Thornburgh v. Abbott
490 U.S. 401 (1989)

Annotate this Case

U.S. Supreme Court

Thornburgh v. Abbott, 490 U.S. 401 (1989)

Thornburgh v. Abbott

No. 87-1344

Argued November 8, 1988

Decided May 15, 1989

490 U.S. 401

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

Syllabus

Federal Bureau of Prisons regulations generally permit prisoners to receive publications from the "outside," but authorize wardens, pursuant to specified criteria, to reject an incoming publication if it is found "to be detrimental to the security, good order, or discipline of the institution or if it might facilitate criminal activity." Wardens may not reject a publication "solely because its content is religious, philosophical, political, social[,] sexual, or . . . unpopular or repugnant," or establish an excluded list of publications, but must review each issue of a subscription separately. Respondents, a class of inmates and certain publishers, filed suit in the District Court, claiming that the regulations, both on their face and as applied to 46 specifically excluded publications, violated their First Amendment rights under the standard set forth in Procunier v. Martinez,416 U. S. 396. The District Court refrained from adopting the Martinez standard in favor of an approach more deferential to the judgment of prison authorities, and upheld the regulations without addressing the propriety of the 46 exclusions. The Court of Appeals, however, utilized the Martinez standard, found the regulations wanting, and remanded the case for an individualized determination on the constitutionality of the 46 exclusions.

Held:

1. Regulations such as those at issue that affect the sending of publications to prisoners must be analyzed under the standard set forth in Turner v. Safley,482 U. S. 78, 482 U. S. 89, and are therefore "valid if [they are] reasonably related to legitimate penological interests." Prison officials are due considerable deference in regulating the delicate balance between prison order and security and the legitimate demands of "outsiders" who seek to enter the prison environment. The less deferential standard of Martinez -- whereby prison regulations authorizing mail censorship must be "generally necessary" to protect one or more legitimate governmental interests -- is limited to regulations concerning outgoing personal correspondence

Page 490 U. S. 402

from prisoners, regulations which are not centrally concerned with the maintenance of prison order and security. Moreover, Martinez is overruled to the extent that it might support the drawing of a categorical distinction between incoming correspondence from prisoners (to which Turner applied its reasonableness standard) and incoming correspondence from nonprisoners. Pp. 490 U. S. 407-414.

2. The regulations at issue are facially valid under the Turner standard. Their underlying objective of protecting prison security is undoubtedly legitimate, and is neutral with regard to the content of the expression regulated. Also, the broad discretion the regulations accord wardens is rationally related to security interests. Furthermore, alternative means of expression remain open to the inmates, since the regulations permit a broad range of publications to be sent, received, and read, even though specific publications are prohibited. Moreover, respondents have established no alternative to the regulations that would accommodate prisoners' constitutional rights at a de minimis cost to valid penological interests. Pp. 490 U. S. 414-419.

3. The case is remanded for an examination of the validity of the regulations as applied to any of the 46 publications introduced at trial as to which there remains a live controversy. P. 490 U. S. 419.

263 U.S.App.D.C. 186, 824 F.2d 1166, vacated and remanded.

BLACKMUN, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, O'CONNOR, SCALIA, and KENNEDY, JJ., joined. STEVENS, J., filed an opinion concurring in part and dissenting in part, in which BRENNAN and MARSHALL, JJ., joined, post, p. 490 U. S. 420.

Page 490 U. S. 403

JUSTICE BLACKMUN delivered the opinion of the Court.

I

Regulations promulgated by the Federal Bureau of Prisons broadly permit federal prisoners to receive publications from the "outside," but authorize prison officials to reject incoming publications found to be detrimental to institutional security. [Footnote 1] For 15 years, respondents, a class of inmates and certain publishers, have claimed that these regulations violate their First Amendment rights under the standard of review enunciated in Procunier v. Martinez,416 U. S. 396 (1974). [Footnote 2] They mount a facial challenge to the regulations, as well as a challenge to the regulations as applied to 46 specific publications excluded by the Bureau.

