Amicus Curiae Brief — Shaw v. Murphy

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No. 99-1613 Nid 1 5 DONO

In the Supreme Court of the Gnited States |

Nw 13, ee

ROBERT SHAW, ET AL., PETITIONERS

KEVIN MURPHY

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS “

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING REVERSAL

SETH P. WAXMAN

Solicitor General

Counsel of Record

DAVID W. OGDEN

Assistant Attorney General

BARBARA D. UNDERWOOD

Deputy Solicitor General

GREGORY G. GARRE

Assistant to the Solicitor

General

BARBARA L. HERWIG

JOHN HOYLE

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether the court of appeals erred in holding that

respondent’s conduct was protected by a First Amend-

ment right of prison inmates to provide legal assistance

to other inmates.

(I)

TABLE OF CONTENTS

Page

Interest of the United States 1

Statement | 2

Summary of argument 9

Argument:

The court of appeals erroneously held that respon-

dent’s conduct was protected by an independent

First Amendment right to assist other inmates

in legal matters 12

A. Prisoners do not enjoy a First Amendment

right to assist other inmates in legal matters ........ 14

B. Respondent’s First Amendment claim is

governed by a conventional Turner analysis ......... 24

Conclusion seemmenmmeneeecaen 30

TABLE OF AUTHORITIES

Cases:

Bell v. Wolfish, 441 U.S. 520 (1979) 13, 14, 15

Block v. Rutherford, 468 U.S. 576 (1984) 15

Bounds v. Smith, 430 U.S. 817 (1977) 10, 16, 18

Gassler v. Rayl, 862 F.2d 706 (8th Cir. 1988) ..........000000 24

Gibbs v. Hopkins, 10 F.3d 373 (6th Cir. 1993) ............00000« 24

Goff v. Nix, 113 F.3d 887 (8th Cir. 1997) 24

Hudson v. Palmer, 468 U.S. 517 (1984) .0.......cccccecceesceee 14, 18

Johnson v. Avery, 393 U.S. 483 (1969) 9, 14,

16-17, 21, 22, 24

Jones v. North Carolina Prisoners’ Labor Union,

Ine., 433 U.S. 119 (1977) .....ecsecseeeee 10, 14, 15, 20, 21, 23, 24

Lewis v. Casey, 518 U.S. 343 (1996) 10-11, 16,

17, 18-19, 21, 23, 24, 26

NAACP v. Button, 371 U.S. 415 (1966) ........c0000000 10, 19, 20

O’Lone v. Estate of Shabazz, 482 U.S. 342

TEED careetieteenteideeesstienennsemnmnentecnenennsemmesnemnsnsssensnssnessesssnssscesesseses 14, 15

' (IIT)

Cases—Continued: Page

Pell v. Procunier, 417 U.S. 817 (1974) 12, 14, 15

Perry Educ. Ass'n v. Perry Local Educators’

Ass'n, 460 U.S. 37 (1983) 28

Price v. Johnston, 334 U.S. 266 (1948) 14

Primus, In re, 436 U.S. 412 (1978) ...... 20

Rizzo v. Dawson, 778 F.2d 527 (9th Cir. 1985) ............... 7,19

Sandin v. Conner, 515 U.S. 472 (1995) .......cccccccceceeeeeeeeee 14

Schenck v. Edwards, 921 F. Supp. 679 (E.D.

Wash. 1996), aff'd, 133 F.3d 929 (9th Cir. 1998) ............... 22

Smith v. Maschner, 899 F.2d 940 (10th Cir.

SEED cuncsnmemusecmmsnentnnnenspimatiniatineinaaainnmieeniiits 24

Tighe v. Wall, 100 F.3d 41 (5th Cir. 1996) 24

Thomas v. Collins, 323 U.S. 516 (1945) 21

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

Turner v. Safley, 482 U.S. 78 (1987) ........cccccsecseneennees passim

United Transp. Union v. State Bar of Mich.,

401 U.S. 576 (1971) 19, 20

Walters v. National Ass'n of Radiation Survivors,

473 U.S. 305 (1985) 20

Weaver v. Toombs, 756 F. Supp. 335 (W.D. Mich.

1989), aff’d, 915 F.2d 1574 (6th Cir. 1990) 22

Williams v. Nix, 1 F.3d 712 (8th Cir. 1993) 24

Wolff v. McDonnell, 418 U.S. 539 (1974) 14, 15,

17, 28

Constitution, statutes and regulation:

U.S. Const. Amend. I passim

Civil Rights of Institutionalized Persons Act,

GGG. GG OGED, cnemtinmmmmnne 2

42 U.S.C. 1983 6

28 C.F.R.:

Pt. 540:

Sections 540.10-540.25 1

Section 540.15 2

Section 540.15(5) 26

Section 540.16 2

“se ds

Regulati Continued

Section 540.17

Section 540.18

Section 540.19

Pt. 541:

Section 541.13

Pt. 543

Sections 543.10-543.16

Section 543.11(f)(1)

Section 543.11(f)(4)

Miscellaneous:

G. Camp & C. Camp, U.S. Dep’t of Justice, Prison

Gangs: Their Nature and Impact on Prisons

(1985)

62 Fed. Reg. 4890 (1997)

"Sg ttat

In the Supreme Court of the Anited States

No. 99-1613

ROBERT SHAW, ET AL., PETITIONERS

Vv.

