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 � (a) of the statement, a warden may reject the
following types of sexually explicit material pursuant to 28 CFR §
540.71(b)(7) (
see n. 5,
supra):
"(1) Homosexual (of the same sex as the institution
population)."
"(2) Sado-masochistic."
"(3) Bestiality."
"(4) Involving children."
Material in categories (1), (2), and (3) may be admitted if the
warden determines it "not to pose a threat at the local
institution." 11(b)(1). Explicit heterosexual material ordinarily
will be admitted. � (b)(2). Other explicit material may be admitted
if it has scholarly, or general social or literary, value. �
(b)(5). Homosexual material that is not sexually explicit is to be
admitted; this includes a publication covering the activities of
gay rights groups or gay religious groups, 11(b)(3), and literary
publications with homosexual themes or references, 11(b)(4).
See 263 U.S.App.D.C. at 197, 824 F.2d at 1177.
[
Footnote 7]
Under the Administrative Remedy Procedure, a prisoner who has
been unable informally to resolve his difficulty may file a formal
written complaint. 28 CFR § 542.13(b) (1988). If the inmate
believes he would be adversely affected if the complaint became
known at the prison, he may file the complaint with the Regional
Director of the Bureau. § 542.13(c). The warden or Regional
Director is to respond within 15 or 30 days, respectively. §
542.14. An adverse decision by the Regional Director may be
appealed to the General Counsel of the Bureau; an adverse decision
by the warden may be appealed to the Regional Director. §
542.15.
[
Footnote 8]
Although the regulations do not so provide, it is the practice
of the Bureau to withhold in its entirety any publication
containing excludable material. This practice, referred to by the
parties as the "all-or-nothing rule," is also at issue in this
case.
[
Footnote 9]
We do not think it sufficient to focus, as respondents urge, on
the identity of the individuals whose rights allegedly have been
infringed. Although the Court took special note in
Procunier v.
Martinez, 416 U. S. 396
(1974), of the fact that the rights of nonprisoners were at issue,
and stated a rule in
Turner v. Safley, 482 U. S.
78 (1987), for circumstances in which "a prison
regulation impinges on
inmates' constitutional rights,"
id. at
482 U. S. 89
(emphasis added), any attempt to forge separate standards for cases
implicating the rights of outsiders is out of step with the
intervening decisions in
Pell v. Procunier, 417 U.
S. 817 (1974);
Jones v. North Carolina Prisoners'
Labor Union, Inc., 433 U. S. 119
(1977); and
Bell v. Wolfish, 441 U.
S. 520 (1979). These three cases, on which the Court
expressly relied in
Turner when it announced the
reasonableness standard for "inmates' constitutional rights" cases,
all involved regulations that affected rights of prisoners and
outsiders.
Pell involved the right of representatives of the news
media to conduct interviews in the prisons in order to inform the
public about prison conditions. The asserted right at issue in
Jones was the right of a prisoners' union to send its
literature into the prison. In
Wolfish, publishers sought
to send hardback books into the prison. In all these cases,
regulations worked a "consequential restriction on the . . . rights
of those who are not prisoners."
Martinez, 416 U.S. at
416 U. S. 409.
But the Court in
Turner observed:
"In none of these . . . cases did the Court apply a standard of
heightened scrutiny, but instead inquired whether a prison
regulation that burdens fundamental rights is 'reasonably related'
to legitimate penological objectives, or whether it represents an
'exaggerated response' to those concerns."
482 U.S. at
482 U. S.
87.
[
Footnote 10]
Martinez has been characterized in subsequent decisions
of this Court as a case concerning "written communication by
inmates" to noninmate recipients.
See Pell, 417 U.S. at
417 U. S. 826.
See also Houchins v. KQED, Inc., 438 U. S.
1,
438 U. S. 12
(1978) (plurality opinion) (distinguishing
Martinez as
dealing with outsiders' right to receive communications from inside
the prison, as opposed to outsiders' right to prison access);
id. at
438 U. S. 31
(dissenting opinion) (noting
Martinez as a case concerning
"excessive censorship of
outgoing inmate correspondence"
(emphasis added)). Indeed, the parties in
Martinez
stressed that the regulation as enforced dealt "with thoughts
expressed in prisoner mail to relatives or friends --
mainly
outgoing letters, not matters circulated within the walls."
(Emphasis added.) Brief for Appellees in
Procunier v.
Martinez, O.T. 1973, No. 72-1465, p. 29.
See also id.
at 31; Tr. of Oral Arg. in
Martinez, pp. 17, 25 ("[T]he
issues in this case involve what the prisoners are writing outside
of the prison"), 31.
