A DISCUSSION OF LAW AND JOURNALISM

Help! I’ve Been Facebook Poked by a Prisoner!

By Russell Smith

Ever been Facebook poked by a prisoner?

Well, you could be. Some inmates have been maintaining accounts on social networking websites like Facebook by using smart phones that have been smuggled into prisons. Now prison officials are worried that inmates may use these accounts to harass victims, threaten people, or conspire to commit crimes.

According to the Associated Press, prisoners’ social networking accounts have caught the attention of lawmakers in South Carolina, who earlier this year introduced a bill which would make it a crime for a South Carolina inmate “to be a member of any Internet-based social networking website.” The new law would add up to 30 days to a prisoner’s sentence or impose up to a $500 fine if the prisoner was caught with a social networking account. Additionally, the law would impose the same punishments on any person who sets up an account for a South Carolina inmate.

Not surprisingly, the ACLU objects to the bill, and believes that a law prohibiting inmates from having social networking accounts stifles free speech in violation of the First Amendment.

While the Associated Press reported this story in great detail, it did not explain whether the South Carolina bill could survive constitutional scrutiny. LASIS looked into the matter and “like” it or not, banning inmates from Facebook violates their First Amendment rights.

It is true that prisoners, by virtue of their convictions, are not entitled the same constitutional protections as the average citizen. There is no better illustration of that principle than the six by eight foot cell in which the typical prisoner is required by law to live.

In 1987 the Supreme Court held in Turner v. Safley that a Missouri law which prohibited inmates at different prisons from corresponding with each other by mail did not run afoul of the First Amendment. The Court reasoned that because prison administration is complicated and dangerous, laws affecting inmates’ rights need only be “reasonably related to a legitimate penological objectives” to pass constitutional muster.

In 2003 a federal court in Arizona, using the Turner standard, struck down a law which prohibited inmates from “accessing to the Internet” or having someone “access the Internet” for them. The purported objective of the law was to prevent inmates from using the Internet for harassing or criminal purposes. But the law also prohibited less sinister uses of the Internet. For example, several inmates were sanctioned under the law when accounts of their experiences in prison were published on various human rights advocacy groups’ websites. Arizona prisons already denied inmates access to the Internet and prohibited them from getting outsiders to commit harassing or criminal acts for them. With a system already in place which specifically prohibited inmates’ harmful harassing or criminal use of the Internet, the new law only served to outlaw harmless use of the Internet, like the accounts posted to the human rights websites. Accordingly, the court held that the law was not reasonably related to a legitimate penological objective.

The South Carolina bill has the same problem as the Arizona law. First, like the Arizona law, the South Carolina bill broadly restricts inmates’ speech which is both harmful and harmless. So while the bill would punish inmates who use Facebook to post intimidating messages on victims’ walls, it would also punish inmates who post poetry. Even more problematic, the bill would punish inmates who do not deactivate their existing Facebook page prior to incarceration or when an outsider creates a Facebook page for an inmate without that inmate’s knowledge or permission.

In Turner, the Supreme Court stated that a law’s broad restriction on both inmates’ harmful and harmless speech is constitutional, so long as it is reasonably related to a legitimate penological objective.  Clearly, deterring inmates from using social networking websites to terrorize victims or conspire to commit crimes from their jail cell is a “legitimate penological objective.” It is equally obvious that prohibiting inmates from posting poetry online serves no penological objective. Therefore, the question is whether the South Carolina bill is a reasonable way for the state to prevent inmates from using social networking websites to harass victims or commit crimes.

Inmates in South Carolina are already denied access to the Internet, banned from possessing cell phones and may not direct others to use social networking websites to harass victims or commit crimes for them. Thus, the South Carolina bill’s broad restriction on inmates “being member[s]” of social networking websites is redundant. Since the inmates are specifically prohibited from using social networking websites for harmful purposes, a general ban on membership only serves to prevent inmates from using their accounts for harmless purposes. Accordingly, the bill would be an unconstitutional restriction on inmates’ free speech because the bill is not reasonably related to legitimate penological interests.

I admit that it is a bit odd to call the South Carolina bill a violation of inmates’ free speech when inmates are denied access to the Internet while in prison anyway. But in practice the bill would literally restrict “speech” when an inmate is forced to take down an existing account upon incarceration or when an account an outsider set up to, for example, post an inmate’s poetry, is removed.

Unquestionably, it is troubling that prisoners may be using smuggled smart phones to harass victims or commit crimes. But the South Carolina bill creates redundancies which would not fix this problem, while simultaneously violating inmates’ free speech.

You don’t have to accept a prisoner as your Facebook friend, but you can’t punish a prisoner just for having an account.

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  1. thats great article .. keep it up sir…

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