On the morning of April 15, Pat Hartwell drove up from her home in Houston, Texas, to the Crowne Plaza Hotel in Austin, where the Texas Department of Criminal Justice, which runs the state’s prisons, was holding a board meeting. The board only offers a public comment period during two of its meetings each year, and this would be the first time in 2016 that the public would have a chance to air grievances or concerns about agency operations, for example, or prison conditions.
For Hartwell, a well-known anti-death penalty activist in Texas, the timing of the meeting was opportune; roughly a week earlier, word had spread among prisoners, family members, and activists that the director of the TDCJ had established a new rule forbidding any prisoner from maintaining a social media presence. Hartwell has for years maintained a Facebook page for a death row inmate she is certain is innocent, and she wanted some answers.
In a section of the 146-page Offender Orientation Handbook reserved for “standards of behavior” — between a rule requiring prisoners to “show respect” in their interactions with others and another forbidding “fighting, scuffling, horseplay, or similar activities” — there had appeared a seemingly incongruous new rule stating that prisoners “are prohibited from maintaining active social media accounts for the purposes of soliciting, updating, or engaging others, through a third party or otherwise.”
Hartwell and others only found out about it because the wife of a death row prisoner happened to be visiting her husband on the day inmates there discovered the new policy. The lack of explanation or guidance concerning its provenance was disconcerting (as far as anyone knew, the rule was never vetted by the department’s board). And they were confused about why it hadn’t been brought directly to anyone’s attention (the responsibility for keeping abreast of new rules falls squarely on the offenders, activists say prisoners were told).
But more importantly, prisoners and their advocates didn’t understand the scope of the new rule. In Texas (as in most places), prisoners have no direct access to the internet, so anything about them that appears online is posted by a third party — by definition, a person who is not under the supervision of the department of corrections. As such, the new rule would infringe on the free speech and expression rights of ordinary citizens — a proposition of dubious constitutionality, says David Fathi, director of the ACLU’s National Prison Project.
They also didn’t understand why social media was being targeted — or whether the rule was intended to include other uses of the internet, including websites and blogs dedicated to prisoner artwork, exposing abuses inside facilities, or drawing attention to specific cases of apparent wrongful conviction. And since the same information published on a website could easily be — and often is — posted to Facebook and other social media platforms, there was concern the rule was made to be flexible enough that TDCJ could easily broaden its scope to attack other online content.
Upon learning of the rule, Hartwell penned an email to agency spokesperson Jason Clark with a list of questions. When she didn’t hear back, she emailed the head of TDCJ, its general counsel, and its ombudsman. The day before the April board meeting, she got a short reply from the ombudsman that didn’t exactly assuage her concerns — or directly address the majority of her questions. It was, she would tell the board, an “inadequate answer.” Restating the new rule, the ombudsman said that it applied to all social media, and not only would offenders be punished for violating it, but outside third parties would be as well, by having their ability to visit or correspond with their loved ones suspended.
By the time Hartwell arrived at the Crowne Plaza for the meeting, she was mad; she felt forced by the TDCJ to take offline the Facebook page she had long maintained. And that quickly turned into frustration when a board coordinator approached to deliver a bit of confounding news. Because there were so many people signed up to speak during the public comment period (including three who wanted to speak about the social media rule), the board’s chair had decided to chop in half each speaker’s normal allotted time of three minutes. How many people were signed up? The board rep didn’t know; this is what the chairman has decided, she said.
But throughout the comment period, the rules kept changing, and not everyone got the promised 1 1/2 minutes. First, Chair Dale Wainwright, a former jurist on the Texas Supreme Court, announced that individuals who’d signed up to speak on the same topic would have to coordinate among themselves to figure out who would abridge and deliver comments on behalf of the group — regardless of whether the individuals had similar comments to make. For social media comments, he would offer a total of two minutes. Midway through the meeting, Wainwright changed the rules again, offering each speaker just 60 seconds to communicate their complaints and concerns.
After the comment period — during which board members did not respond to questions (Wainwright promised each speaker would later receive a written response) — Hartwell was quick to link the chair’s actions to concerns about the social media rule. If the board so easily bent its rules for citizen communications, what was to keep the agency from bending its social media rule too? “They’re very arbitrary,” she told The Intercept. “They do what they want to do, and this is what scares me about this stuff.”
The new rule first made news on April 12, when a reporter for the local FOX station in Houston essentially took credit for its creation. According to the reporter, the rule followed from a story he did back in January that drew attention to a Facebook page maintained for a prisoner named Elmer Wayne Henley Jr., who in the early 1970s, was an accomplice to the sexual assault and murder of more than two dozen teenage boys. In addition to written posts, Henley’s page was apparently displaying jewelry for sale and other art that he made in prison.
Although he didn’t mention Henley directly, TDCJ spokesperson Jason Clark later said the rule was necessary because some inmates had misused their accounts. “Offenders have used social media accounts to sell items over the internet based on the notoriety of their crime, harass victims or victims’ families, and continue their criminal activity,” he told Fusion in an email. Of course, trying to sell so-called murderabilia or threatening or harassing victims is already prohibited under TDCJ rules. Given that the content for Facebook and other internet sites must be transmitted from prison via mail, phone, or in-person visit, all of which are heavily monitored, it is hard to see how banning social media for all prisoners would be necessary to ferret out such violations.
When asked to provide details on incidents that prompted adoption of the rule, Clark referred The Intercept to the agency’s Office of the Inspector General, suggesting we file an open records request for the information. In a follow-up email, he said there was “not one specific incident related to an offender that prompted the new rule.” Rather, he wrote, it was that “it had become more difficult to have an offender’s social media account take down because the agency had no policy that specifically prohibited it.”
