Lawson v. Singletary

PUBLISH

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 94-4663

D. C. Docket No. 83-8409-CIV-SMA

ROBERT LEE LAWSON, on behalf of himself

and all others similarly situated,

Plaintiffs-Appellees,

versus

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.

Appeal from the United States District Court

for the Southern District of Florida

(May 29, 1996)

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

District Judge.

PER CURIAM:

________________________

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

Middle District of Florida, sitting by designation.

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 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,

2

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. 1987)

(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 (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 (1989) (hereinafter

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

v. Dugger, No. 86-5774 (11th Cir. Feb. 1, 1990). Again, however, a change

3

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.Sup. 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 it applies

to this case.2 Two interrelated preliminary matters require discussion:

1

RFRA was signed into law on November 16, 1993.

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

(1990)], it misreads the Supreme Court's jurisprudence prior to

4

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 (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 (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 (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 (1989)(same); Texas Monthly, Inc. v. Bullock,

489 U.S. 1, 109 S.Ct. 890 (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 (1994)("A proper respect for both the

Free Exercise and the Establishment Clauses compels the State 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 (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.

5

Florida's new Rule 33-3.0123 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:

...

(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

See Ashwander v. Tennessee Valley Authority, 297 U.S 288, 341, 56

S.Ct. 466 (1936)(Brandeis, J., concurring).

3

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

6

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 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

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.

7

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

8

of Rule 33-3.012, and its validity as applied.5 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

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.

9

failed to present an issue to the district court with sufficient clarity. We

conclude that the district court abused its discretion in failing to

consider the redaction issue.7

II. THE RELIGIOUS FREEDOM AND 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

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 (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 (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 (1989); Turner v. Safely,

482 U.S. 78, 107 S.Ct. 2254 (1987); Procunier v. Martinez, 416

U.S. 396, 94 S.Ct. 1800 (1974); Abbott v. Meese, 824 F.2d 1166

(D.C. Cir. 1987), vacated by Thornburgh v. Abbott, 490 U.S. 401,

4407-408, 109 S.Ct. 1874 (1989); McCorkle v. Johnson, 881 F.2d

993 (11th Cir. 1989).

10

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

1526 (1972), which was substantially circumscribed by Employment Div.,

Dep't of Human Resources v. Smith, 494 U.S. 872, 110 S.Ct. 1595 (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 (1963), and

Wisconsin v. Yoder, 406 U.S. 205 (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 (1966)

(implying that Congress has the power to create rights not recognized by

11

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 (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 (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 (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.

12

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.

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 (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

13

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 (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 (1977). See also Cruz v. Beto,

405 U.S. 319, 321, 92 S.Ct. 1079 (1972); Price v. Johnston, 334 U.S. 266,

285, 68 S.Ct. 1049 (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,

8

The cases discussed in the text involve First Amendment

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

14

482 U.S. 78, 107 S.Ct. 2254 (1987); Bell v. Wolfish, 441 U.S. 520, 99 S.Ct.

1861 (1979); Jones, 433 U.S. 119 (1977); Pell, 417 U.S. 817 (1974);

Martinez, 416 U.S. 396 (1974); Cruz, 405 U.S. 319 (1972).9 In evaluating

prisoners' constitutional rights claims 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; accord Jones, 433 U.S. at 128; Martinez, 416 U.S. at 404-

05; Cruz, 405 U.S. at 321. 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 ("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 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 (1991).

9

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

15

prison officials, and the fact that courts are ill-equipped to deal with such

problems. Martinez, 416 U.S. at 404-05.

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. 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. The Court noted that although it was applying the compelling

interest test,

16

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 414.10 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

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 (quoting Pell, 417 U.S. at 827).

We recognize that, following the Martinez decision, the

constitutional standard employed by the Supreme Court continued to

evolve in the direction of a rational basis standard.11 We also recognize

10

We are aware that the result in Martinez has subsequently

been limited by Thornburgh v. Abbott, 490 U.S. 401, 4407-408, 109

S.Ct. 1874 (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.

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 (internal

17

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,

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. 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.

Id. at 90-91 (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.

18

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 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

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

(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).

19

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 (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. In

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

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

. . . [are not] required to show with certainty that adverse consequences

would flow from the failure to censor" a particular publication. Id. at 414.

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

20

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, 4407-408, 109 S.Ct. 1874 (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 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

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.

21

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 (1989), with instructions to

reconsider in light of Thornburgh v. Abbott, 490 U.S. 401, 4407-408, 109

S.Ct. 1874 (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

22

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

23

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.

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

constitutes insufficient deference to the judgment of the prison

authorities with respect to security needs. See Procunier v.

Martinez, 416 U.S. at 414 (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.").

24