Lawson v. Singletary

United States Court of Appeals,

Eleventh Circuit.

No. 94-4663.

Robert Lee LAWSON, on behalf of himself and all others similarly

situated, Plaintiffs-Appellees,

v.

Harry K. SINGLETARY, Secretary, Florida Department of

Corrections; S.W. Sprouse, Superintendent, Hendry Correctional

Institution; William E. Counselman, Educational Supervisor;

Stephen Spencer, Chaplain, Hendry Correctional Institution; and

Paul Coburn, Assistant Superintendent, Hendry Correctional

Institution, Defendants-Appellants.

May 29, 1996.

Appeal from the United States District Court for the Southern

District of Florida. (No. 83-8409-CIV-ARONOVITZ), Sidney M.

Aronovitz, Judge.

Before ANDERSON and BARKETT, Circuit Judges, and YOUNG*, Senior

District Judge.

PER CURIAM:

This case began as a pro se complaint by plaintiff-appellee

Robert Lawson, filed in 1983. Counsel was appointed, and a class

certified. The plaintiff class represented by Lawson (hereinafter

"Hebrew Israelites" or "plaintiffs") is made up of members of the

Hebrew Israelite faith currently serving time in the Florida prison

system. The basis for their original complaint was that officials

of the defendant-appellant, the Florida Department of Corrections

(hereinafter "the Department"), refused to allow certain religious

texts, published by the Hebrew Israelites at their headquarters,

the "Temple of Love," into the prisons so that Hebrew Israelite

inmates could have access to them. The plaintiffs seek injunctive

*

Honorable George C. Young, Senior U.S. District Judge for

the Middle District of Florida, sitting by designation.

relief. The Department claimed that the Hebrew Israelite texts at

issue contain "highly-charged, anti-white, racism" and thus

presented a serious threat to security and order within Florida's

prisons.

Soon after this litigation began, the Department, through head

chaplain Counselman, attempted to create an informal redaction

policy similar to the law now in place that would allow prison

chaplains to remove the most objectionable portions of incoming

religious materials. See Lawson v. Wainwright, 641 F.Supp. 312,

320-321 (S.D.Fla.1986). The materials at issue in this case were

returned by Counselman to Yahweh ben Yahweh, the leader of the

Hebrew Israelites, and ben Yahweh was asked to remove those

statements that the Department thought were a threat to prison

order and security. Once these sections were removed, Counselman

assured ben Yahweh, the materials would be allowed into the

prisons. Id. at 321. This original redaction policy, however, was

poorly defined and sporadically enforced, and at times entire

documents were excluded when only portions of those documents

presented a threat to prison order and security. Id. at 317-319.

This case has a tortured procedural history. In 1986, the

district court held that the Department's outright ban of these

religious texts violated the plaintiffs' Free Exercise rights under

the First Amendment. Lawson v. Wainwright, 641 F.Supp. 312

(S.D.Fla.1986) (hereinafter Lawson I ). The primary concern in the

first appeal to this Court was the determination of the proper

standard by which to evaluate the plaintiffs' Free Exercise claims.

Lawson v. Dugger, 840 F.2d 779 (11th Cir.1988) (hereinafter Lawson

II ). Following this Court's 1987 decision, the Supreme Court

rendered its decision in Thornburgh v. Abbott, 490 U.S. 401, 109

S.Ct. 1874, 104 L.Ed.2d 459 (1989), in which the Court reiterated

the principle that prisoner constitutional rights claims are to be

evaluated under the rational basis standard. The Department's

petition for certiorari in this case was granted, and the 1987

opinion of this Court was vacated and the case remanded for further

consideration in light of Thornburgh. Dugger v. Lawson, 490 U.S.

1078, 109 S.Ct. 2096, 104 L.Ed.2d 658 (1989) (hereinafter "Lawson

III"). This Court in turn remanded to the district court. Lawson

v. Dugger, No. 86-5774, 897 F.2d 536 (11th Cir. Feb. 1, 1990).

Again, however, a change in the law affected the relevant standard.

A few days before the district court held its status hearing on

remand, Congress passed the Religious Freedom Restoration Act, 42

U.S.C. § 2000bb et seq. (hereinafter "RFRA"), which purports to

reestablish through statute the compelling interest test for

neutral laws that incidentally but substantially burden the free

exercise of religion.1 Upon review, the district court interpreted

the relevant official activity in this case to be an outright ban

on certain incoming religious materials. Then, applying the "least

restrictive means" prong of the new RFRA test to the outright ban,

the district court held that the Department's activity violated

RFRA. Lawson v. Dugger, 844 F.Supp. 1538, 1542 (S.D.Fla.1994)

(hereinafter "Lawson IV").