[
Footnote 11]
To be sure, some of the regulations at issue in
Martinez applied to
incoming, as well as
outgoing, correspondence. In striking down these regulations as
facially overbroad, the Court did not limit its holding to
restrictions on outgoing correspondence. But the Court noted that
the regulation banning transmission of "inflammatory political,
racial, religious or other views" was not "limited to incoming
letters." 416 U.S. at
416 U. S. 416.
This observation suggests that the Court's approach to the
regulation might have been different had the regulation been so
limited.
[
Footnote 12]
The District Court in the present case stated its standard of
review:
"the Bureau [must] articulate a relationship between its
regulations (and practices) and legitimate penological objectives
such as internal security. Once the Bureau meets that requirement,
the plaintiffs must show by 'substantial evidence' that the
defendants have 'exaggerated their response' to the problems the
regulations address."
App. to Pet. for Cert. 46a-47a (citing, among other cases,
St. Claire v. Cuyler, 634 F.2d 109, 114 (CA3 1980)). The
District Court did not have the benefit of this Court's decision in
Turner, and the standard of review it applied is not
precisely identical to the
Turner standard. In particular,
it is by no means certain what the District Court meant by
"substantial evidence." We do not pass on any question of
evidentiary burdens or burden-shifting here, but we conclude that
the standard applied by the District Court is sufficiently close to
the
Turner standard for present purposes to permit
reliance on the District Court's findings.
[
Footnote 13]
Indeed, the Court upheld content distinctions in
Jones,
where internal distribution of Prisoner's Union materials was
prohibited, while distribution of materials from the Jaycees and
Alcoholics Anonymous was permitted. 433 U.S. at
433 U. S. 131,
n. 8. It upheld these distinctions against an equal protection
challenge because the distinctions had a rational basis in the
legitimate penological interests of the prisons: in contrast with
the Prisoner's Union, the Jaycees and Alcoholics Anonymous
"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."
Id. at
433 U. S.
134.
[
Footnote 14]
In contrast, the censorship at issue in
Martinez
closely resembled the kind of censorship which is expressly
prohibited by the regulations presently at issue. In
Martinez, the regulations barred writings that "unduly
complain" or "magnify grievances," express "inflammatory political,
racial, religious or other views," or are "defamatory" or
"otherwise inappropriate." 416 U.S. at
416 U. S. 415.
We found in
Martinez that
"[t]hese regulations fairly invited prison officials and
employees to apply their own personal prejudices and opinions as
standards for prisoner mail censorship,"
and that the purpose of the regulations had not been found
"unrelated to the suppression of expression."
Ibid. The
regulations at issue in
Martinez, therefore, were
decidedly not "neutral" in the relevant sense.
[
Footnote 15]
The exercise of discretion called for by these regulations may
produce seeming "inconsistencies," but what may appear to be
inconsistent results are not necessarily signs of arbitrariness or
irrationality. Given the likely variability within and between
institutions over time,
see App. to Pet. for Cert. 32a;
App. 20-21, 50, greater consistency might be attainable only at the
cost of a more broadly restrictive rule against admission of
incoming publications.
Cf. F. Dostoyevsky, The House of
the Dead 40 (Penguin 1985) (prisoners permitted to read only the
Bible). Any attempt to achieve greater consistency by broader
exclusions might itself run afoul of the second
Turner
factor,
i.e., the presence or absence of "alternative
means of exercising the right" in question. 482 U.S. at 90. The
regulations at issue here, in our view, strike an acceptable
balance.
Respondents have argued that the record does not support the
conclusion that exclusions are in fact based on particular events
or conditions at a particular prison; they contend that variability
in enforcement of the regulations stems solely from the censors'
subjective views. Brief for Respondents 43-44, n. 37. These
contentions go to the adequacy of the regulations as applied, and
will be considered on remand.
JUSTICE STEVENS, with whom JUSTICE BRENNAN and JUSTICE MARSHALL
join, concurring in part and dissenting in part.
An article in Labyrinth, a magazine published by the Committee
for Prisoner Humanity & Justice, began as follows:
"In January, 1975, William Lowe, a black prisoner at the United
States Penitentiary at Terre Haute, Indiana died of asthma. . . .
In August, 1975, Joseph (Yusef) Jones, Jr., a black prisoner at the
U.S. Penitentiary, Terre Haute, IN. died of asthma."
". . . The prison infirmary at that time had only one
respirator[,] known to be inoperative in January, 1975, when
William Lowe died. It was still broken in August, 1975, when Joseph
Jones needed it."
"On the day of his death, Jones was suffering an acute asthma
attack; he was gasping for breath in the stale, hot, humid air in
the cell. He requested medical aid of the guards. After several
hours of unheeded pleading, accompanied by complaints to the guards
from fellow prisoners in the cell block, Jones became frantic. Each
breath was painful; each breath brought him closer to suffocation.
Finally, guards called the PA (physician's assistant) . . . who
brought with him the broken respirator. Finding the equipment
unusable, the PA gave Jones an injection of the tranquilizer,
thorazine, to calm him. Treatment with a tranquilizer was
unquestionably contraindicated by Jones' medical condition. Twenty
minutes later, Jones was dead."
