Facebook Bans in Prison: A Constitutional Issue?

In February, a democratic legislator in South Carolina proposed HR 3527, which would make it a misdemeanor for a prisoner to use a social media network.  HR 3527 would punish violators with a $500 fine and additional 30 days of jail time.  Some critics smell a First Amendment violation, while others cite safety reasons for targeting potential hurtful communications from prisoners.

Of course, bans like these present enforcement problems, especially when budget cuts may force prison administrators to use the internet for educational service provisions.  Social networking sites may have to be complicit in enforcement regimes.  Currently, Facebook officials, as a policy, delete the profiles of people who indiciate that they are prisoners or whose profiles appear to be maintained by a third party.  Other social media sites, however, might not be so willing to police violations.

The bill poses other problems as well.  The local ACLU, which recently filed a lawsuit challenging a county jail’s policy of preventing prisoners from receiving books, magazines and newspapers – except for the Bible – through the mail, charges that HR 3527 would amount to an unconstitutional denial of freedom of speech.

Part of a legal analysis of the bill hinges on whether one sees the use of social media as access to a contraband product or a form of speech.  David Fathi, director of the ACLU’s National Prison Project, explains that “there is no First Amendment objection to prison officials saying prisoners can’t have cell phones … but that’s completely different than something like this bill that tries to regulate prisoners’ speech in the outside world.”

In 2003, the ALCU successfully challenged a similar measure in Arizona.   The Arizona measure, which was invalidated by a federal court, prohibited specific types of communications using Facebook.  Then, the judge noted that a ban on social media use as contraband—much like the cell phones prohibitions that exist in many prisons–might not be a constitutional violation.

In reports, South Carolina Representative, Wendell Gilliard, a sponsor of the Bill, references safety concerns—the use of social networking for prohibited gang activity, intimidation of victims or potential escape—underlying the measure.  However, most reports on the use of social media in prisons surround seemingly inappropriate conduct—often conduct that suggests an additional prison rule violation.  Last year, a news team reported a prisoner’s use of Facebook to share photographs of himself “partying.”   Similarly, stories on the South Carolina initiative describe Islam Dunn, a South Carolina prisoner whose presence on Facebook intimidated Tarangie Tyler, the wife of a man he murdered.  Several news sources quoted one of Dunn’s recent Facebook posts, which said that he “got SO high” on his birthday.  These reports did not indicate whether Dunn had reached out to Tyler using the site.

While the Westboro Baptist church’s recent plans to protest Elizabeth Taylor’s funeral remind us of the Supreme Court’s finding that inappropriate or hurtful speech should still be protected by the First Amendment, the South Carolina bill makes clear that—at least in the prison context—the threat of inappropriate communication can legitimize restrictions.