Acts 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 Plaintiffs 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
18
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;
19
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 scrutinybecause 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 Commonwealths 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. OBrien, 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
20
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
21
narrowly tailored to serve the governments legitimate, content-neutral

interestsand 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
governments 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 victims parent, whose offender, now released from
prison, loiters around the victims 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 victims home if it causes the victim mental anguish.
22
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 Jamals 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 governments 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.
23
Thus, we have struck down statutes that tied criminal

culpability to whether the defendants 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
24
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
mens 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
Acts 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://legaldictionary.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
25
specifically delineates those personal injury crimes that the offender must have
committed in order to fall within the Acts 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
Assn 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
Acts purview should not trigger a First Amendment review. Even if speech
26
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 governments 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.
27
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
offenders 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
Commonwealths 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 governments interests,
the PLN Plaintiffs claim must fail.
e.
Plaintiff Abu Jamals 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
28
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
29
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 Jamals 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 Acts 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.
30
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 offenders conduct has caused the victim
mental anguish. This added step of review makes the Plaintiffs 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.
31
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 governments
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
32
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. KANE
Attorney General
By:
Office of Attorney General
15th Floor, Strawberry Square
Harrisburg, PA 17120
Phone: (717) 787-1179
Fax: (717) 772-4526
mgiunta@attorneygeneral.gov
s/ M. Abbegael Giunta
M. ABBEGAEL GIUNTA
Attorney ID 94059
KENNETH L. JOEL
Chief Deputy Attorney General
Chief, Litigation Section
Counsel for Defendant Attorney General
Kathleen Kane
DATE: February 6, 2015
33
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 Kanes 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, Esquire
Abolitionist Law Center
P.O. Box 8654
Pittsburgh, PA 15221
bretgrote@abolitionistlawcenter.org
dsm@abolitionistlawcenter.org
Amy B. Ginensky, Esquire

Pepper Hamilton, LLP
3000 Two Logan Square
18th & Arch Streets
Philadelphia, PA 19103
ginenskya@pepperlaw.com
Ashley K. Henderson, Esquire

Amistad Law Project
P.O. Box 9148
Ashley@amistadlaw.org
Eli Segal, Esquire

3000 Two Logan Square
18th & Arch Streets
segale@pepperlaw.com
Deneekie Grant, Esquire

Amistad Law Project
P.O. Box 9148
nikki@amistadlaw.org
Counsel for Plaintiffs Mumia Abu-Jamal,
Robert L. Holbrook, Kerry Shakaboona
Marshall, Donnell Palmer, Anthony Chance,
Prison Radio, Human Rights Coalition,
34
Thomas B. Schmidt, III,

Esquire
Tucker R. Hull, Esquire
100 Market Street, Suite 200
P.O. Box 1181
Harrisburg, PA 17108-1181
schmidtt@pepperlaw.com
hullt@pepperlaw.com
Educators for Mumia Abu-Jamal

Lance Weber, Esquire
Sabarish Neelakanta, Esquire
Human Rights Defense Center
P.O. Box 1151
Lake Worth, FL 33460
lweber@humanrightsdefensecenter.org
sneelakanta@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, Esquire

Witold J. Walczak, Esquire
American Civil Liberties
Foundation of PA
313 Atwood Street
srose@aclupa.org
vwalczak@aclupa.org
Seth F. Kreimer, Esquire
3400 Chestnut Street
skreimer@law.upenn.edu
Bryan C. Hughes, Esquire

Philadelphia District Attorney's Office
Civil Litigation, 13th Floor
Three South Penn Square
Bryan.hughes@phila.gov
Counsel for Defendant R. Seth Williams
VIA FIRST CLASS MAIL:
David Shapiro, Esquire
Northwestern University School
of Law
375 E. Chicago Avenue
Chicago, IL 60611
Counsel 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
35
Dustin McDaniel, Esquire

Jules Lobel, Esquire
Abolitionist Law Center
P.O. Box 8654
s/ M. Abbegael Giunta
M. ABBEGAEL GIUNTA
36

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

IN THE UNITED STATES DISTRICT COURT

DATE: February 6, 2015

Case 1:15-cv-00045-CCC Document 33 Filed 02/06/15 Page 2 of 43

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

Plaintiffs Claims Should Be Dismissed As There Is No Case

Plaintiffs Claims Should Be Dismissed As They Are Not

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

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

Plaintiffs Motions For A Preliminary Injunction Should Be

Plaintiffs claims are unlikely to succeed on the merits

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

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

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

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

Plaintiff Abu Jamals retaliation claim must fail.................... 28

Case 1:15-cv-00045-CCC Document 33 Filed 02/06/15 Page 3 of 43

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

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

Case 1:15-cv-00045-CCC Document 33 Filed 02/06/15 Page 4 of 43

Case 1:15-cv-00045-CCC Document 33 Filed 02/06/15 Page 5 of 43

Case 1:15-cv-00045-CCC Document 33 Filed 02/06/15 Page 6 of 43

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

Case 1:15-cv-00045-CCC Document 33 Filed 02/06/15 Page 7 of 43

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

Case 1:15-cv-00045-CCC Document 33 Filed 02/06/15 Page 8 of 43

Case 1:15-cv-00045-CCC Document 33 Filed 02/06/15 Page 9 of 43

Case 1:15-cv-00045-CCC Document 33 Filed 02/06/15 Page 10 of 43

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

Plaintiffs Claims Should Be Dismissed As There Is No Case Or

As the Supreme Court articulated in Sprint Commcns Co. v. AP-CC Servs.,

Case 1:15-cv-00045-CCC Document 33 Filed 02/06/15 Page 11 of 43

Case 1:15-cv-00045-CCC Document 33 Filed 02/06/15 Page 12 of 43

Case 1:15-cv-00045-CCC Document 33 Filed 02/06/15 Page 13 of 43

Case 1:15-cv-00045-CCC Document 33 Filed 02/06/15 Page 14 of 43

45. Now that the [Revictimization Relief Act] has taken

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

Plaintiffs Claims Should Be Dismissed As They Are Not Ripe For

Case 1:15-cv-00045-CCC Document 33 Filed 02/06/15 Page 16 of 43

There is no adversity of interest.

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

Case 1:15-cv-00045-CCC Document 33 Filed 02/06/15 Page 17 of 43

Plaintiff Mumia Abu Jamal continues to publish writings and lectures on an

Case 1:15-cv-00045-CCC Document 33 Filed 02/06/15 Page 18 of 43

Case 1:15-cv-00045-CCC Document 33 Filed 02/06/15 Page 19 of 43

A judgment would not have utility.

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

Case 1:15-cv-00045-CCC Document 33 Filed 02/06/15 Page 20 of 43

Plaintiffs Motions For A Preliminary Injunction Should Be

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

Case 1:15-cv-00045-CCC Document 33 Filed 02/06/15 Page 21 of 43

Case 1:15-cv-00045-CCC Document 33 Filed 02/06/15 Page 22 of 43

Plaintiffs claims are unlikely to succeed on the merits and

The Revictimization Relief Act is not overbroad.

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Case 1:15-cv-00045-CCC Document 33 Filed 02/06/15 Page 24 of 43

Case 1:15-cv-00045-CCC Document 33 Filed 02/06/15 Page 25 of 43

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

The Revictimization Relief Act is not content based.

Case 1:15-cv-00045-CCC Document 33 Filed 02/06/15 Page 26 of 43

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

Case 1:15-cv-00045-CCC Document 33 Filed 02/06/15 Page 27 of 43

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