KEVIN MURPHY

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING REVERSAL

INTEREST OF THE UNITED STATES

The question presented in this case is whether a

prison inmate has a First Amendment right to provide

assistance with pending criminal charges to another

inmate who is represented by appointed defense coun-

sel. The United States has a substantial interest in the

resolution of that question. First, the Federal Bureau

of Prisons (BOP) operates more than 90 penal institu-

tions across the country, and has adopted regulations

governing inmate legal activities, see 28 C.F.R. 543.10-

543.16, and inmate correspondence on legal and other

matters, see 28 C.F.R. 540.10-540.25.' The Court’s

| For example, BOP regulations permit inmates to provide

legal assistance to other inmates in the same institution, but

provide that “(t}he Warden at any institution may impose limita-

(1)

decision in this case could bear on the constitutionality

of those provisions or their enforcement, and affect the

ability of BOP to advance legitimate penological inter-

ests by regulating such inmate activities. Second, the

Attorney General is charged with protecting the con-

stitutional rights of prisoners under the Civil Rights of

Institutionalized Persons Act, 42 U.S.C. 1997 et seq.

The Court’s decision in this case could affect that inter-

est as well.

STATEMENT

1. This case arises from a state prison inmate’s effort

to commnunicate with a fellow inmate about criminal

charges pending against the latter. In 1995, respondent

was incarcerated at the Montana State Prison in Deer

Lodge, Montana, where he was confined in the high

security compound. As part of a prison program, re-

spondent was trained as an “inmate law clerk” and, in

that capacity, provided assistance with various matters

to other inmates, including inmate Pat Tracy. In early

1995, respondent learned that Tracy had been charged

by state authorities with the felony assault of a prison

guard, Officer Glen Galle. The State had appointed a

lawyer to represent Tracy, and prison authorities had

tions on an inmate’s assistance to another inmate in the interest of

institution security, good order, or discipline.” 28 C.F.R.

543.11(f)(1) and (4). Correspondence between inmates at the same

institution may be restricted with respect to inmates placed in

segregation or presenting security risks. 28 C.F.R. 540.15, 540.16.

Correspondence between inmates at separate institutions is not

allowed unless inmates are immediate family members or wit-

nesses or parties in the same legal action. 28 C.F.R. 540.17.

Incoming correspondence from courts or attorneys is treated as

“special mail” and may be inspected but generally is not read or

copied by prison officials; outgoing special mail from inmates to

courts or attorneys is labeled as such and neither screened nor

opened by prison officials. See 28 C.F.R. 540.18, 540.19.

transferred him to the prison’s maximum security unit

-_ the charges were pending. See Pet. App. 2-3, 19,

Tracy requested respondent's assistance in defending

against the charges. Pet. App. 3, 49. Prison officials

denied that request because prison policy prohibited

high security inmates, including respondent, from meet-

ing with maximum security inmates, including Tracy.

Id. at 3, 19. Prison officials sent a low security inmate

law clerk to confer with Tracy, but Tracy declined to

meet with him. Jd. at 49. Respondent learned that

Tracy had requested his assistance and began his own

investigation into the altercation with Officer Galle. Jd.

at 3. On February 16, 1995, respondent sent Tracy the

following letter:

Dear Pat:

How ya doing? I haven’t wrote before now. I

been busy fighting my charges. Finally got every-

thing taken care of. I can’t come up to max any-

more. [T]he lowside clerks go up there now. [TJhat’s

why I haven’t called you out like I used to. I do

want to help you with your case against Galle. It

wasn’t your fault and I know he provoked whatever

happened! Don’t plead guilty because we can get at

least 100 witnesses to testify that Galle is an over

zealous guard who has a personal agenda to punish

and harrass [sic] inmates. He has made homo-

sexual advances toward certain inmates and that

can be brought up into the record. There are peti-

tions against him and I have tried to get the Unit

Manager to do something about what he does in

Close II, but all that happened is that I received two

writeups from him myself as retaliation. So we

must pursue this out of the prison system. I am

filing a suit with everyone in Close I and II narned

against him. So you can use that too!

Another poiont is [sic] that he grabbed you from

behind. You tell your lawyer to get ahold [sic] of me

on this. Don’t take a plea bargain unless it’s for no

more time.

I seen Damie for a little while when I was out. I

never came over to Butte much. Lenny is living in

lower D still and I don’t speak to him much. His

sister did something to Ted from what I heard. I

don’t know what. Well I will write again when I get

this thing against Galle finished.

Later. .

Murph

Id. at 46-47 (bracketed material in original).

