Amatel, Joseph v. Hawk, Kathleen

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 8, 1998 Decided September 15, 1998

No. 97-5293

Joseph Amatel, et al.,

Appellees

v.

Janet Reno, Attorney General of the United States, et al.,

Appellants

Consolidated with

Nos. 97-5294, 97-5295

Appeals from the United States District Court

for the District of Columbia

(No. 96cv02774)

(No. 96cv02790)

(No. 97cv00475)

Edward Himmelfarb, Attorney, U.S. Department of Jus-

tice, argued the cause for appellants. With him on the briefs

were Frank W. Hunger, Assistant Attorney General, Wilma

A. Lewis, U.S. Attorney, and Barbara L. Herwig, Assistant

Director, U.S. Department of Justice.

Jodie L. Kelley argued the cause for appellees. With her

on the brief were Ann M. Kappler, Marjorie Rifkin and

Margaret Winter.

Bruce A. Taylor was on the brief for amici curiae National

Coalition for the Protection of Children & Families, et al.

Before: Wald, Williams and Tatel, Circuit Judges.

Opinion for the Court filed by Circuit Judge Williams.

Dissenting opinion filed by Circuit Judge Wald.

Williams, Circuit Judge: A group of prisoners and publish-

ers challenges the constitutionality of a statutory ban on the

use of Bureau of Prisons funds to distribute sexually explicit

material to prisoners. The statute is not enforced directly;

instead, the Bureau has promulgated regulations defining the

terms of the proscription and significantly narrowing its

scope. The district court, analyzing the statute, ruled that it

was facially invalid as a violation of the First Amendment and

enjoined its enforcement. Finding that scrutiny should be

directed to the substance of the regulations instead, and

disagreeing with the district court's evaluation, we reverse

and remand.

* * *

Before 1996, federal regulations authorized prison wardens

to reject a publication "only if it [was] determined detrimental

to the security, good order, or discipline of the institution or if

it might facilitate criminal activity." 28 CFR s 540.71(b).

Sexually explicit material fell into this category if it "by its

nature or content pose[d] a threat to the security, good order,

or discipline of the institution, or facilitate[d] criminal activi-

ty." 28 CFR s 540.71(b)(7). Under this standard, explicit

heterosexual material was ordinarily admitted. See Thorn-

burgh v. Abbott, 490 U.S. 401, 405 n.6 (1989).

In 1996 Congress passed the Ensign Amendment, which

bars the use of Bureau of Prisons funds to pay for the

distribution of commercial material that "is sexually explicit

or features nudity." 1 See Omnibus Consolidated Appropria-

tions Act of 1997, Pub. L. No. 104-208 s 614.2 Regulations

later adopted by the Bureau assign rather narrow meanings

to these terms: "nudity" means "a pictorial depiction where

genitalia or female breasts are exposed"; "features" means

that "the publication contains depictions of nudity or sexually

explicit conduct on a routine or regular basis or promotes

itself based upon such depictions in the case of individual one-

time issues." Even material that otherwise would be said to

"feature nudity" is excepted if it contains "nudity illustrative

of medical, educational, or anthropological content." "Sexual-

ly explicit" means "a pictorial depiction of actual or simulated

sexual acts including sexual intercourse, oral sex, or mastur-

bation." 28 CFR s 540.72(b). Under these regulations, then,

there is no restriction whatever on non-pictorial sexually

explicit material.

In 1997, three inmates, each denied receipt of either Play-

boy or Penthouse, filed separate suits alleging that the En-

sign Amendment violated the First Amendment. Their suits

were consolidated, along with similar suits filed by the pub-

lishers of those magazines and a publishing trade organiza-

tion; the consolidated plaintiffs moved for injunctive relief.

The district court, purporting to apply the test set out in

Turner v. Safley, 482 U.S. 78 (1987), found the Ensign

Amendment facially invalid--implicitly granting plaintiffs'

__________

1 By its terms, the statute therefore does not prohibit prisoners

from obtaining such material at their own expense. Neither party

has suggested that this is a realistic possibility, or discussed the

rules governing gifts by visitors. Accordingly, our analysis will

treat the spending restriction as a ban on distribution. Where the

government absolutely monopolizes the means of speech or controls

a bottleneck, as we are assuming vis-a-vis the prison distribution

system, a refusal to fund functions the same as an outright ban.

2 Identical language appears in s 614 of Pub. L. No. 105-119,

governing the fiscal year ending September 30, 1998, so no issue of

mootness is currently posed.

motion for summary judgment (which, in fact, they never

made)--and permanently enjoined its enforcement.

* * *

Both sides agree that Safley sets out the appropriate

framework for reviewing government regulation of prisons.3

But before beginning that analysis, we must note that our

first difference with the district court is as to the proper

object of judicial scrutiny.

Plaintiffs ask for relief against both the Ensign Amend-

ment and its implementing regulations. The district court

seemed to assume that the statute itself has been and will be

applied to these plaintiffs; accordingly, it directed its analysis

primarily towards the statute. But there is no suggestion

that any warden does or will apply the statute directly; so far

as appears, all enforcement is mediated through the regula-

tions.

Insofar as plaintiffs attack the proscriptions of the statute

not embodied in the regulations, they effectively pursue a

pre-enforcement challenge. Even in the First Amendment

context, such a challenge presents a justiciable controversy

only if the probability of enforcement is "real and substan-

tial." Salvation Army v. Dep't of Comm. Affairs, 919 F.2d

183, 192 (3d Cir. 1990); see also Steffel v. Thompson, 415 U.S.

452, 460 (1974). In the statutory borderland beyond the

implementing regulations (i.e., the statute's apparent ban on

some non-pictorial material, its vaguer language, and its lack

of any exception for medical or educational material), the

prospect of enforcement appears completely insubstantial. It

is as if the government had waived certain provisions of the

law. And with such a waiver, as Salvation Army explicitly

holds, there is no standing to challenge the waived provisions.

See 919 F.2d at 192-93 ("[T]he district court should decline to

__________

3 The claims of the publisher plaintiffs might seem to call for a

different analysis, as they of course are not prisoners. Thornburgh

makes clear, however, that Safley's reasonableness standard gov-

erns "regulations that affect[ ] rights of prisoners and outsiders."

490 U.S. at 410 n.9.

provide an advisory opinion regarding the constitutionality of

these provisions."). See also Forsyth County, Georgia v.

Nationalist Movement, 505 U.S. 123, 131 (1992) (evaluation of

facial challenge to statute must take into account construction

by enforcing body). We therefore limit our focus to the

substantive prohibitions of the regulations.4

* * *

Cases analyzing constitutional claims by those within gov-

ernmental institutions such as prisons, public schools, the

military, or the government workplace often open with the

axiom that the boundaries of those institutions do not sepa-

rate inhabitants from their constitutional rights. See, e.g.,

Safley, 482 U.S. at 84 ("Prison walls do not form a barrier

separating prison inmates from the protections of the Consti-

tution."); Connick v. Myers, 461 U.S. 138, 142 (1983) ("[I]t

has been settled that a State cannot condition public employ-

ment on a basis that infringes the employee's constitutionally

protected interest in freedom of expression."); Tinker v. Des

Moines Independent Community School Dist., 393 U.S. 503,

506 (1969) ("It can hardly be argued that either students or

teachers shed their constitutional rights to freedom of speech

or expression at the schoolhouse gate."); General Media

Communications, Inc. v. Cohen, ("GMC ") 131 F.3d 273, 276

(2d Cir. 1997) ("The Constitution does not, of course, stop at

the gates of a military base."). This observation is invariably

followed by the complementary principle that by their nature

such environments must allow regulation more intrusive than

what may lawfully apply to the general public. See Safley,

482 U.S. at 84-85; Connick, 461 U.S. at 143; Tinker, 393 U.S.

at 507; GMC, 131 F.3d at 276. In these environments, the

government is permitted to balance constitutional rights

__________

4 Our dissenting colleague relies on two recent decisions invalidat-

ing provisions that are more similar to the statute than to the

regulatory intepretation established in this case. Mauro v. Arpaio,

1998 WL 550190 (9th Cir. Sept. 1, 1998); Waterman v. Verniero,

1998 WL 354932 (D.N.J. June 29, 1998). See Dissent at 1-2 n.1.

Because we see the only ripe case before us as confined to the

regulations, our case is plainly distinguishable.

against institutional efficiency in ways it may not ordinarily

do.5 See, e.g., Waters v. Churchill, 511 U.S. 661, 675 (1994)

(describing governmental power to restrict speech in the

name of efficiency); Safley, 482 U.S. at 88 (noting balancing

between First Amendment rights and governmental inter-

ests).

For the prison context, Safley directs courts to uphold a

regulation, even one circumscribing constitutionally protected

interests, so long as it "is reasonably related to legitimate

penological interests." 482 U.S. at 89. We are to assess the

overall reasonableness of such restrictions with attention to

four factors: first, whether the restriction bears a "valid,

rational connection" to the "legitimate governmental interest

put forward to justify it," such that the "asserted goal is [not]

so remote as to render the policy arbitrary or irrational," id.

at 89-90; second, whether inmates retain alternative means

of exercising the circumscribed right, id. at 90; third, the

costs that accommodating the right imposes on other inmates,

guards, and prison resources generally, id.; and fourth,

whether there are alternatives to the regulation that "fully

accommodate[ ] the prisoner's rights at de minimis cost to

valid penological interests," id. at 90-91. Although the fac-

tors are intended as guides to a single reasonableness stan-

dard, see id. at 89; see also Thornburgh, 490 U.S. at 414

("The Court in [Safley] identified several factors that are

relevant to, and that serve to channel, the reasonableness

inquiry."), the first factor looms especially large. Its rational-

ity inquiry tends to encompass the remaining factors, and

some of its criteria are apparently necessary conditions.