Our primary task is to flesh out the meaning of the new RFRA

standard as it applies in the prison context, and in particular as

1

RFRA was signed into law on November 16, 1993.

it applies to this case.2 Two interrelated preliminary matters

2

However, because we conclude that Rule 33-3.012 on its face

passes even the most restrictive compelling interest test that

Congress may have contemplated in drafting RFRA, we need not and

do not today resolve the question of RFRA's constitutionality.

See Jay S. Bybee, Taking Liberties with the First Amendment:

Congress, Section 5, and the Religious Freedom Restoration Act,

48 VAND.L.REV. 1539 (1995) (questioning whether RFRA is an

unconstitutional application of federal power to the states not

authorized by § 5 of the Fourteenth Amendment); Christopher L.

Eisgruber & Lawrence G. Sager, Why the Religious Freedom

Restoration Act is Unconstitutional, 69 N.Y.U.L.REV. 437 (1994)

(questioning whether RFRA violates the separation of powers

doctrine, the Establishment Clause, and § 5 of the Fourteenth

Amendment, and noting that, "RFRA not only defies [Employment

Div., Dept. of Human Res. v. Smith, 494 U.S. 872, 110 S.Ct. 1595,

108 L.Ed.2d 876 (1990) ], it misreads the Supreme Court's

jurisprudence prior to Smith; and RFRA not only gives religious

believers far more than their constitutional due, it does so in a

fashion that is itself constitutionally objectionable precisely

in terms of religious freedom."); Scott C. Idleman, The

Religious Freedom Restoration Act: Pushing the Limits of

Legislative Power, 73 TEX.L.REV. 247 (1994) (suggesting that RFRA

may violate the Establishment Clause of the First Amendment to

the Constitution, in part because it expands the bounds of Free

Exercise beyond the point which the Court has in the past taken

it, by establishing a preference for religiosity over

non-religiosity); see also Everson v. Board of Ed. of Ewing

Twp., 330 U.S. 1, 15, 67 S.Ct. 504, 511, 91 L.Ed. 711 (1947)

("The "establishment of religion' clause of the First Amendment

means at least this: Neither a state nor the Federal Government

can set up a church. Neither can pass laws which aid one

religion, aid all religions, or prefer one religion over another

...") (emphasis added); Torcaso v. Watkins, 367 U.S. 488, 495,

81 S.Ct. 1680, 1683, 6 L.Ed.2d 982 (1961) ("We repeat and again

reaffirm that neither a State nor the Federal Government can

constitutionally force a person to profess a belief or disbelief

of any religion. Neither can constitutionally pass laws or

impose requirements which aid all religions as against

non-believers ...") (internal quotation omitted) (emphasis

added); Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29

L.Ed.2d 745 (1971) (statute must have secular legislative

purpose, and must primarily neither advance nor inhibit religion,

nor foster excessive government-religion entanglement, to avoid

reach of Establishment Clause); County of Allegheny v. ACLU, 492

U.S. 573, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989) (same); Texas

Monthly, Inc. v. Bullock, 489 U.S. 1, 109 S.Ct. 890, 103 L.Ed.2d

1 (1989) (invalidating, on Establishment grounds, Texas law

granting sales tax exemption to religious publications); Board

of Ed. of Kiryas Joel v. Grumet, --- U.S. ----, ----, 114 S.Ct.

2481, 2487, 129 L.Ed.2d 546 (1994) ("A proper respect for both

the Free Exercise and the Establishment Clauses compels the State

3

require discussion: Florida's new Rule 33-3.012 governing the

admissibility into Florida prisons of publications, including

religious materials; and the propriety of our consideration in

this appeal of the Rule's redaction policy.

I. RULE 33-3.012 AND REDACTION

In addition to the passage of RFRA, another significant change

in the complexion of this case occurred after remand to the

district court. On December 17, 1991, Florida amended Rule 33-

3.012, inter alia, to incorporate a formal and more precise

redaction policy. The portions of the Rule relevant to this case

are as follows:

(4) Inmates shall be permitted to receive publications except

when the publication is found to be detrimental to the

security, order or disciplinary or rehabilitative interests of

the institution or when it is determined that the publication

might facilitate criminal activity. Publications shall be

rejected when one of the following criteria are met:

to pursue a course of neutrality toward religion, favoring

neither one religion over others nor religious adherents

collectively over nonadherents.") (internal citations omitted).