After a 10-day bench trial, the District Court refrained from adopting the Martinez standard. Instead, it favored an approach more deferential to the judgment of prison authorities, and upheld the regulations without addressing the propriety of the 46 specific exclusions. App. to Pet. for Cert. 26a, 43a-47a. The Court of Appeals, on the other hand, utilized the Martinez standard, found the regulations wanting,

Page 490 U. S. 404

and remanded the case to the District Court for an individualized determination of the constitutionality of the 46 exclusions. Abbott v. Meese, 263 U.S.App.D.C. 186, 824 F.2d 1166 (1987).

Petitioners, officials of the Department of Justice and the Bureau of Prisons, sought certiorari. We granted the writ in order to determine the appropriate standard of review. Meese v. Abbott, 485 U.S. 1020 (1988).

We now hold that the District Court correctly anticipated that the proper inquiry in this case is whether the regulations are "reasonably related to legitimate penological interests," Turner v. Safley,482 U. S. 78, 482 U. S. 89 (1987), and we conclude that, under this standard, the regulations are facially valid. We therefore disagree with the Court of Appeals on the issue of facial validity, but we agree with that court's remand of the case to the District Court for a determination of the validity of the regulations as applied to each of the 46 publications.

II

We are concerned primarily with the regulations set forth at 28 CFR §§ 540.70 and 540.71 (1988), first promulgated in 1979. [Footnote 3] These generally permit an inmate to subscribe to, or to receive, a publication without prior approval, [Footnote 4] but authorize the warden to reject a publication in certain circumstances. The warden may reject it "only if it is determined detrimental to the security, good order, or discipline of the institution or if it might facilitate criminal activity."

Page 490 U. S. 405

§ 540.71(b). The warden, however, may not reject a publication "solely because its content is religious, philosophical, political, social or sexual, or because its content is unpopular or repugnant." Ibid. The regulations contain a nonexhaustive list of criteria which may support rejection of a publication. [Footnote 5] The warden is prohibited from establishing an excluded list of publications: each issue of a subscription publication is to be reviewed separately. § 540.71(c). The regulatory criteria for rejecting publications have been supplemented by Program Statement No. 5266.5, which provides further guidance on the subject of sexually explicit material. [Footnote 6]

Page 490 U. S. 406

The regulations provide procedural safeguards for both the recipient and the sender. The warden may designate staff to screen and, where appropriate, to approve incoming publications, but only the warden may reject a publication. § 540.70(b). The warden must advise the inmate promptly in writing of the reasons for the rejection, § 540.71(d), and must provide the publisher or sender with a copy of the rejection letter, § 540.71(e). The notice must refer to "the specific article(s) or material(s) considered objectionable." § 540.71(d). The publisher or sender may obtain an independent review of the warden's rejection decision by a timely writing to the Regional Director of the Bureau. § 540.71(e). An inmate may appeal through the Bureau's Administrative Remedy Procedure. See §§ 542.10 to 542.16. [Footnote 7] The warden is instructed to permit the inmate to review the rejected material for the purpose of filing an appeal

"unless such review may provide the inmate with information of a nature which is deemed to pose a threat or detriment to the security, good order or discipline of the institution or to encourage or instruct in criminal activity."

§ 540.71(d). [Footnote 8]

Page 490 U. S. 407

III

There is little doubt that the kind of censorship just described would raise grave First Amendment concerns outside the prison context. It is equally certain that "[p]rison walls do not form a barrier separating prison inmates from the protections of the Constitution," Turner v. Safley, 482 U.S. at 482 U. S. 84, nor do they bar free citizens from exercising their own constitutional rights by reaching out to those on the "inside," id. at 482 U. S. 94-99; Bell v. Wolfish,441 U. S. 520 (1979); Jones v. North Carolina Prisoners' Labor Union, Inc.,433 U. S. 119 (1977); Pell v. Procunier,417 U. S. 817 (1974). We have recognized, however, that these rights must be exercised with due regard for the "inordinately difficult undertaking" that is modern prison administration. @Turner v. Safley, 482 U.S. at 482 U. S. 85.

