Appellee prisoners' labor union brought this action under 42
U.S.C. § 1983, claiming that its First Amendment and equal
protection rights were violated by regulations promulgated by the
North Carolina Department of Correction that prohibited prisoners
from soliciting other inmates to join the Union and barred Union
meetings and bulk mailings concerning the Union from outside
sources. A three-judge District Court, which noted that appellants
had "permitted" inmates to join the Union, granted substantial
injunctive relief, having concluded that prohibiting
inmate-to-inmate solicitation "border[ed] on the irrational," and
that, since bulk mailings to and meetings with inmates by the
Jaycees, Alcoholics Anonymous, and, in one institution, the Boy
Scouts (hereafter collectively "service organizations") had been
permitted, appellants, absent a showing of detriment to penological
objectives, "may not pick and choose depending on [their] approval
or disapproval of the message or purpose of the group."
1. The challenged regulations do not violate the First Amendment
as made applicable to the States by the Fourteenth. Pp.
433 U. S.
(a) The fact of confinement and the needs of the penal
institution impose limitations on constitutional rights, including
those derived from the First Amendment, Pell v. Procunier,
417 U. S. 817
417 U. S. 822
perhaps the most obvious of which is associational rights that the
First Amendment protects outside of prison walls. Pp. 433 U. S.
(b) The District Court overstated what appellants' concession as
to true membership entailed -- appellants permitted membership in
the Union (which involved no dues or obligations) because of the
reasonable assumption that the individual could believe what he
chose to believe, but appellants never acquiesced in, or permitted,
group activity by the Union, and the ban on inmate solicitation and
group meetings was rationally related to the reasonable objectives
of prison administration. Pp. 433 U. S.
(c) First Amendment speech rights are barely implicated here,
Page 433 U. S. 120
rights themselves not being involved, but only the cost savings
through bulk mailings. Pp.
433 U. S. 130
(d) The prohibition on inmate-to-inmate solicitation does not
unduly abridge inmates' free speech rights. If the prison officials
are otherwise entitled to control organized union activity within
the confines of a prison, the solicitation ban is not impermissible
under the First Amendment, for such a prohibition is both
reasonable and necessary. Pell v. Procunier, supra
417 U. S. 822
Pp. 433 U. S.
(e) First Amendment associational rights are also not unduly
abridged here. Appellants' conclusion that the presence of a
prisoners' union would be detrimental to prison order and security
has not been conclusively shown to be wrong, and the regulations
drafted were no broader than necessary to meet the perceived threat
of group meetings and organizational activity to such order and
security. Pp. 433 U. S.
2. Appellants' prohibition against the receipt by and
distribution to the inmates of bulk mail from the Union as well as
the prohibition of Union meetings among inmates whereas the service
organizations were given bulk mailing and meeting rights, does not
violate the Equal Protection Clause. The prison does not constitute
a "public forum," and appellants demonstrated a rational basis for
distinguishing between the Union (which occupied an adversary role
and espoused a purpose illegal under North Carolina law) and the
service organizations (which performed rehabilitation services).
Pp. 433 U. S.
REHNQUIST, J., delivered the opinion of the Court, in which
BURGER, C.J., and STEWART, WHITE, BLACKMUN, and POWELL, JJ.,
joined. BURGER, C.J., filed a concurring opinion, post,
433 U. S. 136
STEVENS, J., filed an opinion concurring in part and dissenting in
p. 433 U. S. 138
MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J.,
p. 433 U. S.
Page 433 U. S. 121
MR. JUSTICE REHNQUIST delivered the opinion of the Court.
Pursuant to regulations promulgated by the North Carolina
Department of Correction, appellants prohibited inmates from
soliciting other inmates to join appellee, the North Carolina
Prisoners' Labor Union, Inc. (Union), barred all meetings of the
Union, and refused to deliver packets of Union publications that
had been mailed in bulk to several inmates for redistribution among
other prisoners. The Union instituted this action, based on 42
U.S.C. § 1983, to challenge these policies. It alleged that
appellants' efforts to prevent the operation of a prisoners' union
violated the First and Fourteenth Amendment rights of it and its
members, and that the refusal to grant the Union those privileges
accorded several other organizations operating within the prison
system deprived the Union of equal protection of the laws. A
three-judge court was convened. After a hearing, the court found
merit in the Union's free speech, association, and equal protection
arguments, and enjoined appellants from preventing inmates from
soliciting other prisoners to join the Union and from
"refus[ing] receipt of the Union's publications on the ground
that they are calculated to encourage membership in the
organization or solicit joining."
The court also held that the Union "shall be accorded the
privilege of holding meetings under such limitations and control as
are neutrally applied to all inmate organizations. . . ." 409 F.
. We noted probable jurisdiction to consider whether
the First and Fourteenth Amendments extend prisoner labor unions
such protection. 429 U.S. 976. We have decided that they do not,
and we accordingly reverse the judgment of the District Court.
Page 433 U. S. 122
Appellee, an organization self-denominated as a Prisoners' Labor
Union, was incorporated in late 1974, with a stated goal of "the
promotion of charitable labor union purposes" and the formation of
"prisoners' labor union at every prison and jail in North
Carolina to seek through collective bargaining . . . to improve . .
. working . . . conditions. . . . [Footnote 1
It also proposed to work toward the alteration or elimination of
practices and policies of the Department of Correction which it did
not approve of, and to serve as a vehicle for the presentation and
resolution of inmate grievances. By early 1975, the Union had
attracted some 2,000 inmate "members" in 40 different prison units
throughout North Carolina. The State of North Carolina, unhappy
with these developments, set out to prevent inmates from forming or
operating a "union." While the State tolerated individual
"membership," or belief, in the Union, it sought to prohibit inmate
solicitation of other inmates, meetings between members of the
Union, and bulk mailings concerning the Union from outside sources.
Pursuant to a regulation promulgated by the Department of
Correction on March 26, 1975, such solicitation and group activity
Suit was filed by the Union in the United States District Court
for the Eastern District of North Carolina on March 18, 1975,
approximately a week before the date upon which the regulation was
to take effect. The Union claimed that its rights, and the rights
of its members, to engage in protected free speech, association,
and assembly activities were being infringed by the no-solicitation
and no-meeting rules. It also alleged a deprivation of equal
protection of the laws in that
Page 433 U. S. 123
the Jaycees and Alcoholics Anonymous were permitted to have
meetings and other organizational rights, such as the distribution
of bulk mailing material, that the Union was being denied. A
declaratory judgment and injunction against continuation of these
restrictive policies were sought, as were substantial damages.