The Fifth Circuit in Flores v. City of Boerne, 73 F.3d 1352 (5th

Cir.1996), rejected an argument that RFRA on its face violates

the Establishment Clause, noting that the statute expressly

limits its application such that the Establishment Clause shall

not be affected. See 42 U.S.C. § 2000bb-4, cited in Flores, 73

F.3d at 1364; but see Sable Communications of California, Inc.

v. F.C.C., 492 U.S. 115, 129, 109 S.Ct. 2829, 2838, 106 L.Ed.2d

93 (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."). Because we conclude that Rule 33-3.012 on

its face passes the RFRA test, we need not address whether RFRA

violates the Establishment Clause. See Ashwander v. Tennessee

Valley Authority, 297 U.S. 288, 341, 56 S.Ct. 466, 480, 80 L.Ed.

688 (1936) (Brandeis, J., concurring).

3

FLA.ADMIN.CODE ANN. § 33-3.012 (1995).

. . . . .

(e) It depicts, describes or encourages activities which may

lead to the use of physical violence or group disruption;

. . . . .

(h) It otherwise presents a threat to the security, order or

rehabilitative objectives of the correctional system or the

safety of any person. If only a portion of a publication

meets one of the above criteria for rejection, the entire

publication shall be rejected unless the reading material is

of a religious nature. In the case of religious material, the

inmate shall be advised that he may receive the materials only

after the inadmissible portion is removed. The inmate shall

make the decision whether to return the material to the sender

or to receive the admissible portions after the institution

has excised the inadmissible material, and the inmate may

appeal the institution's determination that the material must

be excised or returned. The institution shall not take any

action to excise or return inadmissible reading material until

the inmate's appeal is concluded or the time for appeal has

passed.

FLA.ADMIN.CODE § 33-3.012(4) (1995) (emphasis added).4 Appeals from

decisions to redact certain sections from religious materials are

heard by a literature review committee made up of the Assistant

Secretary of Operations, one superintendent, one security

administrator, the library services administrator and one

institutional librarian. FLA.ADMIN.CODE § 33-3.012(2).

The plaintiffs contend that the Department did not

specifically argue redaction in its briefs to the district court at

the original trial nor on remand, and did not do so until the

Department's motion for rehearing. The plaintiffs argue

accordingly that the Department has waived the issue. The district

court agreed with the plaintiffs and denied the Department's motion

4

Rule 33-3.012 is similar in some respects to federal prison

regulations governing the admissibility of reading materials.

See 28 C.F.R. § 540.71. However, the Federal regulations do not

have a special exception for religious materials permitting

redaction as opposed to total exclusion.

for rehearing. The district court declined to consider redaction,

relying instead on the procedures in use by the Department when

this litigation began in 1983, which the district court construed

to be an outright ban on the religious materials introduced at

trial.

This Court interprets the Department's motion for rehearing

on the redaction issue as a Fed.R.Civ.P. 59(e) motion. McGregor v.

Bd. of Com'rs of Palm Beach County, 956 F.2d 1017, 1020 (11th

Cir.1992). We review the district court's denial of the

Department's motion for rehearing for abuse of discretion. O'Neal

v. Kennamer, 958 F.2d 1044, 1047 (11th Cir.1992); American Home

Assur. Co. v. Glen Estess & Assoc., Inc., 763 F.2d 1237, 1238-39

(11th Cir.1985). In American Home, we affirmed a district court's

denial of a Rule 59(e) motion that raised for the first time a

choice of law issue. American Home, 763 F.2d at 1239. We noted

that, "[t]he decision to alter or amend judgment is committed to

the sound discretion of the district judge and will not be

overturned on appeal absent an abuse of discretion." Id. at 1238-

39.

Several reasons persuade us that the district court abused

its discretion by failing to consider redaction, which stands at

the core of the current Florida regulation. In our judgment, it

would be impossible to evaluate the facial constitutionality of

Rule 33-3.012, and its compatibility with RFRA, without considering

redaction, which is the essence of the Rule's policy toward

religious publications. This case involves only injunctive relief.

Therefore, the only viable issues are the facial validity of Rule

5

33-3.012, and its validity as applied. Because these issues

cannot be intelligently assessed without considering redaction,

justice requires that we do so.

Finally, a federal court order dictating the security-related

activities of state prison officials raises serious comity

concerns. The maintenance of prison security, which is central to

this case, is a matter of immense importance to the State of

Florida and, of course, responsibility for prison security is

committed to the State. Even if the Department's deficiencies in

the presentation of this issue to the district court might lead us

to impose waiver in some other context, interests of comity combine

with the foregoing factors to persuade us otherwise in this case.6

Assuming, as we hold below, that Florida's Rule 33-3.012, with its

redaction policy, is facially valid, it would constitute manifest

injustice to enjoin state prison officials from the exercise of

their duties to maintain prison security based on the technicality

that their attorneys failed to present an issue to the district

court with sufficient clarity. We conclude that the district court

5

Plaintiffs' efforts in this litigation have focussed only

on obtaining injunctive relief, either because that is their only

real interest or because of the likelihood that qualified

immunity will bar any claim for damages. Injunctive relief is,

of course, prospective, and thus only Rule 33-3.012 is at issue.