The letter was intercepted in accordance with prison

policy and read by petitioner Robert Shaw, an officer in

the maximum security unit. Pet. App. 4.2 On the basis

of this letter, Shaw reported respondent for violations

of three rules contained in the Inmate Disciplinary

Policy (J.A. 6-33): “Insolence” (Rule 009); “Interference

with Due Process Hearings” (Rule 022); and “Conduct

Which Disrupts or Interferes with the Security or

2 Under the prison’s Inmate Correspondence Policy (J.A. 34-

51), “[mJail from other correctional facilities and mail to prisoners

in Maximum Security and Administrative Segregation may be

read.” J.A. 46; see J.A. 97. This policy sets forth special provisions

governing “privileged correspondence” with “licensed attorneys”

and certain public officials. _J.A. 34-36. But correspondence with

“inmate law clerks” is not subject to those provisions. See J.A. 97.

_—e_e -

Orderly Operation of the Institution” (Rule 025). In

his report, Shaw stated that the letter “accused CO

Galle of being an over zealous guard who punishes and

harasses inmates for a personal pleasure”; “accused CO

Galle of making homo-sexual advances towards in-

mates”; and stated “that CO Galle retaliated against

[respondent] by writing him up.” J.A. 52. Shaw also

reported that the letter “trie{d] to persuade Inmate

Tracy to pursue certain actions that may disrupt a

court hearing in which [respondent] is no part of,” and

that “[t]here is no evidence of any of the statements in

th[e] letter to be fact.” J.A. 54.

Following a hearing, respondent was found guilty of

violating Rules 009 and 022 (but not Rule 025), and

given a suspended sentence of 10 days’ detention along

with three reciassification points. Pet. App. 4. The

Rule 009 violation was based on a finding that the letter

states that “c/o Galle retaliated against inmate Mur-

phy,” and that this “statement indicates unprofessional

actions which stand to intimidate the employee.” J.A.

60. The Rule 022 violation was based on a finding that

the statement in the letter “referring to c/o Galle mak-

ing homo sexual advances to another inmate would

result in disciplinary action against [the] stated em-

3 The prison’s rules are set forth at J.A. 10, 14, and 15, along

with other provisions of the Inmate Disciplinary Policy. BOP’s in-

mate disciplinary policy is set forth at 28 C.F.R. Pt. 541. Under

that policy, inmates may be disciplined for similar misconduct,

including “{iJnsolence towards a staff member” (Code 312); “(lying

or providing a false statement to a staff member” (Code 313);

“(uJsing abusive or obscene language” (Code 404); “{uJnauthorized

use of mail” (Code 406); and “[cJonduct which disrupts or interferes

with the security or orderly running of the institution” (Code 499).

28 C.F.R. 541.13 (Table 3).

ployee.” J.A. 62. Respondent's administrative appeal

was denied. Pet. App. 4-5, 21.*

2. a. In October 1995, respondent filed this class

action in'the District Court for the District of Montana,

seeking declaratory and injunctive relief pursuant to 42

U.S.C. 1983. The complaint alleged that the actions of

the named prison officials (petitioners here) in disciplin-

ing respondent in connection with the February 16,

1995, letter violated respondent’s First Amendment

rights, including the right “to provide legal assistance

to other inmates”; abridged “the rights of inmates to

access the courts by denying them the assistance of an

inmate law clerk”; and violated due process on the

ground that the regulations on which the disciplinary

action was based are unduly vague or overbroad. J.A.

66-67. Respondent styled the suit as a class action on

behalf of “all current and future inmates who may rely

on inmate law clerks or ‘jailhouse lawyers,’” and all in-

mates who rely on such “inmate law clerks or ‘jailhouse

lawyers.’” Pet. App. 43 (quoting PI.’s Mot. to Certify

Class).

b. Following. discovery, the parties filed cross-

motions for summary judgment. The magistrate judge

(Pet. App. 28-44) recommended summary judgment for

petitioners with respect to respondent’s “access to the

courts” claim, explaining that, by communicating with

Tracy, respondent “was not attempting to pursue any

legal claims or defenses on his own behalf.” /d. at 37.

But the magistrate judge recommended denial of sum-

mary judgment with respect to the remaining claims,

finding that material disputed facts existed as to

whether petitioners’ actions were “rationally related to

4 Tracy did not receive a copy of respondent’s letter until June

1996, by which time he had pleaded guilty to the felony assault

charges. Pet. App. 49.

a legitimate penological interest,” in accordance with

the .aquiry established by Turner v. Safley, 482 U.S. 78

(1987), for reviewing constitutional challenges to prison

regulation. Pet. App. 38; see id. at 37-40. The magis-

trate judge further recommended denial of class certi-

fication. Jd. at 43-44.

ce. The district court (Pet. App. 25-26) granted

summary judgment in its entirety for petitioners and

ordered that the case be dismissed. With respect to the

First Amendment claim, the court first found that

“L[respondent] was not acting as an inmate law cler‘

when he wrote and sent the February 16, 1995, letter to

inmate Pat Tracy,” and that respondent’s claims ac-

cordingly “must be analyzed without consideration of

any privilege that law clerk status might provide.” Jd.

at 23-24. The court then held that respondent’s First

Amendment claim failed under the “test of Turner v.

Safley,” “find[ing] that there is a valid, rational con-

nection between the prison inmate correspondence

_ policy and the objectives of prison order, security, and

inmate rehabilitation.” Jd. at 25. The court further held

that “[respondent’s] First Amendment right to assist

other inmates is, in this instance, inconsistent with his

status as a prisoner and with the legitimate penological

objectives of [the prison].” Jd. at 24-25.

