Mediaboss Marketing

By Linda Bryant

Many jails across the country, in an effort to reduce costs and offer inmates more opportunities for connection with loved ones and friends, increasingly rely on inmate video visitation. According to the American Bar Association, as of July 2018, over 600 correctional facilities across the country hadimplemented some form of video visitation. Jails invoke laudable justifications for incorporating video visitation into their offerings: to prevent the influx ofcontrabandinto their facility, to free up limited officer time, and to offer family and friends more opportunities to connect with their loved one.

However, there are three inmate video visitation landmines that can create legal challenges for jail administrators. If these landmines exist in your facility, you can expect lawsuits asserting your jail is violating the constitution by unreasonably restricting aninmates First Amendment rightto communicate and associate with others.

Often, a jail moves towardsupplanting in-person visitation with video visitation. This is the wrong approach unless you want to be an easy target for plaintiffs lawyers. Lawsuits challenging video visitation are increasing against jails that use the technology to justify a decrease in or to eliminate in-person visitation. These lawsuits are ending in settlements requiring in-person visitation, payment of large fees associated with civil litigation alleging a violation of constitutional rights, and state laws clarifying that in-person visitation may not be supplanted by video visitation.

The American Bar AssociationsCriminal Justice Sections Standards on the Treatment of Prisoners, adopted by the ABAs House of Delegates in 2010, warns about eliminating in-person visitation. Standard 23-8.5(e), the standard governing visitation, states:Correctional officials should develop and promote other forms of communication between prisoners and their families, including video visitation, provided that such options are not a replacement for opportunities for in-person contact.[1]

Jail leaders should also heed the 2016 American Correctional AssociationPublic Correctional Policy on Family-Friendly Communication and Visitation, which states:Correctional agencies should promote communication between offenders and their family and friends and adopt family-friendly policies that use emerging technologies as supplements to existing in-person visitation.[2]

The bottom line is to remember the key phrase: SUPPLEMENT, NOT SUPPLANT!

A common business model for video visitation and large phone contracts between vendors and jails is for the vendor to charge for a call or video visitation session sometimes at an unreasonably high cost and provide some of the revenue earned back to the jail. The 2016 ACA Public Correctional Policy referenced earlier again provides the lodestar:Do not place unreasonable financial burdens upon the offender or their family and friends. The policy goes on to state:Establish rates and surcharges that are commensurate with those charged to the general public for like services any deviation from ordinary consumer rates should reflect actual costs associated with the provision of services within a correctional setting.[2]

Look, this has to be said: Anytime you have a jail profiting off the fundamental human need to communicate with family members and friends, or when exorbitant fees are charged to simply exercise this right, youre going to raise a lot of eyebrows. Its going to appear you are exploiting people and doing so knowingly and unconstitutionally. The incredible responsibility jail leaders have for the care, custody, and control of individuals, many of whom have not been convicted, does not include the ability to profit off of those same individuals, or to charge those same individuals for a lesser-quality form of visitation (where the constitutionally preferred in-person visitation is free).

While reasonable fees are defensible, exorbitant fees and kickback models are viewed with a healthy dose of skepticism by the courts. And no matter what, if you are charging fees for visitation in the absence of any opportunity for in-person visitation, you should talk to your lawyer quickly.

Weve all been frustrated by bad or lost reception during an important phone call or Facetime, Skype, Teams or Zoom session. Now imagine if your only means of communicating with the outside world was limited to a few minutes each week, and through a provider nowhere near as cutting-edge as some of the better-known telecommunications or social media giants. Through no fault of your own, your call (which your loved one paid for while also trying to pay other bills and put food on the table for your kids) is cut short. Or, the video freezes. Or the audio is out of sync with the video.

Any of these technological glitches lead to a horrible user experience. So you end up having to manage your frustrations and concentrate doubly hard to hear half the conversation. You wind up frustrated during the call. Its hard enough for an adult to cognitively piece together sentences and conversations in these instances; imagine if youre trying to communicate with your small child in this manner. That small child will soon lose patience and do something else, wasting the precious few minutes you receive to visit with family.

