Welcome to our latest summer newsletter. We are thankful to our fellow, Iltaff Bala, for writing this edition! If you missed our last newsletter by Nirali Vyas, you can read that here.
Tick Tockin’ While Doing Time
If you’re anything like us, you’ve probably developed a TikTok addiction over quarantine. In the hours of scrolling through your “for you page” you may have come across a pixelated video on your feed featuring people in jumpsuits dancing to the latest songs or cooking their meals on their beds. If so congratulations, your algorithm has landed you in Prison TikTok!
While a three-part tutorial on how to make prison cheesecake is captivating, folks behind bars also post eye-opening content giving viewers a
never-before-seen look into a day in the life of an inmate. During this pandemic, users have posted the inhabitable living conditions that they’re forced to suffer through and shared their stories. Social media, especially TikTok, has allowed people on the outside to get a glimpse of exactly what it’s like inside our jails and prisons. It’s not a stretch to say that the rights of those behind bars to post on social media are less about leisure and more about access to humanity.
It can seem like the question of whether prisoners should have access to social media is easy to answer - if the social media is accessed through a contraband cell phone, prisons are well within their rights to disallow access. But there's much more to it than that.
Though the essence of incarceration is limiting the rights of those locked up, First Amendment rights don't entirely disappear in prison. As the Supreme Court put it, though prison inmates do not shed all constitutional rights at the prison gates, “lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.” See Sandin v. Conner, 515 U.S. 472, 484 (1995). This means that people in prison have the right to be critical of the institutions they’re locked up in, or at the very least to express themselves. Yet, prison personnel often punish those who post content exposing them. If whistleblowers or TikTokers are punished more for using a contraband cell phone than those who use an illicit phone for non-social media, that can be a First Amendment violation. And that’s not a hypothetical. When prisoners post content critical of the prison, guards, or public health conditions, prison personnel sometimes retaliate. Personnel punish those brave enough to challenge them by placing them in
solitary,
starving them, stealing from them, and
more.
In a recent case, Jason Walker, an inmate, sued the Texas Department of Criminal Justice (
“TDCJ
”) and some of its employees, alleging that they violated his First Amendment right to freedom of speech, among other rights. Walker claimed that by punishing him for posting on social media the prison acted “unconstitutionally to chill and suppress his freedom of speech and expression to prevent him from writing and publishing reproving articles about TDCJ...” Despite this, a magistrate judge from the Northern District of Texas dismissed Walker’s case for being “frivolous” and “failing to state a claim upon which relief could be granted” because they felt that Walker didn’t have enough proof that the consequences he suffered were in response to him exercising his First Amendment right to free speech. The court goes on to claim that prisoners have to go the extra mile to prove retaliation and that the extra scrutiny functions to “guard against inmates’ use of such claims as shields with which they may insulate themselves from disciplinary actions.” Retaliation alone hasn't been enough to silence creators from speaking their truths. Several state prison systems have
moved to ban social media for inmates, and even sometimes for
families posting on their behalf.
While general access to social media is important, Prison Tiktok has impacted the way people view those incarcerated and what life is like in prison. By cultivating a digital community, prisoners advocate for their humanity despite being portrayed as subhuman. Being able to relate to the human beings locked up, see their joy, and witness their pain changes the public’s perception of incarcerated people. It’s clear why this is so threatening to prison systems across the country: the negative image of those incarcerated is a necessary feature of our current prison industrial complex and dismantling those images threatens the whole system.
Iltaff Bala is a first-year law student at Case Western Reserve University School of Law. She is from Houston, TX, and graduated from the University of Rochester in 2020 with a degree in Epidemiology. Prior to law school, she worked as an EMT and Diversity Workshop Facilitator. Her passion for social justice inspired her to pursue legal education to investigate the systemic injustices that she observed in her roles as a student, caretaker, and advocate. She is interested in applying critical race theory across many different legal practice areas to call out these issues and be part of the solution.
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