On Friday, April 15, 2016, a new policy published by the Texas Department of Criminal Justice (TDCJ) took effect. It prohibits Texas inmates from "maintaining active social media accounts for the purposes of soliciting, updating, or engaging others, through a third party or otherwise" -- and raises serious First Amendment concerns.
The first problem is obvious: Texas inmates don't have access to the Internet. Instead, inmates are allowed to communicate with family and friends through written letters and in-person visits, all of which TDCJ already monitors.
For Texas inmates to "maintain active social media accounts," they must ask family or friends to post messages on their behalf. And they do so for a variety of reasons. Inmates sometimes use social media to generate public support for a challenge to a verdict or sentence, for example. Other inmates may use social media to express their feelings about incarcerated life, a social outlet that often helps prepare inmates to reenter society successfully.
Whatever the reason, inmates' speech on social media occurs outside prison walls, facilitated by non-prisoners. That is what Texas seeks to prohibit, with blatant disregard for the First Amendment. The government has absolutely no authority to silence chunks of the population because they associate with individuals who are incarcerated.
Texas claims that social media provides a way for inmates to "sell items over the Internet based on the notoriety of their crime, harass victims or victim's families, and continue their criminal activity." But this position cannot justify the burdens the new policy imposes on First Amendment rights.
To start -- because it bears repeating -- this policy will largely impact the First Amendment rights of people who are not in prison. Plus, TDCJ already has a means of regulating the information it purportedly seeks to prohibit through its ability to exercise control over the flow of information in and out of prison. It's not clear what this new social media policy adds.
The policy already has had a chilling effect on the speech of those who are afraid of running afoul of its elusive mandates. Many inmates' supporters have begun taking down websites and social media accounts they've established on behalf of -- or even in support of -- Texas inmates for fear TDCJ will discipline those inmates under the new policy.
Which brings us to another concern: The policy seemingly gives TDCJ the power to discipline inmates for third-party actions. TDCJ has an array of punishments for rules violations. For example, TDCJ can take away an inmate's visitation and phone call privileges, or place him in more restrictive housing.
Finally, the policy is remarkably vague. Since learning of TDCJ's new policy, concerned friends and family members have been seeking clarification of its scope. What if a visiting mother updates her Facebook page with what her incarcerated son ate for breakfast that morning? Can a son take a photo with his incarcerated father and post it to Instagram? Would this reach the type of reporting and advocacy seen in the hit podcast "Serial"?
Social media sites created to advocate against the death penalty for an individual inmate could easily fall within the policy's scope, particularly if it's unclear whether the inmate initiated or has any control over the content posted on the site. In this way, the policy could inhibit pure political speech, an arena in which First Amendment protection is at its zenith.
To quote Benjamin Franklin, "[f]reedom of speech is a principal pillar of a free government; when this support is taken away, the constitution of a free society is dissolved, and tyranny is erected on its ruins." By suppressing the voices of inmates and their supporters, this new policy is certain to have the kind of effect that Franklin so feared -- TDCJ will be freed from the public oversight necessary to hold the state accountable.
We cannot tolerate such governmental overreach. This vague, overly broad policy must be invalidated.