3. The Ninth Circuit reversed. Pet. App. 1-17. The

court of appeals premised its analysis on the proposition

that “inmates have a First Amendment right to assist

other inmates with their legal claims.” Jd. at 6 (citing

Rizzo v. Dawson, 778 F.2d 527, 531 (9th Cir. 1985)).

The court next concluded that the “undisputed facts”

concerning respondent’s training as an inmate law clerk

and his prior efforts to assist Tracy in that capacity “are

enough to raise this] First Amendment right,” and that

“the Prison’s decision to discipline [respondent] * * *

undoubtedly interferes with that right.” Jd. at 8, 9.°

Finally, applying the Turner v. Safley inquiry, the

court of appeals held that petitioners violated this First

Amendment right in disciplining respondent, because

their actions were an “‘exaggerated response’ to the

Prison’s interest in security and order.” /d. at 15.

In applying Turner, the court of appeals acknowl-

edged that “as a general matter” the regulations pur-

suant to which respondent was disciplined are ration-

ally related to the prison’s legitimate penological inter-

ests in promoting “security and order,” and therefore

might pass muster “as applied to inmate correspon-

dence generally.” Pet. App. 11. But the court reasoned

that the regulations must be scrutinized “as applied to

legal correspondence between an inmate performing

the functions of a law clerk and the inmate he is advis-

ing,” and held that when viewed from the perspective

of this “particular category of protected expression,”

the regulations were an “exaggerated response” to the

stated penological concerns. Jd. at 11-13. According to

the court, “the Prison’s interest in security and order is

at a low ebb when the correspondence in question is

legal advice relating to a pending or potential legal

matter,” whereas the inmate’s “First Amendment right

5 In his brief in opposition (at 5), respondent argued that he

was not acting in his capacity as an “inmate law clerk” when he

sent his letter. This argument is contradicted by respondent’s

prior statements, see Br. in Opp. App. 2 (“On or about February

16, 1995, I wrote a letter to Pat Tracy, in which I gave him legal

advice concerning the charges pending against him.”); accord J.A.

75, 78, as well as the allegations set forth in his Complaint ({ 13),

J.A. 65. In any event, for the reasons explained below, we agree

that whether respondent in fact was attempting to provide legal

assistance to Tracy is “immaterial” (Br. in Opp. 5) to the resolution

of his First Amendment claim.

to provide legal assistance to fellow inmates” is

squarely implicated by such communications. /d. at 12.

The court of appeals remanded for the entry of sum-

mary judgment in favor of respondent, and for crafting

of “an appropriate remedy.” Pet. App. 17.°

SUMMARY OF ARGUMENT

One of the consequences of lawful incarceration is the

loss of those First Amendment freedoms that are

inconsistent with an individual’s status as a prisoner

and the legitimate penological objectives of the State.

Inmates retain free speech rights, but prison regulation

of inmate expression satisfies First Amendment review

if it is “reasonably related’ to legitimate penological

objectives,” and “is not an ‘exaggerated response’ to

those concerns.” Turner v. Safley, 482 U.S. 78, 87

(1987). The court of appeals erred in holding that

because respondent’s letter contained an offer of legal

assistance, it implicated not only the general right of

free speech, but also a specia! First Amendment right

to provide legal assistance to other inmates. That

holding finds no support in precedent or principle, and

should be rejected.

When inmates have no reasonable alternative to legal

assistance from other inmates to gain access to the

courts, a State may not prohibit inmates from providing

such assistance. Johnson v. Avery, 393 U.S. 483 (1969).

But even in that circumstance, this Court has recog-

nized only a right of inmates to receive available legal

® The court of appeals did not reach respondent’s “right of

access to the courts’ arguments.” Pet. App. 15. The court reached

and rejected respondent’s due process challenge, concluding that

“(while clearer language could be imagined, the challenged regu-

lations are the sort that every prison enforces in order to maintain

order.” Jd. at 16. Neither the “right of access” nor the due process

claim is before this Court. See Pet. i.

assistance, and not a right of inmates to dispense such

assistance. Such a right would be especially unwar-

ranted where, as here, an inmate is attempting to assist

an inmate who is represented by appointed counsel.

Likewise, this Court has recognized that the State may

not interfere with an inmate’s right of access to the

courts by, for example, precluding access to law librar-

ies or otherwise closing the door to judicial review.

E.g., Bounds v. Smith, 430 U.S. 817 (1977). But Bounds

does not create “an abstract, freestanding right to

* * * legal assistance”; rather, it establishes a “right of

access to the courts.” Lewis v. Casey, 518 U.S. 348, 350

(1996).

Outside the prison context, the Court has held that

individuals enjoy a First Amendment right to associate

with others for legitimate common goals and to use liti-

gation to advance those goals. E.g., NAACP v. Button,

371 U.S. 415 (1963). But introducing that principle to

the prison context would be inconsistent with the dic-

tates of prison life. In Jones v. North Carolina Prison-

ers’ Labor Union, Inc., 433 U.S. 119, 125-126 (1977), this

Court recognized that “[pJerhaps the most obvious of

the First Amendment rights that are necessarily cur-

tailed by confinement are those associational rights that

the First Amendment protects outside of prison walls.”

