The Texas Department of Criminal Justice (TDCJ) sent shockwaves through the prisoner rights community in April when it announced a new policy forbidding inmates from participating in social media. The memo, distributed in English and Spanish within prisons, read:
[O]ffenders are prohibited from maintaining active social media accounts for the purposes of soliciting, updating, or engaging others, through a third party or otherwise.
Since the inception of social media, activists have used it to draw attention to incarceration issues, such as spreading the word about prison conditions or calling for sentencing reform. Supporters use social media to promote innocence and clemency campaigns and to fundraise for appeals. Social media has also allowed the family and friends of inmates to share updates and moral support on a more personal level. Often these accounts involve posting content and artwork generated by the inmates themselves.
The wording of the new TDCJ rule was vague and chillingly broad, and the community was unsure how it would be applied. Some were afraid that continuing their social media advocacy would result in their loved ones ending up in solitary confinement for supposedly breaking the new rule.
Two such advocates reached out to EFF: Esther Große and Carrie Christensen. These women work with a high-profile inmate, Kenneth Foster, to try to secure his release and reform Texas’ so-called “Law of Parties,” which allows the state to assign capital punishment to accessories to a murder, even if they didn’t actually commit the act. Foster was facing the death penalty under this rule, but hours before his scheduled execution in 2007, Gov. Rick Perry commuted his sentence to life imprisonment. Ever since, Foster has engaged in political activism from behind bars through his writing and poetry.
Esther and Carrie had been running various social media accounts to support Foster. They maintained editorial control of these accounts and posted his writing. But they voluntariliy suspended these accounts after the new TDCJ rule was announced for fear of the impact on Foster. EFF communicated (.pdf) with TDCJ on their behalves to establish better clarity on what will and will not be permitted under the policy. Based on the information we and others (.pdf) received from TDCJ, we can now share lessons we’ve gleaned for operating a social media campaign regarding an inmate.
We need to preface these tips with some caveats. First, this blog post is in no way legal advice. Following these tips may not keep you or an inmate out of trouble. The policy is still in its early application, and we do not know how TDCJ will react on a case-by-case situation, especially when they have yet to fully articulate the process in writing.
Furthermore, these tips only apply to Texas inmates; although they may be useful for consideration when engaging in social media related to inmates in other states, we can’t say with any certainty how other corrections departments will react.
Finally, while we are offering these tips, we do not believe philosophically that TDCJ’s policy is fair or respectful to free speech. It’s frustrating that we even have to write this post in the first place.
#1 Consider the Risks
Below we offer our interpretations of how TDCJ will apply its new rule based on correspondence and telephone exchanges with the agency’s attorneys. However, we are not wholly confident that these rules will be applied consistently and fairly. It is unfortunately not uncommon for corrections officers to leverage vague rules to punish inmates in retaliation for criticism or political activity.
#2 Pages, Not Profiles or Accounts
TDCJ seems most concerned with preventing inmates from maintaining accounts or profiles that act as if they directly belong to the inmate. For example, TDCJ is more likely to crack down on accounts registered to the inmate’s email account or that include posts that are exclusively first person in nature. This is especially true of accounts that an inmate can access or update through a contraband cell phone.
TDCJ has indicated it is opposed to supporters registering an account for an inmate, but not when supporters create pages about the inmate. In Facebook, this could mean creating a “page” or “group” that is a subset of the supporter’s own account, rather than an independent account for the inmate. Facebook has indicated that it won’t remove groups or pages created about inmates. However, Facebook treats operating an account on behalf of an inmate as a violation of their Terms of Service, which prohibits third parties from accessing another person’s account.
On other social media, such as Twitter, Instagram, or Tumblr, the difference between an account for an inmate and account about an inmate can be less clear. One way a supporter can indicate that an account does not belong to an inmate is by adjusting the title. Some examples: “Free J. Smith,” “The J. Smith Project,” “Friends of J. Smith,” “J. Smith Support Network,” or a title that doesn’t directly reference an inmate at all.
One further thing to note is that TDCJ has stated it will not apply these rules to websites or blogs. So, setting up an independent site that is not on a social network could be an option.
#3 Maintain Editorial Control
TDCJ does not outright prohibit supporters on the outside from posting writing or artwork generated by inmates. However, TDCJ says it does oppose third parties acting as a direct pass-throughs who post everything and anything an inmate requests.
TDCJ has indicated that it is will not take action when supporters are the ultimate deciders of what is and is not posted to social media about prisoners. This means, most importantly, that supporters must exercise final editorial control and make independent decisions about what essays and messages by inmates are appropriate for the supporters’ social media page. Regularly editing submissions from an inmate, say for punctuation or clarity, just as a newspaper editor would, may also help to establish that a supporter is exercising their own right to free speech rather than acting as a scrivener service for the inmate.
Supporters could also add a clear disclosure to the “About” section that the account is maintained by free-world users. In addition, when posting a communication from an inmate, adding “Letter from J. Smith:” to the beginning or “— J. Smith” to the end would signify to TDCJ and to everyone else that it’s not the inmate speaking directly, but rather something that the supporter received and chose to publish.
#4 Same Rules As Snail Mail
TDCJ already has in place a strict set of rules for what is appropriate for inmate correspondence. You can find these policies in Chapter 3 of TDCJ’s Offender Orientation Handbook.
Supporters should not use social media to contact victims, witnesses, or anyone on the inmate’s “Negative Mailing List” on behalf of an inmate. TDCJ is also looking for anything that could be considered a security threat, such as escape plans, contraband smuggling, or outside criminal enterprises. Some supporters choose to send inmates printouts of social media comments. TDCJ will likely treat Internet printouts containing prohibited content sent to inmates in the same way they treat other mail that the inmate would be prohibited from receiving.
We need to reiterate that there is no guarantee that following these guidelines will keep a user in the clear. However, if you find that your account has been suspended, that an inmate you’re working with has been punished under this rule, or any other complication please contact email@example.com so we may investigate further. If you find content removed, please submit what information you have to onlinecensorship.org.