US prison social media crackdown plan raises free speech concerns

An inmate waits for a visitor at a state prison in Chino, California, June 3, 2011. REUTERS/Lucy Nicholson

An inmate waits for a visitor at a state prison in Chino, California, June 3, 2011. REUTERS/Lucy Nicholson

What’s the context?

Here is how federal prison restrictions on social media could infringe free speech rights

  • Federal prisons propose new social media use penalties 
  • People outside jails could also be affected 
  • Ban might prod states to follow suit

RICHMOND, Virginia - A U.S. federal proposal to step up penalties barring incarcerated people from using social media is likely to infringe on the right to free speech of both those inside and outside jail, rights advocates said.

A ban on people like family members from posting on behalf of prisoners could create a "chilling effect" on anyone considering helping inmates, or even attempting to contact them about conditions inside, the campaigners said.

"Let's be clear: prisons and jails do not, under any circumstances, want people who are incarcerated to be able to speak freely to the public," said Bianca Tylek, executive director of the advocacy group Worth Rises.

Christopher Blackwell, an incarcerated writer, said at first sight such a proposal sounded "extremely far-reaching".

"The First Amendment right (doesn't) come with strings, and it's one of the only rights prisoners still retain when they become incarcerated," Blackwell told Context.

"So any attack on stripping down or boxing off how those rights are used and protected - we can't allow that as Americans."

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Safety and security?

Part of a broader overhaul of disciplinary procedures, the U.S. Federal Bureau of Prisons (BOP) wants to increase penalties for inmates' use of social media for the purpose of committing crimes, which has some legal precedent, according to the proposal. 

But included in the proposals is a more open-ended ban that would greatly deter people providing assistance to prisoners, or even attempting to contact them, according to groups that have formally weighed in against it.

A BOP spokesperson said the proposed rule did not change anything immediately and that they appreciated the public's input.

Federal inmates are already banned from using cell phones, are restricted from accessing the internet, and generally do not have access to social media – leading critics of the proposal to wonder what the new penalties were trying to accomplish.

The new rules could be read so broadly as to restrict groups like the American Civil Liberties Union (ACLU), or the spouse of an incarcerated person from posting online about conditions inside a facility, said Corene Kendrick, deputy director of the ACLU National Prison Project.

"There's really no rationale given for what the problem is other than just saying oh, it helps safety and security," Kendrick said. 

"And the courts have made clear for decades that just ... invoking safety and security is not enough to justify these sorts of restrictions on the constitutional rights of incarcerated people."

Blackwell, who is currently incarcerated at a Washington state facility and serving a 45-year sentence for murder and robbery, pointed the finger at prison authorities.

"If they weren't doing bad shit, they wouldn't have to worry about what people were posting," he said. 

Alternative communications

The new rules are part of a sweeping set of changes to disciplinary regulations the BOP proposed this year, including expanded penalties for misusing email and using obscene language, among others.

There are multiple sections regarding the use of social media. One adds a new "greatest severity level" prohibited act code for the use of a social media account, or directing others, "for the purpose of committing or aiding in the commission of a criminal act."

"Greatest severity" prohibited acts are the most serious and can include killing and assault, and are punishable by sanctions including delayed parole or segregation.

The second and more expansive section establishes a new "high" severity prohibition on using, accessing, or maintaining a social media account, or directing others to do so, while not involving the commission or aid in the commission of a criminal act.

That would put it on par with acts like fighting and extortion.

In the proposal, the government notes there are alternative forms of communication available for prisoners, including in-person visits, physical mail, phone calls and electronic messaging.

But social media can be the most immediate way for people to get the word out about poor conditions and "alternative" forms of communication can be out of reach for some people, said Jennifer Jones, staff attorney with the Knight First Amendment Institute at Columbia University.

"Visiting hours, for example, have been tightened since the COVID-19 pandemic, and then a lot of times phone calls or virtual visits tend to be expensive and people face technical difficulties in using them," Jones said.

Blackwell said his wife runs his social media accounts and that communication with the outside was vital for his work.

"That's how everybody has their work now is through social media, right?" he said. "So having access to that has also offered me the availability of connecting with a lot of publishers and editors and journalists that I wouldn't necessarily have had access to."

"And I think even passing this in the federal system just kind of shows states that this can be done and maybe it emboldens some states to do it, right?"

Jones' group cited Martin Luther King Jr.'s "Letter from Birmingham Jail" about the Black American experience and the importance of nonviolent protest in its comment opposing the new proposal.

"Martin Luther King wrote his letter from a Birmingham jail that went out on scraps of paper and was published in newspapers," the ACLU's Kendrick said. "Nowadays, it probably would have gone out and (his wife) Coretta would have put it on her Twitter account."

(Reporting by David Sherfinski; Editing by Jon Hemming.)

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