Nothing can save a regulation that promotes an illegitimate

or non-neutral goal. See Safley, 482 U.S. at 90.

__________

5 This distinction is often phrased in terms of differential stan-

dards of review applicable to the government when it acts in roles

other than sovereign. See, e.g., Waters v. Churchill, 511 U.S. 661,

671 (1994). But it may be more apt to conceive of it as a distinction

between government regulation of public discourse generally, and

government regulation of speech within governmental institutions.

See generally Robert Post, Constitutional Domains 199-268 (1995).

In this case, both proponents in congressional debate, and

the government in its briefs here, assert as the goal an

interest in the rehabilitation of prisoners. See, e.g., 142

Cong. Rec. H8261 (daily ed. July 24, 1996) ("Congress

should not be fueling the sexual appetites of offenders, espe-

cially those who have been convicted of despicable sex of-

fenses against women and children. Magazines that portray

and exploit sex acts have no place in the rehabilitative envi-

ronment of prisons, nor should we pay Bureau of Prison[s]

staff to distribute them.") (statement of Rep. Ensign); id. at

H8262 ("The infamous serial killer Ted Bundy ... stated

before his death his belief that pornographic materials direct-

ly contributed to his violent crimes. While a number of

factors determine whether a prisoner will become a law-

abiding citizen upon release from prison, cutting prisoners off

from their sexually explicit magazines will certainly do no

harm.") (statement of Rep. Ensign). The next question is

whether rehabilitation is a legitimate and "neutral" govern-

ment interest within the meaning of Safley.

The legitimacy of the rehabilitative purpose appears indis-

putable. Indeed, the Supreme Court has often characterized

rehabilitation as one of the primary goals of penal institu-

tions. See, e.g., O'Lone v. Estate of Shabazz, 482 U.S. 342,

348 (1987) (describing rehabilitation as "valid penological

objective[ ]"); Procunier v. Martinez, 416 U.S. 396, 413 (1974)

(identifying "substantial government interests of security,

order, and rehabilitation"). At least since the mid-19th cen-

tury, it is hard to imagine a prison system that did not seek

to reduce the likelihood that prisoners would again transgress

society's norms. The inventors of the prison in New York

and Pennsylvania framed its goals in these terms:

The penitentiary, free of corruptions and dedicated to

the proper training of the inmate, would inculcate the

discipline that negligent parents, evil companions, tav-

erns, houses of prostitution, theaters, and gambling halls

had destroyed. Just as the criminal's environment had

led him into crime, the institutional environment would

lead him out of it.

David J. Rothman, The Invention of the Asylum: Social

Order and Disorder in the New Republic 82-83 (rev. ed.

1990).

In turning to "neutrality," the district court looked at the

statute itself, not the goal, and found it non-neutral. "[T]he

Ensign Amendment is a content-based statute with a sole

focus on the sexual nature of the publications it seeks to

prohibit." The conclusion is correct--the Ensign Amendment

is formulated in terms of content. But we do not understand

that characteristic to run afoul of Safley's neutrality require-

ment. Despite the apparent similarity in terms, "neutrality"

in the Safley sense is quite different from the familiar First

Amendment notion of "content-neutrality." The Court most

recently explained in Thornburgh that "neutral" here means

no more than that "the regulation or practice in question

must further an important or substantial governmental inter-

est unrelated to the suppression of expression." 490 U.S. at

415 (quoting Martinez). There the Court found neutrality

simply because in application of the regulations the prison

administrators were to "draw distinctions between publica-

tions solely on the basis of their potential implications for

prison security." Id. It pointed out that the regulations

struck down in Martinez, in contrast, barred writings that

"unduly complain[ed]" or "magnif[ied] grievances," or ex-

pressed "inflammatory" views, thus inviting the prison au-

thorities " 'to apply their own personal prejudices and opin-

ions as standards for prisoner mail censorship.' " 490 U.S. at

416 n.14 (quoting Martinez); see also Martinez, 416 U.S. at

415 (striking down regulations because no legitimate interest

at all was offered as justification). Thus the Martinez regula-

tions were "decidedly not 'neutral' in the relevant sense."

Thornburgh, 490 U.S. at 416 n.14.

The rehabilitative interest offered by the government here

meets this rather thin neutrality requirement. The Court

cannot have meant to insist upon neutrality in its classic First

Amendment sense, as embodied, for example, in the dictum of

Gertz v. Robert Welch, Inc., 418 U.S. 323, 339 (1974), that

"[u]nder the First Amendment, there is no such thing as a

false idea." In its role as an operator of prisons, the govern-

ment surely does not lapse from the required neutrality if it

bans "how-to" manuals on fraud and embezzlement ("Fraud

for Dummies"). The idea that committing such crimes is not

proper may not be "false" in the Gertz sense, but in the

prison context the government may oppose it rather absolute-

ly. This authority cannot be explained away on the theory

that such a ban could withstand even the strictest scrutiny

and that its validity therefore tells us nothing of the "neutrali-

ty" requirement; as voiced by the Court, the "neutrality"

requirement is an absolute prerequisite. Accordingly, we

think the Court's actual application of the requirement, with

its focus on the existence of some legitimate goal and on

assuring that rules are in fact not framed so as to advance

illegitimate or unvetted goals, must control our understanding

of its meaning.

That government power to inculcate values conflicts with

the libertarian premises of the First Amendment is clear, but

such power is well established. Even outside special govern-

mental institutions, the state has some authority to become a

player in the marketplace of ideas. It may commission

advertising urging children to stay in school or off drugs; it

can sponsor anti-violence campaigns. See Regan v. Taxation

with Representation, 461 U.S. 540, 548-59 (1983); see gener-

ally Rust v. Sullivan, 500 U.S. 173, 193 (1991) ("The Govern-

ment can, without violating the Constitution, selectively fund

a program to encourage certain activities it believes to be in

the public interest, without at the same time funding an

alternate program which seeks to deal with the problem in

another way.").

And within its own institutions, government's power to

pursue its legitimate goals is elevated: within reasonable

limits, it may attach sanctions to or exclude speech that

threatens its goals--even if those goals include promotion of

particular values. That is the general lesson of cases such as

Waters, 511 U.S. 661 (upholding dismissal of employee for

speech that might have caused disruption); Bethel School

Dist. No. 403 v. Fraser, 478 U.S. 675, 685 (1986) (upholding

suspension of student who used indecent language in assem-

bly speech); and Greer v. Spock, 424 U.S. 828 (1976) (uphold-

ing exclusion from military base of civilians who wished to

distribute political literature).

Of course this does not mean by a long shot that every

government institution can pursue any value. Our century

has seen more than enough of governments trying to act as

engineers of human souls. But inculcation of values cannot

be characterized as a suppression of expression in every

context. The Supreme Court has in fact taken the position

that democratic society depends on inculcation of democratic

values. See, e.g., Ambach v. Norwick, 441 U.S. 68, 76-77

(1979) (stating that public schools are important "in the

preparation of individuals for participation as citizens, and in

the preservation of the values on which our society rests");

Brown v. Board of Education, 347 U.S. 483, 493, (1954)

("[Public education] is a principal instrument in awakening

the child to cultural values, in preparing him for later profes-

sional training, and in helping him to adjust normally to his

environment."). The generality of Safley's reasonableness

test, and common sense as well, suggest that the flexibility

open to the political branches must be at its apogee in

institutions for the care and custody of those who have

already transgressed society's norms. If "promoting respect

for authority and traditional values" among schoolchildren is

a legitimate interest of government and not inherently a form

of speech suppression, see Board of Education, Island Trees

Union Free School Dist. No. 26 v. Pico, 457 U.S. 853, 864

(1982) (plurality opinion), surely the same is true of promot-

ing such a goal among criminals.

Prisoners of course differ from the other examples of

individuals entangled with the government in that they have

no recourse to a private sphere. For them, there is no

outside. Judges plainly must bear in mind the total occupa-

tion of prisoners' lives by the state. But prisoners find

themselves in the maw of the state not because they have

been drawn there by the promise of government wages, nor

because a statute imposes a universal requirement of edu-

cation, but because they have broken the law. Moreover,

even government workers have suffered a similar eclipse of

the private sphere; the government's ability to fire them for

speech that threatens workplace disruption is not limited to

speech within the workplace. See, e.g., Pickering v. Board of

Education, 391 U.S. 563 (1968) (analyzing letter to the edi-

tor). See generally Note, The Costs of Agencies: Waters v.

Churchill and the First Amendment in the Administrative

State, 106 Yale L.J. 1233, 1239-40 (1997) (discussing scope of

governmental authority). Accordingly, we conclude that re-

habilitation, and such character-moulding as may be implicit

therein, constitute legitimate and neutral goals as those are

understood in Safley.

* * *

We thus turn to whether there is a "valid rational connec-

tion" between the interest and the regulations. Prison juris-

prudence is not well enough developed to indicate precisely

how demanding the requirement of rational means-end con-

nection is. But the similarity between Safley's phrasing and

the language of rational basis review suggests to us that, as

far as the means-end fit is concerned, Safley's standard is, if

not identical, something very similar. Compare, e.g., Nord-

linger v. Hahn, 505 U.S. 1, 11 (1992) ("[T]he relationship of

the classification to its goal is not so attenuated as to render

the distinction arbitrary or irrational.") with Safley, 482 U.S.

at 89-90 ("[T]he logical connection between the regulation

and the asserted goal is so remote as to render the policy

arbitrary or irrational.").

The legislative judgment is that pornography adversely

affects rehabilitation. It does not matter whether we agree

with the legislature, only whether we find its judgment

rational. The question for us is not whether the regulation in

fact advances the government interest, only whether the

legislature might reasonably have thought that it would. See,

e.g., Nordlinger, 505 U.S. at 11.

