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

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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


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.


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

Primary Holding

If it is reasonably related to a legitimate interest in the proper functioning of prisons, the First Amendment does not prevent the government from withholding certain publications requested by inmates.


Prison officials in the Federal Bureau of Prisons were allowed to prevent prisoners from receiving publications from the outside that were seen to be detrimental to the security, good order, or discipline of the prison, or that might incite criminal activity. A group of 46 publications were withheld by the prison authorities. The prisoners argued that this was a violation of the First Amendment.



  • Harry Andrew Blackmun (Author)
  • William Hubbs Rehnquist
  • Byron Raymond White
  • Sandra Day O'Connor
  • Antonin Scalia
  • Anthony M. Kennedy

Applying a deferential reasonableness standard, the regulation is constitutional on its face because it is based on protecting prison security and designed to prevent threats of disorder that these publications could be expected to cause. It is foreseeable that prisoners may draw inferences about gang affiliations, sexual orientation, or other personal information of other prisoners by seeing these materials, and unrest in the prisons could result. Prison authorities have the right to make individual determinations of the security risk posed by a publication, and the regulation provides clear guidelines for how to exercise their discretion.

Concurrence/Dissent In Part

  • John Paul Stevens (Author)
  • William Joseph Brennan, Jr.
  • Thurgood Marshall

The decision is written so broadly that it may be improperly interpreted as leaving inmates with no right of free communication with the outside world.

Case Commentary

A prison is a somewhat distinctive setting for a First Amendment analysis, similar to schools, government employment, and the armed forces. The Court shows greater deference to the government than in the ordinary context, based on the significant interest in maintaining order within the prison. It was persuaded that the wardens did not make their decisions based solely on the content of the publication and that they reviewed each publication with the necessary care.

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