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Should Prisoners Be Allowed to Have Facebook Pages?

A new policy in Texas limits inmates’ access to social media, creating a First Amendment conundrum.

In 1974, Elmer Wayne Henley Jr. received six life sentences for helping Dean Corll, a Texas candy company owner, abduct, rape, and murder at least 28 boys and young men. Over the next four decades, the family members of the victims kept in touch, trading notes when Henley was up for parole. In 2011, they discovered that someone had set up a Facebook page for Henley and was helping him sell art he’d made in prison.

“All these people who were his friends [on Facebook] were just followers of serial killers — people who like serial killers,” says Cyndi Yates, the sister of one of Henley’s victims. “I wanted it off of there.”

Texas officials asked Facebook to take the page down, and the company complied. But this past February, a page for Henley reappeared — and was again taken down. In the last few years, multiple family members of victims have asked the Texas Department of Criminal Justices to get Facebook to remove pages made by third parties for prisoners, according to Andy Kahan, a crime victim advocate for the City of Houston. “There’s a concern about continuing to give individuals who have done terrible things infamy and immortality and a platform to pontificate,” he says.

On April 1, the Texas Department of Criminal Justice announced a broad new policy: men and women in Texas prisons can no longer maintain a social media profile through a third party “for the purposes of soliciting, updating, or engaging others.” The policy applies only to what is defined as “social media accounts,” including Facebook, Twitter, Instagram, and YouTube.

Department spokesman Jason Clark says prison officials need proof that the inmate was actively involved in creating the social media profile, and if that proof exists, inmates are given low-level punishments: commissary revoked, or recreation time withheld.

The department’s leaders said no specific case spurred the decision and that the policy simply strengthens their ability to ask Facebook to take down such profiles. “It gives Facebook cover to remove the pages,” Kahan says. Several activists, however, argue that the ban might imperil their efforts to call attention to legal injustices, and even legitimate claims of innocence.

Texas is the latest state and the largest prison system to craft policies to limit usage of social media by prisoners with the help of third parties, typically family members, friends, or supporters. In 2013, Alabama lawmakers decided that helping an inmate post on social media should result in a $500 fine. In 2014, New Mexico banned inmates from posting through third parties online, and Indiana put an inmate in solitary confinement after his sister posted a video of him in prison on Facebook. In 2015, the Electronic Frontier Foundation, an advocacy group, discovered that South Carolina prisons had doled out more than a decade of solitary confinement to at least 16 prisoners who were using social media.

The foundation pressured Facebook to not allow agencies to restrict how prisoners can use social media. Facebook changed its policy to require that prison officials offer a reason for wanting a prisoner’s account removed. Dave Maass, a researcher for the foundation, argued that without the help of outsiders — the “third parties” mentioned in these rules — Martin Luther King Jr.’s “Letter from Birmingham Jail” may never have reached the public.

Some prisoners have taken the issue to court, and judges are increasingly having to decide whether an inmate’s right to have someone communicate online on his behalf is protected by the First Amendment. Since most social media sites are private companies, they can decide not to host prisoner pages, says David Hudson, a Vanderbilt University law professor, and courts have often shown “deference to prison officials’ incantations of security.” A prison agency can argue that Facebook profiles run by third parties could be used to plot escapes or smuggle in contraband.

But judges have also ruled in favor of prisoners who communicate online: In 2002, a U.S. district court in California upheld the right of prisoners to receive messages printed off the internet, like emails and discussion-forum postings. And an Arizona judge in 2003 allowed third parties to post on behalf of prisoners.

Facebook spokesman Matt Steinfeld says the company does not allow anyone to maintain an account for someone else, incarcerated or not, and asks officials to fill out an online form, which includes questions on whether the state or agency has a specific ban on social media. “If you're unable to provide this kind of legal context,” it reads, “please let us know if there are specific reasons why granting Facebook access to this particular inmate poses a serious safety risk.”

But there are murky distinctions that have not been resolved: Facebook doesn’t ban users from creating a “page” in honor of a person — a celebrity, for example — where supporters of a prisoner’s innocence or parole efforts can congregate and promote their cause. Yvonne Palmer, the daughter of Manuela Silverio, who was murdered by Dror Goldberg in Houston in 1998, found it “horrifying” to see that someone had created a page called “Justice for Dror Goldberg,” proclaiming his innocence. “You have to live with this your whole life,” she says. “And when you see the social media account, it brings up those feelings.” But this kind of page does not break Facebook’s rules, so Texas prisons do not have the ability to get it taken down.

LeeAnne Schultz posts art on Facebook by her husband Gerard, who is serving a life sentence in Illinois the 1981 murder of a liquor store attendant. She says a warden had initially told her she could help people communicate with him through Facebook, but later claimed it was violating policy and placed her husband in solitary confinement. The Illinois Dept. of Corrections did not immediately respond to a request for comment.

“They need to know that people are thinking about them,” she says of her husband and other prisoners. “I tell him, ‘You got this many likes in this amount of time.’ It’s so important to him.”