We think that the government could rationally have seen a

connection between pornography and rehabilitative values.

Congress might well perceive pornography as tending gener-

ally to thwart the character growth of its consumers. One

current exposition of this view sees pornography as treating

women purely as objects of male sexual gratification. See,

e.g., Catharine A. MacKinnon, Only Words 108-10; Mac-

Kinnon, "Francis Biddle's Sister: Pornography, Civil Rights,

and Speech," in Feminism Unmodified 163, 174 (1987); Mar-

tha C. Nussbaum, "Objectification," 25 Phil. & Pub. Affairs

249, 283-86 (1995); Cass Sunstein, The Partial Constitution

257-90 (1993). But this viewpoint shares at least a core with

ideas that have a lineage of a few centuries, perhaps millen-

nia, stressing the desirability of deferring gratification, of

sublimation of sexual impulses, of channeling sexual expres-

sion into long-term relationships of caring and affection, of

joining eros to agape. The supposition that exclusion of

pornography from prisons will have much of an impact in this

direction may be optimistic, but it is not irrational.

There is, of course, no "record evidence," and certainly no

sophisticated multiple regression analyses or other social

science data, to support this belief--a fact our dissenting

colleague finds fatal. See Dissent at 8-11. We do not think,

however, that common sense must be the mere handmaiden

of social science data or expert testimonials in evaluating

congressional judgments. Quite the opposite: scientific stud-

ies can have a corrective effect by establishing an apparently

implausible connection or refuting an apparently obvious one,

but, subject to such corrections, conformity to commonsensi-

cal intuitive judgments is a standard element of both reason-

ableness and rationality. Compare D.N. McCloskey, The

Rhetoric of Economics 44 (1985) ("Not all regression analyses

are more persuasive than all moral arguments; not all con-

trolled experiments are more persuasive than all introspec-

tions. People should not discriminate against propositions on

the basis of epistemological origin. There are some subjec-

tive, soft, vague propositions that are more persuasive than

some objective, hard, precise propositions.") Nor do we think

Safley requires more. In that case, the Court scoured the

record for evidence of a rational link between the asserted

security interests and the marriage ban because common

sense does not suggest any. See Safley, 482 U.S. at 97-100.

Here, the regulations restrict prison consumption of publica-

tions that implicitly elevate the value of the viewer's immedi-

ate sexual gratification over the values of respect and consid-

eration for others. Common sense tells us that prisoners are

more likely to develop the now-missing self-control and re-

spect for others if prevented from poring over pictures that

are themselves degrading and disrespectful.

Nor can we find irrationality in a congressional fear that

pornography may set back rehabilitation in the narrower

sense, more directly related to recidivist activity. The briefs,

particularly that of the amicus curiae, call our attention to

studies purporting either to document or to demolish the

causal link between pornography and sex crimes.6 Without

attempting a comprehensive summary, we note a few. One

concludes that exposing "already angered men" (probably not

especially rare in prison) to nonviolent pornography can lead

to short-term increases in their aggressiveness. Edward

Donnerstein, et al., The Question of Pornography 40-48

(1987). Another finds that "pornography provides ideational

support for rape...." Larry Baron & Murray A. Straus,

Four Theories of Rape in American Society 185 (1989).

Baron & Straus's primary evidence for this claim is an

observed correlation between the circulation rates of sex

magazines and reported rape rates. While they are hesitant

to defend a "cause-effect" link between pornography and

rape, they do see the correlation as explained by "the pres-

ence of a hypermasculine or macho culture pattern." Id. at

186. This cultural pattern, Baron and Straus hypothesize,

causes both higher incidence of rape and higher consumption

of pornography. Of course, it seems quite likely that a

culture and its manifestations have a mutually reinforcing

relationship, so that a prohibition of pornography is a reason-

able element of a struggle against machismo and its ill effects.

Finally, there is a significant body of research showing

that long-term exposure to pornography, particularly pornog-

__________

6 Congress did not cite these materials, an omission of no impor-

tance. See Jones v. United States, 463 U.S. 354, 365 n.13 (1983).

Our concern is not why Congress believed that pornography affect-

ed rehabilitation, but whether it would have been rational so to

believe. Cf. Turner Broadcasting System, Inc. v. FCC, 117 S. Ct.

1174, 1197 (1997) ("Congress is not obligated, when enacting its

statutes, to make a record of the type that an administrative agency

or court does to accommodate judicial review.").

raphy containing scenes of "aggressive sexuality," can make

its (male) audience more aggressive, more tolerant of violence

against women, and more susceptible to myths about rape,

such as the notion that women can enjoy being raped. See

Neil Malamuth, "Aggression against Women: Cultural and

Individual Causes," in Malamuth & Donnerstein, 19, 32-39;

see also Mike Allen et al., "Exposure to Pornography and

Acceptance of Rape Myths," 45 J. Communication 5 (1995)

("Although the experimental studies demonstrate that violent

pornography has more effect [inducing rape myth acceptance]

than nonviolent pornography, nonviolent pornography still

demonstrates an effect.") See also Richard A. Posner, Sex

and Reason, 366-71 (1992) (noting inconclusiveness of social

science findings on net effects of pornography on incidence of

rape; pornography may tend to increase rape by its ideologi-

cal and aphrodisiac effects, but may tend to decrease it by

enhancing a substitute (masturbation), the balance of these

effects being unknown).

The point of this is not to suggest that a causal link has

been shown. The array of academic authority on the other

side is at least as substantial, and quite possibly more so.

But even undertaking to weigh the competing scholarship

would misconceive the judicial role. Dealing with legislative

judgments about rehabilitation, the Supreme Court has said

that "[w]hen Congress undertakes to act in areas fraught

with medical and scientific uncertainties, legislative options

must be especially broad and courts should be cautious not to

rewrite legislation, even assuming, arguendo, that judges with

more direct exposure to the problem might make wiser

choices." Marshall v. United States, 414 U.S. 417, 427 (1974)

(emphasis in original); see also Kansas v. Hendricks, 117 S.

Ct. 2072, 2081 n.3 (1997). And in upholding a statute barring

provision of sexually explicit material to minors, the Court

noted that "while these studies all agree that a causal link

[between exposure to explicit material and impaired ethical

and moral development] has not been demonstrated, they are

equally agreed that a causal link has not been disproved

either." Ginsberg v. New York, 390 U.S. 629, 642 (1968)

(internal quotation omitted); see also American Booksellers

Ass'n v. Hudnut, 771 F.2d 323, 329 n.3 (7th Cir. 1985). The

same uncertainty prevails here, and suffices to place the

legislative judgment within the realm of reason under the

standards applicable to the political branches' management of

prisons.

The evidence is simply not conclusive on the efficacy of a

ban on pornography in promoting prisoners' rehabilitation.

For judges seeking only a reasonable connection between

legislative goals and actions, scientific indeterminacy is deter-

minative.

* * *

The remaining Safley factors further substantiate the over-

all reasonableness of the regulations. The second involves

the prisoners' alternative means of exercising the right at

stake. Of course if the "right" at stake is defined in terms of

the materials excluded by the ban, any regulation will come

up short. The Court accordingly observed in Thornburgh

that the relevant right "must be viewed sensibly and expan-

sively," 490 U.S. at 417, though it stated no method for

actually carrying out the definitional process. In Thorn-

burgh, where the regulation barred all "sexually explicit

material which by its nature or content poses a threat to the

security, good order, or discipline of the institution, or facili-

tates criminal activity," id. at 405 n.5, the Court found the

second factor "clearly satisfied" because "the regulations

[there at issue] permit a broad range of publications to be

sent, received, and read," id. at 418. In so doing, it made no

inquiry into the scope of sexually explicit material not covered

by the ban. Thus, unless there is some minimum entitlement

to smut in prison, the origins of which must be obscure, this

factor can hardly be fatal.7

The third Safley factor concerns the adverse impact "on

guards and other inmates, and on the allocation of prison

__________

7 Even if there were such a bizarre entitlement, the regulations

would still satisfy this factor, as they leave the inmate free to enjoy

all written forms of smut not barred by the regulations upheld in

Thornburgh.

resources" of accommodating the right claimed. 482 U.S. at

90. It thus seems in part a restatement of the deferential

balancing called for under the first factor: if Congress may

reasonably conclude that pornography increases the risk of

prison rape, then the adverse impact is substantial. Accom-

modating the right poses a threat to the safety of guards and

other inmates. The issue of the allocation of prison resources

we take up below; we think the third and fourth factors are

strongly interrelated.

The fourth Safley factor poses the question whether there

are alternatives that can accommodate that right "at de

minimis costs to valid penological interests." Safley, 482

U.S. at 91. This is not, the Court emphasized, a " 'least

restrictive alternative' test." Id. at 90. The most obvious

alternative is a detailed prisoner-by-prisoner (and presumably

publication-by-publication) sifting to determine whether a

particular publication will harm the rehabilitation of a particu-

lar prisoner. The costs of this approach seem far from de

minimis. Apart from the purely administrative burden of

such a process, the exercise of such broad discretion seems

highly conducive to just the sort of conflicting decisions that

give bite to vagueness concerns. And the reality is that

prisoners are likely to pass pornographic materials about, so

that prisoner-by-prisoner determinations may run aground on

the "ripple effect" that the Court mentioned in Safley, 482

U.S. at 90. Even if pornography could be directed only to

those not likely to be adversely affected, it could find its way

to others, interfering with their rehabilitation and increasing

threats to safety.