In light of that fact, Jones held that inmates do not

enjoy a First Amendment right to engage in union

activities, even though such conduct lies within the

heartland of protected First Amendment activity out-

side the prison walls. For similar reasons, the diminish-

ment of “litigating capacity,” especially the capacity to

litigate on behalf of others, “is simply one of the

incidental (and perfectly constitutional) consequences of

conviction and incarceration.” Casey, 518 U.S. at 355.

As this Court has often recognized, prisons are popu-

lated by dangerous individuals with a demonstrated

proclivity for anti-social behavior. When such indivi-

duals attempt to confer with one another, regardless of

their stated purpose for doing so, legitimate penological

concerns are implicated. The practice of “jailhouse

lawyering” presents particular concerns. Inmates may

use legal assistance to gain influence over other in-

mates, and for other means of self-aggrandizement,

profit, or power. In addition, inmate-to-inmate corre-

spondence on legal matters, as on other matters, can be

used to pass contraband, form escape plans, develop or

sustain gangs or other informal organizations, or

threaten institutional security and safety in other ways.

Holding that inmate legal assistance activities are

entitled to specia! constitutional protection under the

First Amendment would seriously undermine the

ability of prison officials to address such concerns.

While respondent’s conduct was not protected by a

First Amendment right to dispense legal assistance, it

does implicate the general right to free speech. Turner

v. Safley supplies the standard for determining

whether an inmate’s free speech rights are violated in

this context. Inmate correspondence may be restricted

if prison officials establish that such regulation is

“reasonably related” to valid penological objectives, and

is not an “exaggerated response” to those objectives.

482 U.S. at 93. The court of appeals below purported to

apply Turner, but it did so under the influence of its

erroneous belief that respondent’s conduct was pro-

tected by a First Amendment right to provide legal

assistance to other inmates. That mistaken premise led

the court of appeals, in effect, to treat the letter at issue

as if it were entitled to heightened First Amendment

protection simply because it touched on a pending legal

proceeding against another inmate.

This Court has recognized many legitimate penologi-

cal interests in restricting inmate correspondence. The

fact that such correspondence concerns a legal matter

may or may not bear on the legitimacy of the stated

interests, or the relation between those interests and

the particular correspondence at issue. The record

before this Court does not conclusively demonstrate

whether petitioners’ decision to discipline respondent

on the basis of his letter is reasonably related to

legitimate penological interests, or is an exaggerated

response to those interests. Accordingly, we suggest

that the Court should reverse the judgment below and

remand for further consideration of respondent’s First

Amendment claim under a conventional Turner analy-

sis, one that is not premised on the notion that inmates

enjoy a First Amendment right to provide legal assis-

tance to other inmates.

ARGUMENT

THE COURT OF APPEALS ERRONEOUSLY HELD

THAT RESPONDENT'S CONDUCT WAS PROTECTED

BY AN INDEPENDENT FIRST AMENDMENT RIGHT

TO ASSIST OTHER INMATES IN LEGAL MATTERS

A convicted and imprisoned felon “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.” Pell v. Procu-

nier, 417 U.S. 817, 822 (1974). In a series of cases, this

Court has considered the free speech rights of inmates

to communicate with one another and with individuals

on the outside. In Turner v. Safley, 482 U.S. 78 (1987),

this Court upheld a state regulation prohibiting inmates

from corresponding with inmates at other institutions.

See id. at 91-93. As the Court explained, “when a

prison regulation impinges on inmates’ constitutional

rights, the regulation is valid if it is reasonably related

to legitimate penological interests.” Jd. at 89. The

Court reached a similar result in Thornburgh v. Abbott,

490 U.S. 401 (1989), where the Court, applying the

Turner “reasonableness standard,” upheld a BOP regu-

lation restricting the types of publications inmates may

receive from the outside. Jd. at 413. See also Bell v.

Wolfish, 441 U.S. 520, 550-551 (1979) (upholding BOP

regulation restricting incoming mail because it was a

“rational response” to legitimate security concerns).

As the court of appeals observed, the letter at issue

in this case, like the correspondence restricted in

Turner and Abbott, “itself constitutes speech that, out-

side of the prison context, would doubtless enjoy the

protection of the First Amendment.” Pet. App. 8-9.

Thus, in determining whether petitioners violated

respondent’s First Amendment rights by disciplining

him on the basis of that letter, the court of appeals

properly invoked the Turner standard. See id. at 10-14.

But the court applied Turner based on an erroneous

premise: that in addition to a general free speech right,

prisoners enjoy a special “First Amendment right to

assist other inmates with their legal claims.” Jd. at 6.

Based on that premise, the court of appeals reasoned

that respondent’s letter fell into a “particular category

of protected expression”—“legal correspondence be-

tween an inmate performing the functions of a law clerk

and the inmate he is advising”—and that it, in effect,

enjoyed heightened constitutional protection. Jd. at 11.

That was error, and that error tainted the court of

appeals’ entire Turner analysis. This Court has never

recognized a First Amendment right of prison inmates

to assist other inmates in legal affairs, and it should not

do so here.

