Yesterday a regular Prison Law Blog reader, who is preparing to self-report to a Federal Prison Camp, brought a question to our attention. He asked, “Once I self-surrender, can I blog from prison?” As regular readers of the Prison Law Blog know, we love tackling First Amendment in the correctional context issues. We provide some answers on blogging from prison.
The Question: Can I Blog From Prison?
Federal prisoners, and those in state custody for that matter, have a right to the exercise of their First Amendment privileges. In the prison context, this means creatively writing and seeking publication for those creative writings. These creative writings could be letters, articles, blog posts, books, reports, studies, or even drawings.*1 Yes, even political cartoons are protected by the First Amendment.
The most common question concerns writing in the electronic realm. This is a grayer area but a solid one from the case law perspective. The Federal Bureau of Prisons’ “Manuscript” program statement clearly states that prisoners are allowed to write for publication, and they can mail out their manuscripts as general correspondence without staff approval or authorization. This is in line with the BOP’s “Correspondence” program statement. These program statements, though, don’t specifically authorize federal prisoners to write for electronic publication. After all, the “Manuscript” program statement was promulgated in the 1990s, back when the internet wasn’t commonplace in homes and really wasn’t heard of on cell phones. Regardless of the lack of specific and direct authorization to write for the online marketplace, the Prison Law Blog asserts — as case law and other experts in the field support — that prisoners have a right to write for online publication, either on a personal blog or at larger media or creative writing outlets (e.g., the Huffington Post, Slate.com, Salon.com, ANDmagazine.com, etc.).
Restrictions on Content
In terms of the writing itself, the only real area to be mindful of is the content. Prisoners most certainly can voice their objections to or feelings about anything. They can also voice their political, personal, and other sorts of opinions. But what they can’t do is violate existing laws through their writings or, more specifically to the prison context, write anything which would hinder the “good order, security, or operations of the institution.”
The content restrictions come down to not creating threatening documents (e.g., letters, articles, emails, etc.), not advocating group violence or demonstrations (which would hinder prison operations and security), and not explaining how to violate Federal Bureau of Prisons’ regulations (or the law for that matter). So, while a federal prisoner could rant and rave to their heart’s desire about how broken, stupid, and ineffective the American criminal justice system is, they should not write advocating armed conflict against the prison itself, work stoppages, and probably shouldn’t write a how-to article on brewing alcohol in prison. Along with these content restrictions are restrictions against “protected persons.” The long and short of this is that prisoners are not to disclose the personal information of certain government officials (e.g., prison guards, judges, prosecutors, etc.) or victims of crime. This personal information generally includes their mailing address, email address, phone number, online identifiers, and other personal information.*2
Outside of this content area, prisoners should also take into account that all of their communications are monitored.*3 As such, if a prisoner were to write nasty sentiments about their unit officer, counselor, or other prison staffers, they run the risk of that prison official reading the writings and retaliating against them for the writings. Obviously, it is against the law to retaliate against an American citizen for exercising their First Amendment right to free speech, but it isn’t always easy to prove such cause and effect.*4 As such, prisoners must come to their own decision as to how much risk they are willing to invite.*5
Logistics of Blogging from Prison
Prisoners can blog from prison in a number of ways. They can write out their blog posts by hand or type them on a typewriter and mail the writing to an outside contact to type and/or scan into a computer and publish or submit to an online outlet. They can also utilize the Federal Bureau of Prisons’ TRULINCS/Corrlinks.com email service to email out blog posts to an outside contact for them to publish or submit online.*6 Either of these are acceptable as long as the content restrictions and Federal Bureau of Prisons’ regulations are adhered to. Federal prisoners don’t have direct internet access. As such, they cannot post or submit their own blog posts or articles directly to a website. They must be assisted by an outside contact.
The relationship in question here is that of writer/publisher. The prisoner who writes is merely acting as the writer of the work, while the outside contact then becomes the publisher of said work. This writer/publisher relationship is explicitly permitted by Federal Bureau of Prisons policy. The policy clearly indicates that prisoners can write for publication and submit the manuscript(s) for publication. This much is abundantly clear.
Risks To Be Aware Of
There are several risks that every incarcerated writer should be aware of, whether writing for online or print publication. The primary risk of the incarcerated writer is running afoul of any “acting as a reporter” regulation. Federal prisoners are not allowed to act as reporters. Different courts have held this to mean different things. The Prison Law Blog’s position on this is that prisoners can write about current events but cannot be paid to do so. They can submit their own articles or blog posts about actual news, but they can’t be a salaried or hourly employee of an outlet that pays them for such writings.