In particular, we have been sensitive to the delicate balance that prison administrators must strike between the order and security of the internal prison environment and the legitimate demands of those on the "outside" who seek to enter that environment, in person or through the written word. Many categories of noninmates seek access to prisons. Access is essential to lawyers and legal assistants representing prisoner clients, see Procunier v. Martinez,416 U. S. 396 (1974), to journalists seeking information about prison conditions, see Pell v. Procunier, supra, and to families and friends of prisoners who seek to sustain relationships with them, see Procunier v. Martinez, supra. All these claims to prison access undoubtedly are legitimate; yet prison officials may well conclude that certain proposed interactions, though seemingly innocuous to laymen, have potentially significant implications for the order and security of the prison. Acknowledging the expertise of these officials and that the judiciary is "ill equipped" to deal with the difficult

Page 490 U. S. 408

and delicate problems of prison management, this Court has afforded considerable deference to the determinations of prison administrators who, in the interest of security, regulate the relations between prisoners and the outside world. Id. at 416 U. S. 404-405.

In this case, there is no question that publishers who wish to communicate with those who, through subscription, willingly seek their point of view have a legitimate First Amendment interest in access to prisoners. The question here, as it has been in our previous First Amendment cases in this area, is what standard of review this Court should apply to prison regulations limiting that access.

Martinez was our first significant decision regarding First Amendment rights in the prison context. There, the Court struck down California regulations concerning personal correspondence between inmates and noninmates, regulations that provided for censorship of letters that "unduly complain," "magnify grievances," or "expres[s] inflammatory political, racial, religious or other views or beliefs." Id. at 416 U. S. 399. We reviewed these regulations under the following standard:

"First, the regulation or practice in question must further an important or substantial governmental interest unrelated to the suppression of expression. Prison officials . . . must show that a regulation authorizing mail censorship furthers one or more of the substantial governmental interests of security, order, and rehabilitation. Second, the limitation of First Amendment freedoms must be no greater than is necessary or essential to the protection of the particular governmental interest involved. Thus, a restriction on inmate correspondence that furthers an important or substantial interest of penal administration will nevertheless be invalid if its sweep is unnecessarily broad."

Id. at 416 U. S. 413-414.

Page 490 U. S. 409

It is clear from this language, however, that we did not deprive prison officials of the degree of discretion necessary to vindicate "the particular governmental interest involved." Accordingly, we said:

"Some latitude in anticipating the probable consequences of allowing certain speech in a prison environment is essential to the proper discharge of an administrator's duty. But any regulation or practice that restricts inmate correspondence must be generally necessary to protect one or more . . . legitimate governmental interests."

Id. at 416 U. S. 414.

The Court's subsequent decisions regarding First Amendment rights in the prison context, however, laid down a different standard of review from that articulated in Martinez. As recently explained in Turner, these later decisions, which we characterized as involving "prisoners' rights," adopted a standard of review that focuses on the reasonableness of prison regulations: the relevant inquiry is whether the actions of prison officials were "reasonably related to legitimate penological interests." 482 U.S. at 482 U. S. 89. The Court ruled that

"such a standard is necessary if 'prison administrators . . . and not the courts, [are] to make the difficult judgments concerning institutional operations.'"

Ibid., quoting Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. at 433 U. S. 128. The Court set forth in Turner the development of this reasonableness standard in the respective decisions in Pell and Jones and in Block v. Rutherford,468 U. S. 576 (1984), and we need not repeat that discussion here.