A. Prisoners Do Not Enjoy A First Amendment Right To

Assist Other Inmates In Legal Matters

1. “Prison walls do not form a barrier separating

prison inmates from the protections of the Consti-

tution.” Turner v. Safley, 482 U.S. at 84. See Bell v.

Wolfish, 441 U.S. at 545. Thus, “{iJnmates clearly retain

protections afforded by the First Amendment.” O’Lone

v. Estate of Shabazz, 482 U.S. 342, 348 (1987). See Pell

v. Procunier, 417 U.S. at 822. These protections include

the right to free speech, Thornburgh v. Abbott, 490 U.S.

at 407; to petition the government for the redress of

grievances, Johnson v. Avery, 393 U.S. 483 (1969); and

to free exercise of religion, O’Lone, 482 U.S. at 348. At

the same time, however, “{]]awful incarceration brings

about the necessary withdrawal or limitation of many

privileges and rights, a retraction justified by the

considerations underlying our penal system.” O’Lone,

482 U.S. at 348 (quoting Price v. Johnston, 334 U.S.

266, 285 (1948)). See also Sandin v. Conner, 515 U.S.

472, 485 (1995); Wolff v. McDonnell, 418 U.S. 539, 555

(1974); Hudson v. Palmer, 468 U.S. 517, 530 (1984)

(“prisoners have no legitimate expectation of privacy

and * * * the Fourth Amendment’s prohibition on

unreasonable searches does not apply in prison cells”).

Accordingly, this Court has held that, “(ijn a prison

context, an inmate does not retain those First Amend-

ment rights that are ‘inconsistent with his status as a

prisoner or with the legitimate penological objectives of

the corrections system.’” Jones v. North Carolina Pri-

soners’ Labor Union, Inc., 433 U.S. 119, 129 (1977)

(quoting Procunier, 417 U.S. at 822). The prison cell

block is a starkly different world from the one in which

First Amendment activity flourishes in free society.

Prisons “are populated, involuntarily, by people who

have been found to have violated one or more of the

criminal laws established by society for its orderly gov-

ernance.” /bid. “Prison life, and relations between the

inmates themselves and between the inmates and

prison officials or staff, contain the ever-present poten-

tial for violent confrontation and conflagation.” Jd. at

132. See McDonnell, 418 U.S. at 561-562. Not surpris-

ingly, in this dangerous and volatile world, prisoners’

First Amendment rights are substantially circum-

scribed compared with the rights enjoyed by individu-

als on the outside.

Taking into account the practical realities of prison

life and the need for institutional safety and security,

this Court has upheld under the First Amendment sub-

stantial restrictions on inmate-to-inmate correspon-

dence, e.g., Turner, 482 U.S. at 91-93; receipt by in-

mates of certain types of publications, Abbott, 490 U.S.

at 419; Wolfish, 441 U.S. at 551; inmate contacts with

the media, Procunier, 417 U.S. at 828; inmate efforts to

engage in union activities, Prisoners’ Labor Union, 433

U.S. at 129-133; and inmate contact visits, Block v.

Rutherford, 468 U.S. 576, 589 (1984). The Court has

also upheld prison work assignment rules that have the

effect of preventing prisoners from attending religious

services. O’Lone, 482 U.S. at 350-353. More generally,

the Court has emphasized that behind prison bars First

Amendment rights “must be exercised with due regard

for the ‘inordinately difficult undertaking’ that is mod-

ern prison administration.” Abbott, 490 U.S. at 407

(quoting Turner, 482 U.S. at 85).

2. This Court has not recognized a constitutional

right—in the First Amendment, or any other part of

our National Charter—of prison inmates to dispense

legal advice. As this Court has long recognized, the

Constitution does guarantee inmates a “right of access

to. the courts.” Lewis v. Casey, 518 U.S. 343, 350 (1996)

(citing Bounds v. Smith, 430 U.S. 817 (1977)). But in

Casey, the Court emphasized that the constitutional

“right of access” does not confer on inmates “an ab-

stract, freestanding right to * * * legal assistance.”

Ibid. When prison inmates do not enjoy a “freestand-

ing” constitutional right to receive legal assistance, it

follows that they have no right to dispense such assis-

tance. Inmate efforts to assist one another in legal

affairs may be entitled to First Amendment protection

as speech or expressive conduct. But the First Amend-

ment does not cloak such activities with any added

protection in the form of a constitutional right to

practice “jailhouse law.”

a. In Johnson v. Avery, the Court held unconsti-

tutional a Tennessee regulation prohibiting inmates

from assisting other inmates in “prepar[ing] Writs or

other legal matters.” 393 U.S. at 484. In so holding, the

Court emphasized that “Tennessee does not provide an

available alternative to the assistance provided by

other inmates,” such as a “public defender system.” Jd.

at 488-489. “[U]nless and until the State provides some

reasonable alternative to assist inmates in the prepara-

tion of petitions for post-conviction relief,” the Court

concluded that “it may not validly enforce a regulation

* * * barring inmates from furnishing such assistance

to other prisoners.” Jd. at 490. At the same time,

however, the Court acknowledged that, “[e]ven in the

absence of such alternatives, the State may impose rea-

sonable restrictions and restraints upon the acknowl-

edged propensity of prisoners to abuse both the giving

and the seeking of [legal] assistance.” /bid. (emphasis

added).