The validity of the Department's application of its prior policy,

with its informal, imprecise and sporadically enforced redaction

policy, is moot.

6

We can discern no prejudice to the plaintiffs as a result

of our consideration of the Department's current redaction policy

embodied in Rule 33-3.012, because they have had a full

opportunity in brief and oral argument to discuss the effect of

redaction on the facial validity of the Rule.

abused its discretion in failing to consider the redaction issue.7

II. THE RELIGIOUS FREEDOM RESTORATION ACT ("RFRA")

Having established that the issue in this case is the

redaction policy found in Rule 33-3.012, we turn to our primary

task of evaluating the validity of the Rule in light of RFRA. To

understand how RFRA's compelling interest standard should be

applied in the prison context, it is necessary to understand both

the legal landscape at the time it was enacted and congressional

intent as evidenced by the statute itself and its legislative

history. We first address congressional intent and the case law to

which Congress intended courts to look for guidance.

A. Congressional Intent and the Case Law Background

The stated purpose of RFRA is to restore the broad

applicability of the compelling interest test established in

Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965

(1960), and Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32

L.Ed.2d 15 (1972), which was substantially circumscribed by

7

We recognize that the district court in Lawson I summarily

rejected the Department's reliance on its previous, informal

redaction policy. Lawson I, 641 F.Supp. at 329. The district

court relied on the requirement set forth in Miller v.

California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973),

that allegedly obscene publications be evaluated as a whole. It

was error to rely on Miller, a case involving the First Amendment

rights of non-incarcerated persons. By contrast, prison inmates

retain only such First Amendment rights as are not inconsistent

with their status as prisoners. Pell v. Procunier, 417 U.S. 817,

822, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495 (1974). There is

clearly no per se bar to censorship of incoming prisoners' mail.

See Thornburgh v. Abbott, 490 U.S. 401, 109 S.Ct. 1874, 104

L.Ed.2d 459 (1989); Turner v. Safely, 482 U.S. 78, 107 S.Ct.

2254, 96 L.Ed.2d 64 (1987); Procunier v. Martinez, 416 U.S. 396,

94 S.Ct. 1800, 40 L.Ed.2d 224 (1974); Abbott v. Meese, 824 F.2d

1166 (D.C.Cir.1987), vacated by Thornburgh v. Abbott, 490 U.S.

401, 407-408, 109 S.Ct. 1874, 1878-1879, 104 L.Ed.2d 459 (1989);

McCorkle v. Johnson, 881 F.2d 993 (11th Cir.1989).

Employment Div., Dep't of Human Resources v. Smith, 494 U.S. 872,

110 S.Ct. 1595, 108 L.Ed.2d 876 (1990). The Act states:

(b) Purposes

The purposes of this chapter are—

(1) to restore the compelling interest test as set

forth in Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790,

10 L.Ed.2d 965 (1963), and Wisconsin v. Yoder, 406 U.S.

205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972), and to

guarantee its application in all cases where free

exercise of religion is substantially burdened ...

42 U.S.C. § 2000bb(b).

(b) Exception

Government may substantially burden a person's exercise

of religion only if it demonstrates that application of

the burden to the person—

(1) is in furtherance of a compelling governmental

interest; and

(2) is the least restrictive means of furthering

that compelling governmental interest.

42 U.S.C. § 2000bb-1(b). Congress was obviously attempting to

create a statutory buffer around a more limited constitutional

right. Cf. Katzenbach v. Morgan, 384 U.S. 641, 653-54, 86 S.Ct.

1717, 1724-25, 16 L.Ed.2d 828 (1966) (implying that Congress has

the power to create rights not recognized by the Supreme Court).

That intent was manifest in the statutory language restoring the

compelling interest test.

The text of RFRA, however, does not elaborate on how the

compelling interest test is to be applied. Nowhere in the statute

does Congress state that the test is to be construed in precisely

the same manner in varying factual scenarios and contexts. By

referring to the "compelling interest test," Congress obviously

intended for courts to look for guidance to those cases employing

that term. Astoria Fed. S & L Ass'n v. Solimino, 501 U.S. 104,

108, 111 S.Ct. 2166, 2169, 115 L.Ed.2d 96 (1991) (Congress

legislates against the background of federal common law

principles).

The Supreme Court has historically applied the compelling

interest standard somewhat differently depending on the context in

which the protected right arose. Procunier v. Martinez, 416 U.S.