The Court's decision to apply a reasonableness standard in these cases, rather than Martinez' less deferential approach, stemmed from its concern that language in Martinez might be too readily understood as establishing a standard of "strict" or "heightened" scrutiny, and that such a strict

Page 490 U. S. 410

standard simply was not appropriate for consideration of regulations that are centrally concerned with the maintenance of order and security within prisons. [Footnote 9] See Turner v. Safley, 482 U.S. at 482 U. S. 81, 482 U. S. 87, 482 U. S. 89. Specifically, the Court declined to apply the Martinez standard in "prisoners' rights" cases because, as was noted in Turner,Martinez could be (and had been) read to require a strict "least restrictive alternative" analysis, without sufficient sensitivity to the need for discretion in meeting legitimate prison needs. 482 U.S. at 482 U. S. 89-90. The Court expressed concern that

"every administrative judgment would be subject to the possibility that some court somewhere would conclude that it had a less restrictive way

Page 490 U. S. 411

of solving the problem at hand,"

id. at 482 U. S. 89, and rejected the costs of a "least restrictive alternative" rule as too high. Id. at 482 U. S. 90. See also O'Lone v. Estate of Shabazz,482 U. S. 342, 482 U. S. 350 (1987) (refusing to apply a least restrictive alternative standard for regulation of prisoner work rules having an impact on religious observance).

We do not believe that Martinez should, or need, be read as subjecting the decisions of prison officials to a strict "least restrictive means" test. As noted, Martinez required no more than that a challenged regulation be "generally necessary" to a legitimate governmental interest. 416 U.S. at 416 U. S. 414. Certainly, Martinez required a close fit between the challenged regulation and the interest it purported to serve. But a careful reading of Martinez suggests that our rejection of the regulation at issue resulted not from a least restrictive means requirement, but from our recognition that the regulated activity centrally at issue in that case -- outgoing personal correspondence from prisoners -- did not, by its very nature, pose a serious threat to prison order and security. [Footnote 10] We pointed out in Martinez that outgoing correspondence that magnifies grievances or contains inflammatory racial views cannot reasonably be expected to present a danger to

Page 490 U. S. 412

the community inside the prison. Id. at 416 U. S. 416. In addition, the implications for security are far more predictable. Dangerous outgoing correspondence is more likely to fall within readily identifiable categories: examples noted in Martinez include escape plans, plans relating to ongoing criminal activity, and threats of blackmail or extortion. Id. at 416 U. S. 412-413. Although we were careful in Martinez not to limit unduly the discretion of prison officials to reject even outgoing letters, we concluded that the regulations at issue were broader than "generally necessary" to protect the interests at stake. 416 U.S. at 416 U. S. 414. [Footnote 11]

In light of these considerations, it is understandable that the Court in Martinez concluded that the regulations there at issue swept too broadly. Where, as in Martinez, the nature of the asserted governmental interest is such as to require a lesser degree of case-by-case discretion, a closer fit between the regulation and the purpose it serves may safely be required. Categorically different considerations -- considerations far more typical of the problems of prison administration -- apply to the case presently before this Court.

We deal here with incoming publications, material requested by an individual inmate but targeted to a general audience. Once in the prison, material of this kind reasonably may be expected to circulate among prisoners, with the concomitant potential for coordinated disruptive conduct. Furthermore, prisoners may observe particular material in the possession of a fellow prisoner, draw inferences about their fellow's beliefs, sexual orientation, or gang affiliations from that material, and cause disorder by acting accordingly.

Page 490 U. S. 413

See App. 22-23, 52, 59, 88; see generally Prisoners and the Law 3-14 (I. Robbins ed.1988) (noting that possession of homosexually explicit material may identify the possessor as homosexual and target him for assault). As the Deputy Solicitor General noted at oral argument: "The problem is not . . . in the individual reading the materials in most cases. The problem is in the material getting into the prison." Tr. of Oral Arg. 10. See also id. at 26; App. 10. In the volatile prison environment, it is essential that prison officials be given broad discretion to prevent such disorder.

