“Real Housewives of New Jersey” star, Teresa Giudice, is a brand. Her access to social media to broadcast and disseminate information and ideas while behind bars is critical to her public image. Social media’s sharing capabilities and unrestrained republication of information can provide platforms to prisoners to spread information. For Teresa, the creation of new social media content, which was picked up by PEOPLE, Fox News, ABC News, and E! Online – to name a few – is a not-so-subtle reminder that the Bravolebrity wants to remain relevant. But is her strategy legal?
For context, on June 25, Teresa tweeted her thanks for the continued encouragement during her prison sentence. “Thank you for your outpouring of support and for standing by me through this most difficult time,” wrote the cookbook author. “Love love love you all!” Then, being the legal eagle that she is, on Saturday, June 27, Teresa praised the Supreme Court of the United States’ historic ruling to legalize same-sex marriage. “Finally some good news coming out of a court! #Justice&Equality4All #LoveWins,” noted the inmate of the Federal Correctional Institution in Danbury, Connecticut, a minimum security prison for women.
Though prisoners are supposed to be isolated from society, digital playgrounds like Facebook and Twitter make for robust communities, and criminals use social media more often than you might think. There are contraband smartphones, and some inmates share their login info with friends and family who post and tweet from outside of the prison.
“Accessing Facebook from prison does not violate our terms, but allowing another person to access your account on your behalf does,” a Facebook spokesman said. Facebook has also declared that it will block accounts “when we believe they have been compromised for any reason, including in the case of people who are incarcerated and don’t have Internet access.”
This year prisoners found to post on Facebook in South Carolina’s system faced losing privileges such as visitation rights and telephone access, and some even received solitary confinement sentences, state documents show.
“Federal inmates are not authorized to use any equipment that would allow for creating videos of themselves inside federal prisons,” a Bureau of Prisons spokesperson said. The Bureau of Prisons is investigating two prisoners who were discovered using Facebook to “broadcast live” from a federal facility in Atlanta.
Certain inmates are able to issue tweets – circuitously – through the Trust Fund Limited Inmate Computer System (“TRULINCS”). Funded by inmate trust funds, TRULINCS allows direct email communication between prisoners and approved outside contacts. The program provides inmates with limited access, specifically, the capability to send and receive electronic messages without having access to the Internet. (Federal inmates do not have Internet access.)
The Bureau of Prisons reports that the TRULINCS model does not allow inmates to access Twitter directly but the inmate can send messages to someone who is posting on his or her behalf – that is not against the rules. Staff first reviews any messages that are sent through TRULINCS.
Murderer Jodi Arias tweeted from prison. Jodi’s friend Donovan Bering maintained a Twitter account bearing her name and photo back in 2013. She dictated her messages to Donovan, who distributed her opinions daily to her Twitter followers. The Twitter account also promoted a website selling artwork that Jodi made while in jail, hence she engaged in business activities while confined. Jodi Arias’ tweets included jabs at prosecutor Juan Martinez, accusing the attorney of having “Little Man Syndrome.”
Can prisoners conduct business from behind bars like Jodi did? In theory, the answer is no. In practice, they most certainly do. Typically prisons forbid inmates from conducting personal business affairs. An inmate who violates the rule against doing business while behind bars is subject to such discipline as loss of phone privileges or restrictions on commissary purchases. Teresa’s tweets, it may be argued, are geared toward promoting her brand but are those tweets “business?”
Inmates can protect legitimate business interests by executing powers of attorney. In the federal system, convicts can have people come in nearly daily to visit them and someone working for them can occasionally conduct their business dealings and run errands.
Importantly the First Amendment to the U.S. Constitution proclaims, “Congress shall make no law…abridging the freedom of speech.” Prison authorities do not have absolute power to limit a prisoner’s right to communicate. Despite their crimes, inmates retain the right to free speech. Prisoners can write physical letters. They can make phone calls. The issue is still new enough that the courts have yet to pointedly define whether laws or policies than ban social media use by prisoners is constitutional.
Prison regulations that impose upon an inmate’s free speech rights are subject to the lowest level of review, which means that the government can exercise regulatory power over the inmate that it does not have with private persons. Strong judicial deference to prison officials is given in the case of inmate’s free speech rights in part because prisoners can use social networking sites to post sensitive information, deliver threats, intimidate witnesses, carry out ongoing criminal ventures, and make sexual advances.
Federal prisoners are subject to mail and communication regulations the Federal Bureau of Prisons issues. Each prison has the authority to establish rules of correspondence. Within prisons, rights can be narrowed under certain circumstances to accommodate the prison’s legitimate penological interests. Prison administrators often control a prisoner’s right to communicate with courts, attorneys, family, and the media.
Grab your gavel, join the conversation, and let us know whether you think the federal prison should exercise its discretion to restrict Teresa Giudice’s right to communicate.
Stacy Slotnick, Esq. holds a J.D., cum laude, from Touro Law Center and a B.A., summa cum laude, from the University of Massachusetts Amherst. She performs a broad range of duties as an entertainment lawyer, including drafting and negotiating contracts; addressing and litigating trademark, copyright, and other IP issues; and directing the strategy and implementation of public relations, blogging, and social media campaigns.