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.