- ——— ae ee

o —_—

Avery does not establish a constitutional right of

prison inmates to provide legal assistance. Avery

protects only the ability of inmates to gain “access

* * * to the courts.” 393 U.S. at 485. See Casey, 518

U.S. at 350. Because Tennessee did aot make available

to its inmates other means of legal assistance, the Court

found that the State’s rule preventing inmates from

assisting one another had the “effect[]” of “forbidding

illiterate or poorly educated prisoners to file habeas

corpus petitions.” 393 U.S. at 487. See ibid. (“For all

practical purposes, if such prisoners cannot have the

assistance of a ‘jail-house lawyer,’ their possibly valid

constitutional claims will never be heard in any court.”).

The Court therefore invalidated that rule “until the

State provides some reasonable alternative to assist

inmates in the preparation of petitions,” id. at 490, in

order to ensure that inmates would be afforded

adequate access to the courts.’

In claiming a First Amendment right to assist other

inmates in legal matters, respondent does not argue

" In Wolff v. McDonnell, supra, a prison inmate challenged a

state regulation permitting prison authorities to open and inspect

incoming mail from attorneys. In arguing that this practice was

unconstitutional, the inmate relied in part on the constitutional

right of “access to the courts” recognized in Avery. 418 U.S. at

576. This Court rejected that rationale, stating that this right “has

not been extended * * * to apply further than protecting the

ability of an inmate to prepare a petition or complaint.” Jbid. The

plaintiff in Wolff also challenged a prison regulation preventing

inmates from assisting one another in civil actions. Drawing from

Avery, the Court held that the key issue was whether the prison

provided a “reasonable alternative” to inmate legal assistance in

such actions, and remanded for a determination whether having

one inmate serve as a “legal adviser” amounted to adequate “legal

assistance under the reasonable-alternative standard of Avery.”

Id. at 580.

that such assistance is necessary to ensure access to the

courts, for himself or anyone else.” Nor could he, inas-

much as the inmate he sought to assist was represented

by appointed counsel. Pet. App. 3. Instead, respondent

claims, and the court of appeals embraced, something

entirely different: a “First Amendment right to assist

other inmates with their legal claims,” without regard

to whether such assistance is necessary for them to

enter the courts. /d. at 6.

This right finds no support in the cases following

Avery, affirming the “right of access to the courts.

Lewis v. Casey, 518 U.S. at 350. See Bounds v. Smith,

430 U.S. at 821 (“It is now established beyond doubt

that prisoners have a constitutional right of access to

the courts.”).” As this Court recently recounted in

Casey, the Court has given effect to “that right by pro-

hibiting state prison officials from actively interfering

with inmates’ attempts to prepare legal documents or

file them, and by requiring state courts to waive filing

fees or transcript fees for indigent inmates.” 518 U.S.

* Respondent has raised a separate “right of access” claim, but

that claim is not presented here. See note 6, supra. In addition,

his request to certify this action as a class action on behalf of

himself and other inmates was denied, Pet. App. 43-44, and also is

not before this Court. |

® Neither Bounds nor this Court’s subsequent cases has posi-

tively identified the source of this constitutional right. See Lewis

v. Casey, 518 U.S. at 367 (“We have described the right articulated

in Bounds as a ‘consequence’ of due process, as an ‘aspect’ of equal

protection, or as an ‘equal protection guarantee. In no instance,

however, have we engaged in rigorous constitutional analysis of

the basis for this asserted right.”) (Thomas, J., concurring) (cita-

tions omitted); see also Hudson v. Palmer, 468 U.S. at 523 (“pris-

oners have the constitutional right to petition the Government for

redress of their grievances, which includes a reasonable right of

access to the courts”). -

at 350 (citations omitted). Respondent does not, and

could not, claim that the State is creating any such

interference here. Nor does respondent claira that, as a

result of petitioners’ actions, he was actually “hindered

lin] his efforts to pursue a legal claim,” as required by

Casey. Id. at 351. His First Amendment claim accord-

ingly finds no footing in Bounds.

b. Beyond Bounds, the court of appeals suggested

that the inmate’s right to undertake “legal activities on

behalf of other inmates implicated associational rights

protected by the First Amendment.” Pet. App. 9

(emphasis added; citing Rizzo v. Dawson, 778 F.2d 527,

531 (9th Cir. 1985)); see also Br. in Opp. 5. In particular,

the Ninth Circuit (see Rizzo, 778 F.2d at 531) has rea-

soned that this activity is akin to the conduct this Court

held protected under the First Amendment in NAACP

v. Button, 371 U.S. 415 (1963), and United Transporta-

tion Union v. State Bar of Michigan, 401 U.S. 576

(1971). This Court, however, has never extended the

reasoning of Button or its progeny to the prison context

and, as we explain, doing so here would require over-

looking the fundamental restriction in associational

rights that is a necessary and constitutional fact of

lawful imprisonment.