396, 409-410, 94 S.Ct. 1800, 1809-1810, 40 L.Ed.2d 224 (1974)

("First Amendment guarantees must be "applied in light of the

special characteristics of the ... environment.' ") (quoting Tinker

v. Des Moines Independent Community School District, 393 U.S. 503,

506, 89 S.Ct. 733, 736, 21 L.Ed.2d 731 (1969)). This is notably

true in the prison context. Indeed, the legislative history of

RFRA expressly assumes that courts will apply RFRA in the prison

context within the framework of prior case law. Both congressional

committees charged with consideration of the legislation clearly

intended the courts to continue to afford deference to the judgment

of prison officials.

The intent of the act is to restore [the] traditional

protection afforded to prisoners' claims prior to O'Lone, not

to impose a more rigorous standard than the one that was

applied.... Accordingly, the committee expects that the

courts will continue the tradition of giving due deference to

the experience and expertise of prison and jail administrators

in establishing necessary regulations and procedures to

maintain good order, security and discipline, consistent with

considerations of costs and limited resources.... At the same

time, however, inadequately formulated prison regulations and

policies grounded on mere speculation, exaggerated fears, or

post-hoc rationalizations will not suffice to meet the act's

requirements.

S. REP. NO. 111, 103d Cong., 1st Sess. 10 U.S.Code Cong. &

Admin.News 1993 pp. 1892, 1899.

Therefore, the compelling governmental interest test should be

applied to all cases where the exercise of religion is

substantially burdened; however, the test should not be

construed more stringently or more leniently than it was prior

to Smith .... Prior to 1987, courts evaluated free exercise

challenges by prisoners under the compelling governmental

interest test. The courts considered the religiously inspired

exercise, as well as the difficulty of the prison officials'

task of maintaining order and protecting the safety of prison

employees, visitors and inmates. Strict scrutiny of prison

regulations did not automatically assure prisoners of success

in court.

H.R.REP. NO. 88, 103d Cong., 1st Sess. 8; see also 139 CONG.REC. §

14362-14365 (daily ed. Oct. 26, 1993) (statement of Sen. Hatch).

On June 9, 1987, the Supreme Court in O'Lone v. Estate of

Shabazz, 482 U.S. 342, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987),

articulated an unadorned rational basis test for the evaluation of

prison regulations challenged under the Free Exercise Clause.

RFRA's legislative history contains some evidence that Congress may

have intended to restore the standard for the protection of

prisoner Free Exercise rights to where it stood prior to the

Court's decision in O'Lone. However, even prior to O'Lone, the

Supreme Court and the lower federal courts applied the compelling

interest test in the context of prisoners' Free Exercise or Free

Speech claims by recognizing the special circumstances of the

prison context, including recognition of the state's substantial

interest in prison security and order and of the substantial

deference due the judgment of prison officials with respect

thereto. The primary reason for this is the more limited nature of

the First Amendment rights enjoyed by prisoners after

incarceration. In Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct.

2800, 2804, 41 L.Ed.2d 495 (1974), for example, the Court noted

that "[i]n the First Amendment context ... a prison inmate retains

those First Amendment rights that are not inconsistent with his

status as a prisoner or with the legitimate penological objectives

of the corrections system." Accord Jones v. North Carolina

Prisoners' Labor Union, Inc., 433 U.S. 119, 125, 97 S.Ct. 2532,

2535, 53 L.Ed.2d 629 (1977). See also Cruz v. Beto, 405 U.S. 319,

321, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263 (1972); Price v.

Johnston, 334 U.S. 266, 285, 68 S.Ct. 1049, 1060, 92 L.Ed. 1356

(1948); Bradbury v. Wainwright, 718 F.2d 1538, 1540-41 (11th

Cir.1983).

In cases involving constitutional challenges to prison

regulations, including those implicating the free exercise of

religion, the Supreme Court has long made clear that Federal courts

must afford substantial deference to the judgment of prison

authorities.8 See Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254,

96 L.Ed.2d 64 (1987); Bell v. Wolfish, 441 U.S. 520, 99 S.Ct.

1861, 60 L.Ed.2d 447 (1979); Jones, 433 U.S. 119, 97 S.Ct. 2532,

53 L.Ed.2d 629 (1977); Pell, 417 U.S. 817, 94 S.Ct. 2800, 41

L.Ed.2d 495 (1974); Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40

L.Ed.2d 224 (1974); Cruz, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d

263 (1972).9 In evaluating prisoners' constitutional rights claims

8

The cases discussed in the text involve First Amendment

rights, including both Free Exercise and Free Speech. In the

prison context, the Supreme Court and the lower federal courts

have held that the same deference is due the judgment of prison

officials with respect to security and other penological

concerns, whether the case involves Free Speech or Free Exercise

rights. "In the absence of a contrary indication, we assume that

when a statute uses [a term of art], Congress intended it to have

its established meaning." McDermott International, Inc. v.