"
* * * *"
"
Conclusion: Jones, who was convicted of bank robbery
and sentenced to 10 years in prison, was in fact, sentenced to
death and was
murdered by neglect. [
Footnote 2/1]
Page 490 U. S. 421
The incident described above eventually came to the attention of
this Court, which allowed Jones' mother to pursue her civil rights
action against prison officials.
Carlson v. Green,
446 U. S.
14 (1980). Clearly the Labyrinth article's report of
inadequate medical treatment of federal prisoners raised 'a matter
that is both newsworthy and of great public importance.'
Pell
v. Procunier, 417 U. S. 817,
417 U. S.
830, n. 7 (1974). As the Court concedes,
ante
at 407, both publishers and recipients of such criticism ordinarily
enjoy the fullest First Amendment protections. [
Footnote 2/2]
See Pell, supra, at
417 U. S. 822;
Martin v.
Struthers, 319 U. S. 141,
319 U. S.
146-147 (1943)."
Yet Labyrinth's efforts to disseminate the article to its
subscribers at Marion Federal Penitentiary met Government
resistance. Marion officials, acting within Federal Bureau of
Prisons (Bureau) regulations, [
Footnote
2/3] returned the magazine on the ground that
"the article entitled 'Medical Murder' would be detrimental to
the good order and discipline of this institution. . . . [T]his
type of philosophy could guide inmates in this institution into
situations which could cause themselves and other inmates problems
with the Medical Staff."
J. L. 12. Two years after publication, a Marion official
testified that he
Page 490 U. S. 422
believed the article had posed no threat. App. 104. Nonetheless,
the District Court below found the suppression of this and 45 other
publications "reasonable," and thus sustained the rejections
wholesale. App. to Pet. for Cert. 28a-34a, 47a. This Court holds
today that such
carte blanche deference was improper, and
remands for case-by-case review. I agree with this aspect of the
Court's decision. I cannot agree, however, with either its holding
that another finding of "reasonableness" will justify censorship or
its premature approval of the Bureau's regulations. These latter
determinations upset precedent in a headlong rush to strip inmates
of all but a vestige of free communication with the world beyond
the prison gate. [
Footnote 2/4]
I
This Court first addressed the First Amendment in the prison
context in
Procunier v. Martinez, 416 U.
S. 396 (1974). Prior lower court treatments had varied:
some courts had maintained "a hands-off posture," while others had
required "demonstration of a
compelling state interest' to
justify censorship of prisoner mail." Id. at 416 U. S. 406.
With characteristic wisdom Justice Powell, in his opinion for the
Court, rejected both extremes. The difficulties of prison
administration, he perceived, make the strict scrutiny that the
First Amendment demands in other contexts inappropriate. [Footnote 2/5]
Page 490 U. S. 423
See, e.g., First National Bank of Boston v. Bellotti,
435 U. S. 765,
435 U. S. 786
(1978);
Elrod v. Burns, 427 U. S. 347,
427 U. S. 362
(1976) (opinion of BRENNAN, J.);
Brandenburg v. Ohio,
395 U. S. 444,
395 U. S. 447
(1969) (per curiam). Focusing not on the rights of prisoners, but
on the "inextricably meshed" rights of nonprisoners "who have a
particularized interest in communicating with them," he wrote that
an "undemanding standard of review" could not be squared with the
fact "that the First Amendment liberties of free citizens are
implicated in censorship of prisoner mail."
Martinez,
supra, at
416 U. S. 408,
416 U. S. 409.
Thus he chose an "intermediate" means of evaluating speech
restrictions, 416 U.S. at
416 U. S. 407,
allowing censorship if it "further[ed] an important or substantial
governmental interest unrelated to the suppression of expression,"
and "the limitation of First Amendment freedoms [was] no greater
than [was] necessary or essential,"
id. at
416 U. S.
413.
"Prison officials may not censor inmate correspondence simply to
eliminate unflattering or unwelcome opinions or factually
inaccurate statements,"
Justice Powell stressed.
Ibid. Censorship might be
permitted, however, to ensure
"the preservation of internal order and discipline, the
maintenance of institutional security against escape or
unauthorized entry, and the rehabilitation of the prisoners."
Id. at
416 U. S. 412
(footnote omitted). Prison administrators did not have "to show
with certainty that adverse consequences would flow from the
failure to censor a particular letter," but
"any regulation or practice that restricts inmate correspondence
must be generally necessary to protect one or more of the
legitimate governmental interests identified above."
Id. at
416 U. S. 414.
[
Footnote 2/6]
In the 15 years since
Martinez was decided, lower
courts routinely have applied its standard to review limitations
not only on correspondence between inmates and private
citizens,
Page 490 U. S. 424
but also on communications -- such as the newsletters,
magazines, and books at issue -- between inmates and publishers.
