by Matt Clarke

The Texas Department of Criminal Justice (TDCJ) added a rule to the April 2016 version of its Offender Handbook that bars prisoners from using any form of social media. Rule 111.N.4 states that “Offenders are prohibited from maintaining active social media accounts for the purpose of soliciting, updating, or engaging others, through a third party or otherwise.”

The policy change has sparked criticism among prisoner advocates who believe it violates the First Amendment freedom of speech rights of both prisoners and non-prisoners who wish to communicate with them.

Every U.S. prison system prohibits direct Internet access and cell phone use by prisoners. While a small number manage to post directly to their social media accounts using contraband cell phones, the majority of such accounts are maintained on behalf of prisoners by family members and friends. The TDCJ’s new rule effectively ends that practice.

“These regulations don’t just impact the inmate’s right to speech [but also] everyone else’s right to understand what’s going on in a prison,” said Dave Maass with the Electronic Frontier Foundation, an advocacy group dedicated to defending civil liberties on the Internet. “An inmate can put up information [online] about abuses going on or conditions, and that can be the only way that information gets out.”

As Maass pointed out, had Martin Luther King, Jr. written his famous “Letter from a Birmingham Jail” today, his wife would have been prohibited from publishing it on social media accounts. And under the TDCJ’s rule, wrongfully convicted prisoners can not have family or friends establish social media accounts so they can proclaim their innocence.

“The prison system’s reach exceeds its legal grasp,” said attorney Wayne Krause Yang with the Texas Civil Rights Project. “Typically, prisons control the things inside the prisons. They don’t traditionally get to pass prison policies that extend far beyond the bars, and it seems like that’s what they’re trying to do here.”

As a result, the TDCJ’s new rule belongs among those that Yang says “have a name – they’re called laws. They should be considered by the representatives of the people, too, because this policy doesn’t just affect the people behind the bars.”

But supporters of the TDCJ’s social media blackout cite safety concerns, especially the possibility that prisoners may use social media accounts to threaten witnesses, stalk former victims, arrange contraband deliveries or run crime rings – even search for personal information about prison staff.

“Social media is a problem,” stated Bryan P. Stirling, director of the South Carolina Department of Corrections (SCDC). “It’s the unfettered communication to the outside world that should scare everybody.”

Prisoner rights advocates, though, wonder if the real reason for the policy change might be something that hits prison officials closer to home.

“It sounds to me like the only reason they’re implementing this is because their actions in the prison, which they like to keep very private, are becoming way too public, and they don’t like that,” said Julie Strickland, who runs two social media sites for a prisoner on death row.

On September 9, 2016, prisoners in 24 states took part in a nationwide work strike on the 45th anniversary of the Attica uprising to protest prison conditions they described as “modern-day slavery.” [See: PLN, Jan. 2017, p.22]. In addition to networking with outside organizations, some prisoners used Facebook, Twitter and YouTube to coordinate the strike. Another protest was organized in January 2017 in conjunction with a march on Washington, D.C. to demonstrate against abuses by prison food service giant Aramark.

Perhaps the first famous (or infamous) example of prisoners using social media was a 2014 music video posted to YouTube by prisoners at South Carolina’s Kershaw Correctional Institute. [See: PLN, Dec. 2014, p.56]. Some of those involved were punished for creating the video.

“These folks have committed a crime. They’re not supposed to post on social media,” said SCDC director Stirling. “They’re paying a debt to society and we’re supposed to be rehabilitating them. We need to get them in class, get them skills.”

If prisoners want to communicate with the outside world, he added, they can write letters, talk to visitors or speak with members of the media.

Back in Texas, corrections officials saw an article written by Kevin “Rashid” Johnson, posted online in January 2017, which said guards had gassed him and ransacked his cell in retaliation for his attempts to “expose abuses,” as he later put it. So they punished him again – this time for violating the prohibition against prisoners using social media. In an email, a TDCJ spokesperson denied that they discipline anyone based on their advocacy work, while declining to provide any information about the action taken against Johnson.

Johnson’s case is not isolated. The Prisoner Legal Advocacy Network, a project of the National Lawyers Guild, said it had found 22 incidents in Texas prisons where officers used rules such as the ban on social media to target prisoners thought to be activists.

Additionally, a March 2015 incident in Georgia illustrates why social media may be an embarrassing problem for prison officials. In that case, a 17-year-old prisoner was the target of a gang beating, and a photo of him being held on a leash by gang members was posted online before prison officials were aware of his injuries. [See: PLN, Dec. 2016, p.58].

“Social media provides a level of transparency,” said PLN editor Paul Wright, noting that a viral photo of a teenage prisoner being abused “drives home the fact that prison officials aren’t really running the show.”

According to Jason Clark, TDCJ’s Director of Public Information, prison officials “will take all necessary steps” to prevent offenders from using social media – including asking social media sites to deactivate their accounts.

Facebook spokesperson Jodi Seth said they would do so only when a government agency can prove “either unlawful access to our service or safety issues.”

Facebook does not allow third parties to maintain accounts. But since most prisoners lack Internet access, they have family members post for them – and restricting the social media activities of family and friends amounts to censorship, said David Fathi, director of the ACLU’s National Prison Project. He cited a 2003 case in which a U.S. District Court invalidated as unconstitutional an Arizona law that prohibited prisoners from accessing the Internet through a third party.

“Attempts to stop prisoners from using social media with the help of family or friends on the outside are also limiting the rights of free people in the community who haven’t been convicted of anything,” Fathi noted.

Beyond concerns about free speech and hiding prison abuses, banning social media is “counterproductive in terms of rehabilitation,” he added. “We should be encouraging prisoners to develop relationships with people who will be there when they get out, and not trying to stop it.”

Writing for his well-known criminal justice blog “Grits for Breakfast,” Scott Henson pointed out that TDCJ prisoners are incarcerated for an average of 2.8 years, and maintaining contact with friends and family during that time promotes reintegration into society and reduces recidivism.

“These days, people stay connected to one another over distance through the Internet, to which Texas inmates don’t have access,” he said, before suggesting that the TDCJ instead allow prisoners limited, regulated Internet access and the ability to maintain social media accounts. TDCJ officials could establish rules making the accounts private except for approved contacts, and monitor them and regulate their content. Prisoners who don’t follow the rules would lose online access.

“Would it kill us to pay homage to that ‘reintegration’ goal where it can be done in a reasonable and secure fashion?” Henson wrote. “Bottom line, TDCJ treats inmate [online] connectivity as something to fear and banish, but in cyberspace as with visits, letters, and phone calls, contact with the outside world is something prisons must manage. Positive communications that support goals of reintegration and maintenance of healthy relationships should be encouraged while negative interactions must be identified and stopped.

“But by promoting greater demand for contraband and eschewing avenues for monitoring and regulating social media access, not to mention trampling on the free speech rights of free-world folk in probably-unconstitutional ways, in the medium to long run my guess is that this decision caused more problems than it solved.” 

Sources: www.eff.org, www.theverge.com, www.texastribune.org, www.pbs.org, www.pewtrusts.org, http://gritsforbreakfast.blogspot.com, TDCJ Offender Orientation Handbook (1-202, rev. April 2016)