Jail (e)mail: Free Speech Implications of Granting Inmates Access to Electronic Messaging Services

• Citation: Vol. 11 No. 4
• Publication year: 2016

Washington Journal of Law, Technology and Arts Volume 11, Issue 4Winter 2016

JAIL (E)MAIL: FREE SPEECH IMPLICATIONS OF GRANTING INMATES ACCESS TO ELECTRONIC MESSAGING SERVICES

Brennen J. Johnson(fn*) © Brennen J. Johnson

ABSTRACT

The First Amendment protects not only our right to share ideas, but also to some extent, our right to choose the specific method by which we share them. Generally speaking, these protections apply to inmates' rights to communicate with those outside of prison. However, the protection of those rights must be balanced with the penological interests of prisons and jails. Electronic messaging has now become a standard form of communication within most American homes and businesses. Accordingly, the Federal Bureau of Prisons has implemented the TRULINCS program, a program which allows inmates to communicate with those outside of prison through electronic messaging. The Washington State Department of Corrections has installed JPay kiosks in state-operated facilities that allow inmates to send and receive electronic messages. However, most state prison systems and county jails currently do not offer inmates the option of receiving or sending electronic messages. The Supreme Court of the United States has indicated that prisoners have a constitutional right to send and receive mail, and some circuit courts have extended that right to telephone use. This Article examines the foundational aspects of free speech in prison settings and how the evolution of communication might affect the breadth of an inmate's free speech rights. This Article argues that, in certain situations, the First Amendment should protect inmates' interests in sending and receiving emails.

TABLE OF CONTENTS

Introduction .................................................................................. 288

I. Email and the Free Speech Framework ................................ 290

A. Applying the First Amendment to Email Communications ............................................................. 290

B. Applying the Appropriate Level of Scrutiny to Restrictions on Free Speech ............................................................... 292

II. The Free Speech Framework in a Prison Context ................ 294

A. Guiding Principles Regarding Constitutional Rights of Prisoners ................................................................... 294

B. The Framework for Free Speech Challenges in Prison ..295

C. What Happened to the Limited Power to Regulate Time, Place, or Manner? ........................................................... 297

III. Does Failure to Provide Email in Prison Implicate First Amendment Rights? ............................................................. 298

A. Comparing the Right to Telephone Use ......................... 299

B. A Lack of Direct Persuasive Precedent .......................... 300

C. Inmate Email Access in the Context of the Right to Select an Avenue of Speech ...................................................... 302

IV. The Positive Obligation Hurdle ............................................ 302

V. Evaluating the Lack of Email Access in Prison Under Currently Existing Standards ................................................ 304

A. Failure to Provide Email under the Turner Standard ..... 304

1. Restricting Email Use Has No Rational Relation to a Legitimate and Neutral Governmental Objective ....304

2. Alternative Avenues Exist to Exercise the Basic Right of Communicating, but May Not Offer Many of the Benefits that Might Lead an Inmate to Choose Email Over Postage ............................................................ 306

3. The Impact on Staff, Prisoners, and Prison Resources is Minimal, if Not Beneficial ................................... 306

4. The Easy and Obvious Alternative of Implementing an Email Service Indicates that Prison Practices are Overly Restrictive .................................................... 307

B. Failure to Provide Email Access Under the Martinez or Thornburgh Standard ...................................................... 308

Conclusion ................................................................................... 309

Practice Pointers ........................................................................... 310

INTRODUCTION

Times have changed drastically since Tom Hanks and Meg Ryan sat anxiously at their computers awaiting that famously infectious chime, "You've got mail." Email has since developed into an everyday staple of communication. On average, 182.9 billion emails are sent worldwide every day.(fn1) In 2013, the number of email accounts existing was approximately 3.9 billion.(fn2) That number is expected to rise to 4.9 billion by the end of 2017.(fn3)

Despite the prolific use of email in everyday communications, email has only recently started being used in prisons. It was not until 2006 that prisoners in eleven federal facilities gained access to a limited electronic messaging service through the Trust Fund Limited Inmate Communication System pilot program.(fn4) By early 2009, the system was accessible in over thirty federal prisons(fn5) and was renamed the Trust Fund Limited Inmate Computer System ("TRULINCS")(fn6). Today, the Federal Bureau of Prisons ("BOP") can boast that all BOP operated facilities enjoy access to electronic messaging through TRULINCS.(fn7)

While electronic messaging remains unavailable to almost all prisoners in state and county custody, a small number of state prison systems have begun to provide electronic messaging systems to inmates. For instance, the Washington Department of Corrections ("WDOC") has become the only prison system in the Ninth Circuit to provide incoming and outgoing email services to inmates by partnering with a service called "JPay" and installing commercial email kiosks in most WDOC operated facilities.(fn8) Likewise, the Michigan State Department of Corrections has installed JPay kiosks in all of its facilities.(fn9) Apart from Washington and Michigan, a total of five other state prison systems provide email access to inmates in at least some of their facilities-Virginia,(fn10) Louisiana,(fn11) North Dakota,(fn12) Ohio,(fn13) and Maryland.(fn14) Some facilities in the Washington, Louisiana, North Dakota, and Virginia prisons systems have even implemented special tablets with limited functions to make email services more accessible to inmates.(fn15)

Whether in federal or state prison, email access comes to prisoners at a price. To send and receive messages through TRULINCS, JPay, or some other state implemented service, inmates and their loved ones must pay between seventeen and sixty cents per email.(fn16) As the BOP states: "No taxpayer dollars are used for this service. Funding is provided entirely by the Inmate Trust Fund, which is maintained by profits from inmate purchases of commissary products, telephone services, and the fees inmates pay for using TRULINCS."(fn17)

The First Amendment states that "Congress shall make no law . . . abridging the freedom of speech."(fn18) This prohibition applies equally to the several states that have incorporated this system through the Fourteenth Amendment's Due Process Clause.(fn19) In an era when technology has significantly increased the channels of communication available to the public, changing times have forced courts to evaluate the First Amendment guarantee of free speech in increasingly complex scenarios. This Article examines the intersection of free speech protections and access to electronic messaging in prison.

I. EMAIL AND THE FREE SPEECH FRAMEWORK

To understand how free speech protections interact with an inmate's access to electronic messaging systems, it is necessary to recognize (1) how the First Amendment might interact with email communications and (2) what level of scrutiny applies to various restrictions on free speech rights.

A. Applying the First Amendment to Email Communications

Internet communications, such as emails, presumptively fall within the ambit of free speech protections.(fn20) In assessing an alleged violation of free speech, the initial consideration regarding any claim is whether a limitation implicates any free speech rights. These rights are not limited by form. Courts have found that Internet communications deserve the same protections as other more traditional forms of speech.(fn21)

Generally, communication enjoys a presumptive implication of First Amendment protection.(fn22) As iterated by the Supreme Court, "[m]ost of what we say to one another lacks religious, political, scientific, educational, journalistic, historical, or artistic value (let alone serious value), but it is still sheltered from government regulation."(fn23) As such, when government action limits the communicative use of words, free speech protections are implicated.

In the context of Internet communications, courts have determined that the First Amendment "protects material disseminated over the internet as well as by the means of communication devices used prior to the high-tech era."(fn24) Accordingly, attempts to communicate over the Internet, which incorporate linguistic elements,(fn25) such as most emails, presumptively fall within the First Amendment's scope; the presumption is rebuttable only if there is an established tradition of exclusion.(fn26)

B. Applying the Appropriate Level of Scrutiny to Restrictions on...