Federal prisoner Theodore Kaczynski, also known as the “Unabomber,” is suing to keep the government from auctioning off his personal papers to raise money for his victims. Kaczynski wants to donate the manuscripts to the University of Michigan instead. Doesn’t the Unabomber have control of his own writings?
Not anymore. When someone is convicted of a crime, they forfeit all sorts of rights. For example, a sex offender might lose his right to privacy and be required to wear an ankle bracelet. A prisoner loses his freedom from searches by prison guards. There are also restrictions on prisoners’ freedom of speech: They often have their letters censored, and telephone access is limited. They may have to forfeit their property rights as well. In general, the government can take a convict’s contraband, as in a drug case, or any other “fruits and instrumentalities” of a crime, like a getaway car. (Prisoners keep other basic rights, such as the freedom from cruel and unusual punishment.)
The government didn’t seize Kaczynski’s writings because they were instruments of his crimes, though—they did it to settle debts. Kaczynski owes his victims a total of $15 million to pay off a restitution order handed down by a federal judge. The government has proposed an online auction of his personal property to raise that money.
The Unabomber’s lawsuit focuses on the seizure and sale of his writings: Just because the government has decided to seize a bunch of documents doesn’t mean it owns their contents. As the creator of the writings, the Unabomber automatically owns their copyright—which gives him the right to distribute them to the public.
Does the government get the copyright when it seizes a prisoner’s personal writings? Some legal scholars think it does, although Kaczynski is arguing otherwise. Even if the feds couldn’t transfer the copyright on Kaczynski’s writings, they’d probably be able to sell them. That’s because they’re not trying to reproduce them; instead, they’re selling the papers as physical objects, along with other items he owned. (The fact that the seizure is nondiscriminatory—and targets all his assets—strengthens the government’s case further.)
Kaczynski is arguing that the auction of his work violates First Amendment rights that he has not forfeited as a prisoner. He’s challenging the restitution statute itself as unconstitutional, claiming it gives the government too much discretion in which papers to seize and sell. He may also argue that seizing his writings has a chilling effect on free speech—what’s to say the government wouldn’t confiscate his future writings? This would be difficult to prove, though, since the government is not stopping him from writing any new manifestos.
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The Explainer thanks Vincent Blasi of University of Virginia, and Paul Goldstein and Robert Weisberg of Stanford University.