Of course the flip side of avoiding the costs and hazards of

a grant of broad discretion to wardens is the possibility of

preventing delivery of materials that, either generally or for a

specific set of (effectively segregated) prisoners, pose little or

no threat of the harm Congress sought to diminish. Outside

prison walls this concern is addressed by the overbreadth

doctrine. Here it seems to us captured in part by the

demand for a rational relation between the regulation and the

goal, and by consideration of alternatives under the fourth

"factor." Thus, the objections to a more flexible standard--

such as one that would vest discretion in wardens to prevent

delivery of materials in any case where in his judgment it

would impair a specific prisoner's rehabilitation--go a long

way to rebut the claim.

The dissent, nonetheless, seems to regard only such a case-

by-case approach as constitutional, and makes much of vari-

ous hypothetical situations in which the categorical ban could

unneccessarily exclude certain publications. See Dissent at

15-21. To the extent that these hypotheticals assume direct

enforcement of the Ensign Amendment, the likelihood of such

enforcement is, as we have noted, quite remote and not

before us in this case. Further, the actions of the Bureau of

Prisons also suggest that the likelihood of this sort of exclu-

sion under the actual regulatory scheme is remote. The

Bureau's Program Statement, for example, listing examples

of permissible publications, cites National Geographic; Our

Bod[ies], Our Selves; Sports Illustrated (Swimsuit Edition);

and the Victoria's Secret Catalog. P.S. 5266.07, at 7. We find

it all but impossible to believe that the Swimsuit Edition and

Victoria's Secret pass muster while Michelangelo's David or

concentration camp pictures fail; nor has there been any

suggestion that any prison official has attempted to imple-

ment such a bizarre interpretation. As there is no allegation

that women in segregated women's prisons are demanding

Playboy, neither the possibility of such demand nor the

Bureau's possible response assists plaintiffs in their over-

breadth claim.8

Leaving aside these possible fringe applications of the

regulation, we again note that the regulation by its terms only

restricts pictures; a prisoner may read anything he pleases.

__________

8 To the extent that the Dissent's insistence on individualized

determinations turns on a view that general rules with any impact

on First Amendment values must correspond to the underlying

reason in every application, see, e.g., Dissent at 1 (suggesting that

government must show that "any pictorial display of nudity or

sexual activity will be harmful to the rehabilitation of all prisoners")

(emphasis in original), it asserts a burden that few general rules

could satisfy.

The dissent's appeal to the value of ideas, pointing by way of

example to the vistas opened for Malcolm X by his prison

reading, see Dissent at 15-16, thus makes little sense here.

Congress could, we think, reasonably be skeptical of the

proposition that study of the pictures in Penthouse would

help a prisoner become "an intelligent customer in the mar-

ketplace of ideas." If anything, the ban could strengthen the

impact of literature by removing the distraction of pictures

that in almost every case would be pornographic.

In any event, even under conventional overbreadth doc-

trine outside of prison, overbreadth claims by those on the

margins of pornography have fared poorly. See, e.g., Young

v. American Mini Theatres, Inc., 427 U.S. 50, 61 (1976)

("Since there is surely a less vital interest in the uninhibited

exhibition of material that is on the borderline between

pornography and artistic expression than in the free dissemi-

nation of ideas of social and political significance ... we think

this is an inappropriate case in which to adjudicate the

hypothetical claims of persons not before the Court.") And

regardless of the type of speech at issue, narrow or improba-

ble excesses of a statute are not a ground for invalidation

before application shows their reality:

[W]here a statute regulates expressive conduct, the scope

of the statute does not render it unconstitutional unless

its overbreadth is not only "real, but substantial as well,

judged in relation to the statute's plainly legitimate

sweep." Even where a statute at its margins infringes

on protected expression, "facial invalidation is inappropri-

ate if the 'remainder of the statute ... covers a whole

range of easily identifiable and constitutionally proscriba-

ble ... conduct....' "

Osborne v. Ohio, 495 U.S. 103, 112 (1990) (citations omitted)

(ellipses in original). Accordingly, such problems of applica-

tion can be left to the time when, if ever, they arise.

We find that the statute and regulation satisfy Safley's

demand for reasonableness, scoring adequately on all four

factors.

* * *

Plaintiffs argue that if we are unpersuaded by the district

court's analysis we should remand the case to allow them to

introduce evidence supporting their position. But that sug-

gestion misconceives the legal issue under Safley. The ques-

tion is not whether curtailment of pictorial smut will advance

the prisons' rehabilitative project, but whether Congress

could reasonably have believed that it would do so. The

studies cited above, coupled with Congress's implicit appeal to

ethical norms against the undue stimulation of carnal appe-

tites, indicate the reasonableness of such a belief. If the

Bureau of Prisons applies the regulations in a manner that

would violate the Safley priciples, of course, that would be

another case. Accordingly, the district court should have

granted the defendants' motion to dismiss plaintiffs' com-

plaint insofar as that complaint rested upon Safley.

* * *

Besides the overbreadth issue, which we have already

addressed in the Safley context, plaintiffs have raised two

additional theories--excessive vagueness and a claim that the

regulations' distinction between pictorial and verbal works is

content-based. In fact, the distinction between pictorial and

verbal works seems more directed to form than to content,

and in any event we have seen that Safley's neutrality

requirement both displaces conventional First Amendment

strictures on content-based limits and is satisfied by these

regulations. Although Safley may well function as an all-

encompassing free speech test for the circulation of reading

materials in prison, supplanting otherwise applicable First

Amendment doctrine, it may be that plaintiffs' vagueness

claim has independent force. If it did, of course, the role of

the Bureau of Prisons, as manager rather than as law enforc-

er, might well play an important role in resolution of the

claim. Accordingly, as the district court has not addressed

these vagueness issues, we remand the case for it to do so.

In the meantime, we lift the permanent injunction that it has

imposed on enforcement of the regulations.

So ordered.

Wald, Circuit Judge, dissenting: The prohibition to all

federal prisoners of publications "featuring nudity" or depict-

ing "sexually explicit" activities indisputably raises First

Amendment concerns. See, e.g., Reno v. American Civil

Liberties Union, 117 S. Ct. 2329, 2346 (1997) ("In evaluating

the free speech rights of adults, we have made it perfectly

clear that sexual expression which is indecent but not obscene

is protected by the First Amendment.") (internal quotation

omitted); Martin v. Struthers, 319 U.S. 141, 143 (1943)

(noting that the right of freedom of speech "necessarily

protects the right to receive [publications]"). Indeed, if the

First Amendment, at its core, is designed to promote the free

exchange of ideas, the debate in this case goes to the very

heart of its protections. The government argues that the

reason all publications featuring nudity or sexually explicit

material, whether or not they are pornographic or obscene,

should be withheld from all federal prisoners is that any

pictorial display of nudity or sexual activity communicates

messages that are harmful to the rehabilitation of all prison-

ers. Relying on what it claims to be the inherent reasonable-

ness of a legislative judgment that such materials are always

inimical to rehabilitation, the government throughout this

case has steadfastly resisted creating any kind of record to

support such a wide-reaching incursion on the constitutional

rights of incarcerated individuals. Today, the majority un-

questioningly endorses the government's approach. Because

I believe this result sets an unwise and arbitrary precedent

that runs contrary to prior case law, I respectfully dissent.1

__________

1 I find it very significant that two of our sister courts have

recently reached results opposite from that set forth by the majori-

ty today. In Mauro v. Arpaio, 1998 WL 550190 (9th Cir. Sept. 1,

1998), the Ninth Circuit invalidated a county prison system's ban on

the possession of all materials containing "any graphic representa-

tion of frontal nudity." Although the county claimed that its

interests in safety, the rehabilitation of inmates, and the reduction

of sexual harassment of guards supported such a ban, the court held

that the county had not "carried its burden to show that such a far

reaching prohibition is 'reasonably related' to legitimate penological

interests"; in particular, it had "offer[ed] no proof or reasoned

It appears to need restating once again that prisoners do

not lose all their constitutional rights when the prison door

clangs behind them. While the prison gate may serve to

isolate those inside from the outside world, it does not, as the

Supreme Court has taken pains to emphasize, "form a barrier

separating prison inmates from the protections of the Consti-

tution." Turner v. Safley, 482 U.S. 78, 84 (1987). Although

the majority pays lip service to this canon, it ignores an

important corollary: Whatever sentiments we might hold

regarding prisoners for the crimes they have committed,

these sentiments must not infect our determination of the

prisoners' constitutional rights. Indeed, the Supreme Court

has recently reaffirmed, albeit in a different context, that " 'a

bare ... desire to harm a politically unpopular group cannot

constitute a legitimate governmental interest.' " Romer v.

Evans, 517 U.S. 620, 634 (1996) (quoting Department of

Agriculture v. Moreno, 413 U.S. 528, 534 (1973)) (invalidating

state constitutional amendment prohibiting official action de-

signed to protect homosexual persons from discrimination).

So long as prisoners retain constitutional rights, including

First Amendment rights, see O'Lone v. Estate of Shabazz, 482

U.S. 342, 348 (1987) ("Inmates clearly retain protections

__________

explanation" for the ban. Id. at *7. And in Waterman v. Verniero,

1998 WL 416585 (D.N.J. July 22, 1998), a district court invalidated a

state statute prohibiting inmates in a specialized facility for sex

offenders from possessing or obtaining "sexually oriented materi-

als" (defined as any description or depiction of "sexual activity or

associated anatomical area"; see Waterman v. Verniero, 1998 WL

354932, at *4 (D.N.J. June 29, 1998) (preliminary injunction)).

Despite the state's claim that such materials would disrupt the

rehabilitation of sex offenders at the institution, the court held that

the state legislature that enacted the ban was motivated by public

outrage over pedophiliac crimes rather than rehabilitative interests.

