Prisoner Web Publishing Rights

Late this afternoon, I got an email from one of my lawyers (I collect lawyers as a hobby) and a voicemail from my sister alerting me to a radio story on NPR about Eric Rudolph posting articles on an anti-abortion website. It raised the larger issue of inmate rights to "blog" or publish on the internet. It can be found on the NPR website at:

http://www.npr.org/templates/story/story.php?storyId=12011524

The story is less than 5 minutes long and barely touches the surface but it addresses an important issue.

Ignoring the point that Supermax and FPC Pensacola are opposite ends of the incarceration experience, the story raises some of the same issues my blog addresses.

I have never heard of the BOP rule that prohibits an inmate from "acting as a reporter or operating under a byline." What's up with that? I specifically comment (somewhere!) in my blog that I viewed myself as an embedded reporter.

Well, I did a little research (Google is a wonderful thing) and found the following BOP rule:

§ 540.20 Inmate correspondence with representatives of the news media

which says:

(a) An inmate may write through ‘‘special mail’’ to representatives of the news media specified by name or title (see § 540.2(b)).
(b) The inmate may not receive compensation or anything of value for correspondence with the news media. The inmate may not act as reporter or publish under a byline.
(c) Representatives of the news media may initiate correspondence with an inmate. Staff shall open incoming correspondence from representatives of the media and inspect for contraband, for its qualification as media correspondence, and for content which is likely to promote either illegal activity or conduct contrary to Bureau regulations.

Clearly this was written before the internet allowed anyone to be his own personal media outlet. Surely it is unconstitutional. Please, someone, tell me it is unconstitutional.

In an earlier post, I described a "meeting" with the SIS (Special Investigative Services) Lieutenant about my blog. At first she said it didn't "seem right," but days later indicated she understood what I was doing, despite her initial alarm. She took no steps to stop me from publishing; indeed, she made it perfectly clear that she was not telling me that I could not publish my blog (she said this because I asked her). She certainly didn't reference this rule.

In the NPR story, the ACLU spokesperson talks about the need for the public to be aware of what goes on in prison -- you can't just build a communication firewall between prisoners and the rest of the world. In a democracy, you can't make people invisible. Eric Rudolph has a right to speak his mind as do I. People can judge for themselves whether there is any merit to what we have to say. The more important issue is government accountability. A lot of stuff goes on in prison (indeed, in the entire criminal justice process) that the government is never held accountable for and the public just doesn't know.

There are legitimate security issues I suppose, but BOP has the right to search all outgoing mail and censor anything they determine to violate the security or orderly operation of the prison. BOP should not use this as an excuse merely to suppress speech they don't like. Of course, the inmate can challenge that decision through internal administrative procedures and ultimately by suing the warden.

After my meeting with the Lieutenant, I started enclosing a disclaimer (see below) in all blog material that I mailed to my wife so that the officer who screens outgoing mail would know what was going on. To the best of my knowledge, my mail was never opened, despite the fact they knew I was publishing a blog. I never had the sense that my mail or phone calls were being targeted for special screening (despite inmates telling me that I would now be on the BOP "hot" list).

Maybe reasonableness prevailed. Or, maybe, they just didn't want to pick a fight with someone who was going to be released in a few more weeks and could publish whatever he wanted. I just wasn't worth the trouble.

The internet is a wonderful thing.