A three-judge District Court, convened pursuant to 28 U.S.C. §§
2281 and 2284, while dismissing the Union's prayers for damages and
attorney's fees, granted it substantial injunctive relief. The
court found that appellants "permitted" inmates to join the Union,
but "oppose[d] the solicitation of other inmates to join," either
by inmate-to-inmate solicitation or by correspondence. 409 F. Supp.
at 941. The court noted, id.
"[Appellants] sincerely believe that the very existence of the
Union will increase the burdens of administration and constitute a
threat of essential discipline and control. They are apprehensive
that inmates may use the Union to establish a power bloc within the
inmate population which could be utilized to cause work slowdowns
or stoppages or other undesirable concerted activity."
The District Court concluded, however, that there was "no
consensus" among experts on these matters, and that it was "left
with no firm conviction that an association of inmates is
necessarily good or bad. . . ." Id.
at 942-943. The court
felt that, since appellants countenanced the bare fact of Union
membership, it had to allow solicitation activity, whether by
inmates or by outsiders:
"We are unable to perceive why it is necessary or essential to
security and order in the prisons to forbid
Page 433 U. S. 124
solicitation of membership in a union permitted by the
authorities. This is not a case of riot. There is not one scintilla
of evidence to suggest that the union has been utilized to disrupt
the operation of the penal institutions."
at 944. The other questions, respecting the bulk
mailing by the Union of literature into the prisons for
distribution and the question of meetings of inmate members, the
District Court resolved against appellants "by application of the
equal protection clause of the fourteenth amendment."
Finding that such meetings and bulk mailing
privileges had been permitted the Jaycees, Alcoholics Anonymous,
and, in one institution, the Boy Scouts, the District Court
concluded that appellants "may not pick and choose depending on
[their] approval or disapproval of the message or purpose of the
group" unless "the activity proscribed is shown to be detrimental
to proper penological objectives, subversive to good discipline, or
otherwise harmful." Ibid.
The court concluded that
appellants had failed to meet this burden. Appropriate injunctive
relief was thereupon ordered. [Footnote 3
Page 433 U. S. 125
The District Court, we believe, got off on the wrong foot in
this case by not giving appropriate deference to the decisions of
prison administrators and appropriate recognition to the peculiar
and restrictive circumstances of penal confinement. While
litigation by prison inmates concerning conditions of confinement,
challenged other than under the Eighth Amendment, is of recent
vintage, this Court has long recognized that
"[l]awful incarceration brings about the necessary withdrawal or
limitation of many privileges and rights, a retraction justified by
the considerations underlying our penal system."
Price v. Johnston, 334 U. S. 266
334 U. S. 285
(1948); see also Pell v. Procunier, 417 U.
, 417 U. S. 822
(1974); Wolff v. McDonell, 418 U.
, 418 U. S. 555
(1974). The fact of confinement and the needs of the penal
institution impose limitations on constitutional rights, including
those derived from the First Amendment, which are implicit in
incarceration. We noted in Pell v. Procunier, supra
417 U. S.
"[A] prison inmate retains those First Amendment rights that are
not inconsistent with his status as a prisoner or with the
legitimate penological objectives of the corrections system. Thus,
challenges to prison restrictions that are asserted to inhibit
First Amendment interests must be analyzed in terms of the
legitimate policies and goals of the corrections system, to whose
custody and care the prisoner has been committed in accordance with
due process of law."
Perhaps the most obvious of the First Amendment rights that are
necessarily curtailed by confinement are those associational rights
that the First Amendment protects outside of prison
Page 433 U. S. 126
walls. The concept of incarceration itself entails a restriction
on the freedom of inmates to associate with those outside of the
penal institution. Equally as obvious, the inmate's "status as a
prisoner" and the operational realities of a prison dictate
restrictions on the associational rights among inmates.
Because the realities of running a penal institution are complex
and difficult, we have also recognized the wide-ranging deference
to be accorded the decisions of prison administrators. We noted in
Procunier v. Martinez, 416 U. S. 396
416 U. S. 405
"[C]ourts are ill-equipped to deal with the increasingly urgent
problems of prison administration and reform. Judicial recognition
of that fact reflects no more than a healthy sense of realism.
Moreover, where state penal institutions are involved, federal
courts have a further reason for deference to the appropriate
(Footnote omitted.) See also Cruz v. Beto, 405 U.
, 405 U. S. 321
(1972). It is in this context that the claims of the Union must be
State correctional officials uniformly testified that the
concept of a prisoners' labor union was itself fraught with
potential dangers, whether or not such a union intended, illegally,
to press for collective bargaining recognition. [Footnote 4
Page 433 U. S. 127
Ralph Edwards, the Commissioner of the Department of Correction,
stated in his affidavit:
"The creation of an inmate union will naturally result in
increasing the existing friction between inmates and prison
personnel. It can also create friction between union inmates and
Appellant David Jones, the Secretary of the Department of
"The existence of a union of inmates can create a divisive
element within the inmate population. In a time when the units are
already seriously overcrowded, such an element could aggravate
already tense conditions. The purpose of the union may well be
worthwhile projects. But it is evident that the inmate organizers
could, if recognized as spokesman for all inmates, make themselves
to be power figures among the inmates. If the union is successful,
these inmates would be in a position to misuse their influence.
After the inmate union has become established, there would probably
be nothing this Department could do to terminate its existence,
even if its activities became overtly subversive to the functioning
of the Department. Work stoppages and mutinies are easily
foreseeable. Riots and chaos would almost inevitably result. Thus,
even if the purposes of the union are as stated in the complaint,
the potential for a dangerous situation exists, a situation which
could not be brought under control."
The District Court did not reject these beliefs as fanciful or
erroneous. It, instead, noted that they were held "sincerely," and
were arguably correct. [Footnote
] 409 F. Supp. at 94943. Without
Page 433 U. S. 128
a showing that these beliefs were unreasonable, it was error for
the District Court to conclude that appellants needed to show more.