Waterman, 1998 WL 416585, at *3. Moreover, the court noted, the

literature on the effects of such publications was too unsettled to

support a finding that a rational relationship existed between the

ban and rehabilitative interests. Id. In both cases, the courts

found the broad scope of the ban, in particular its application to

publications featuring nudity, to be unjustifiable in light of any

evidence advanced by the government to support it.

afforded by the First Amendment ...."), our duty is to

ensure that these rights are not impermissibly curtailed.2

It is equally true, however, that the unique and difficult

task of running a prison will often necessitate some incursion

on inmates' constitutional rights. A prisoner's desire to leave

the prison once a week to attend religious services, for

example, or his desire to correspond with other inmates may

conflict with the prison's need to maintain institutional securi-

ty. In these instances, courts must give a large measure of

deference to the prison administrators who are actively in-

volved in the daily operations of the institution. Courts are

not in the best position to judge when or in what manner

certain institutional interests may require some action on the

part of prison officials to respond to the "complex and intract-

able" problems of prison administration. Procunier v. Mar-

tinez, 416 U.S. 396, 405 (1974), overruled in part by Thorn-

burgh v. Abbott, 490 U.S. 401 (1989). Most of these problems,

as the Supreme Court reminds us, "require expertise, com-

prehensive planning, and the commitment of resources, all of

which are peculiarly within the province of the legislative and

executive branches of government." Id.

As the majority has duly noted, the Court's standard in

Safley recognizes the need to forge a balance between the

competing interests of prison administration and prisoners'

constitutional rights. As I read this standard, it embraces

two principles. First, fundamental rights of prisoners must

give way to governmental concerns more readily than the

__________

2 As our Chief Judge has previously noted,

the special place of prisoners in our society makes them more

dependent on judicial protection than perhaps any other group.

Few minorities are so "discrete and insular," so little able to

defend their interests through participation in the political

process, so vulnerable to oppression by an unsympathetic ma-

jority. Federal courts have a special responsibility to ensure

that the members of such defenseless groups are not deprived

of their constitutional rights.

Doe v. District of Columbia, 701 F.2d 948, 960 n.14 (D.C. Cir. 1983)

(separate statement of Edwards, J.).

fundamental rights of nonprisoners. In adopting a test "less

restrictive than that ordinarily applied to alleged infringe-

ments of fundamental constitutional rights," O'Lone, 482 U.S.

at 349, the Court intended to ensure that "courts afford

appropriate deference to prison officials," id. To require that

prison regulations infringing upon fundamental rights under-

go strict scrutiny, as they would outside the prison context,

would place an inordinately high obstacle in the way of prison

administrators' attempts to run their institution safely and

efficiently. Second, and significantly, the Court did not in-

tend Safley 's lesser standard of review to negate prisoners'

constitutional rights altogether, as the majority seems to

suggest. The Court did not say, for example, that prison

regulations are valid if there is any conceivable basis for their

existence, as rational basis review is typically formulated.

See, e.g., United States R.R. Retirement Bd. v. Fritz, 449 U.S.

166, 179 (1980) (noting that where, under rational basis

review, "there are plausible reasons for Congress' action, our

inquiry is at an end"). Rather, the task for courts is to

determine, while giving appropriate deference to the judg-

ment of prison officials, whether a challenged regulation is, in

fact, reasonable or whether it is an "exaggerated response" to

the "legitimate governmental interest put forward to justify

it." Safley, 482 U.S. at 89-90 (emphasis added); see also

Laurence H. Tribe, American Constitutional Law 1445 n.21

(2d ed. 1988) ("Any limit placed on the Court's imagination

vis-a-vis legislative purpose must be recognized as a tightened

form of scrutiny."). A governmental institution is permitted

"regulation more intrusive than what may lawfully apply to

the general public," Majority Opinion ("Maj.Op.") at 5, not

simply because of its status but rather because of the identifi-

able, and unique, needs of that institution. And although the

need for flexibility is perhaps at its highest in the prison

environment, the need for limits on that flexibility is also

paramount: Unlike government employees, students, or other

participants in governmental institutions, prisoners have no

choice about whether to be subject to the power of the state.

To read Safley--as the majority appears to--as permitting

unblinking deference to any "plausible" legislative judgment

about the "rehabilitative" benefits of denying a prisoner's

most fundamental constitutional right, i.e., her freedom to

read, renders any and all prisoners' constitutional rights a

nullity. I had thought it went without saying that courts do

not rely on the mere assertion of a regulation's drafters that

the regulation is reasonable; to do so would amount to an

abdication of our judicial role. See, e.g., Salaam v. Lockhart,

905 F.2d 1168, 1171 (8th Cir. 1990) ("We would misconstrue

[Thornburgh, O'Lone, and Safley ] if we deferred not only to

the choices between reasonable policies made by prison offi-

cials but to their justifications for the policies as well.");

Campbell v. Miller, 787 F.2d 217, 227 n.17 (7th Cir. 1986)

("[D]eference to the administrative expertise and discretion-

ary authority of correctional officials must be schooled, not

absolute."). Nor can the judicial role be diminished to the

disappearing point solely because the original decisionmaking

body in this case is Congress itself rather than the Bureau of

Prisons ("BOP"). Cf. Sable Communications of California,

Inc. v. FCC, 492 U.S. 115, 129 (1989) ("To the extent that the

federal parties suggest that we should defer to Congress'

conclusion about an issue of constitutional law, our answer is

that while we do not ignore it, it is our task in the end to

decide whether Congress has violated the Constitution. This

is particularly true where the Legislature has concluded that

its product does not violate the First Amendment.").3 The

Safley standard reconciles prisoners' constitutional rights

with institutional needs and defers to prison administrators as

the most appropriate articulators of those needs; so long as

Congress acts with those same needs in mind, it is entitled to

the same deference. But were we simply to defer to Con-

gress's assertion that the Ensign Amendment ("the Amend-

ment") was reasonably related to the interest asserted, there

would be no need for judicial review at all, for no statute

__________

3 Of course, because the majority concludes that the BOP's regu-

lations, and not the Ensign Amendment, are controlling in this case,

the majority's focus on Congress's conclusions may be misguided.

See, e.g., Maj. Op. at 11 ("It does not matter whether we agree with

the legislature, only whether we find its judgment rational."). But

see note 4, infra.

infringing on inmates' constitutional rights would fail to satis-

fy this test. The Court has reminded us that the Safley

standard "is not toothless," Thornburgh, 490 U.S. at 414

(internal quotation omitted); more precisely, it is not a license

for lawmakers, any more than prison wardens, to shortchange

the constitutional rights that the Supreme Court has insisted

prisoners continue to possess. Only if our assessment is not

a cursory one can we give adequate weight to both concerns

that underlie the Safley standard. See, e.g., Salaam, 905

F.2d at 1171 n.6 ("Reasonableness in this context refers not

only to the relation between the goals of a regulation and its

means, but also to the balance struck between the needs of

the prison administrators and the constitutional rights of

prisoners.").

It is crucial, therefore, to ensure that although the strict-

ness of our review is lessened, it is not eliminated altogether.

Our task, ultimately, is to assess the fit between the interest

proffered and the remedy adopted--whether the regulation

under consideration is a reasonable means of addressing the

legitimate penological interest put forward by the govern-

ment. In Safley itself, for example, although the prison's

asserted interests in security and rehabilitation were suffi-

cient to justify some restriction on the right to marry, the

Court held that the particular restriction adopted was too

broad to be upheld. See Safley, 482 U.S. at 97-98 ("No doubt

legitimate security concerns may require placing reasonable

restrictions upon an inmate's right to marry, and may justify

requiring approval of the superintendent. The Missouri reg-

ulation, however, represents an exaggerated response to such

security objectives."); id. at 98 ("[I]n requiring refusal of

permission absent a finding of a compelling reason to allow

the marriage, the rule sweeps much more broadly than can be

explained by petitioners' penological objectives."). In Thorn-

burgh, by contrast, the pre-Amendment version of the restric-

tions under consideration here were found to represent a

reasonable response to institutional concerns because the

"individualized nature" of the determinations ensured that the

policy would not result in "needless exclusions." Thornburgh,

490 U.S. at 416-17; see also id. (noting that even a publica-

tion that met one of the criteria for exclusion would be

rejected "only if it is determined to meet that standard under

the conditions prevailing at the institution at the time").

These cases illustrate that the standard of review established

by Safley sets some limits on the means the government may

use to further penological interests. Although these limits

are flexible, they are by no means as vaporous as the majori-

ty rules them to be.

I agree that rehabilitation is, conceptually, a legitimate

governmental interest, even if no one is sure how to achieve it

and the Federal Sentencing Guidelines have abandoned it as

an attainable goal. Compare Pell v. Procunier, 417 U.S. 817,

823 (1974) ("[S]ince most offenders will eventually return to

society, another paramount objective of the corrections sys-

tem is the rehabilitation of those committed to its custody.")

and Dawson v. Scurr, 986 F.2d 257, 260 (8th Cir. 1993)

(noting that rehabilitation is a "legitimate objective") with

Kerr v. Puckett, 138 F.3d 321, 324 (7th Cir. 1998) ("Congress

abandoned 'rehabilitation' as a justification of imprisonment

when it enacted the Sentencing Reform Act of 1984.") and S.

Rep. No. 98-225 (1983), at 38, reprinted in 1984 U.S.C.C.A.N.

3182, 3221 ("[A]lmost everyone involved in the criminal justice

system now doubts that rehabilitation can be induced reliably

in a prison setting, and it is now quite certain that no one can

really detect whether or when a prisoner is rehabilitated.").