[
Footnote 2/7] Carefully examining
free speech rights and countervailing governmental interests, these
courts approved some restrictions and invalidated others. [
Footnote 2/8] This Court thus correctly
recognizes that
Martinez's standard of review does not
deprive prison officials of the discretion necessary to perform
their difficult tasks.
Ante at
490 U. S. 409.
Inexplicably, it then partially overrules
Martinez by
limiting its scope to outgoing mail; letters and publications sent
to prisoners now are subject only to review for "reasonableness."
Ante at
490 U. S.
413-414.
This peculiar bifurcation of the constitutional standard
governing communications between inmates and outsiders is
unjustified. The decision in
Martinez was based on a
distinction between prisoners' constitutional rights and the
protection the First Amendment affords those who are not prisoners
-- not between nonprisoners who are senders and those who are
receivers. As Justice Powell explained:
"Whatever the status of a prisoner's claim to uncensored
correspondence with an outsider, it is plain that the latter's
interest is grounded in the First Amendment's guarantee of freedom
of speech. And this does not depend on whether the nonprisoner
correspondent is the author or intended recipient of a particular
letter, for
Page 490 U. S. 425
the addressee as well as the sender of direct personal
correspondence derives from the First and Fourteenth Amendments a
protection against unjustified governmental interference with the
intended communication. . . . The wife of a prison inmate who is
not permitted to read all that her husband wanted to say to her has
suffered an abridgment of her interest in communicating with him as
plain as that which results from censorship of her letter to
him."
416 U.S. at
416 U. S.
408-409 (citations omitted). The Court today abandons
Martinez's fundamental premise. In my opinion, its
suggestion that three later opinions applying reasonableness
standards warrant this departure,
see ante at
490 U. S. 410,
n. 9, is disingenuous. Those cases did involve communications
between inmates and outsiders; however, as I shall demonstrate,
their legal and factual foundations differed critically from those
in
Martinez or in this case.
In
Pell v. Procunier, 417 U. S. 817
(1974), inmates and reporters challenged regulations prohibiting
face-to-face media interviews with specific prisoners.
Id.
at
417 U. S. 819.
The infringement on prisoners' rights, the Court held, was
reasonable because prisoners could write letters to the media -- a
means of communication less disruptive than the physical entry of
reporters into the prison.
Id. at
417 U. S. 824.
The reporters' assertion of a special right of access could not
prevail, the Court explained, because the First Amendment does not
give the media greater access to public events or institutions --
including prisons -- than it gives ordinary citizens. [
Footnote 2/9]
Id. at
417 U. S. 835.
Pell in no way diluted the basic distinction articulated
in
Martinez.
Inmates in
Jones v. North Carolina Prisoners' Labor Union,
Inc., 433 U. S. 119
(1977), had maintained that First
Page 490 U. S. 426
Amendment associational rights protected their efforts to form a
union. The Court concluded that the administrators' grounds for
preventing union organizing within the prison -- an activity
occurring largely among inmates -- were reasonable.
Id. at
433 U. S. 129.
It also approved the officials' refusal to deliver bulk packets of
union literature to specific inmates for distribution to others.
Applying Equal Protection Clause as well as First Amendment
standards, the Court held that the restriction was reasonable
because it was limited in scope and because the union retained
"other avenues of outside informational flow. . . ."
Id.
at
433 U. S. 131;
see id. at
433 U. S. 133,
433 U. S.
136.
In the third case,
Bell v. Wolfish, 441 U.
S. 520 (1979), the Court upheld a regulation that
allowed only publishers, bookstores, and book clubs to mail
hardbound books to pretrial detainees. Hardbacks might serve as
containers for contraband, jail administrators argued. Since the
risk of improper use by publishers and similar sources was low, the
jail delivered books from them, but not from other outsiders.
Id. at
441 U. S. 549.
The Court found this explanation acceptable, and held that the rule
did not violate the detainees' First Amendment rights.
Id.
at
441 U. S. 550.
Although the Court did not expressly address the rights of
nonprisoners, the fact that softcover publications were delivered
without restriction,
see id. at
441 U. S. 552,
minimized the abridgment of outsiders' rights. The approval in
Wolfish of greater protection for publishers than for
individual citizens reinforces
Martinez's view that the
First Amendment rights of nonprisoners must be carefully weighed,
and undermines the Court's approach today.
Most recently,
Turner v. Safley, 482 U. S.
78 (1987), confirmed the vitality of
Martinez
for evaluating encroachments on the First Amendment rights of
nonprisoners. The Court relied on the three interim "prisoners'
rights" cases to establish a reasonableness standard for reviewing
inmate-to-inmate correspondence.
Id. at
482 U. S. 89.
But in its unanimous invalidation of a restriction on inmate
marriages, the Court acknowledged that, "because the regulation may
entail a
consequential
Page 490 U. S.
