The Washington Post gets it right today in its editorial Prison Blues : the problem with bad law in seemingly inconsequential cases is that it becomes precedent and subsequently adversely impacts other cases in which a more significant right is at stake.

The influential D.C. Circuit Court of Appeals ruled today that prisoners do not have a consitutional right to have electric guitars in prison. (As an aside, Brett C. Kimberlin, the prisoner who sued is the one who accused Dan Quayle of buying pot from him). Represented by the ACLU, Kimberlin contested the consitutionality of a 1996 law forbidding federal money to be spent on "the use or possession of any electric or electronic musical instrument" in prisons. It seems the government construes this law as a flat ban on inmates owning musical instruments, even if they purchased the instruments themselves. Kimberlin argued the ban violates his First Amendment right to free musical expression.

In response, the Bureau of Prisons did not argue that the ban was necessary to control noise or keep order in the prison. Instead, "they asked the court to uphold the rule on the grounds that it made prison life more miserable and therefore advanced the cause of punishment. "

But as the Post correctly points out, "That, of course, is true of any restriction on constitutional rights and would presumably justify banning pens, paper and reading material as well as guitars."

The Court, in ruling against Kimberlin and another inmate, adopted a different but equally disturbing rationale: It upheld the ban on the ground that "the First Amendment is not an entitlement program."

But as Judge Tatel argued [in dissent], almost any activity in a prison "requires electricity, guard supervision, or other prison resources," because the entire environment is created and maintained by the government. If Congress can forbid incidental infrastructure expenditures on electric guitars without implicating First Amendment concerns, there is nothing it cannot ban."

The Post says, "The law in this circuit now implies that prisoners have no right to read if doing so costs pennies Congress wishes not to spend. The full court, or the Supreme Court, should make sure that this does not remain law."

We can't help but wonder which way Mr. Miguel Estrada would have voted had he been sitting on the Court. There's little way to know for sure since he refuses to release any information about his true position on issues, but we strongly suspect he would have sided with the majority. Just one more reason in our opinion to keep that filibuster going--the devils we know are bad enough, we don't need one we don't know. And if he's not a devil, he should come out and say so.

Update: The D.C. Circuit opinion discussed in the editorial below can be found here.