In Turner, we dealt with incoming personal correspondence from prisoners; the impact of the correspondence on the internal environment of the prison was of great concern. There, we recognized that Martinez was too readily understood as failing to afford prison officials sufficient discretion to protect prison security. In light of these same concerns, we now hold that regulations affecting the sending of a "publication" (see the regulations' specific definition of this word, n 4, supra) to a prisoner must be analyzed under the Turner reasonableness standard. Such regulations are "valid if [they are] reasonably related to legitimate penological interests." Turner, 482 U.S. at 482 U. S. 89.

Furthermore, we acknowledge today that the logic of our analyses in Martinez and Turner requires that Martinez be limited to regulations concerning outgoing correspondence. As we have observed, outgoing correspondence was the central focus of our opinion in Martinez. The implications of outgoing correspondence for prison security are of a categorically lesser magnitude than the implications of incoming materials. Any attempt to justify a similar categorical distinction between incoming correspondence from prisoners (to which we applied a reasonableness standard in Turner) and incoming correspondence from nonprisoners would likely prove futile, and we do not invite it. To the extent that Martinez itself suggests such a distinction, we today overrule

Page 490 U. S. 414

that case; the Court accomplished much of this step when it decided Turner.

In so doing, we recognize that it might have been possible to apply a reasonableness standard to all incoming materials without overruling Martinez: we instead could have made clear that Martinez does not uniformly require the application of a "least restrictive alternative" analysis. We choose not to go that route, however, for we prefer the express flexibility of the Turner reasonableness standard. We adopt the Turner standard in this case with confidence that, as petitioners here have asserted, "a reasonableness standard is not toothless." Pet. for Cert. 17, n. 10.

IV

The Court in Turner identified several factors that are relevant to, and that serve to channel, the reasonableness inquiry.

The first Turner factor is multifold: we must determine whether the governmental objective underlying the regulations at issue is legitimate and neutral, and that the regulations are rationally related to that objective. We agree with the District Court that this requirement has been met. [Footnote 12]

Page 490 U. S. 415

The legitimacy of the Government's purpose in promulgating these regulations is beyond question. The regulations are expressly aimed at protecting prison security, a purpose this Court has said is "central to all other corrections goals." Pell v. Procunier, 417 U.S. at 417 U. S. 823.

As to neutrality,

"[w]e have found it important to inquire whether prison regulations restricting inmates' First Amendment rights operated in a neutral fashion, without regard to the content of the expression."

Turner, 482 U.S. at 482 U. S. 90. The ban on all correspondence between certain classes of inmates at issue in Turner clearly met this "neutrality" criterion, as did the restrictions at issue in Pell and Wolfish. The issue, however, in this case is closer.

On their face, the regulations

Page 490 U. S. 416

distinguish between rejection of a publication "solely because its content is religious, philosophical, political, social or sexual, or because its content is unpopular or repugnant" (prohibited) and rejection because the publication is detrimental to security (permitted). 28 CFR § 540.71(b)(1988). Both determinations turn, to some extent, on content. But the Court's reference to "neutrality" in Turner was intended to go no further than its requirement in Martinez that

"the regulation or practice in question must further an important or substantial governmental interest unrelated to the suppression of expression."

416 U.S. at 416 U. S. 413. [Footnote 13] Where, as here, prison administrators draw distinctions between publications solely on the basis of their potential implications for prison security, the regulations are "neutral" in the technical sense in which we meant and used that term in Turner. [Footnote 14]

We also conclude that the broad discretion accorded prison wardens by the regulations here at issue is rationally related to security interests. We reach this conclusion for two reasons. The first has to do with the kind of security risk presented by incoming publications. This has been explored above in Part III. The District Court properly found that publications can present a security threat, and that a more closely tailored standard

"could result in admission of publications which, even if they did not lead directly to violence, would exacerbate tensions and lead indirectly to disorder."