In particular, the burden was not on appellants to show
affirmatively that the Union would be "detrimental to proper
penological objectives" or would constitute a "present danger to
security and order." Id.
at 944-945. Rather,
"[s]uch considerations are peculiarly within the province and
professional expertise of corrections officials, and, in the
absence of substantial evidence in the record to indicate that the
officials have exaggerated their response to these considerations,
courts should ordinarily defer to their expert judgment in such
Pell v. Procunier,
417 U.S. at 417 U. S. 827
The necessary and correct result of our deference to the informed
discretion of prison administrators permits them, and not the
courts, to make the difficult judgments concerning institutional
operations in situations such as this.
The District Court, however, gave particular emphasis to what it
viewed as appellants' tolerance of membership by inmates in the
Union as undermining appellants' position. It viewed a system which
permitted inmate "membership" but prohibited inmate-to-inmate
solicitation (as well, it should be noted, as meetings, or other
group activities) as bordering "on the irrational," and felt
"[t]he defendants' on hypothesis in this case is that the
existence of the Union and membership in it are not dangerous, for
otherwise they would surely have undertaken to forbid
409 F. Supp. at 944. This, however, considerably overstates what
appellants' concession as to pure membership entails. Appellants
permitted membership because of the reasonable assumption that each
individual prisoner could believe what he chose to believe, and
that outside individuals should be able to communicate ideas and
beliefs to individual inmates. Since a
Page 433 U. S. 129
member incurs no dues or obligations -- a
prisoner apparently may become a member simply by considering
himself a member -- this position simply reflects the concept that
thought control, by means of prohibiting beliefs, would not only be
undesirable, but impossible.
But appellants never acquiesced in, or permitted, group activity
of the Union in the nature of a functioning organization of the
inmates within the prison, nor did the District Court find that
they had. It is clearly not irrational to conclude that individuals
may believe what they want, but that concerted group activity, or
solicitation therefor, would pose additional and unwarranted
problems and frictions in the operation of the State's penal
institutions. The ban on inmate solicitation and group meetings,
therefore, was rationally related to the reasonable, indeed to the
central, objectives of prison administration. Cf. Pell v.
at 417 U. S.
The invocation of the First Amendment, whether the asserted
rights are speech or associational, does not change this analysis.
In a prison context, an inmate does not retain those First
Amendment rights that are "inconsistent with his status as a
prisoner or with the legitimate penological objectives of the
corrections system." Pell v. Procunier, supra
417 U. S. 822
Prisons, it is obvious, differ in numerous respects from free
society. They, to begin with, are populated, involuntarily, by
people who have been found to have violated one or more of the
criminal laws established by society for its orderly governance. In
"mutual accommodation between institutional needs and objectives
[of prisons] and the provisions of the Constitution that are of
Wolff v. McDonnell,
418 U.S. at 418 U. S. 556
this Court has repeatedly recognized the need for major
restrictions on a prisoner's rights. See, e.g., id.
418 U. S.
-562; Lanza v. New York, 370 U.
, 370 U. S. 143
(1962). These restrictions have applied as well
Page 433 U. S. 130
where First Amendment values were implicated. See, e.g.,
Pell v. Procunier, supra; Procunier v. Martinez, 416 U.
(1974); Meachum v. Fano, 427 U.
An examination of the potential restrictions on speech or
association that have been imposed by the regulations under
challenge, demonstrates that the restrictions imposed are
reasonable, and are consistent with the inmates' status as
prisoners and with the legitimate operational considerations of the
institution. To begin with, First Amendment speech rights are
barely implicated in this case. [Footnote 6
] Mail rights are not themselves implicated; the
only question respecting the mail is that of bulk mailings.
] The advantages of
bulk mailings to inmates by the Union are those of cheaper rates
and convenience. While the District Court relied on the cheaper
bulk mailing rates in finding an equal protection violation,
at 433 U. S. 133
it is clear that losing these cost advantages does not
Page 433 U. S. 131
fundamentally implicate free speech values. Since other avenues
of outside informational flow by the Union remain available, the
prohibition on bulk mailing, reasonable in the absence of First
Amendment considerations, remains reasonable. [Footnote 8
] Cf. Pell v. Procunier, supra;
Saxbe v. Washington Post Co., 417 U.
Nor does the prohibition on inmate-to-inmate solicitation of
membership trench untowardly on the inmates' First Amendment speech
rights. Solicitation of membership itself involves a good deal more
than the simple expression of
Page 433 U. S. 132
individual views as to the advantages or disadvantages of a
union or its views; it is an invitation to collectively engage in a
legitimately prohibited activity. If the prison officials are
otherwise entitled to control organized union activity within the
prison walls, the prohibition on solicitation for such activity is
not then made impermissible on account of First Amendment
considerations, for such a prohibition is then not only reasonable,
but necessary. Pell v. Procunier,
417 U.S. at 417 U. S.
First Amendment associational rights, while perhaps more
directly implicated by the regulatory prohibitions, likewise must
give way to the reasonable considerations of penal management. As
already noted, numerous associational rights are necessarily
curtailed by the realities of confinement. They may be curtailed
whenever the institution's officials, in the exercise of their
informed discretion, reasonably conclude that such associations,
whether through group meetings or otherwise, possess the likelihood
of disruption to prison order or stability, or otherwise interfere
with the legitimate penological objectives of the prison
environment. As we noted in Pell v. Procunier, supra
417 U. S. 823
"central to all other corrections goals is the institutional
consideration of internal security within the corrections
Appellant prison officials concluded that the presence, perhaps
even the objectives, of a prisoners' labor union would be
detrimental to order and security in the prisons, supra
433 U. S. 127
It is enough to say that they have not been conclusively shown to
be wrong in this view. The interest in preserving order and
authority in the prisons is self-evident. Prison life, and
relations between the inmates themselves and between the inmates
and prison officials or staff, contain the ever-present potential
for violent confrontation and conflagration. Wolff v.
418 U.S. at 418 U. S.
-562. Responsible prison officials must be permitted
to take reasonable steps to forestall such a threat, and they must
be permitted to act before the
Page 433 U. S. 133
time when they can compile a dossier on the eve of a riot.