427
restriction on the [constitutional] rights of those who are
not prisoners,'" Martinez might posit the correct level of
review. 482 U.S. at 482 U. S. 97
(quoting Martinez, 416 U.S. at 416 U. S.
409). It did not "reach this question, however, because,
even under the reasonable relationship test, the marriage
regulation does not withstand scrutiny." [Footnote 2/10] 482 U.S. at 482 U. S.
97.
The
Turner opinion cited and quoted from
Martinez more than 20 times; not once did it disapprove
Martinez's holding, its standard, or its recognition of a
special interest in protecting the First Amendment rights of those
who are not prisoners. Notwithstanding, today the Court abandons
the premise on which
Martinez was grounded. This casual
discarding of "
the secure foundation'" of considered precedent
ill serves the orderly development of the law. See Runyon v.
McCrary, 427 U. S. 160,
427 U. S.
190-191 (1976) (STEVENS, J., concurring) (quoting B.
Cardozo, The Nature of the Judicial Process 149 (1921)).
II
In lieu of
Martinez's rationale, which properly takes
into consideration the effects that prison regulations have on the
First Amendment rights of nonprisoners, the Court applies a
manipulable "reasonableness" standard to a set of regulations that
too easily may be interpreted to authorize arbitrary rejections of
literature addressed to inmates. As I pointed out in my partial
dissent in
Turner, an
"open-ended 'reasonableness' standard makes it much too easy to
uphold restrictions on prisoners' First Amendment rights on the
basis of administrative concerns and speculation about possible
security risks, rather than on the basis of evidence that the
restrictions
Page 490 U. S. 428
are needed to further an important governmental interest."
482 U.S. at
482 U. S. 101,
n. 1.
To be sure, courts must give prison administrators some berth to
combat the "Herculean obstacles" blocking their efforts to maintain
security and prevent escapes or other criminal conduct,
see
Martinez, 416 U.S. at
416 U. S. 404, and I do not object to those regulations
clearly targeted at such interests. [
Footnote 2/11] Nevertheless, I agree with the Court of
Appeals that provisions allowing prison officials to reject a
publication if they find its contents are "detrimental" to
"security, good order, or discipline" or "might facilitate criminal
activity" are impermissibly ambiguous.
See Abbott v.
Meese, 263 U.S.App.D.C. 186, 193, 824 F.2d 1166, 1173 (1987).
The term "detrimental" invites so many interpretations that it
scarcely checks administrators' actions. Similarly, "might
facilitate" -- in contrast with "encourage" or "advocate" -- so
attenuates the causal connection between expression and proscribed
conduct that the warden has virtually free rein to censor incoming
publications.
Despite this vagueness, the Court accepts petitioners' assertion
that they need "broad discretion" to prevent internal disorder, and
thus holds that all the regulations are facially valid.
See
ante at
490 U. S. 416.
This premature leap of faith creates a presumption that rejections
pursuant to these regulations are "reasonable" -- a presumption
that makes likely far less judicial protection of publishers'
rights than I believe the First Amendment requires. As was JUSTICE
BLACKMUN in
Page 490 U. S. 429
Block v. Rutherford, 468 U. S. 576,
468 U. S. 593
(1984) (concurring in judgment), I am concerned that the Court
today too readily "substitute[s] the rhetoric of judicial deference
for meaningful scrutiny of constitutional claims in the prison
setting."
Cf. O'Lone v. Estate of Shabazz, 482 U.
S. 342,
482 U. S. 358
(1987) (BRENNAN, J., dissenting);
Jones, 433 U.S. at
433 U. S.
142-143 (MARSHALL, J., dissenting).
The feeble protection provided by a "reasonableness" standard
applied within the framework of these regulations is apparent in
this record. [
Footnote 2/12] Like
the Labyrinth issue, many of the 46 rejected publications
criticized prison conditions or otherwise presented viewpoints that
prison administrators likely would not welcome. [
Footnote 2/13] Testimony by one mail clerk
[
Footnote 2/14]
Page 490 U. S. 430
and the rote explanations for decisions [
Footnote 2/15] suggest that rejections were based on
personal prejudices or categorical assumptions, rather than
individual assessments of risk.
Cf. Martinez, 416 U.S. at
416 U. S. 415.
These circumstances belie the Court's interpretation of these
regulations as "content-neutral" and its assertion that rejection
decisions are made individually.
See ante at
416 U. S.
414-417. Some of the rejected publications may represent
the sole medium for conveying and receiving a particular
unconventional message; thus it is irrelevant that the regulations
permit many other publications to be delivered to prisoners.
See ante at
416 U. S.
417-418. No evidence supports the Court's assumption
that, unlike personal letters, these publications will circulate
within the prison and cause ripples of disruption. [
Footnote 2/16]
See ante at
490 U. S. 412,
418. Nor is there any evidence that an incoming publication ever
caused a disciplinary or security problem; indeed, some of the
rejected publications were delivered to inmates in other prisons
without incident.
