Just before he began his most recent campaign of lawfare, The
Dread Deadbeat Pro-Se Kimberlin warned Patterico that he had filed “over a hundred lawsuits,” and that one more would be a problem for him. He was wrong that further lawsuits wouldn’t be a problem—he sued the wrong folks. But it is true that he had filed lots of LOLsuits, most of them frivolous, and almost all of them losers. The TKPOTD from five years ago today dealt with one of the silliest.
* * * * *
In November, 1997, Brett Kimberlin filed a complaint because the Bureau of Prisons would not allow him to play music on an electric guitar. An amendment in the Budget Act had banned the use of electric and electronic instruments in prisons except during worship services. The U. S. District Court in D. C. decided his case (in favor of the BOP) in late May, 2001, just a couple of weeks before his second release. The following is from the court’s decision [Kimberlin and Rice v. U. S. Department of Justice and Bureau of Prisons, 318 F.3d 228 (2003)]:
Plaintiffs assert that an acoustic guitar is not equivalent to an electric guitar. According to plaintiff Kimberlin, it is impossible for him to play his songs on an acoustic guitar. He is not able to make long, sustained notes. Also, he cannot perform a technique called “vibrato” because the strings on an acoustic guitar will not bend or sustain like those on an electric guitar.
Notwithstanding, BOP has not prohibited all musical expression, only the use of electrical instruments. An active music program and other informal means of musical expression still exist. Plaintiffs contend that an electric guitar is essential to their musical expression. Thus, they argue, banning this instrument is an absolute ban on their musical expression. Plaintiffs are incorrect in asserting that music created by an electric instrument is a distinct expression protected by the First Amendment. This Court has not found, and plaintiffs do not cite, any cases addressing this proposition. Accordingly, the issue is whether BOP’s policy impermissibly limits a prisoner’s First Amendment right to express himself through music by banning one of several mediums by which a prisoner can musically express himself.
Plaintiffs argue that to require them to express themselves musically on an acoustic instrument would be akin to requiring rap musicians to sing ballads, or Muslim prisoners to attend Catholic religious services. Plaintiffs insist that they cannot perform their music on acoustic instruments.
Plaintiffs are free to express themselves musically using other instruments, such as an acoustic guitar. Like the prisoners in Amatel, plaintiffs are only limited, not deprived. They can perform music written for an electric guitar on an acoustic guitar. This is not the same as expression on an electric instrument, but it is certainly an alternate to such expression. Moreover, plaintiff Kimberlin has stated that he has written a song which he can hear in his mind, but cannot perform, edit, polish, or get feedback. He may discuss the notes, lyrics, and ideas with others as a means of expressing himself through his music and getting feedback. Again, this is not the same as playing the electric guitar, but it is an alternate that allows him to express himself musically.
Well, like a group of real musicians once said:
No, you can’t always get what you want,
But if you try sometime, you just might find
You get what you need.
* * * * *
Although the issue was never raised, another reason to prevent TDPK from having an electric guitar while in prison would be to forestall Eighth Amendment claims from other prisoners.