] The case of a
prisoners' union, where the focus is on the presentation of
grievances to, and encouragement of adversary relations with,
institution officials surely would rank high on anyone's list of
potential trouble spots. If the appellants' views as to the
possible detrimental effects of the organizational activities of
the Union are reasonable, as we conclude they are, then the
regulations are drafted no more broadly than they need be to meet
the perceived threat -- which stems directly from group meetings
and group organizational activities of the Union. Cf. Procunier
416 U.S. at 416 U. S.
-416. When weighed against the First Amendment rights
asserted, these institutional reasons are sufficiently weighty to
The District Court rested on the Equal Protection Clause of the
Fourteenth Amendment to strike down appellants' prohibition against
the receipt and distribution of bulk mail from the Union as well as
the prohibition of Union meetings among the inmates. It felt that
this was a denial of equal protection because bulk mailing and
meeting rights had been extended to the Jaycees, Alcoholics
Anonymous, and the Boy Scouts. The court felt that, just as outside
the prison, a "government may not pick and choose depending upon
its approval or disapproval of the message or purpose of the
group," 409 F. Supp. at 944, so, too, appellants could not choose
among groups without first demonstrating that the activity
proscribed is "detrimental to proper penological objectives,
subversive to good discipline, or otherwise harmful."
This analysis is faulty for two reasons. The District Court
Page 433 U. S. 134
erroneously treated this case as if the prison environment were
essentially a "public forum." We observed last Term, in upholding a
ban on political meetings at Fort Dix, that a Government enclave
such as a military base was not a public forum. Greer v.
Spock, 424 U. S. 828
(1976). We stated, id.
at 424 U. S. 838
"The fact that other civilian speakers and entertainers had
sometimes been invited to appear at Fort Dix did not, of itself,
serve to convert Fort Dix into a public forum or to confer upon
political candidates a First or Fifth Amendment right to conduct
their campaigns there. The decision of the military authorities
that a civilian lecture on drug abuse, a religious service by a
visiting preacher at the base chapel, or a rock musical concert
would be supportive of the military mission of Fort Dix surely did
not leave the authorities powerless thereafter to prevent any
civilian from entering Fort Dix to speak on any subject
A prison may be no more easily converted into a public forum
than a military base. Thus appellants need only demonstrate a
rational basis for their distinctions between organizational
groups. Cf. City of Charlotte v. Firefighters,
426 U. S. 283
(1976). Here, appellants' affidavits indicate exactly why
Alcoholics Anonymous and the Jaycees have been allowed to operate
within the prison. Both were seen as serving a rehabilitative
purpose, working in harmony with the goals and desires of the
prison administrators, and both had been determined not to pose any
threat to the order or security of the institution. [Footnote 10
] The affidavits indicate that
Page 433 U. S. 135
view of the Union differed critically in both these respects.
Those conclusions are not unreasonable. Prison administrators
may surely conclude that the Jaycees and Alcoholics Anonymous
differ in fundamental respects from appellee Union, a group with no
past to speak of, and with the avowed intent to pursue an adversary
relationship with the prison officials. Indeed, it would be enough
to distinguish the Union from Alcoholics Anonymous to note that the
chartered purpose of
Page 433 U. S. 136
the Union, apparently pursued in the prison, was illegal under
North Carolina law. [Footnote
Since a prison is most emphatically not a "public forum," these
reasonable beliefs of appellants are sufficient, cf. Greer v.
Spock, supra; Cty of Charlotte v. Firefighters, supra.
District Court's further requirement of a demonstrable showing that
the Union was in fact harmful is inconsistent with the deference
federal courts should pay to the informed discretion of prison
officials. Procunier v. Martinez,
416 U.S. at 416 U. S. 405
It is precisely in matters such as this, the decision as to which
of many groups should be allowed to operate within the prison
walls, where, confronted with claims based on the Equal Protection
Clause, the courts should allow the prison administrators the full
latitude of discretion, unless it can be firmly stated that the two
groups are so similar that discretion has been abused. That is
surely not the case here. There is nothing in the Constitution
which requires prison officials to treat all inmate groups alike
where differentiation is necessary to avoid an imminent threat of
institutional disruption or violence. The regulations of appellants
challenged in the District Court offended neither the First nor the
Fourteenth Amendment, and the judgment of that court holding to the
These are the corporation purposes listed in the Articles of
Incorporation issued by the Secretary of State of North Carolina.
Collective bargaining for inmates with respect to pay, hours of
employment, and other terms and conditions of incarceration is
illegal under N.C.Gen.Stat. § 95-98 (1975).
Other allegations were contained in the complaint, respecting
the opening of outgoing prison mail and the interference with
visitation rights of certain paralegals. These specific allegations
are not before us, and we will not deal with them further.
Appellants were enjoined as follows:
"(1) Inmates and all other persons shall be permitted to solicit
and invite other inmates to join the plaintiff Union orally or by
written or printed communication; provided, however, that access to
inmates by outsiders solely for the purpose of soliciting
membership may be denied except that inmate members of the Union
may become entitled to be visited by free persons who are engaged
with them in legitimate Union projects to the same extent that
other members of free society are admitted for like purposes."
"(2) Free persons otherwise entitled to visitation with inmates,
be they attorneys, paralegals, friends, relatives, etc. shall not
be denied access to such visitation by reason of their association
or affiliation with the Union."
"(3) The Union shall be accorded the privilege of bulk mailing
to the extent that such a privilege is accorded other
"(4) The Union and its inmate members shall be accorded the
privilege of holding meetings under such limitations and control as
are neutrally applied to all inmate organizations, and to the
extent that other meetings of prisoners are permitted."
The District Court observed that "it is clear beyond argument
that no association of prisoners may operate as a true labor union.
. . ." It concluded that "it [is] of no legal significance that the
charter purports to authorize more than can lawfully be
accomplished." 409 F.
, 940 n. 1. But whether or not illegal activity was
actually actively pursued by the Union, it is clear that its
announced purpose to engage in collective bargaining is a factor
which prison officials may legitimately consider in determining
whether the Union is likely to be a disruptive influence, or
otherwise detrimental to the effective administration of the North
Carolina prison system.