See App. 60, 99, 116-117. In sum, the
record convinces me that, under either the
Martinez
standard or the more deferential "reasonableness" standard,
these
Page 490 U. S. 431
regulations are an impermissibly exaggerated response to
security concerns.
Cf. Turner, 482 U.S. at
482 U. S.
89-90.
III
If a prison official deems part of a publication's content --
even just one page of a book -- to present an intolerable security
risk, the Bureau's regulations authorize the official to return the
entire issue to the publisher.
See 28 CFR § 540.71(e)
(1988). In their challenge to this all-or-nothing rule, respondents
argue that First Amendment interests easily could be accommodated
if administrators omitted the objectionable material and forwarded
the rest of the publication to the inmate. The District Court,
however, found that "defendants' fears" that "such censorship would
create more discontent than the current practice" were "reasonably
founded." App. to Pet. for Cert. 34a. To the contrary, the Court of
Appeals applied the
Martinez standard and held that
"rejection of the balance is not 'generally necessary' to
protect the legitimate governmental interest involved in the
portion properly rejected."
263 U.S.App.D.C. at 193-194, 824 F.2d at 1173-1174.
In this Court, petitioners argue that, on remand, the Court of
Appeals should conduct "a detailed analysis of the evidence in this
case" to determine if the all-or-nothing rule is "reasonable."
Brief for Petitioners 31. "The validity of that policy," they
continue,
"will depend, among other things, on the security and
administrative justifications for that policy, the availability of
alternative courses of action, and the costs and risks associated
with employing those alternatives."
Ibid. It is remarkable that, after 16 years of
litigation, petitioners have failed to develop an argument that
tells us anything about the assumed security or administrative
justification for this rule. Even more remarkable is the Court's
conclusion that, since it does not apply the
Martinez
standard, it need not examine the appropriateness of the District
Court's finding
Page 490 U. S. 432
that the rule was reasonable.
See ante at
490 U. S. 419.
A review of the record reveals that the Court thus defers to
"findings" of a security threat that even prison officials admitted
to be nonexistent.
There is no evidence that delivery of only part of a publication
would endanger prison security. [
Footnote 2/17] Rather, the primary
Page 490 U. S. 433
justification advanced for the all-or-nothing rule was
administrative convenience.
See App. 41, 68. The Bureau
has objected that a contrary rule "would mean defacing the material
and laboriously going over each article in each publication. . . ."
44 Fed.Reg. 38258 (1979). But general speculation that some
administrative burden might ensue should not be sufficient to
justify a meat-ax abridgment of the First Amendment rights of
either a free citizen or a prison inmate. It is difficult even to
imagine such a burden in this instance: if, as the regulations'
text seems to require, prison officials actually read an article
before rejecting it, the incremental burden associated with
clipping out the offending matter could not be of constitutional
significance. The Bureau's administrative convenience justification
thus is insufficient as a matter of law under either the
Martinez standard or a "reasonableness"
Page 490 U. S. 434
standard. The District Court's contradictory finding simply
highlights the likelihood that an attitude of broad judicial
deference, coupled with a "reasonableness" standard, will provide
inadequate protection for the rights at stake. [
Footnote 2/18]
For these reasons, I would affirm the judgment of the Court of
Appeals.
[
Footnote 2/1]
Medical Murder, 4 Labyrinth 5 (Apr.1977) (emphasis in original),
reprinted in Joint Lodging 18 (J. L.).
[
Footnote 2/2]
This Court has recognized:
"[S]peech concerning public affairs is more than
self-expression; it is the essence of self-government. The First
and Fourteenth Amendments embody our"
"profound national commitment to the principle that debate on
public issues should be uninhibited, robust, and wide-open, and
that it may well include vehement, caustic, and sometimes
unpleasantly sharp attacks on government and public officials."
Garrison v. Louisiana, 379 U. S.
64,
379 U. S. 74-75
(1964) (quoting
New York Times Co. v. Sullivan,
376 U. S. 254,
376 U. S. 270
(1964)).
See also Hustler Magazine, Inc. v. Falwell,
485 U. S. 46,
485 U. S. 50-51
(1988);
Thornhill v. Alabama, 310 U. S.
88,
310 U. S.
101-102 (1940).
[
Footnote 2/3]
In part, the regulations state that the "Bureau of Prisons
permits an inmate to subscribe to or to receive publications
without prior approval. . . ." 28 CFR § 540.70(a) (1988).
"The Warden may reject a publication only if it is determined
detrimental to the security, good order, or discipline of the
institution or if it might facilitate criminal activity."
§ 540.71(b).
[
Footnote 2/4]
See Procunier v. Martinez, 416 U.
