Rights revoked: New report about how severely South Carolina punishes inmates for social media use raises questions – and the attention of the ACLU

The embattled South Carolina Department of Corrections appears to be playing a dark game of whack-a-mole as it tries to deal with allegations of prisoner rights violations that keep popping up.

Days after the department announced that it was closing in on a settlement with a group of mentally ill inmates who sued over horrendous prison conditions, a civil liberties group released a report detailing the department’s strict policy against inmate social media use.

The report went national, and now the American Civil Liberties Union is considering suing the department for violating prisoners’ free speech rights by locking them in solitary confinement for either creating Facebook pages or having someone on the outside maintain a social media account or website for them.

“The fact that South Carolina is putting people in solitary confinement for Facebook use is beyond belief,” said David Fathi, director of the ACLU’s National Prison Project in Washington. “This is an egregious and serious violation and we are actively looking at what to do about it.”

But South Carolina Department of Corrections Director Bryan Stirling said he implemented a 60-day cap on solitary confinement for non-violent prisoners 10days before the report from the Electronic Frontier Foundation was published online – a fact that was not included in the report.

“Frankly, I was a little surprised that it [the EFF report] was out there without them talking with us, considering all the changes we’ve made and how hard we’ve worked on this significant policy change,” Stirling said.

The Electronic Frontier Foundation, a non-profit group dedicated to defending digital rights, reported on Feb. 12 that the state prison department treated accessing social media as a Level 1 offense, a top-level violation that typically applies to violent behavior. Dave Maas, a researcher for EFF, found that the department had been slapping inmates with a Level 1 offense for each day that they posted content online, which caused violations to snowball.

In some extreme cases, several inmates received more than 30 years in solitary for posting on Facebook – none served out the full punishment because their sentences expired first. They also lost thousands of days worth of telephone, visitation and canteen privileges along with the days of good time that they had accrued.

According to Maas, inmates were sent to solitary for an average of 512 days for using social media.

“I’m not opposing the prison’s policy of keeping cellphones out of the hands of inmates. That’s a legitimate interest,” Maas said in an interview. “But when you give someone one charge for having a cellphone and 20 to 30 charges for what they did with the phone, that gets a little ridiculous.”

‘That’s really messed up’

Stirling said recent changes to prison policy regarding solitary confinement are meant to address concerns that a group of mentally ill inmates raised in a class action against the department. Richland County Circuit Court Judge J. Michael Baxley ruled in favor of the inmates last January, when he issued a scathing order against the department, which garnered national attention and spurred settlement talks.

While inmates can no longer be sent to solitary for more than 60 days for social media violations, the infractions are still considered Level 1 offenses, regardless of whether the inmate used a contraband cellphone or had someone on the outside post content online. And Stirling did not indicate that the department would be willing to reconsider its position on that policy.

“It’s very serious,” Stirling said. “If you’re trying to communicate with folks who are not incarcerated you could be intimidating a witness. You just don’t know. There are all kinds of code words you have out there. I’ve got to make sure that my institutions are safe and I’ve got to look out for the public safety of the citizens of South Carolina.”

He added, “When you’re sent to prison you lose a lot of your individual liberties. There has to be some repercussions.”

Paul Wright, founder and executive director of the Human Rights Defense Center and editor of Prison Legal News, a Florida-based monthly magazine focused on prisoner rights, called the department’s policy “grossly unconstitutional.”

Wright and Fathi of the ACLU argued that the policy not only violates the free speech rights of inmates but also the rights of people who are not locked up and want to post online content on behalf of a prisoner.

“The law is breathtakingly overbroad,” Fathi said. “Many of the Web pages it targets are maintained by non-prisoners. South Carolina is essentially trying to tell people in other states and even other countries who have not been convicted of a crime what they can and cannot post on the Web. It is a huge overreach on the part of the state.”

Wright also worried that someone could create a fake Facebook page for a prisoner then notify the department and have them punished. The department accepts anonymous tips about social media violations on its web page.

“To punish someone for something another person does, that’s really messed up,” he added. “I hope someone challenges this soon because it’s pretty ridiculous.”

As the cyber world turns

The argument over whether prisoners have lost the right to be members of cyber society raises questions that, at the moment, lack clear answers, according to Wright.

“This is an undeveloped area of the law,” he said. “You’ve got the traditional First Amendment law that just hasn’t been applied yet as expansively as it should be. We’re just moving forward with it.”

In 2003, a federal judge in Arizona ruled in favor of an advocacy group, the Canadian Coalition Against the Death Penalty, which maintained websites for inmates and had challenged the constitutionality of a state law that prohibited prisoners from communicating online.

Meanwhile, the 11^th U.S. Circuit Court of Appeals in 2012 upheld Florida’s ban on online pen pal services for inmates. But a quick Google search shows that plenty of the state’s prisoners are still using such services.

“In some respects, a lot of this seems like a fool’s errand to try to stem the tide of progress,” Wright said.

Earlier this month, the ACLU sued the Indiana Department of Corrections on behalf of Valerie Buford, whose incarcerated brother, Leon Benson, was punished after she posted a video message from him on Facebook thanking his supporters who are fighting for his release.

The complaint asserts that Benson recorded and sent the video with J-Pay, a private company that has a contract with the corrections department and allows inmates to communicate electronically with recipients that have been approved by prison officials. The inmate or recipient pays to use the service.