The District Court did hold that there was "not one scintilla of
evidence to suggest that the Union has been utilized to disrupt the
operation of the penal institutions." Id.
at 944. This
historical finding, however, does not state that appellants' fears
as to future disruptions are groundless; there, the court indicated
the opposite: "On conflicting expert opinion evidence, we are left
with no firm conviction that an association of inmates is
necessarily good or bad. . . ." Id.
The State has not hampered the ability of prison inmates to
communicate their grievances to correctional officials. In banning
Union solicitation or organization, appellants have merely affected
one of several ways in which inmates may voice their complaints to,
and seek relief, from prison officials. There exists an inmate
grievance procedure through which correctional officials are
informed about complaints concerning prison conditions, and through
which remedial action may be secured. See
Director Edwards, App. 127. With this presumably effective path
available for the transmission of grievances, the fact that the
Union's grievance procedures might be more "desirable" does not
convert the prohibitory regulations into unconstitutional acts.
See Procunier v. Martinez, 416 U.
, 416 U. S. 413
(1974); cf. Greer v. Spock, 424 U.
, 424 U. S. 847
(1976) (POWELL, J., concurring).
The complaint alleged only that the bulk mail prohibition denied
the Union equal protection of the laws:
"The refusal by Defendants to allow the Prisoners' Union
Newsletter to arrive in bundles for distribution, while allowing
the Jaycee Newsletter to arrive in the same manner, violates
Plaintiff's Fourteenth Amendment right to equal protection of the
The District Court, likewise, dealt with the bulk mail question
only in terms of the Equal Protection Clause of the Fourteenth
Amendment. 409 F. Supp. at 944.
The ban on bulk mailing by the Union does not extend to
individual mailings to individual inmates. In his affidavit,
Director Edwards stated:
"They are permitted to receive publications sent to them
directly, but they are prohibited from receiving packets of
material from unions or any other source for redistribution. This
is in accordance with the Department's policy requiring
publication[s] mailed to inmates to be sent directly from the
publisher. A serious security problem would result if inmates could
receive packets of material and then redistribute them as they see
fit. It would be impossible for the Department to inspect every
magazine, every book, etc., to insure that no contraband had been
placed inside the publication. The exception in regard to Jaycees
is based on the recognized fact that the Jaycees are substantial
citizens from the free community who are most unlikely to attempt
to smuggle contraband into the union or disseminate propaganda
subversive of the legitimate purposes of the prison system."
App. 129. See also
N.C. Department of Correction
Guidebook, Commissioner's Administrative Directives -- Publications
Received by Inmates, App. 138-139. As the State has disavowed any
intention of interfering with correspondence between outsiders and
individual inmates in which Union matters are discussed, we do not
have to discuss questions of the First Amendment right of inmates,
or outsiders, see Procunier v. Martinez, supra
416 U. S.
-409, in the context of a total prohibition on the
communication of information about the Union. The District Court
apparently thought that solicitation by means of correspondence is
prohibited, even if the general discussion of Union affairs is not,
409 F. Supp. at 941. The Union does not press this point here, and
it is not alleged in its complaint, but, clearly, if the appellants
are permitted to prohibit solicitation activities, they may
prohibit solicitation activities by means which use the mails.
The informed discretion of prison officials that there is
potential danger may be sufficient for limiting rights even though
this showing might be "unimpressive if . . . submitted as
justification for governmental restriction of personal
communication among members of the general public." Pell v.
Procunier, 417 U. S. 817
417 U. S. 825
Director Edwards listed the objectives for which the Jaycees had
been allowed within the North Carolina prison system, namely the
"productive association [of inmates] with stable community
representatives and the accomplishment of service projects to the
community. . . ." When these objectives cease, "the functions of
the organization and its opportunities to assemble as an
organization would also cease." Affidavit of Director Edwards, App.
125. With respect to Alcoholics Anonymous, he stated, id.
"The objectives of the Alcoholics Anonymous Program are to
provide therapeutic support, insight, and an opportunity for
productive sharing of experiences among those who have encountered
the deteriorative effects of alcoholism. Alcoholics Anonymous is
structured on a peer pressure basis which begins while the
individual client is confined and is intended to have carry over
effects into Alcoholic Anonymous groups in the free community."
With respect to Alcoholics Anonymous and the Jaycees, Director
Edwards stated, ibid.:
"The goals and the objectives of [both] the Alcoholics Anonymous
and the Jaycee Program were presented to correctional staff as
meaningful courses of action with positive goals relative to the
productive restoration of offenders to active, lawful participation
in the community. The goals of both organizations [were]
scrutinized, evaluated, and approved. Operational guidelines have
been drawn up in each instance following approval to certify that
the primary objective of the correctional system -- to maintain
order and security -- would not be abridged by the operation of
these programs within the confines of prison units."
Opposed to these articulated reasons for allowing these groups
is his statement with respect to the Union, ibid.:
"The Division of Prisons was unable to validate a substantive
rehabilitation purpose or associative purpose in the design of the
organization. To accept the organizational objectives of a
prisoner's union would be to approve an organization whose design
and purpose would compromise the order and security of the
See also supra
at 433 U. S.
It was acknowledged at oral argument that the Union
newsletter has since reiterated the Union's goal, as stated in the
charter, and that the newsletter has contained authorization cards
whereby the inmate could
"authorize the agents or representatives of said Union to
represent me and to act as a collective bargaining agent in all
matters pertaining to rates of pay, hours of employment and all
other terms and conditions of incarceration."
Record 25. See
Tr. of Oral Arg. 31, 335.
MR. CHIEF JUSTICE BURGER, concurring.
I concur fully in the Court's opinion.
This is but another in a long line of cases in the federal
courts raising questions concerning the authority of the States
Page 433 U. S. 137
to regulate and administer matters peculiarly local in nature.
Too often there is confusion as to what the Court decides in this
type of case. The issue here, of course, is not whether prisoner
"unions" are "good" or "bad," but, rather, whether the Federal
Constitution prohibits state prison officials from deciding to
exclude such organizations of inmates from prison society in their
efforts to carry out one of the most vexing of all state
responsibilities -- that of operating a penological institution. In
determining that it does not, we do not suggest that prison
officials could not or should not permit such inmate organizations,
but only that the Constitution does not require them to do so.