S. 396,
416 U. S. 422
(1974) (MARSHALL, J., concurring) ("A prisoner does not shed . . .
basic First Amendment rights at the prison gate").
See also
Turner v. Safley, 482 U. S. 78,
482 U. S. 84
(1987);
Pell v. Procunier, 417 U.
S. 817,
417 U. S. 822
(1974);
Coffin v. Reichard, 143 F.2d 443, 445 (CA6 1944)
(per curiam).
[
Footnote 2/5]
"Suffice it to say that the problems of prisons in America are
complex and intractable, and, more to the point, they are not
readily susceptible of resolution by decree. Most require
expertise, comprehensive planning, and the commitment of resources,
all of which are peculiarly within the province of the legislative
and executive branches of government. For all of those reasons,
courts are ill-equipped to deal with the increasingly urgent
problems of prison administration and reform."
Martinez, 416 U.S. at
416 U. S.
404-405.
[
Footnote 2/6]
It is obvious that
Martinez calls.for less than strict
scrutiny, and the Court today correctly rejects petitioners'
argument to the contrary.
Compare ante at
490 U. S.
409-411
with Brief for Petitioners 18-22; Reply
Brief for Petitioners 1-10.
[
Footnote 2/7]
See, e.g., Lawson v. Dugger, 840 F.2d 781 (CA11 1987),
reh'g denied, 840 F.2d 779 (1988) (per curiam),
cert.
pending, No. 87-1994;
Valiant-Bey v. Morris, 829 F.2d
1441 (CA8 1987);
Murphy v. Missouri Dept. of Corrections,
814 F.2d 1252 (CA8 1987);
Pepperling v. Crist, 678 F.2d
787 (CA9 1982);
Trapnell v. Riggsby, 622 F.2d 290 (CA7
1980);
Brooks v. Seiter, 779 F.2d 1177 (CA6 1985);
Guajardo v. Estelle, 580 F.2d 748 (CA5 1978);
Aikens
v. Jenkins, 534 F.2d 751 (CA7 1976);
Morgan v.
LaVallee, 526 F.2d 221 (CA2 1975).
[
Footnote 2/8]
See, e.g., Espinoza v. Wilson, 814 F.2d 1093 (CA6
1987);
Travis v. Norris, 805 F.2d 806 (CA8 1986);
Meadows v. Hopkins, 713 F.2d 206, 211 (CA6 1983);
Vodicka v. Phelps, 624 F.2d 569 (CA5 1980);
Carpenter
v. South Dakota, 536 F.2d 759 (CA8 1976),
cert.
denied, 431 U.S. 931 (1977).
[
Footnote 2/9]
The Court drew support for this proposition from
Branzburg
v. Hayes, 408 U. S. 665,
408 U. S. 684
(1972). That case, like comparable cases decided after
Pell, arose outside the prison context.
E.g., Herbert
v. Lando, 441 U. S. 153,
441 U. S. 165
(1979);
Zurcher v. Stanford Daily, 436 U.
S. 547,
436 U. S.
565-567 (1978).
[
Footnote 2/10]
Petitioners thus are quite wrong when they contend that
Turner mandated that First Amendment challenges to prison
regulations always be reviewed only for reasonableness.
See Brief for Petitioners 18.
[
Footnote 2/11]
It is undisputed that a warden may exclude an incoming
publication if:
"(1) It depicts or describes procedures for the construction or
use of weapons, ammunition, bombs or incendiary devices;"
"(2) It . . . 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; [or]"
"(4) It is written in code. . . ."
28 CFR § 540.71(b) (1988).
[
Footnote 2/12]
Cf. Turner, 482 U.S. at
482 U. S. 100
(STEVENS, J., concurring in part and dissenting in part) ("How a
court describes its standard of review when a prison regulation
infringes fundamental constitutional rights often has far less
consequence for the inmates than the actual showing that the court
demands of the State in order to uphold the regulation").
[
Footnote 2/13]
While publications like Labyrinth reported on prison conditions
and legal matters, other rejected publications discussed or
depicted sexual activity, martial arts, and electronics, and
advocated homosexual rights, neoNazism, and left-wing politics.
See App. 113-132.
See generally J. L.;
Respondents' Lodging.
[
Footnote 2/14]
Asked in a deposition to describe her method for reviewing
publications, the clerk replied:
"A. I have a standard."
"Q. What is that, if you can explain it?"
"A. Okay. Sex is a standard. Radical is a standard. I will go
out on a limb and say Communism and fascism is a standard I would
use. It is more of a political-sexual type standard I personally
use. I have not been told."
"Q. You have not been told to use it?"
"A. No."
"Q How did you happen to get it?"
"
* * * *"
"A. By looking at what I see as being excluded, those
publications are generally of a sexual political nature. Therefore,
I believe that that is the questionable area and they are the ones
that I refer."
App. 97-98.
