March 28, 2011
The issue centers on Facebook use by inmates in South Carolina.
The law they propose would make social networking by inmates a crime. It would add 30 days to a prisoner’s sentence if caught interacting on social networking sites.
While prisons currently restrict inmate internet use, the problem is that inmates are using contraband mobile phones to access Facebook, which is far more difficult to control.
The bill also makes it illegal for anyone to set up a Facebook page for a prisoner.
According to the bill’s proponents, inmate Facebook usage is a problem because their communications aren’t monitored, and they could contact sensitive groups, such as minors, victims, or other inmates.
If passed, the bill faces legal challenges. Many critics of the bill, including the ACLU, claim that it is unconstitutional.
Interestingly, there was a fairly comparable case decided in Arizona in 2003 that will no doubt guide the court hearing any challenges to this bill.
The standard of review invoked by the court to evaluate the constitutionality of a regulation was set by the Supreme Court in Turner v. Safley, and will more than likely be used should this bill be challenged.
The standard, specially tailored to address the rights of inmates, is whether the regulation “is reasonably related to legitimate penological objectives, or whether it represents an exaggerated response to those concerns.”
There are various factors involved in this analysis, but the court eventually ruled that the Arizona law was unconstitutional for several reasons.
First, there were already several regulations in place that accomplished the same thing as the new law, such as restrictions on communication and a lack of internet availability to inmates.
Second, assertions by the law’s defenders that inmate internet use interferes with the deterrence of the criminal system were speculative and unsupported by evidence.
Both of these reasons would apply in South Carolina’s case, too.
There are already restrictions in place that have the same effect as the proposed law.
Mobile phones, the devices used by inmates to access Facebook, are already banned in prison.
Further, Facebook does not allow pages for third-persons or prisoners, and it removes them once they are discovered.
The bill’s main purpose is not to criminalize a legal activity, but better enforce against an activity that is already illegal, and this is why the law in North Carolina would stand a better chance than the law in Arizona did.
Unlike in Arizona where the law seemed redundant, inmate usage of Facebook continues to be a problem despite all of the regulations already in place.
Nevertheless, this whole discussion is moot until the law actually passes.
Even then, the law around both inmate rights and Facebook is still unsettled and it’s anyone’s guess how it could turn out.