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Habeas Corpus And Freedom Of Speech, Michael L. Wells

Scholarly Works

Discussion concerning the proper scope of federal habeas corpus for state prisoners usually focuses upon the use of the writ as a federal remedy for procedural errors of constitutional magnitude in state criminal trials. Proponents of “liberal” habeas argue that only federal courts can adequately protect the federal procedural rights of state criminal defendants, while critics contend that the states' interest in administering their criminal laws free from federal interference overshadows the asserted benefits. Setting the proper scope of the writ requires a weighing of these competing values.

The focus on procedure is appropriate, because the vast majority of habeas …

Habeas Corpus And Freedom Of Speech, Michael Wells

Scholarly Works

This Article will examine substantive attacks on habeas based on the assertion that the petitioner's confinement violates his first amendment rights of free speech, press or assembly. The thesis is that when these rights are at issue, the considerations supporting broad habeas are stronger, and the costs of habeas are lower, than when the petitioner is asserting the violation of a federal procedural right. As a result, the necessary choice of values is more easily resolved in favor of broad first amendment habeas than it is for broad procedural habeas. Essential to this analysis is the premise that a habeas …