[
Footnote 2/15]
Statements of reasons for returning different publications were
identical even in their misspelling.
See J.L. 5, 46, 47,
48 ("[T]his publication is used in part to glorify problem inmates
and prison unions which could cause problems to inmates and staff
in the security and orderly running of this institution. This
publication also propagets [
sic] an adversary attitude by
inmates toward staff");
cf. id. at 40 ("[T]his type of
material on institutions has a tendency to develop an adversary
attitude by inmates toward staff, which can cause an unhealthy
environment in this institution").
[
Footnote 2/16]
The Court makes this assumption on the basis of a statement by
petitioners at oral argument.
See ante at
490 U. S. 413
(quoting Tr. of Oral Arg. 10). But each publication at issue was
addressed to a single inmate, making this case more analogous to
the personal correspondence in
Martinez than to the bulk
mailings in
Jones v. North Carolina Prisoners' Labor Union,
Inc., 433 U. S. 119
(1977). The prison regulations in
Martinez raised the
specter of disruptive dissemination as a justification for
censorship, 416 U.S. at
416 U. S. 399,
n. 3; the Court nevertheless found those regulations
unconstitutional.
[
Footnote 2/17]
I quote, in its entirety, the discussion of the record that
preceded the District Court's finding that the all-or-nothing rule
was reasonable:
"The plaintiffs offered evidence that a less restrictive policy,
at no cost to security, would be to tear out the rejected portions
and admit the rest of the publication. But the defendants contend
that such censorship would create more discontent than the current
practice, and one of the plaintiffs' witnesses agreed.[11]"
App. to Pet. for Cert. 34a.
The District Court's footnote cites to the following trial
testimony by a witness whom respondents offered as an expert in the
field of corrections:
"Q Are you familiar with the policy of the Bureau of Prisons
concerning what we call the all-or-nothing rule?"
"A As I understand it, if a publication is approved for
admission, it may be approved
in toto. If it has material
in it which is considered offensive[,] it will be entirely excluded
regardless of the condition or the tenor of the other items in the
publication."
"Q And is there a security justification, in your opinion, for
not giving the prisoner the -- "
"A I can sympathize with the Bureau about any publication which
does have material which I would like to exclude. Take, for
example, a publication that gave an explicit design of how to
produce a Molotov cocktail. I would not like to admit that
particular publication into the institution. However, I don't like
the idea of just cutting out the offending part of that publication
and letting that in. I think that's the compromise which one might
make. I don't like it, but I suppose that's the best of the bad
solutions which are available."
"Q Do you see any security risk in cutting out the offending
portion and giving the unoffending portion to the inmate?"
"A If pushed to the wall, I guess I would do that, but as I said
earlier in my deposition and as I say now, I don't like that. It
smacks of what goes on in fascist countries, and is not a very
attractive solution to me, but I don't see any way out of it."
"I'd rather do that than exclude the publication entirely just
on the basis of one offending passage."
Tr. 392-393.
Although this testimony manifests the
expert witness'
discontent with censoring parts of publications, it offers no
support for petitioners' argument that
inmate discontent
with the practice would threaten prison security. Indeed
petitioners themselves proffered few pieces of supporting evidence,
among them this deposition testimony by an official at the Marion
Federal Penitentiary:
"Q. It wouldn't present a security threat, would it, to cut out
the page?"
"A. No, it would not prevent [
sic] a security threat to
cut out the page if there was nothing else in there."
"Q. And is it then just a question of administrative convenience
to the institution? It is easier not to bother with cutting out
different pieces, is that right?"
"A. Well, I think in dealing with the kind of individual that we
deal with here or in any institution, if you start cutting up the
magazines, you are going to leave yourself open to all kinds of
criticism, remarks and other problems. So it is best to just return
the entire publication to the source, and then no other
insinuations or remarks can be made concerning us and what we do to
individual publications or any magazines that people receive."
App. 100-101.
See also id. at 41, 68.
[
Footnote 2/18]
Thus I must disagree with petitioners' staunch insistence that
the reasonableness standard is not "toothless."
See Brief
for Petitioners 27. As I suggested in
Turner:
"[I]f the standard can be satisfied by nothing more than a
'
logical connection' between the regulation and any
legitimate penological concern perceived by a cautious warden, it
is virtually meaningless. Application of the standard would seem to
permit disregard for inmates' constitutional rights whenever the
imagination of the warden produces a plausible security concern and
a deferential trial court is able to discern a logical connection
between that concern and the challenged regulation. Indeed, there
is a logical connection between prison discipline and the use of
bullwhips on prisoners; and security is logically furthered by a
total ban on inmate communication, not only with other inmates but
also with outsiders who conceivably might be interested in
arranging an attack within the prison or an escape from it."
482 U.S. at
482 U. S.
100-101 (concurring in part and dissenting in part)
(citation omitted) (emphasis in original).