Where the majority and I part company is on the ultimate

question: Has any "valid, rational connection" between the

extremely broad ban on publications featuring nudity or

explicit sexual activity and rehabilitation been shown in this

case? And while I certainly do not discount the possibility

that a ban more narrowly targeted on certain kinds of violent

pornography or even on certain types of prisoners might

satisfy this requirement, I cannot conclude, on the present

record, that these regulations implementing the Amendment

pass muster.4

__________

4 The majority characterizes Amatel's attack on the Amendment

itself as a "pre-enforcement challenge" that is invalid because, in

promulgating implementing regulations, the government has

I believe that the determination of whether a regulation (or

statute) is reasonably related to a legitimate penological

interest must depend, in all but the most obvious cases, on

the evidentiary support for that nexus in the record before

the court. Of course I recognize too that the question of

what or how much evidence is necessary may depend on what

logic or everyday experience show us to be the connection

between the disputed means and the rehabilitative end. If

the Amendment prohibited the distribution of publications

containing escape plans, the connection between the ban and

the penological interest in institutional security would be

obvious, and we could uphold such a prohibition based on

little or no demonstrated evidence. Where, as here, however,

the connection (between nudity and rehabilitation) is far

murkier, courts (and I would include legislators as well) far

removed from the day-to-day operations of a prison are much

__________

"waived certain provisions of the law." Maj. Op. at 4, citing

Salvation Army v. Department of Community Affairs, 919 F.2d

183, 192 (3d Cir. 1990). In contrast to Salvation Army, however,

we have no "express assurance" that the BOP will not enforce the

breadth of the Amendment, cf. Salvation Army, 919 F.2d at 192;

indeed, the regulations state simply that "publications containing

nudity illustrative of medical, educational, or anthropological con-

tent may be excluded" from the definition of "features," see 28

C.F.R. s 540.72(b)(3) (1997) (emphasis added). Moreover, at oral

argument, counsel for the BOP acknowledged that under the cur-

rent regulations, wardens retain considerable discretion as to

whether a publication "features" nudity. See Tr. of Oral Arg. at 6.

The government's "waiver" of certain portions of the Amendment

thus cannot be so blithely assumed and may in fact be an impermis-

sible narrowing of the Amendment's mandate. See, e.g., Public

Citizen v. FTC, 869 F.2d 1541, 1557 (D.C. Cir. 1989) ("While

agencies may safely be assumed to have discretion to create excep-

tions at the margins of a regulatory field, they are not thereby

empowered to weigh the costs and benefits of regulation at every

turn; agencies surely do not have inherent authority to second-

guess Congress' calculations."); Alabama Power Co. v. Costle, 636

F.2d 323, 358 (D.C. Cir. 1979) ("Categorical exemptions from the

clear commands of a regulatory statute, though sometimes permit-

ted, are not favored.").

less able to answer the question accurately on their own;

indeed, the very reason that Safley prescribes a great mea-

sure of deference to prison administrators is that they are in

the best position to provide answers involving means and

ends in prison administration. See, e.g., Kennedy v. Los

Angeles Police Dep't, 901 F.2d 702, 713 (9th Cir. 1989) ("The

principle that courts must provide wide latitude to prison

policies needed to maintain institutional order and security

necessarily presupposes that the administrators have crafted

those policies with careful deliberation.") (citation omitted).

We would normally be expected to give a healthy dose of

deference to the judgment of prison officials as to their

experience and apprehensions in support of a regulation, but

where, as in these regulations, these same officials were, so

far as we can tell, never consulted on the Amendment's

merits and under its terms are not allowed to exercise any

judgment about what kinds of nudity or sexually explicit

material are allowed inside the prison walls, I do not believe

Safley permits us simply to assume the existence of evidence

showing a connection between the regulation and a rehabilita-

tive goal, as we might under rational-basis review and as the

majority has in fact done here.

Safley itself provides a useful example of how too Spartan a

record can doom a regulation. The Court's rejection of the

marriage restriction at issue in that case clearly turned on the

quality of the evidence before the Court; four times the

Court concluded that the regulation was not reasonably relat-

ed to penological interests based "on this record." See Saf-

ley, 482 U.S. at 97 ("We conclude that on this record, the

Missouri prison regulation, as written, is not reasonably

related to these penological interests."); id. at 98 ("Nor, on

this record, is the marriage restriction reasonably related to

the articulated rehabilitation goal."); id. at 99 ("Moreover,

although not necessary to the disposition of this case, we note

that on this record the rehabilitative objective asserted to

support the regulation itself is suspect."); id. ("On this

record, however, the almost complete ban on the decision to

marry is not reasonably related to legitimate penological

objectives.") (emphases added). This repeated qualification

of the Court's negative conclusion about the validity of the

regulation starkly suggests that while a reasonable relation-

ship might possibly have been demonstrated between the

marriage restriction and the interests asserted, the prison

had failed to present sufficient evidence to establish that

relationship.

The majority's apparent conclusion that the government

bears no responsibility for compiling evidence to support the

breadth of its ban--in other words, that the courts may

simply hypothesize a rational connection--runs counter to the

wisdom of several other circuit courts. See, e.g., Shimer v.

Washington, 100 F.3d 506, 509 (7th Cir. 1996) (prison admin-

istration "must proffer some evidence to support its restric-

tion of ... constitutional rights" under Safley standard);

Mann v. Reynolds, 46 F.3d 1055, 1061 (10th Cir. 1995)

(invalidating restrictions on contact visits with attorneys,

noting that "defendants were unable to provide any evidence

the restrictions on contact were reasonably related to prison

security"); Muhammad v. Pitcher, 35 F.3d 1081, 1085 (6th

Cir. 1994) (invalidating prison mail regulation because "there

is no evidence in the record supporting Defendants' factual

claim" that policy was reasonably related to interest in con-

serving resources); Walker v. Sumner, 917 F.2d 382, 386 (9th

Cir. 1990) ("Prison authorities cannot rely on general or

conclusory assertions to support their policies. Rather, they

must first identify the specific penological interests involved

and then demonstrate both that those specific interests are

the actual bases for their policies and that the policies are

reasonably related to the furtherance of the identified inter-

ests. An evidentiary showing is required as to each point.");

Waterman, 1998 WL 354932, at *10 ("To establish that a

legitimate penological interest supports a statute, a state

must provide evidence that the interest it proffered is the

actual basis for the statute."); Powell v. Riveland, 991 F.

Supp. 1249, 1254 (W.D. Wash. 1997) (upholding restriction on

sexually explicit incoming mail where "[p]rior to implement-

ing the policy, research was done on the effects of sexually

explicit material and the policy/regulation was written to

target those harmful materials"). In sum, it is clear, as

Judge Posner has suggested, that the Safley analysis cannot

be met simply on the basis of "pure conjecture." Reed v.

Faulkner, 842 F.2d 960, 963 (7th Cir. 1988); see also id.

("[T]o suppose that the wearing of dreadlocks [as an expres-

sion of religious belief] would lead to racial violence is, on this

record, the piling of conjecture upon conjecture. The poten-

tial infringement of the free-speech clause of the First

Amendment is too plain to warrant comment."). Safley cer-

tainly does not stand for the proposition that Congress or

prison officials may "set constitutional standards by fiat."

Whitney v. Brown, 882 F.2d 1068, 1074 (6th Cir. 1989).

I might, therefore, have been able to go along--as the

majority does here--with deferring to Congress had the

government seen fit to proffer evidence that links a ban on

the prohibited publications to rehabilitation or if the connec-

tion between that ban and rehabilitation was so self-evident

that no further evidence was necessary to demonstrate its

reasonableness. But neither event has occurred, and the

majority's once-over-lightly of the scientific literature that

does exist certainly does not accomplish the task, as the

majority itself admits. See Maj. Op. at 14 ("The point of this

is not to suggest that a causal link has been shown. The

array of academic authority on the other side is at least as

substantial, and quite possibly more so."). At best, it can be

said that a few studies have shown a causative relationship

between violent pornography and short-term increases in

aggression--perhaps a helpful finding with regard to the

security interests of prison authorities but next to useless in

determining the effect on any long-term interest in rehabilita-

tion.5 In all other respects, the relationship between pornog-

__________

5 Of course, the evidence to support a prison regulation need not

be in the form of scholarly studies; affidavits from prison officials

could also suffice as the basis for analysis. See, e.g., Safley, 482

U.S. at 98 (testimony of prison officials that they had experienced

no problems with the marriages of male inmates relied on as

evidence that ban was overbroad); Harper v. Wallingford, 877 F.2d

728, 733 (9th Cir. 1989) (finding prison regulation banning receipt of

material espousing consensual sexual relationships between male

raphy and criminal activity is merely correlative,6 and there is

no evidence that simply viewing nonpornographic nudity or

depictions of sexual activities (as opposed to pornography)

has any effect at all.7 See, e.g., Edward Donnerstein, Daniel

Linz & Steven Penrod, The Question of Pornography 177

(1987) (stating conclusion of Attorney General's Commission

on Pornography that "in general, the scientific evidence

shows no causal relationship between exposure to [nonviolent

and nondegrading sexual] depictions and acts of sexual vio-

lence" and noting that the authors' "view of the scientific

literature ... is in agreement with this conclusion"); id. at

40-48 (citing studies finding that exposing already angered

men to nonviolent pornography can cause a short-term in-

crease in their aggressive tendencies); Ernest D. Giglio,

Pornography in Denmark: A Public Policy Model for the

United States? in 8 Comparative Social Research 281, 285

(Richard F. Tomasson ed., 1985) ("[A] positive causal relation-

ship between pornography and sex crimes has not been

documented by criminologists and psychologists."); Berl

Kutchinsky, Obscenity and Pornography: Behavioral As-

pects, in Encyclopedia of Crime and Justice 1077, 1083

(Sanford Kadish ed., 1983) (noting that the authoritative

studies on the link between pornography and crime have

concluded that there is apparently no causative relationship

between nonviolent pornography and sex crimes). Indeed, it

__________

adults and juvenile males to be reasonably related to rehabilitation

based on affidavit from prison psychiatrist).

