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 specific
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 which 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 which 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 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 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 as to 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 writings 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 which can be had behind bars greater and more rewarding
then 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 to not promote violence, intimidation,
or harassment against such persons via communications.  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 a 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 which 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.

About Christopher Zoukis, MBA

Christopher Zoukis, MBA, is the Managing Director of the Zoukis Consulting Group, a federal prison consultancy that assists attorneys, federal criminal defendants, and federal prisoners with prison preparation, in-prison matters, and reentry. His books include Directory of Federal Prisons (Middle Street Publishing, 2020), Federal Prison Handbook (Middle Street Publishing, 2017), Prison Education Guide (PLN Publishing, 2016), and College for Convicts: The Case for Higher Education in American Prisons (McFarland & Company, 2014).

Leave a Comment