App. to Pet. for Cert. 32a. Where the regulations at issue concern the entry of materials into the prison, we agree with the District Court that a regulation which gives prison authorities broad discretion is appropriate.

Second, we are comforted by the individualized nature of the determinations required by the regulation. Under the regulations, no publication may be excluded unless the warden himself makes the determination that it is "detrimental to the security, good order, or discipline of the institution or . . . might facilitate criminal activity." 28 CFR §§ 540.70(b), 540.71(b) (1988). This is the controlling standard. A publication which fits within one of the "criteria" for exclusion may be rejected, but only if it is determined to meet that standard under the conditions prevailing at the institution

Page 490 U. S. 417

at the time. Indeed, the regulations expressly reject certain shortcuts that would lead to needless exclusions. See § 540.70(b) (nondelegability of power to reject publications); § 540.71(c) (prohibition against establishing an excluded list of publications). We agree that it is rational for the Bureau to exclude materials that, although not necessarily "likely" to lead to violence, are determined by the warden to create an intolerable risk of disorder under the conditions of a particular prison at a particular time. [Footnote 15]

A second factor the Court in Turner held to be

"relevant in determining the reasonableness of a prison restriction . . . is whether there are alternative means of exercising the right that remain open to prison inmates."

482 U.S. at 482 U. S. 90. As has already been made clear in Turner and O'Lone, "the right" in question must be viewed sensibly and expansively. The Court in Turner did not require that prisoners be afforded other means of communicating with inmates at other institutions, 482 U.S. at 482 U. S. 92, nor did it in O'Lone require that there be alternative means of attending the Jumu'ah religious ceremony, 482 U.S. at 482 U. S. 351. Rather, it held in Turner that

Page 490 U. S. 418

it was sufficient if other means of expression (not necessarily other means of communicating with inmates in other prisons) remained available, and, in O'Lone, if prisoners were permitted to participate in other Muslim religious ceremonies. As the regulations at issue in the present case permit a broad range of publications to be sent, received, and read, this factor is clearly satisfied.

The third factor to be addressed under the Turner analysis is the impact that accommodation of the asserted constitutional right will have on others (guards and inmates) in the prison. 482 U.S. at 482 U. S. 90. Here, the class of publications to be excluded is limited to those found potentially detrimental to order and security; the likelihood that such material will circulate within the prison raises the prospect of precisely the kind of "ripple effect" with which the Court in Turner was concerned. Where, as here, the right in question "can be exercised only at the cost of significantly less liberty and safety for everyone else, guards and other prisoners alike," id. at 482 U. S. 92, the courts should defer to the "informed discretion of corrections officials," id. at 482 U. S. 90.

Finally, Turner held:

"[T]he existence of obvious, easy alternatives may be evidence that the regulation is not reasonable, but is an 'exaggerated response' to prison concerns. . . . But if an inmate claimant can point to an alternative that fully accommodates the prisoner's rights at de minimis cost to valid penological interests, a court may consider that as evidence that the regulation does not satisfy the reasonable relationship standard."

482 U.S. at 482 U. S. 90-91. We agree with the District Court that these regulations, on their face, are not an "exaggerated response" to the problem at hand: no obvious, easy alternative has been established.

Regarding the all-or-nothing rule, we analyze respondents' proposed alternatives to that rule as alternative means of accommodating respondents' asserted rights. The District Court discussed the evidence and found, on the basis of testimony in the record, that petitioners' fear that tearing out the

Page 490 U. S. 419

rejected portions and admitting the rest of the publication would create more discontent than the current practice was "reasonably founded." App. to Pet. for Cert. 34a. The Court of Appeals did not contest the District Court's factual finding as such, but ruled that upholding a practice merely because it is based upon "reasonably founded" fears is improper under Martinez: the Court of Appeals held that this finding

"conflicts with the holding of Martinez that prison administrators have the burden of showing that a restrictive practice is 'generally necessary.'"