A study by the Minnesota Department of Corrections foundin-person visits decreased inmate recidivism by 13 percent. [3] Other research has shown thatin-person parent-child visits improve outcomes for children with incarcerated parents as well as for the inmates. [4] All jail professionals know the value of any program that reduces recidivism. Faulty inmate video visitation technology, or a faulty video visitation experience, swallows the visitation session itself and detracts from rather than enhances the purpose of visitation: maintaining strong bonds with loved ones and the community to ensure success upon release.

Jail leaders must remember that being able to connect with loved ones helps reaffirm ones humanity in an otherwise dehumanizing situation and serves to ease an inmates return to the community upon release. Against this backdrop, inmate video visitation is like any technology it can be beneficial or destructive. Avoiding the three landmines listed above will help ensure video visitation enhances your jails visitation offerings without endangering inmates constitutional rights or reducing their chances of successfully transitioning back into society.

References

1. American Bar Association. Standard 23-8.5: Visiting.Standards on Treatment of Prisoners.

2. American Correctional Association. Public Correctional Policy on Family-Friendly Communication and Visitation.Public Correctional Policies(see page 82).

3. Minnesota Department of Corrections.The Effects of Prison Visitation on Offender Recidivism.

4, Poehlmann J, Dallaire D, Booker Loper A, et al. Childrens contact with their incarcerated parents: Research findings and recommendations.American Psychologist. 2010 Sep; 65(6): 575598.

About the author

Linda Bryany, JD, CJM, was appointed by the Governor of Virginia to the Virginia Parole Board. Parachutist-qualified, she served as a Captain on active duty in the U.S. Army and a Major in the Army Reserves. For over 17 years, she prosecuted violent crime and homicides for the city of Norfolk, VA, rising through the ranks to become a Deputy Commonwealths Attorney. In 2013, Linda was appointed to serve as Deputy Attorney General for the Criminal Justice and Public Safety Division of the Virginia Office of the Attorney General, where she oversaw the litigation of all lawsuits against the Virginia Department of Corrections. She has also served as the assistant superintendent and compliance attorney for a mega-jail that houses special management inmates. Currently, Linda is a consultant for Lexipols Corrections solutions and a consultant and instructor for the American Jail Association.

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Inmate video visitation and the First Amendment: 3 landmines to avoid - CorrectionsOne

A group of activists and other Rochester residents are asking Monroe County Executive Cheryl Dinolfo not to sign a controversial law. WXXIs James Brown has details.

Rev. Lewis Stewart, faith leaders and criminal justice advocates are asking Monroe County Executive Cheryl Dinolfo not to sign a controversial law.

The measure, passed this month, makes it illegal to annoy, alarm or threaten the personal safety of first responders and various forms of law enforcement. Those who do, would face a hefty fine and possibly jail time. It passed in a party-line vote earlier this month. The bills co-author, County Legislator Karla Boyce, said she was inspired to introduce the bill by recent instances of first responders put in danger.

Opponents say similar bills were stuck down in courts because they were overbroad and unconstitutional. Theyre also worried the law would disproportionately affect people of color.

Stewart calls the bill ridiculous, tyrannical and said it tramples on the first amendment.

A police officer might be annoyed by a citizen using a phone and his or her camera or annoyed by a protest sign and they will suffer a penalty via this legislation, said Stewart.

Democratic Legislator Vince Felder said he asked the countys law department to explain the circumstances where someone could be charged with annoying an officer. He said they couldnt. Felder doesnt doubt the sincerity behind the bill but he does question its language, in particular, using the word annoy.

First of all, its a subjective thought process that youve put in the hands of a police officer, Felder said. Secondly, the (U.S.) Supreme Court has ruled over and over again that you can cuss police officers out, you can stick your middle finger up at them, you can do just about anything and its protected.

Felder also said that Republican lawmakers didnt follow appropriate protocol because the bill was considered as a matter of urgency and was not taken through the typical committee process.