The solutions to problems arising within correctional
institutions will never be simple or easy. Prisons, by definition,
are closed societies populated by individuals who have demonstrated
their inability, or refusal, to conform their conduct to the norms
demanded by a civilized society. Of necessity, rules far different
from those imposed on society at large must prevail within prison
walls. The federal courts, as we have often noted, are not equipped
by experience or otherwise to "second guess" the decisions of state
legislatures and administrators this sensitive area except in the
most extraordinary circumstances. This recognition, of course, does
not imply that a prisoner is stripped of all constitutional
protection as he passes through the prison's gates. Indeed, this
Court has made clear on numerous occasions that the Constitution
and other federal laws protect certain basic rights of inmates.
E.g., Bounds v. Smith, 430 U. S. 817
(1977). Rather, it "reflects no more than a healthy sense of
realism" on our part to understand that needed reforms in the area
of prison administration must come not from the federal courts, but
from those with the most expertise in this field -- prison
administrators themselves. See Procunier v. Martinez,
416 U. S. 396
416 U. S. 405
(1974). And, in the last half dozen years, enlightened correctional
administrators have made significant strides in the area of prison
Page 433 U. S. 138
Notable in this respect are the grievance procedures instituted
by the Federal Bureau of Prisons *
experiments, and now by a number of States, including North
Carolina, which permit inmates to register their complaints with
penal officials and obtain nonjudicial relief. However, while I
applaud such procedures, and indeed urged their adoption, W.
Burger, Report on the Federal Judicial Branch -- 1973, 59 A.B.A.J.
1125 (1973), I do not suggest that the procedures are
constitutionally mandated. Similarly, we do not pass today on the
"social utility" of inmate organizations, whether they be
characterized as "unions" or otherwise, but only on whether the
Constitution requires prison officials to permit their
* Statistics compiled by the Federal Bureau of Prisons indicate
that, in 1975 alone, more than 5,000 complaints by inmates were
brought to the attention of federal prison officials pursuant to
the grievance procedures. Approximately one-fourth of these
complaints were ultimately resolved in favor of the inmate.
Preliminary figures for 1976 indicate an even greater utilization
of the grievance procedures; it is estimated that more than 10,000
complaints were registered by inmates during that year. Brief for
United States as Amicus Curiae
31-32, n. 15. The
development of this grievance procedure appears to have slowed down
the rate of growth of federal prisoner petitions filed in the
federal district courts. 1975 Annual Report of the Director,
Administrative Office of the United States Courts X148-X151.
MR. JUSTICE STEVENS, concurring in part and dissenting in
My disagreement with the Court is extremely narrow. The Court
has not sanctioned a restraint on discussion between inmates on the
relative advantages or disadvantages of belonging to a prisoners'
union. The prohibition of inmate-to-inmate solicitation which the
Court upholds is defined as "an invitation to collectively engage
in a legitimately prohibited activity." Ante
433 U. S. 132
The Court has made it clear that mere membership in a union is not
such an activity, ante
at 128-129. The language of
appellants' "no-solicitation regulation"
Page 433 U. S. 139
is, however, somewhat broader.* Therefore, instead of concluding
that the entire regulation is valid, ante
at 433 U. S. 136
I would hold it invalid to the extent that it exceeds the Court's
I join the portions of the Court's opinion concerning the bulk
mailing and union meeting claims.
"Persons in the custody of the Department of Correction are
prohibited from soliciting other inmates about membership in any
Jurisdictional Statement 38.
MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN joins,
There was a time, not so very long ago, when prisoners were
regarded as "slave[s] of the State," having "not only forfeited
[their] liberty, but all [their] personal rights. . . ." Ruffin
62 Va. 790, 796 (1871). In recent years,
however, the courts increasingly have rejected this view, and with
it the corollary which holds that courts should keep their "hands
off" penal institutions. [Footnote
] Today, however, the Court, in apparent fear of a prison
reform organization that has the temerity to call itself a "union,"
takes a giant step backwards toward that discredited conception of
prisoners' rights and the role of the courts. I decline to join in
what I hope will prove to be a temporary retreat.
In Procunier v. Martinez, 416 U.
(1974), I set forth at some length my
understanding of the First Amendment rights of prison inmates. The
fundamental tenet I advanced is simply stated:
"A prisoner does not shed . . . basic First Amendment rights at
the prison gate. Rather, he 'retains all the rights of an ordinary
citizen except those expressly, or by necessary implication, taken
from him by law.' Coffin v.
Page 433 U. S. 140
143 F.2d 443, 445. (CA6 1944)."
at 422 (concurring opinion). It follows from this
tenet that a restriction on the First Amendment rights of
prisoners, like a restriction on the rights of nonprisoners,
"can only be justified by a substantial government interest and
a showing that the means chosen to effectuate the State's purpose
are not unnecessarily restrictive of personal freedoms."
at 423. This does not mean that any expressive
conduct that would be constitutionally protected outside a prison
is necessarily protected inside; as I also stated in
"[T]he First Amendment must in each context
be applied "in light of the special characteristics of the . .
. environment,'" Healy v. James, 408 U.
S. 169, 408 U. S. 180
(1972), and the exigencies of governing persons in prisons are
different from and greater than those in governing persons
without." Id. at 424. But the basic mode of First
Amendment analysis -- the requirement that restrictions on speech
be supported by "reasons imperatively justifying the particular
deprivation," ibid. -- should not be altered simply
because the First Amendment claimants are incarcerated.
The Court today rejects this analytic framework, at least as it
applies to the right of prisoners to associate in something called
a prison "union." [Footnote 2/2
testing restrictions on the exercise of that right the Court asks
only whether the restrictions are "rationally related to the . . .
objectives of prison administration," ante
at 433 U. S. 129
and whether the reasons offered in defense of the restrictions have
been "conclusively shown to be wrong," ante
433 U. S. 132
While proclaiming faithfulness to the teaching of Pell v.
Procunier, 417 U. S. 817
417 U. S. 822
(1974), that "a prison inmate retains those First Amendment
rights that are not inconsistent with his status as a prisoner,'"
ante at 433 U. S. 125,
the Court ultimately upholds the challenged regulations
Page 433 U. S. 141
on a ground that would apply to any restriction on inmate
freedom: they "are consistent with. the inmates' status as
at 433 U. S.
Nothing in the Court's opinion justifies its wholesale
abandonment of traditional principles of First Amendment analysis.