6 Correlation cannot be sufficient to satisfy Safley 's requirement

of a "valid, rational connection." Even if it could be shown, for

example, that the majority of those who commit violent crimes are

also avid Bible readers, this finding would not constitute a basis for

prohibiting all prisoners from reading the Bible.

7 By pornography, I mean "a depiction (as in writing or painting)

of licentiousness or lewdness: a portrayal of erotic behavior de-

signed to cause sexual excitement." Webster's Third New Interna-

tional Dictionary 1767 (1976). There is, of course, much material

that features nudity or depicts sexual activity that would not qualify

as pornography under any definition, including many highly regard-

ed works of art.

is unclear even in the studies finding a positive connection

between violent pornography and aggressive behavior wheth-

er the aggression is due to the violent content of the material

or its sexual content. See, e.g., Larry Baron & Murray A.

Straus, Four Theories of Rape in American Society 8 (1989)

("It seems reasonable to conclude ... that it is the violent

content rather than the sexual content that facilitates aggres-

sion."); Richard A. Posner, Sex and Reason 368 (1992) ("[T]he

effects [of violent pornography] may be due to the violence

per se rather than to the erotic component."). Thus, while it

is entirely possible that a narrower publication ban than that

accomplished by the Amendment could be supported by the

available literature, cf., e.g., Dawson, 986 F.2d at 262 (uphold-

ing regulation limiting time, place, and conditions under

which certain inmates could view materials), neither the

government nor the majority has laid the barest foundation

for the far-reaching ban promulgated. The majority's level of

comfort in relying on any statement of any legislator as to

what he thinks will encourage rehabilitation as the sole basis

for taking away a First Amendment right is very surprising

to me, especially since its holding today goes far beyond what

any court has previously condoned in depriving prisoners of

constitutional rights on the mere assertion of a legislator that

he supposes rehabilitation to be so advanced.

In this respect, I believe that it needs to be stressed that

the assertion of "rehabilitation" as the reason for impinging

on prisoners' First Amendment rights is particularly discon-

certing in its potential for abuse. Unlike its interest in

institutional security, the contours of the government's inter-

est in rehabilitation are quite amorphous and ill-defined. At

the most basic level, the goal of rehabilitation might be stated

as returning the prisoner to society in a state so that he will

henceforth behave in a law-abiding manner, but no one, not

even Congress, is so immodest as to claim secure knowledge

of how this goal is to be achieved in individual cases, let alone

in the aggregate; most often, rehabilitation efforts involve

therapy, drug and alcohol counseling, basic education, or job

training, but even in these positive attempts, the results are

far from reassuring. Against that backdrop, it is extremely

difficult, if not impossible, to ascertain precisely if or how a

particular publication may work to frustrate the rehabilitative

goals of prisoners. To start with, there is no consensus on

whether in order to transform a law violator into a good

citizen, he must be "remolded" attitudinally and instilled with

desirable values or whether it is sufficient that he be con-

vinced that further criminal activity would be counterproduc-

tive in his own case, whatever his vision of society or the

world. Rehabilitation may also be viewed--in the majority's

parlance--as an effort to direct the "character growth" of

prisoners by limiting the reading materials to which he has

access. See Maj. Op. at 11. But, whatever the rehabilitative

vision, it should not be possible to proceed on some vague

assertion of an interest in "rehabilitation" without the need to

define the term or to show a connection between the pro-

scribed activity and the chosen definition; to do so runs an

overwhelming risk of overregulation and invasion of the in-

nermost recesses of the human mind and spirit. Indeed,

undertaking the Herculean task of "character-molding" is

inherently problematic in its First Amendment implications,

for it presumably involves casting emerging prisoners in

society's own image. This, of course, is the antithesis of First

Amendment freedoms; indeed, "[t]otalitarian ideologies we

profess to hate have styled as 'rehabilitation' the process of

molding the unorthodox mind to the shape of prevailing

dogma." Sobell v. Reed, 327 F. Supp. 1294, 1305 (S.D.N.Y.

1971); cf., e.g., Tinker v. Des Moines Indep. Community

Sch. Dist., 393 U.S. 503, 511 (1969) (noting "this Nation's

repudiation of the principle that a State might so conduct its

schools as to foster a homogeneous people") (internal quota-

tion omitted). Under this theory, lawmakers who believe that

books on Russian history may lead to disrespect for the

United States may ban those books for prisoners; lawmakers

who hold pro-life views may prevent prisoners from reading

publications describing Roe v. Wade; and lawmakers who

hold an antiquated view of the role women should play in

society may ban the distribution in prisons of publications

with feminist themes. Each of these actions could logically

be taken in the name of rehabilitation, broadly defined, and

each, without doubt, would contribute to a continual eviscer-

ation of the First Amendment rights of prisoners. Cf., e.g.,

Stanley v. Georgia, 394 U.S. 557, 565-66 (1969) ("Our whole

constitutional heritage rebels at the thought of giving govern-

ment the power to control men's minds.... [I]t cannot

constitutionally premise legislation on the desirability of con-

trolling a person's private thoughts."); McCabe v. Arave, 827

F.2d 634, 638 (9th Cir. 1987) ("Given the strength of First

Amendment protection for freedom of belief, prison authori-

ties have no legitimate penological interest in excluding reli-

gious books from the prison library merely because they

contain racist views.") (citation omitted); American Booksel-

lers Ass'n, Inc. v. Hudnut, 771 F.2d 323, 330 (7th Cir. 1985),

aff'd mem., 475 U.S. 1001 (1986) ("If the fact that speech

plays a role in a process of conditioning were enough to

permit governmental regulation, that would be the end of

freedom of speech."). These examples may sound extreme--

they are--but the majority's rationale easily encompasses

them in its umbrella-like authorization for restricting prison-

ers' reading material on the basis of a minimum plausibility

test for tying the censorship to some vague rehabilitation

concept.

Even if the goal of rehabilitation is a more modest one--to

convince the prisoner his own best interest lies in avoiding

future crime--it is hard to see how that goal is furthered by

returning him unequipped to be an intelligent customer in the

marketplace of ideas. And while serious questions may well

be raised about the value of some of the publications banned

under the Amendment, there is much that falls under this

broad ban that speaks intelligently to mankind, including

prisoners: Michelangelo's David, for example, or grim photo-

graphs of naked bodies piled in the pits of Germany's concen-

tration camps.8 There is even a potential for such depictions

__________

8 The majority suggests that the application of the regulations to

prohibit artistic depictions of nudity or to documentary photographs

of wartime atrocities would be "bizarre." See Maj. Op. at 17. But,

in fact, even the regulations do not provide for any exceptions to the

nudity ban based on a publication's artistic or political content. See

28 C.F.R. s 540.72(b)(3) (providing possible exception only for

of nudity to strike a life-changing chord with some prisoners,

a change that should not be prevented from coming to

fruition. Malcolm X wrote of his prison experience:

I have often reflected upon the new vistas that reading

opened to me. I knew right there in prison that reading

had changed forever the course of my life. As I see it

today, the ability to read awoke inside me some long

dormant craving to be mentally alive.... My home-

made education gave me, with every book that I read, a

little bit more sensitivity to the deafness, dumbness, and

blindness that was afflicting the black race in America.

Alex Haley & Malcolm X, The Autobiography of Malcolm X

180 (1965).9

If rehabilitation is to be deemed a legitimate penological

interest, the term must be given some shape, at least when it

collides with fundamental liberties. Of course, as the majori-

ty notes, the Constitution has nothing to say about what

messages the government may choose to communicate as a

speaker. See, e.g., Rust v. Sullivan, 500 U.S. 173, 193 (1991)

("The Government can, without violating the Constitution,

selectively fund a program to encourage certain activities it

believes to be in the public interest, without at the same time

funding an alternate program which seeks to deal with the

problem in another way."). Congress or the BOP may make

__________

nudity "illustrative of medical, educational, or anthropological con-

tent"). And although the Victoria's Secret catalog and the Sports

Illustrated Swimsuit Edition are listed by the BOP as permissible

publications, the basis for their exclusion from the ban is left to

conjecture. Cf. id. s 540.72(b)(2) (defining "nudity" as "a pictorial

depiction where ... female breasts are exposed"). As for the

notion that explicit descriptions of sexual activities and nudity are

still permitted (an illustrated version of Henry Miller's Tropic of

Cancer is banned but a nonillustrated version is not), this only

underscores the arbitrariness of the rehabilitative nexus.

9 Of course, lawmakers who believe that Malcolm X inspires

separatism and racial consciousness may, under the "remolding"

theory of rehabilitation, prohibit prisoners from reading his writings

as well.

whatever recreational reading it wishes available in the prison

libraries without offending the Constitution; they may even

provide each prisoner with a tract on the harms of pornogra-

phy in the hope that some readers will take its lessons to

heart. But it is quite a different matter for prisons to deny

all access to certain publications in the name of rehabilitation,

particularly in such a broad and overreaching manner as this

one. If prisoners are to retain any First Amendment rights,

the mere assertion of "rehabilitation" as the interest to be

served by a particular regulation cannot serve to extinguish

those rights altogether.

Because the Amendment and the regulations eliminate the

discretion of prison wardens to make individual determina-

tions about how particular publications will affect particular

prisoners in particular prison settings, even rehabilitatively, I

believe it was incumbent upon the government to point to

some evidence demonstrating a connection between all publi-

cations that are sexually explicit or that feature nudity and a

tendency to engage in criminal or disruptive behavior, keep-

ing in mind that our task is to determine whether such a

connection is reasonably likely to exist, not whether one

might be conceivable. Cf., e.g., Mauro, 1998 WL 550190, at

*7 (considering whether all materials depicting nudity are

"reasonably likely" to cause violence or to be used to harass

guards). Neither the government nor the majority has point-

ed to any such evidence.