Wylander, 498 U.S. 337, 342, 111 S.Ct. 807, 811, 112 L.Ed.2d 866

(1991).

9

All of the cases cited were decided before O'Lone.

that challenge assertions by prison officials that the inmates'

rights must yield before the state's legitimate penological

interests, courts have "accorded wide-ranging deference [to prison

administrators] in the adoption and execution of policies and

practices that in their judgment are needed to preserve internal

order and discipline and to maintain institutional security."

Bell, 441 U.S. at 547, 99 S.Ct. at 1878; accord Jones, 433 U.S. at

128, 97 S.Ct. at 2539; Martinez, 416 U.S. at 404-05, 94 S.Ct. at

1807; Cruz, 405 U.S. at 321, 92 S.Ct. at 1081. Such deference is

especially appropriate with respect to the primary state interest

involved in this case—the maintenance of peace and security within

the prison facility. Pell, 417 U.S. at 823, 94 S.Ct. at 2804

("Central to all other corrections goals is the institutional

consideration of the internal security within the corrections

facilities."). The justifications for this deference include the

complexity of prison management, the fact that responsibility

therefor is necessarily vested in prison officials, and the fact

that courts are ill-equipped to deal with such problems. Martinez,

416 U.S. at 404-05, 94 S.Ct. at 1807.

The standard for evaluating prisoner constitutional rights

claims was initially articulated by the Supreme Court in 1974 in

Martinez.

First, the regulation or practice in question must further an

important or substantial governmental interest unrelated to

the suppression of expression.... 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.

Martinez, 416 U.S. at 413, 94 S.Ct. at 1811. The two prongs of the

Martinez standard correspond to the two prongs of the compelling

interest test as it has been articulated by the Court in other

contexts: infringement on such constitutional rights is justified

only by a compelling state interest and only when the regulation at

issue is the least restrictive means for satisfying that interest.

Because the first prong is unquestionably satisfied in this case,

and indeed is conceded by the plaintiffs, we focus on the second

prong.

The Court's holding in Martinez teaches that the compelling

interest test is to be employed by recognizing the special

circumstances of the prison context, including recognition of the

state's substantial interest in prison security and order and of

the substantial deference due the judgment of prison officials with

respect thereto. Martinez, 416 U.S. at 404-05, 94 S.Ct. at 1807.

The Court noted that although it was applying the compelling

interest test,

This does not mean, of course, that prison administrators may

be required to show with certainty that adverse consequences

would flow from the failure to censor a particular letter.

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.

Id. at 414, 94 S.Ct. at 1812.10 Similarly, in Bell v. Wolfish, the

Court reemphasized the "wide-ranging deference" to be accorded the

judgment of prison officials.

Such considerations are peculiarly within the province and

professional expertise of corrections officials, and, in the

absence of substantial evidence in the record to indicate that

10

We are aware that the result in Martinez has subsequently

been limited by Thornburgh v. Abbott, 490 U.S. 401, 407-408, 109

S.Ct. 1874, 1878-1879, 104 L.Ed.2d 459 (1989). However, in order

to elaborate on what Congress meant by using the term "least

restrictive means," we must determine its meaning in the prison

context, as construed by the courts.

the officials have exaggerated their response to these

considerations, courts should ordinarily defer to their expert

judgment in such matters.

Bell, 441 U.S. at 547-48, 99 S.Ct. at 1879 (quoting Pell, 417 U.S.

at 827, 94 S.Ct. at 2806).

We recognize that, following the Martinez decision, the

constitutional standard employed by the Supreme Court continued to

11

evolve in the direction of a rational basis standard. We also

11

Both prongs of the Martinez standard have evolved in the

direction of a simple rational basis standard. In Turner, the

Supreme Court discussed in detail four cases which followed

Martinez: Pell (1974), Jones (1977), Bell (1979), and Block

(1984). The Court noted that "[i]n none of these four prisoners'

rights 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." Turner, 482 U.S. at 87, 107 S.Ct.

at 2260 (internal quotations omitted). The Court then concluded:

If Pell, Jones, and Bell have not already resolved the

question posed in Martinez, we resolve it now: when a

prison regulation impinges on inmates' constitutional

rights, the regulation is valid if it is reasonably

related to legitimate penological interests.

Id. at 89, 107 S.Ct. at 2261. It is clear that the Turner

Court contemplated that both prongs of the Martinez standard

had so evolved. In discussing the "ready alternatives"

factor, through which courts determine if there are

available alternatives to the prison policy at issue that

satisfy the legitimate interests of the prison

administration, the Court asserted that the existence of

such alternatives may be evidence that the policy is an

"exaggerated response" rather than a reasonable regulation.

But the Court was careful to note that,

This is not a "least restrictive alternative" test:

prison officials do not have to set up and then shoot

down every conceivable alternative method of

accommodating the claimants' constitutional complaint.