I realize, of course, that "the realities of running a penal
institution are complex and difficult," ante
433 U. S. 126
and that correctional officers possess considerably more
"professional expertise,'" ante at 433 U. S. 128,
in prison management than do judges. I do not in any way minimize
either the seriousness of the problems or the significance of the
expertise. But it does seem to me that "the realities of running" a
school or a city are also "complex and difficult," and that those
charged with these tasks -- principals, college presidents, mayors,
councilmen, and law enforcement personnel -- also possess special
"professional expertise." [Footnote
2/3] Yet in no First Amendment case of which I am aware has the
Court deferred to the judgment of such officials simply because
their judgment was "rational." Cf. Healy v. James,
408 U. S. 169
(1972); Tinker v. Des Moines School Dist., 393 U.
S. 503 (1969); Cox v. Louisiana, 379 U.
S. 536, 379 U. S.
544-551 (1965); Edwards v. South Carolina,
372 U. S. 229
(1963). I do not understand why a different rule should apply
simply because prisons are involved.
The reason courts cannot blindly defer to the judgment of prison
administrators -- or any other officials, for that matter -- is
easily understood. Because the prison administrator's business is
to maintain order,
"there inheres the danger that he may well be less responsive
than a court -- part of an independent branch of government -- to
the constitutionally protected interests in free expression."
Freedman v. Maryland, 380 U. S. 51
380 U. S. 57
(1965). A warden seldom will find himself subject to public
criticism or dismissal because he
Page 433 U. S. 142
needlessly repressed free speech; indeed, neither the public nor
the warden will have any way of knowing when repression was
unnecessary. But a warden's job can be jeopardized and public
criticism is sure to come should disorder occur. Consequently,
prison officials inevitably will err on the side of too little
freedom. That this has occurred in the past is made clear by the
recent report of the American Bar Association Joint Committee on
the Legal Status of Prisoners:
"All organizations including correctional organizations
overreact to suggested changes, whether sweeping or merely
incremental. . . . [M]any of the fears voiced by prison officials
in the 1960's to the growing tide of court determinations
invalidating prison regulations have simply not come to pass;
indeed, in several instances . . . , those groups feared by the
prisons in the 1960's have become stabilizing influences in the
1970's. [Footnote 2/4
I do not mean to suggest that the views of correctional
officials should be cavalierly disregarded by courts called upon to
adjudicate constitutional claims of prisoners. Far from it. The
"'constitute a body of experience and informed judgment to which
courts . . . may properly resort for guidance. The weight of such a
judgment in a particular case will depend upon the thoroughness
evident in its consideration, the validity of its reasoning . . . ,
and all those factors which give it power to persuade . . . ,'"
General Electric Co. v. Gilbert, 429 U.
, 429 U. S. 142
(1976), quoting Skidmore v. Swift & Co., 323 U.
, 323 U. S. 140
(1944). My point is simply that the ultimate responsibility for
evaluating the prison officials' testimony, as well as any other
expert testimony, must rest with the court, which are required to
reach an independent judgment
Page 433 U. S. 143
concerning the constitutionality of any restriction on
The approach I advocate is precisely the one this Court has
followed in other cases involving the rights of prisoners. In
Johnson v. Avery, 393 U. S. 483
(1969), for example, the Court expressly acknowledged the
rationality of the rule at issue which prohibited inmate writ
writers from aiding fellow prisoners in preparing legal papers,
at 393 U. S. 488
We nevertheless concluded that the rule was unconstitutional
because of its impact on prisoners' right of access to the courts.
In Lee v. Washington, 390 U. S. 333
(1968), we did not even inquire whether segregating prisoners by
race was rational, although it could be argued that integration in
a southern prison would lead to disorder among inmates; we held
that, in any event, segregation was prohibited by the Fourteenth
Amendment. And in Bounds v. Smith, 430 U.
(1977); Wolff v. McDonnell, 418 U.
(1974); and Cruz v. Beto, 405 U.
(1972), we followed the approach of Lee.
By word and deed, then, we have repeatedly reaffirmed that
"a policy of judicial restraint cannot encompass any failure to
take cognizance of valid constitutional claims. . . . When a prison
regulation or practice offends a fundamental constitutional
guarantee, federal courts will discharge their duty to protect
Procunier v. Martinez,
416 U.S. at 416 U. S.
Once it is established that traditional First Amendment
principles are applicable in prisoners' rights cases, the dispute
here is easily resolved. The three-judge court not only found that
there was "not one scintilla of evidence to suggest that the Union
had been utilized to disrupt the operation of the penal
institutions," 409 F.
, 944 (EDNC 1976), as the Court acknowledges,
at 433 U. S. 127
n. 5, it also found no evidence "that the inmates intend to operate
[the Union] to
Page 433 U. S. 144
hamper and interfere with the proper interests of government,"
409 F. Supp. at 944, or that the Union posed a "present danger to
security and order," id.
at 945. In the face of these
findings, it cannot be argued that the restrictions on the Union
are "imperatively justif[ied]."
The regulation barring inmates from soliciting fellow prisoners
to join the Union is particularly vulnerable to attack. As the late
Judge Craven stated for the court below: "To permit an inmate to
join a union and forbid his inviting others to join borders on the
at 943. The irrationality of the
regulation is perhaps best demonstrated by the fact that the Court
does not defend it; rather, as my Brother STEVENS suggests,
at 433 U. S.
-139, the Court defends some hypothetical regulation
banning "an invitation to collectively engage in a legitimately
prohibited activity.' Ante at 433 U. S.
132"; see also ante at 433 U. S. 129
(discussing ban on "concerted group activity, or solicitation
therefor"). Because the actual regulation at issue here needlessly
bars solicitation for an activity -- joining the Union -- which is
not and presumably could not be prohibited, [Footnote 2/5] I would hold it unconstitutional.
Once the rule outlawing solicitation is invalidated, the
prohibition on bulk mailing by the Union must fall with it. Since
North Carolina allows the Union to mail its newsletters to
prisoners individually, the State cannot claim that the bulk mail
rule serves to keep "subversive material" out of the prison.
