hibited by law, or by regulation, or material which can reasonably be expected to cause physical injury or adversely affect the security, safety, or good order of the institution.” 28 C.F.R. § 500.1(h). The Bureau of Prisons has interpreted this prohibition to include explosives, combustible or flammable liquids, hazardous or poisonous chemicals, and material which “present[s] a health, fire, or housekeeping hazard.” Federal Bureau of Prisons, U.S. Dep’t of Justice, Program Statement No. P5580.07 § 9 (Dee. 28, 2005).[1] The government’s list of bomb-making materials clearly contains items Kaczynski is prohibited from possessing in prison, e.g. an “improvised explosive device,” a “pipe bomb.” several plastic containers containing “acid,” and numerous containers of various chemical compounds. Kaczynski has not shown he is entitled to lawfully possess any of the items identified by the government as bomb-making materials. See Van Cauwenberghe, 827 F.2d at 434 (“Absent a showing that the individual requesting return of property under Rule 41[ (g) ] is entitled to its lawful possession, the property may not be released to him.”). Therefore, the proposals in the July 31 Plan to exclude the bomb-making materials from the sale and to not return the property to Kaczynski are approved.
IV. Proposal as to Writings
The July 31 Plan states the Named Victims request that “the diagrams and ‘recipes’ for making bombs be excluded from the sale and not be returned to [Kaczynski],” and that all of the remaining original writings be sold in redacted form. (Gov’t Status Report, filed July 31, 2006, at 5.) Kaczynski contends the sale of his original documents would violate the First Amendment, even though he already has or will receive copies of all of his writings, because an “original is always better than a copy” and has “intrinsic historical and scholarly value that photocopies lack.”[2] (Kaczynski’s Objections, filed July 21, 2006, at 4–7.) However, Kaczynski has not demonstrated what protected speech is contained in the originals that is not contained in the copies, or how a sale of the originals, when he possesses copies, implicates the First Amendment. See Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293–94 n. 5, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984) (“[I]t is the obligation of the person desiring to engage in assertedly expressive conduct to demonstrate that the First Amendment even applies. To hold otherwise would be to create a rule that all conduct is presumptively expressive.”). Therefore, the proposal to sell the original writings is approved.[3]
Kaczynski alternatively argues that if the original writings are included in the auction, the First Amendment prohibits the government from redacting any information from the documents. (Kaczynski’s Objections, filed July 21, 2006, at 8–10.)
- ↑ As of August 4, 2006, this document could be accessed at: http://www.bop.gov/DataSource/execute/dsPolicyLoc.
- ↑ Although the government states it has provided Kaczynski with copies of all of his writings, Kaczynski asserts that he is missing some pages and that others are illegible. The government shall provide Kaczynski, though his designated recipient, with any page Kaczynski has not already received in readable form. (See Kaczynski’s Mot. for Return of Property at 52 (requesting that all photocopies to be returned to a designated recipient).)
- ↑ Kaczynski also argues “regardless of whether the government may sell Kaczynski’s original papers, the restitution lien does not take away [his] literary rights to his papers.” (Kaczynski’s July 21 Objections at 12.) The July 31 Plan only addresses the sale of the physical documents.