263 U.S.App.D.C. at 194, 824 F.2d at 1174.

As we here do not apply the Martinez standard, we reject the Court of Appeals' sole ground for questioning the District Court's findings in this respect. In our view, when prison officials are able to demonstrate that they have rejected a less restrictive alternative because of reasonably founded fears that it will lead to greater harm, they succeed in demonstrating that the alternative they in fact selected was not an "exaggerated response" under Turner. Furthermore, the administrative inconvenience of this proposed alternative is also a factor to be considered, and adds additional support to the District Court's conclusion that petitioners were not obligated to adopt it. See Wolfish, 441 U.S. at 441 U. S. 549.

V

In sum, we hold that Turner's reasonableness standard is to be applied to the regulations at issue in this case, and that those regulations are facially valid under that standard. We agree with the remand for an examination of the validity of the regulations as applied to any of the 46 publications introduced at trial as to which there remains a live controversy. See 263 U.S.App.D.C. at 196, 824 F.2d at 1176.

The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Page 490 U. S. 420

[Footnote 1]

As explained in the text, rejection of a publication is authorized "only if it is determined detrimental to the security, good order, or discipline of the institution or if it might facilitate criminal activity." 28 CFR § 540.71(b) (1988). References in the text to "prison security" are intended, for the sake of convenience, to refer more broadly to this range of concerns.

[Footnote 2]

This lawsuit was filed by prisoners in May, 1973, and was certified the following year as a class action. In 1978, three publishers, The Prisoners' Union, Weekly Guardian Associates, and The Revolutionary Socialist League, were added as party plaintiffs. The suit also challenged several prison practices, largely concerning inmate correspondence, that are not at issue here. Individual claims for damages were severed in 1979. A bench trial on the claims for injunctive relief took place in 1981, and a memorandum opinion and accompanying order were issued by the District Court in September, 1984. The Court of Appeals predicated its jurisdiction on 28 U.S.C. § 1292(a)(1) on the ground that the order of the District Court denied respondents injunctive relief. Abbott v. Meese, 263 U.S.App.D.C. 186, 187-188, 824 F.2d 1166, 1167-1168 (1987).

[Footnote 3]

When the complaint was filed in 1973, the Bureau had not yet issued regulations dealing with management of federal inmates. See 43 Fed.Reg. 30574 (1978) (proposed rulemaking); 44 Fed.Reg. 38254 (1979) (final rules). References herein to regulations are to those presently in effect. They are identical to the version considered by the District Court and the Court of Appeals. The current version differs in some respects from the 1979 version, but those differences are not material to our present inquiry.

[Footnote 4]

The term "publication" is defined as

"a book (for example, novel, instructional manual), or a single issue of a magazine or newspaper, plus such other materials addressed to a specific inmate as advertising brochures, flyers, and catalogues."

28 CFR § 540.70(a) (1988).

[Footnote 5]

Section 540.71(b) reads:

". . . Publications which may be rejected by a Warden include but are not limited to publications which meet one of the following criteria:"

"(1) It depicts or describes procedures for the construction or use of weapons, ammunition, bombs or incendiary devices;"

"(2) It depicts, encourages, or describes methods of escape from correctional facilities, or contains blueprints, drawings or similar descriptions of Bureau of Prisons institutions;"

"(3) It depicts or describes procedures for the brewing of alcoholic beverages, or the manufacture of drugs;"

"(4) It is written in code;"

"(5) It depicts, describes or encourages activities which may lead to the use of physical violence or group disruption;"

"(6) It encourages or instructs in the commission of criminal activity;"

"(7) It is sexually explicit material which by its nature or content poses a threat to the security, good order, or discipline of the institution, or facilitates criminal activity."

[Footnote 6]

The Program Statement was promulgated on January 2, 1985, in response to a lawsuit brought by the National Gay Task Force. See App. to Pet. for Cert. 30a (opinion of District Court). By

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