As it turns out, Facebook, at least, has been censoring prisoner pages for a number of years — despite its stated goal of giving “people the power to share and to make the world more open and connected.” According to reporting by the Electronic Frontier Foundation, from at least 2011 through early 2015, prison officials and Facebook shared a “special arrangement” whereby a prison could provide Facebook with links for prisoner pages it wanted removed, and Facebook would then suspend those profiles, “often [with] no questions asked, even when it wasn’t clear if any law or Facebook policy was being violated.”
Records obtained by EFF showed that Facebook had censored hundreds, if not thousands of accounts in this fashion. In the wake of the revelations, Facebook revised its procedures, creating a form for prison officials to fill out that includes not only information about the prisoner in question, but also a requirement that the complaint include a link to “applicable law or legal authority regarding inmate social media access,” EFF reported. If no rule or law is in place, the prison must provide “specific” safety-related reasons that the page should be taken down.
In an email to The Intercept, Clark confirmed that TDCJ had benefited from a chummy relationship with Facebook: Prior to adopting its new rule, the agency had requested that prisoner pages be suspended, and Facebook had granted those requests. He did not say how many requests TDCJ made or how many suspensions occurred as a result — again suggesting that we send an open records request to the OIG for the information. (The Intercept has submitted such a request.)
Clark insists the rule is aimed only at social media and that third party-maintained prisoner blogs and websites are still allowed. When asked why that is, if the content is essentially the same, he explained that the agency has no mechanism to request the removal of other web content. So, if such a mechanism existed, would TDCJ prefer that all online prisoner-related content be eliminated? “I’m not going to get into some hypothetical, ‘if there was a rule,’ are we going to try to get that off,” he said.
The real issue, Clark wrote in an email, is that the prisoner Facebook pages not only violate TDCJ’s new rule, but also the company’s own terms of service — including a provision that the TDCJ believes forbids third parties from updating a page. “We are asking social media companies to take down accounts of offenders who are not updating them themselves, which would be a violation of their terms of agreements,” he wrote. “Speech on platforms such as Facebook and Twitter is as free as the terms of their agreements permit.”
But it isn’t clear that the agency’s reading of Facebook’s terms of service is accurate. The company forbids sharing a password or allowing anyone to “access your account” — which is one kind of third-party access. But offenders don’t actually create their own pages (unless, of course, the page was set up by a prisoner using a contraband cellphone — but that would be its own, separate TDCJ rules violation). The other kind of third-party access — having a person who is not in prison create and maintain the account — is not expressly forbidden by Facebook’s terms.
Facebook did not respond to requests for comment for this story.
Texas isn’t the only state where corrections officials have tried to tamp down prisoner access to the online world — though it is hard to know exactly how many states have such a rule on the books. New Mexico has a rule (EFF and other activists have asked that it be repealed), as do Alabama and South Carolina. South Carolina’s rule is particularly punitive; it is a violation of the highest level and can land a prisoner in solitary confinement for years. As EFF has reported, one South Carolina inmate was given 37 years in solitary for violating the social media rule. In Texas, the offense isn’t considered as serious. Still, violating the rule can get an inmate confined to his cell for up to 30 days at a time.
And although Texas insists its policy does not violate the free speech rights of either prisoners or the public, the ACLU’s David Fathi disagrees. “They are purporting to regulate the speech not only of prisoners, which is problematic, but they’re purporting to regulate the speech of non-prisoners in the entire world and they can’t constitutionally do that,” he said. Prisons have the right to regulate speech “to the extent that it’s necessary for prison safety and security,” he said. Since the speech in question happens “completely outside the prison,” he argues that any link to an actual penological interest “seems extremely attenuated or nonexistent.”
A federal court case decided in 2003 supports Fathi’s position. In 2000, Arizona legislators passed a law prohibiting prisoners from any internet access; at least five inmates were subsequently punished after officials found mention of them online. In 2002, the Canadian Coalition Against the Death Penalty — represented by Fathi and the ACLU — sued, arguing the restriction was unconstitutional. A year later, a federal district judge agreed. Although Arizona had argued its ban was necessary to prevent nefarious activity — like harassing victims, a motivation Texas cited in creating its rule — there were already rules and statutes prohibiting such conduct, which is also true in Texas. Ultimately, the Arizona judge found that the state could advance its penological interests without the internet ban — by enforcing existing regulations.
Anthony Graves, who spent 18 years in prison in Texas, including 12 on death row, before being exonerated for a grisly multiple murder that he did not commit, expressed his concern that unless the rule is repealed, wrongful convictions like his will go unnoticed. “I don’t see this as a security breach because its been going on” for a long time, he said, referring to prisoners’ presence on social media. “It’s another way to oppress an inmate,” blocking him from interaction with family and others in the outside world, “and it takes away a tool from those with legitimate claims of innocence,” he said. “The most powerful tool innocent people have is social media.”
Fathi says the Texas rule and others like it not only do damage to free speech rights, but simply make no sense. “Some prison officials fear the internet. They don’t really understand it and they attribute to it magical powers. And I think that lies at the root of nonsensical rules like this,” he said. “Everyone agrees that a prisoner could write a letter to the New York Times and place an ad saying, ‘I’m innocent.’ So what’s the difference if he writes a letter [to a friend] and says, ‘Post this on Facebook’? Like, what is the difference?” he asked. “If you think about it for 30 seconds, it doesn’t make any sense.”