A nearly identical law is on the table in Broome County. Several people were arrested and more than 100 protesters packed a county legislature meeting in Binghamton Thursday. Their goal was to stop an ordinance nearly identical to Monroe Countys.

The measure has not yet been approved in Binghamton. In law awaits Dinolfos signature in Monroe County. Thats expected in December.

The group also took issue with efforts of local law enforcement leaders to slow down the states criminal justice reforms. The new laws limit pre-trial detention and eliminate cash bail for nonviolent offenses, among other changes. They take effect in January.

Law enforcement leaders across the state, including many in Rochester, are asking that Gov. Andrew Cuomo reconsider the new laws and give them more time and money for implementation.

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Activists say new harassment law tramples on the first amendment' - WXXI News

Eric Rasmusen is a tenured business school professor at Indiana University Bloomington; for many years, he's posted a stream of "racist, sexist, and homophobic views" to his personal social media, including the idea that women do not belong in the workplace (he often refers to women by slurs like "slut" when discussing this and other subjects); that gay men should not be allowed in academia because of their insatiable sexual appetites and propensity for abusing students; that Black students are academically inferior to white students and do not belong at elite academic institutions.

Indiana U is a state college and bound by the First Amendment's prohibition on discrimination on the basis of speech and Rasmusen has confined his odious speech acts to his personal social media, apparently refraining from voicing these views on campus while acting in a professional capacity. As a result, it's the view of the university provost that he cannot be fired, despite her characterization of Rasmusen's views as "vile and stupid" and "stunningly ignorant." Provost Lauren Robel has also said that her own respect for the First Amendment is such that she would not fire Rasmusen for his personal views, even if she could.

However, Robel and the university acknowledge that Rasmusen's views call into question his impartiality and also expose students to a reasonable belief that they could not be fairly graded or assessed by Rasmusen. Accordingly the university has undertaken a pari of extraordinary measures to protect students without trampling the First Amendment.

1. All classes that Rasmusen teaches will also be offered by another instructor so that any student can chose to take the class without coming into contact with Rasmusen.

2. Rasmusen will be required to grade all assignments on a double-blind basis, and when that is not possible, he will be closely supervised by another business school prof who will ensure that he does not practice discrimination.

The provost goes on to say that this is not exhaustive, and the university is prepared to take further steps to protect students and faculty members from Rasmusen's bigotry.

Rasmusen's publications include articles like "Are Women Destroying Academia? Probably." He has posted a detailed rebuttal to the provost's article.

I think the most interesting thing about this is that Rasmusen was tenured: for decades after the rise of Reaganism, a lot of people assumed that right wingers who dabbled in eugenics, white supremacy, dominionism and other medieval/crypto-fascist ideas were just colorful provocateurs LARPing Archie Bunker. It turned out they were deadly fucking serious. They were a sleeper cell from Gilead, and now they're finished masturbating over the Turner Diaries and have broken cover and plan on enacting a full-blown Dominionist white theocracy.

The First Amendment is strong medicine, and works both ways. All of us are free to condemn views that we find reprehensible, and to do so as vehemently and publicly as Professor Rasmusen expresses his views. We are free to avoid his classes, and demand that the university ensure that he does not, or has not, acted on those views in ways that violate either the federal and state civil rights laws or IUs nondiscrimination policies. I condemn, in the strongest terms, Professor Rasmusens views on race, gender, and sexuality, and I think others should condemn them. But my strong disagreement with his viewsindeed, the fact that I find them loathsomeis not a reason for Indiana University to violate the Constitution of the United States.

On the First Amendment [Lauren Robel/Indiana University]

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Indiana University Provost: The First Amendment says we can't fire our notorious bigot professor, so here's what we're doing instead - Boing Boing

President Trumps use of Twitter to shape the narrative is notorious. True to form, he was tweeting fast and furious during the impeachment hearings. Negative testimony about the presidents interactions with Ukrainian leader Volodymyr Zelensky repeatedly incited his aggressive retorts, prompting speculation about whether his outbursts may be viewed as witness intimidation. Citing the First Amendment, Trump claims he is free to say what he pleases, including name-calling and denigrating witnesses. But is it criminal witness intimidation?