Compensation is another issue for most successful incarcerated writers. Incarcerated writers can earn money from the publication of their writings, but this is a very, very challenging area because this bumps right up against the Federal Bureau of Prisons’ restrictions against prisoners conducting a business and acting as reporters. The Prison Law Blog’s position on this is that federal prisoners can be paid for the publication of their writings — articles, blog posts, books, etc. — but shouldn’t do so in the light of working for the publication in question. In truth, it might be smarter for a prisoner to have any earned funds sent to their outside contact or family member. This would greatly reduce the potential for adverse action from Federal Bureau of Prisons’ employees, correct or not.
The two big troublesome areas for incarcerated writers who blog are third-party communications and the forwarding of messages, both of which are explicitly prohibited by the Federal Bureau of Prisons’ policy. The prisoner must keep himself or herself in the mindset of being the writer and their outside contact in the mindset of being the publisher/adjudicator of such submitted writings. As such, while it is permissible for a federal prisoner to submit an article or blog post to an outside contact to publish on a personal blog — even a personal blog or website in the prisoner’s name*7 — or to submit to a larger online outlet, it is not permissible for the prisoner to ask for messages to be forwarded to anyone else. Likewise, if the outlet has a question for the prisoner, the outside contact cannot forward the exact message. Instead, they can rephrase it and present it to the prisoner as their own question, but not forward an exact message to a prisoner. The same is true for the inverse.*8
Conclusion: Abiding by Established Regulations and Determining a Risk Threshold
Each individual prisoner must come to their own conclusion about exactly how much risk they are willing to accept. The only way to do so is to start by reading — and comprehending — what the guidelines are. This means reviewing the applicable portions of the Code of Federal Regulations, the Federal Bureau of Prisons’ “Manuscripts” and “Correspondence” program statements, and searching for quality commentary on the matter.*9
After an understanding of what the guidelines consist of, the incarcerated writer then must determine what they are going to write about. This will greatly impact the risk of the writing itself. And from there, the incarcerated writer should accept that level of risk and throw themselves into it with all of their heart. There truly are few avenues of development or progress that can be had behind bars greater and more rewarding than writing for publication. May you join the Prison Law Blog in this truly empowering endeavor!
*1-Virtually any creative writing or drawing endeavor is protected by the First Amendment, though prison administrators don’t necessarily have to provide sophisticated equipment to engage in such activities. For example, providing paper and pen (or pencil) is enough to allow prisoners to write. Computers and typewriters don’t have to be provided to the inmate population. The same is true with drawing. Prison administrations can provide paper and pencils; they need not provide oil paints and brushes to the inmate population.
*2-The disclosure of this personal information can be a violation of federal law. Prisoners, as regular American citizens, would be wise not to promote violence, intimidation, or harassment against such persons via communication. Advocating for assault places liability on the incarcerated writer not only for their own words but potentially for the actions of others in response to the published writings.
*3-This monitoring of federal prisoners occurs via recorded and monitored telephone calls, retained and monitored TRULINCS emails, and staff’s inspection of incoming and outgoing postal correspondence.
*4-After all, shakedowns and monitoring are part of prison guards’ job descriptions. As such, it can be very difficult to prove that a prison official was acting inappropriately or outside of the color of the law when engaging in such actions, even if the searches and monitoring are part of a regimen of harassment, intimidation, or retaliation for engaging in protected speech.
*5-Obviously, the writers of the Prison Law Blog accept whatever risk there is to be had. We’ve paid dearly for such writings — including months in the FCI Petersburg Special Housing Unit — but have also been victorious against the Federal Bureau of Prisons when litigation was required to enforce our First Amendment rights. If a prisoner scares easily or is not committed to the lifestyle of the incarcerated writer, then they should think long and hard about if they want to raise their voice or not through a website or blog.
*6-In fact, this is exactly how the author wrote and submitted this blog post to the Prison Law Blog. All of the Prison Law Blog posts by this author are conducted through the same methodology.
*7-If the prisoner desires to create their own website or blog, there are several terrific options. Blogger.com and WordPress.com offer great free and fee-based options for blogs and even websites. The Prison Law Blog is hosted on SquareSpace.com, a fee-based service that is incredibly easy to use and has a robust suite of services and support offerings.
*8-Comments by readers are another troublesome area. Outside contacts cannot forward comments made by third parties to the incarcerated writer. If these exact comments were to be emailed to the prisoner via the TRULINCS email service, the prisoner would run the risk of receiving third-party communication (a prohibited act). On the other hand, if the outside contact printed off the website — with the comments included — this would be permissible since the website or webpage itself is being printed and mailed, not a specific comment being forwarded.
*9-Of which the Prison Law Blog has provided, and plans to continue to provide, commentary on the rights of incarcerated writers.
Published Oct 1, 2013 by Christopher Zoukis, JD, MBA | Last Updated by Christopher Zoukis, JD, MBA on Jul 20, 2023 at 1:32 am