Indeed, the proposition that all material that is sexually

explicit or that features nudity will have a detrimental effect

on rehabilitation is belied by the prior actions of the prison

officials under the pre-Amendment policy. At that time,

prison officials were authorized to prohibit sexually explicit

materials that they believed would negatively affect the disci-

pline or "good order" of the institution. Significantly, the

prison officials--to whose expertise the Supreme Court has

repeated deferred on matters such as this--did not choose to

prohibit all material that is sexually explicit or that features

nudity. Rather, they evaluated the publications individually

to determine which ones, in their expert opinions, posed a

potential threat and which did not; indeed, as the majority

notes, "explicit heterosexual material" was ordinarily admit-

ted. See Thornburgh, 490 U.S. at 405 n.6 (quoting Program

Statement 5266.5(b)(2)). It was this "individualized nature"

of the determinations that led the Thornburgh Court to

conclude that the regulations at issue in that case were

rationally related to security interests, the nature of which,

like rehabilitation, can change over time.10 See Thornburgh,

490 U.S. at 417 ("We agree that it is rational for the Bureau

to exclude materials that ... are determined by the warden

to create an intolerable risk of disorder under the conditions

of a particular prison at a particular time.").

Because I believe that, on this record, there is no basis for

concluding that there is a rational connection between the

interest asserted by the government--rehabilitation--and the

restriction chosen to further that interest--a ban on the

delivery to all federal prisoners of all publications that are

__________

10 It should be noted in this respect that a seemingly innocuous

publication may be quite detrimental to a prisoner's rehabilitation,

depending on the circumstances. See, e.g., Waterman, 1998 WL

354932, at *3, *4 (citing concerns of prison officials that pictures of

children from the Sears catalog should not be seen by pedophile

prisoners).

The need for individualistic determinations when behavior modifi-

cation is at stake was also a concern in Washington v. Harper, 494

U.S. 210 (1990), in which the Court upheld a prison policy that

permitted the involuntary administration of antipsychotic drugs to

inmates, given that the policy was not unnecessarily broad and

supported by a wealth of evidence:

Its exclusive application is to inmates who are mentally ill and

who, as a result of their illness, are gravely disabled or

represent a significant danger to themselves or others. The

drugs may be administered for no purpose other than treat-

ment, and only under the direction of a licensed psychiatrist.

There is considerable debate over the potential side effects of

antipsychotic medications, but there is little dispute in the

psychiatric profession that proper use of the drugs is one of the

most effective means of treating and controlling a mental

illness likely to cause violent behavior.

Id. at 226.

sexually explicit or that feature nudity, I would affirm the

decision of the district court. As the majority considers the

remaining Safley factors, however, I will also offer a few

thoughts.

The second Safley factor considers whether there are "al-

ternative means of exercising the right that remain open to

prison inmates." Safley, 482 U.S. at 90. Although this right

must be viewed "sensibly and expansively," Thornburgh, 490

U.S. at 417, it cannot be viewed so broadly as to eliminate any

reason for analysis (or as unhelpfully as the majority's sar-

donic reference to an "entitlement to smut"). The Thorn-

burgh Court, for example, noted that although the regulation

under consideration in that case permitted the warden to

make individualized determinations as to each publication, an

exercise of discretion that might appear to produce inconsis-

tent results, "greater consistency might be attainable only at

the cost of a more broadly restrictive rule against admission

of incoming publications," which "might itself run afoul of the

second [Safley ] factor." Id. at 417 n.15. Because the

Amendment eliminates a wide variety of publications that

feature nudity for artistic or other reasons, prisoners do not

have sufficient means of exercising their right to receive

many constitutionally protected materials. Cf., e.g., Mauro,

1998 WL 550190, at *8 ("[I]n direct contradiction of the

Supreme Court's cautionary language in Thornburgh, Marico-

pa County has enacted a regulation that sweeps too broadly,

indiscriminately eliminating large categories of materials

without individualized consideration.").

The third factor considers "the impact accommodation of

the asserted constitutional right will have on guards and

other inmates." Safley, 482 U.S. at 90. Where the institu-

tional interest asserted for a publication ban is security,

accommodation of the inmate's First Amendment rights may

indeed cause the "ripple effect" of which the Safley Court

warned, see id.; a breach of security with respect to one

prisoner is likely to result in other breaches in the prison. In

this case, however, there is no evidence by which to judge

whether permitting certain inmates to view publications that

are sexually explicit or that feature nudity will have an

adverse effect on the rehabilitation of other inmates. Reha-

bilitation is a gradual process, and it is entirely possible that

any momentary lapses caused by the inadvertent receipt of an

inappropriate publication may be reversed with additional

rehabilitative efforts. This is not true of security breaches:

Once an inmate has received information on how to escape

from the prison, he cannot be made to forget it. It thus

cannot be concluded, on this record, that accommodation of

Amatel's First Amendment right will have a significant effect

on the rehabilitation of other inmates.

Finally, the fourth factor considers whether there are

"obvious, easy alternatives" that "fully accommodate[ ] the

prisoner's rights at de minimis cost to valid penological

interests"; if so, this may be evidence that the regulation is

an "exaggerated response" to prison concerns. Id. at 90-91.

One such alternative comes immediately to mind: the pre-

Amendment policy, under which wardens had discretion to

examine each incoming publication and determine whether

institutional interests favored its prohibition. The Court's

approval of this policy in Thornburgh eliminates any concerns

the majority might have that such a policy would be deemed

arbitrary or particularly burdensome; indeed, since prison

officials under the current policy must examine each publica-

tion to determine whether it is sexually explicit or features

nudity, the prior policy arguably represents no additional

administrative burden.

Moreover, other aspects of the Amendment suggest that it

is indeed an "exaggerated response" to rehabilitative con-

cerns. The Amendment does not allow the warden to take

into account whether a prisoner is in a high- or low-security

institution, whether a prisoner is male or female, what kinds

of crimes the prisoner has committed,11 the nature of the

__________

11 For example, the government has provided no evidence on why

a ban on nudity is necessary to rehabilitate those convicted of

nonsexual and/or nonviolent crimes. I can think of no reason why

an embezzler, a tax evader, or a person held in contempt for

refusing to testify will be rehabilitated if prevented from looking at

publications that "feature" nudity. (The statements of the only two

prisoner's sentence,12 how long the prisoner has been incar-

cerated and how long he or she has left to serve, whether the

prisoner is receiving rehabilitative treatment,13 or even

whether a prisoner is in a prison environment that provides

an opportunity to share the material with anyone else (partic-

ularly with other prisoners convicted of sex crimes). In these

respects, the Amendment "sweeps much more broadly than

can be explained by [the government's] penological objec-

tives." Safley, 482 U.S. at 98 (invalidating ban on all prisoner

marriages by noting that prison officials had experienced no

problems with marriages by male inmates or with inmate-

civilian marriages; the prison's rehabilitative concern "ap-

pear[ed] from the record to have been centered almost exclu-

sively on female inmates marrying other inmates or ex-

__________

members of Congress who offered floor comments on the Amend-

ment suggest that their concern was with sex offenders. See 142

Cong. Rec. H8262 (daily ed. July 24, 1996) ("[I]f we do not adopt

my amendment, we are sending the message that it is OK to

provide sexually explicit magazines and books to the very prisoners

who have committed violent acts against women.") (statement of

Rep. Ensign); id. ("Far too often, those individuals convicted of

crimes have the opportunity, while in prison, to use materials that

glamorize the very acts for which they were convicted.") (statement

of Rep. Christensen).)

Moreover, the Amendment's ban may also extend to those in-

mates who have not yet been convicted but rather are imprisoned

while awaiting trial. The government has not suggested any reason

for it to take a rehabilitative interest in these individuals, nor do I

think it can legitimately do so. See, e.g., McGinnis v. Royster, 410

U.S. 263, 273 (1973) ("[I]t would hardly be appropriate for the State

to undertake in the pretrial detention period programs to rehabili-

tate a man still clothed with a presumption of innocence.").

12 The government would seem to have less rehabilitative interest

in, for example, prisoners who have been sentenced to life in prison

without parole or to death.

13 In some prisons, material featuring adult nudity is an effective

part of a rehabilitative program. See, e.g, Waterman, 1998 WL

354932, at *7 (citing evidence that adult pornography may be

helpful in turning pedophiles away from child pornography).

felons," id. at 99, and thus did not account for the ban on

other inmate marriages).

The majority's decision to remand this case for further

consideration of Amatel's vagueness challenge leaves a scintil-

la of hope that this ill-conceived statute will ultimately fail.

Because I cannot agree with the majority's Safley analysis,

however, or with its decision to lift the district court's injunc-

tion in the interim, I respectfully dissent.

Conclusion

Justice Holmes once remarked that hard cases make bad

law. See Northern Sec. Co. v. United States, 193 U.S. 197,

400 (1904) (Holmes, J., dissenting). Claims of prisoners to

read magazines like Playboy or Penthouse may not be the

ideal vehicles for the articulation of First Amendment rights.

But, as Dostoyevsky observed, "the degree of civilization in a

society is revealed by entering its prisons." F. Dostoyevsky,

The House of the Dead 76 (C. Garnett trans., 1957). Today's

ruling that prisoners may be stripped of rights to view

publications of their choice on the mere assertion of legisla-

tors or regulators--far removed from the prison scene and

without supporting evidence of any kind--that those publica-

tions will hinder their "rehabilitation" goes well beyond prior

precedent and the case law in other circuits. It is a most

troubling precedent.