A number of recent cases have examined the use of social media platforms to conduct witness intimidation. In 2018, the Eleventh Circuit upheld the witness tampering conviction of a woman who posted on Facebook the name of a potential witness in her brothers criminal trial who she warned not to get upon the stand, posting watch out little snitch. The Supreme Court too has had occasion to consider the criminality of Facebook posts suggesting that the defendants soon-to-be ex-wife should be killed. Even beyond our prolific president, the issue of improper use of digital media to harass or intimidate has seeped into the political realm. Earlier this year, House Representative Matt Gaetz (R-Fl) was censured for tweets made on the eve of congressional testimony from former Trump attorney, Michael Cohen, suggesting that unfavorable information about Cohen would be released if he testified.

Recent impeachment-related tweets from Trump are not the first public statements from the president to be called into question. Critics previously argued that the president was obstructing justice by dangling a pardon to his former campaign chairman, Paul Manafort, during the Mueller investigation. Tweets expressing sympathy for Manafort and referring to him as a brave man in contrast to his personal attorney, Michael Cohen, who cooperated with authorities and was referred to by Trump as a coward were viewed as a subtle message to Manafort to stay strong and possibly reap the benefits ala a presidential pardon.

Trumps tweets about the Whistleblower who filed the complaint that has instigated the impeachment hearings also have been questioned. A September 26, 2019 tweet likened the Whistleblower to a spy and further stated You know what we used to do in the old days when we were smart? Right? With spies and treason, right? We used to handle them a little differently than we do now. This tweet prompted the Whistleblowers attorneys to send a letter to the Acting Director of National Intelligence expressing concern for their clients anonymity and safety.

Most recently, a tweet from President Trump blasting Marie Yovanovitch, the former ambassador to Ukraine, as she testified has been called witness intimidation. After hearing Trumps statement that everywhere she went turned bad, Yovanovitch herself stated that it was intimidating. Democrats opined that the Presidents tactics would, and were intended to, scare off other potential witnesses.

The Law of Witness Intimidation

Knowingly using intimidation or threats to influence testimony in an official proceeding, such as a proceeding before Congress, is a crime under Section 1512 of the United States Code. Whether a presidential tweet storm might be considered a violation of this statute centers on a few questions: 1) when can a tweet or public statement implicate Section 1512; 2) when are tweets or statements considered a threat under federal law; and 3) what is the requisite criminal intent?

Section 1512 has been applied to social media posts. The Eleventh Circuit affirmed the conviction under Section 1512 of Delexsia Harris, who took to Facebook two weeks before her brothers trial for murder. Harris posted threatening statements and depictions of guns and bombs pointing at police cars alongside broad references to individuals identified as potential witnesses in the case. (886 F3d 1120) Harris also named one witness directly. Stating that the question of whether a communication is a threat is a factual question to be resolved by a jury, the Court upheld the jurys determination that a reasonable recipient, familiar with the context of the communication, would interpret [Harriss posts] as a threat.

In Trumps case, Democrats argue that his tweet made during Ambassador Yovanovitchs testimony could have had an effect both on Yovanovitch, who was still in the process of providing information to Congress, as well as on other potential witnesses. The Second Circuit has held that the language of Section 1512 does not require the intimidating statement or threat be directly made to the threatened individual. (US v. Veliz, 800 F.3d 63 (2d Cir. 2015)). The statute states that a violation occurs when the defendant engages in wrongful conduct toward another person with the intent to influence any person in an official proceeding. Accordingly, a threat to X which causes Y to withhold information, qualifies as witness intimidation so long as the person making the threat had corrupt intent.

Section 1512 requires proof of specific corrupt intent to intimidate or persuade a witness either not to testify or to alter his or her testimony. Reasonable minds differ on Trumps motivation. The witness intimidation claims made against Representative Gaetz earlier this year suggest that even where the motivation to intimidate or persuade arguably is clearer, it may not rise to the level of criminality.