But if an inmate claimant can point to an alternative

that fully accommodates the prisoner's rights at de

minimis costs to valid penological interests, a court

may consider that as evidence that the regulation does

not satisfy the reasonable relationship standard.

recognize that it is far from clear which precise point in this

evolution Congress intended to select as the appropriate analysis

for the application of RFRA in a prison context. We need not in

this case decide this precise point, because we can assume arguendo

that the appropriate standard is the one set forth in Martinez,

which articulates the appropriate standard in the formulation most

favorable to the plaintiffs, as compared to the formulation found

in the cases that followed Martinez. Applying that standard,

tempered by the deference due prison officials that Martinez

commands, we readily conclude that Rule 33-3.012 passes muster

under RFRA, as discussed more fully below. Accordingly, we need

not and do not in this case decide if Congress intended a somewhat

less demanding standard like the one that evolved in the cases that

follow Martinez and predate O'Lone.

B. Facial Validity of Rule 33-3.012 Under RFRA

Because RFRA provides statutory protection for religious

practice that is broader than the core constitutional right

explicated in O'Lone, and because Martinez represents the zenith of

judicial scrutiny of prison regulations under the light of prisoner

Id. at 90-91, 107 S.Ct. at 2262 (citations omitted). But

see H.R.Rep. No. 88, 103d Cong., 1st Sess. 7-8 ("Pursuant to

the Religious Freedom Restoration Act, the courts must

review the claims of prisoners ... under the compelling

governmental interest test ... [O]fficials must show that

the relevant regulations are the least restrictive means of

protecting a compelling governmental interest.").

As noted in the text, resolution of this case does not

require that we determine the extent to which the Martinez

standard has evolved into a rational basis analysis. It is

sufficient for the resolution of this case to apply the

Martinez standard as written, moderated by the wide-ranging

deference due the judgment of prison authorities which that

opinion contemplated.

constitutional claims, we analyze Rule 33-3.012 utilizing the

Martinez standard articulated above.12 Whether the Rule comports

with RFRA is a pure question of law, and is subject to de novo

review by this Court. See Christopher v. Cutter Laboratories, 53

F.3d 1184, 1190 (11th Cir.1995).

It is well established that states have a compelling interest

in security and order within their prisons. Harris v. Forsyth, 735

F.2d 1235 (11th Cir.1984); Sullivan v. Ford, 609 F.2d 197 (5th

Cir.), cert. denied, 446 U.S. 469, 100 S.Ct. 2950, 64 L.Ed.2d 829

(1980). In the case at bar, the Hebrew Israelites concede that

Florida has a compelling interest in prison security. At issue are

the means chosen by the state of Florida to satisfy this interest,

which necessarily implicates RFRA's least restrictive means prong.

As explained above, we conclude that Congress intended this second

RFRA prong to be no more vigorous than its corresponding

incarnation in Martinez. Thus, Rule 33-3.012's "limitation of

First Amendment freedoms must be no greater than is necessary or

essential to the protection of the particular governmental interest

involved." Martinez, 416 U.S. at 413, 94 S.Ct. at 1811. In the

application of this standard, we must accord wide-ranging deference

to the judgment of the Department. Moreover, the "prison

12

Because we find that Rule 33-3.012 passes muster under

Martinez—which represents both the statutory standard under RFRA

in the most favorable formulation for which the plaintiffs could

reasonably hope and the historical summit of the Court's review

of prisoner constitutional claims—we conclude a fortiori that the

Rule is constitutional on its face. See O'Lone v. Estate of

Shabazz, 482 U.S. 342, 349, 107 S.Ct. 2400, 2404-05, 96 L.Ed.2d

282 (1987) (holding that a prison regulation that impinges upon

inmates' Free Exercise rights is constitutionally valid if it is

reasonably related to legitimate penological interests).

administrators ... [are not] required to show with certainty that

adverse consequences would flow from the failure to censor" a

particular publication. Id. at 414, 94 S.Ct. at 1811-12.

Applying the foregoing standard to Rule 33-3.012, we readily

conclude that the Rule satisfies RFRA's least restrictive means

test. Indeed, it is hard to imagine a means more specifically or

more narrowly addressed to the problem posed by passages of text

which the Department has determined may lead to violence or

disruption, or which otherwise pose a threat to security. Abbott

v. Meese, 824 F.2d at 1172-1173. The Rule is explicitly addressed

to the penological interest at stake, namely security. It is not

vague or overbroad and it does not give unbridled discretion to

prison administrators.13 See Vodicka v. Phelps, 624 F.2d 569, 570-

571 (5th Cir.1980) (finding facially valid under Martinez a prison

regulation allowing the withholding of prisoner mail that presents

an "immediate threat" to security); see also Abbott v. Meese, 824

F.2d 1166, 1172-1173 (D.C.Cir.1987), vacated by Thornburgh v.