Rather, the primary purpose of the rule must be to supplement the
ban on solicitation; [Footnote 2/6
overturning that ban
Page 433 U. S. 145
would sap all force from the rationale for excluding bulk
mailings. The exclusion would then be left as one that
unnecessarily increases the cost to the Union of exercising its
First Amendment rights [Footnote
] while allowing other inmate groups such as the Jaycees to
exercise their rights at a lower price. It would, therefore, be
The regulation prohibiting the Union from holding meetings
within the prison is somewhat more justifiable than the regulations
previously considered. Once the Union is permitted to hold
meetings, it will become operational within the prisons.
Appellants' fears that the leaders of an operating union "would be
in a position to misuse their influence," and that the Union itself
could engage in disruptive, concerted activities or increase
tension within the prisons, App. 121, are not entirely fanciful. It
is important to note, however, that appellee's two expert
witnesses, both correctional officers who had dealt with inmate
reform organizations, testified that such groups actually play a
constructive role in their prisons, id.
at 38, 90-95. The
weight of professional opinion seems to favor recognizing such
groups. [Footnote 2/8
the risks appellants fear are inherent in any inmate organization,
no matter how innocuous its stated goals; indeed, even without any
organizations some inmates inevitably will become leaders
Page 433 U. S. 146
of "misus[ing] their influence," id.
at 886, 102-103,
] and some concerted
activity can still occur, id.
But even if the risks posed by the Union were unique to it, and
even if appellants' fear of the Union were more widely shared by
other professionals, the prohibition on Union meetings still could
not survive constitutional attack. The central lesson of over a
half century of First Amendment adjudication is that freedom is
sometimes a hazardous enterprise, and that the Constitution
requires the State to bear certain risks to preserve our liberty.
See, e.g., Whitney v. California, 274 U.
, 274 U. S.
-378 (1927) (Brandeis, J., concurring);
Terminiello v. Chicago, 337 U. S. 1
Tinker v. Des Moines School Dist., 393 U.
(1969). As the ABA Joint Committee,
"The doubts and risks raised by creating a humane and open
prison must be accepted as a cost of our society; democracy is
self-definitionally a risk-taking form of government. [Footnote 2/10
To my mind, therefore, the fact that appellants have not acted
wholly irrationally in banning Union meetings is not dispositive.
Rather, I believe that where, as here, meetings would not pose an
immediate and substantial threat to the security or rehabilitative
functions of the prisons, the First Amendment guarantees Union
members the right to associate freely, and the Fourteenth Amendment
guarantees them the right to be treated as favorably as members of
other inmate organizations. The State can surely regulate the time,
place, and manner of the meetings, and perhaps can monitor them to
assure that disruptions are not planned, but the State cannot
outlaw such assemblies altogether.
Page 433 U. S. 147
If the mode of analysis adopted in today's decision were to be
generally followed, prisoners eventually would be stripped of all
constitutional rights, and would retain only those privileges that
prison officials, in their "informed discretion," deigned to
recognize. The sole constitutional constraint on prison officials
would be a requirement that they act rationally. Ironically,
prisoners would be left with a right of access to the courts,
see Bounds v. Smith, 430 U. S. 817
(1977); Johnson v. Avery, 393 U.
(1969), but no substantive rights to assert once
they get there. I cannot believe that the Court that decided
-- the Court that has stated
that "[t]here is no iron curtain drawn between the Constitution and
the prisons of this country," Wolff v. McDonnell,
at 418 U. S.
-556, and that "[a] prison inmate retains those First
Amendment rights that are not inconsistent with his status as a
prisoner," Pell v. Procunier,
417 U.S. at 417 U. S. 822
-- intends to allow this to happen. I therefore believe that the
tension between today's decision and our prior cases ultimately
will be resolved not by the demise of the earlier cases, but by the
recognition that the decision today is an aberration, a
manifestation of the extent to which the very phrase "prisoner
union" is threatening to those holding traditional conceptions of
the nature of penal institutions.
I respectfully dissent.
For brief exposition of the "hands-off" doctrine and its demise,
Fox, The First Amendment Rights of Prisoners, 63
J.Crim.L.C. & P.S. 162 (1972).
That the First Amendment protects the right to associate is by
now well established. See, e.g., Kusper v. Pontikes,
414 U. S. 51
(1973); NAACP v. Alabama, 357 U.
Similarly, prison administrators, principals, college
presidents, and the like "must be permitted to act before the time
when they can compile a dossier on the eve of a riot."
at 433 U. S.
ABA Joint Committee on the Legal Status of Prisoners, The Legal
Status of Prisoners (Tent.Draft 1977), in 14 Am.Crim.L.Rev. 377,
419 (1977) (hereafter ABA Joint Committee report).
I express no view concerning the extent to which orderly,
concerted activities are protected in prison. This issue has been
addressed at length by the ABA Joint Committee report, Standard §
6.4 and Commentary.
The only other justification offered for the rule is to prevent
contraband from being smuggled into the prisons. Nothing in the
record remotely suggests that the outside personnel associated with
the Union would use bulk mailing for this purpose. Moreover, the
solution to the alleged contraband danger is to inspect the bulk
mailings, not to prohibit them.
Contrary to the Court's assertion, ante
at 433 U. S.
-131, free speech values most definitely are
implicated by a regulation whose purpose and effect is to make the
exercise of First Amendment rights costly. Cf., e.g., Murdock
v. Pennsylvania, 319 U. S. 105
(1943); Grosjean v. American Press Co., 297 U.
ABA Joint Committee report., Standard § 6.4 and
Commentary; S. Krantz, R. Bell, J. Brant, & M. Magruder, Model
Rules and Regulations on Prisoners' Rights and Responsibilities,
Rules IA-1b, IA-5 and Commentary (1973); National Advisory
Commission on Criminal Justice Standards and Coals, Corrections,
Standard 2.15 and Commentary, pp. 58-61 (1973).
Note, Bargaining in Correctional Institutions:
Restructuring the Relation between the Inmate and the Prison
Authority, 81 Yale L.J. 726 (1972). The concern over inmate
leadership has been advanced to oppose numerous prison reforms.
E.g., Johnson v. Avery, 393 U. S. 483
393 U. S. 499
(1969) (WHITE, J., dissenting); Saxbe v. Washington Post
Co., 417 U. S. 843
417 U. S.
-860 (1974) (POWELL, J., dissenting) (rejecting
ABA Joint Committee report 419.