The night before Trumps former lawyer, Michael Cohen, was scheduled to testify before the House Committee on Oversight and Reform, Gaetz, a staunch defender of Trump, tweeted Hey @MichaelCohen212- Do your wife & father-in-law know about your girlfriends? Maybe tonight would be a good time for that chat. I wonder if shell remain faithful to you when youre in prison. Shes about to learn a lot . Gaetz defended claims that he was threatening Cohen by stating that he was only challenging the veracity and character of a witness. No criminal charges were brought against Gaetz and an investigation into his behavior by the Florida Bar resulted only in a written censure. In this highly-charged political environment, evidence of criminal intent may be difficult to prove.

Interaction with the First Amendment

The First Amendment may add another layer of protection to unbridled tweeters. The Supreme Court had occasion to consider what distinguishes a true threat from speech protected by the First Amendment in Elonis v. United States in 2014. The Court reviewed Eloniss conviction for transmitting in interstate commerce a communication containing a threat to injure the person of another under 18 U.S.C. 875(c). Specifically, Elonis made a series of posts on Facebook suggesting that his soon-to-be ex-wife should be killed. Other posts contained threats against police, the FBI and a kindergarten class. On appeal, Eloniss lawyer argued the conviction should be overturned because Elonis lacked the requisite specific intent to injure, was just venting about his personal problems, and did not mean to threaten anyone.

The question as phrased by the Supreme Court was whether the statute required that the defendant be aware of the threatening nature of the communication and, if not, whether the First Amendment required such a showing. Unfortunately, the Courts opinion did not resolve the question directly, but took issue with the Third Circuits application of a reasonable person standard a civil tort concept to determine the defendants criminal intent, stating that wrongdoing must be conscious to be criminal. The conviction was reversed and the matter was remanded to the Third Circuit. Thereafter, the Third Circuit found the error to be harmless and affirmed the conviction because Elonis testified at trial that he knew his posts would be viewed as threats, thereby satisfying the knowledge element of the crime.

Conclusion

Courts and attorneys are going to have to contemplate how the use of Twitter and other social medium platforms increasingly used as a forum for political and commercial speech must be analyzed under criminal statutes. Like any other form of communication, courts correctly have determined that these types of public statements may be viewed as threats subject to criminal charges. Whether the conduct is criminal will depend upon first, whether a reasonable person familiar with the context within which the statement was made would view it as a threat, and second, whether the speaker intended to intimidate. Certainly, the words and the speakers power and ability to make good on the threat will play a part in that analysis.

To read more fromRobert J. Anello, please visitwww.maglaw.com.

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Intimidation or Free Speech: Are Trump's Tweets Witness Tampering? - Forbes

Photo: Theo Wargo/WireImage,

Netflix and Ava DuVernay have formally responded to a lawsuit over DuVernays series When They See Us. The lawsuit, filed by firm John E. Reid and Associates, claimed that a scene in When They See Us defamed an interrogation technique developed by the firm. In a Chicago district court filing, Netflix said the lawsuit is both unconstitutional and dangerous. The dialogue at issue is fully protected speech under the First Amendment and is not actionable as a matter of law, reads the filing. Permitting this case to go forward would not only be contrary to law, it would have a profoundly chilling effect on core First Amendment speech.

The dialogue in question is one line in a When They See Us scene, which depicts an investigator confronting a detective over the potentially coercive interrogation of a suspect. The investigator suspects that the detective has used the Reid Technique, and goes on to say that the technique has been universally rejected. John E. Reid and Associates specifically takes issue with the characterization of the technique as universally rejected. In the filing, Netflix notes that the dialogue was both a protected opinion under the First Amendment, as well as literary hyperbole. When They See Us centers around the case of the Central Park Five. The full suit against Netflix and DuVernay can be read here.

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Netflix and Ava DuVernay Respond to When They See Us Lawsuit - Vulture