Abbott, 490 U.S. 401, 407-408, 109 S.Ct. 1874, 1878-1879, 104

L.Ed.2d 459 (1989) ("If a regulation were to authorize the Warden

to reject a portion of a publication only if he found that the

material would "encourage' violence, or some other specified type

of conduct breaching security or order ... we think that regulation

could survive the minimum Martinez tests."); Gaines v. Lane, 790

F.2d 1299 (7th Cir.1986) (finding prison regulation, which only

13

Under Rule 33-3.012, inmates have a right to appeal

decisions to redact certain sections from religious texts, and

these appeals are heard by a literature review committee. The

plaintiffs do not challenge the district court's ruling that the

Rule does not violate the plaintiffs' due process rights.

allows prison officials to censor mail which presents a threat to

prison security, sufficiently narrowly-tailored to be facially

valid under Martinez ); George v. Sullivan, 896 F.Supp. 895

(W.D.Wis.1995) (upholding prison regulation permitting banning of

white supremacist religious literature, even in light of RFRA's

heightened standard of review).

The plaintiffs argue, relying on the law of the case

doctrine, that this Court's decision in this matter is dictated by

our prior decision in Lawson II, 840 F.2d 779 (11th Cir.1987). The

law of the case doctrine does not apply in this instance for three

reasons. First, this Court's opinion in Lawson II was vacated by

the Supreme Court in Dugger v. Lawson, 490 U.S. 1078, 109 S.Ct.

2096, 104 L.Ed.2d 658 (1989), with instructions to reconsider in

light of Thornburgh v. Abbott, 490 U.S. 401, 407-408, 109 S.Ct.

1874, 1878-1879, 104 L.Ed.2d 459 (1989). Accordingly, this Court

is not bound by the vacated decision. United States v. M.C.C. of

Florida, 967 F.2d 1559, 1561-1562 (11th Cir.1992). Second, the

crux of the dispute in Lawson II, and indeed in the whole first

round of this litigation, was a disagreement about the standard of

review that should be applied to the Department's regulations.

Thus, the focus of the briefs submitted to this Court in Lawson II,

as well as the focus of our opinion, was not on the regulations

themselves, but instead was on whether the trend in Supreme Court

prisoner Free Exercise jurisprudence is one leading toward the

application of a rational basis test. Finally, Florida has in the

interim changed its prison regulations governing the admissibility

of religious materials. As written, Rule 33-3.012 is substantially

different from its predecessor, which we considered in Lawson II.

Not only has the law changed, but also the facts of the case have

changed.14

C. Rule 33-3.012 As Applied

In this litigation, no court has been asked to determine which

specific portions of any particular Hebrew Israelite publication

can be redacted by the Department, operating under the authority of

the new Rule 33-3.012, consistent with the Constitution and RFRA.

Indeed, it appears that the Department may not have applied its new

Rule because of this ongoing litigation. It may be that there is

no "as applied" issue in this case. This is a question that will

have to be determined on remand in the district court. As a

practical matter, an "as applied" issue will not arise until a

prisoner challenges a particular Department action. The Department

will have to identify those sections of the Hebrew Israelite

publications that it has decided must be removed pursuant to the

Rule, and the district court will then have to determine if the

Department can redact those specific portions without running afoul

of the United States Constitution and RFRA.15

14

As noted above, the validity of the Department's

application of its previous policy to the religious texts

introduced at trial is moot. The district court erred in

focusing on that issue rather than the only viable issue in the

case—the validity of Rule 33-3.012.

15

Because an "as applied" challenge might be ripe and might

be presented on remand, we provide some limited guidance to avoid

repetition of clear error. In Lawson I, 641 F.Supp. at 329, the

district court may have labored under the misconception that the

Department was required to adduce specific evidence of a causal

link between text that it wants to remove and actual incidents of

violence (or some other actual threat to security). To the

extent that the district court did in fact labor under any such

belief, it erred. Requiring proof of such a correlation

III. CONCLUSION

Pursuant to the above discussion, we hold that Rule 33-3.012

is facially valid under both the United States Constitution and

RFRA. We therefore reverse the decision of the district court, and

remand to that court for an exploration of any "as applied" issues

that may be ripe.

REVERSED and REMANDED.

constitutes insufficient deference to the judgment of the prison

authorities with respect to security needs. See Procunier v.

Martinez, 416 U.S. at 414, 94 S.Ct. at 1812 (Prison authorities

are not "required to show with certainty that adverse

consequences would flow from the failure to censor a particular

letter. 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.").