Button involved a challenge to a state law preventing

the NAACP and its members and lawyers from “asso-

ciat{ing] for the purpose of assisting persons who seek

legal redress for infringements of their constitutionally

guaranteed and other rights.” 371 U.S. at 428. The

Court concluded that the activities at issue were

“modes of expression and association protected by the

First and Fourteenth Amendments,” and set aside the

state law. Jd. at 428-429. In doing so, the Court

explained that “the State has failed to advance any

_ substantial regulatory interest, in the form of substan-

quae _

——e ees

tive evils flowing from petitioner’s activities, which can

justify the broad prohibitions which it has imposed.”

Id. at 444. United Transportation Union is to the same

effect. It involved a challenge to a state decree that

prevented a union from providing legal assistance to its

members or their families. Drawing from Button, the

Court held that this activity was protected by the First

Amendment, and that the decree prohibiting it was

invalid. 401 U.S. at 580-581, 585. See also Jn re Primus,

436 U.S. 412, 434 (1978). .

Button and its progeny thus recognize a First

Amendment right to associate with others for legiti-

mate common goals and to use litigation to advance

those goals. Cf. Walters v. National Ass’n of Radiation

Survivors, 473 U.S. 305, 335 (1985) (distinguishing be-

tween the First Amendment “right to associate collec-

tively for the common good,” and “the individual inter-

est in best prosecuting a claim”). But the considera-

tions on which that principle is grounded do not readily

apply in the prison context. Indeed, this Court has

recognized not only that “(lJawful incarceration brings

about the necessary withdrawal or limitation of many

privileges and rights” enjoyed by the free, but also that

“(pJerhaps the most obvious of the First Amendment

rights that are necessarily curtailed by confinement are

those associational rights that the First Amendment

protects outside of prison walls.” Jones v. North

Carolina Prisoners’ Labor Union, Inc., 433 U.S. at 125-

126 (citation omitted); see also id. at 126 (an “inmate's

‘status as a prisoner’ and the operational realities of a

prison dictate restrictions on the associational rights

among inmates.”). Among the associational rights

necessarily curtailed by lawful incarceration is the right

to associate for the purpose of providing legal advice.

Prisoners’ Labor Union involved a First Amendment

challenge to the actions of state prison officials prohibit-

ing inmates from soliciting other inmates to join a

prisoners’ labor union, barring the union from meeting,

and blocking the bulk distribution of union publications.

433 U.S. at 121. These activities squarely implicated

First Amendment rights enjoyed by individuals outside

the prison walls. See, e.g., Thomas v. Collins, 323 U.S.

516, 537 (1945). But this Court concluded that the

State’s ban on such activities inside the prison walls

was permissible, and that “(t]he invocation of the First

Amendment, whether the asserted rights are speech or

associational, does not change this analysis.” 433 U.S.

at 129. In so holding, the Court emphasized the impor-

tance of considering the “prison context” in analyzing

First Amendment challenges to prison regulation, id. at

129, and, in particular, recognized that “numerous asso-

ciational rights are necessarily curtailed by the realities

of confinement” and “must give way to the reasonable

considerations of penal management Jd. at 132.

For similar reasons, lawful imprisonment curtails the

right of inmates to assist one another in legal matters.

Indeed, this Court has recognized that, while prisoners

are entitled to access to the courts to attack their own

sentences or conditions of confinement, “{i]Jmpairment

of any other litigating capacity is simply one of the

incidental (and perfectly constitutional) consequences of

conviction and incarceration.” Casey, 518 U.S. at 355.

Legitimate penal objectives support that conclusion

when it comes to the practice of “jailhouse law.” While

supervised inmate legal assistance programs can serve

many valuable ends, it is “indisputable” that jailhouse

lawyers “are sometimes a menace to prison discipline,”

and that prisoners have an “acknowledged propensity

* * * to abuse both the giving and the seeking of

(legal] assistance.” Johnson v. Avery, 393 U.S. at 488,

490. In his dissent in Avery, Justice White elaborated

on these concerns:

Many assert that the aim of the jailhouse lawyer is

not the service of truth and justice, but rather self-

aggrandizement, profit, and power. According to

prison officials, whose expertise in such matters

should be given some consideration, the jailhouse

lawyer often succeeds in establishing his own power

structure, quite apart from the formal system of

warden, guards, and trusties which the prison seeks

to maintain. Those whom the jailhouse lawyer

serves may come morally under his sway as the one

hope of their release, and repay -him not only with

obedience but with what minor gifts apd other

favors are available to them. When a client refuses

to pay, violence may result, in which the jailhouse

lawyer may be aided by his other clients.

Id. at 499-500 (footnote omitted).”° -

Cloaking inmate legal assistance activities with

special First Amendment protection would raise other

legitimate penological concerns. For example, it would

10 See also, e.g., Schenck v. Edwards, 921 F. Supp. 679, 684 (E.D.

Wash. 1996) (acknowledging “problems [experienced by prison

authorities} with inmates blackmailing and extorting one another

based on debts incurred for legal work performed,” and with “in-

mates becoming angry and violent with inmates who drafted

and/or filed pleadings or legal materials for inmate litigators when

litigators’ expectations were not met or the consequences of the

legal action turned out to be detrimental to the litigators”), aff'd,

133 F.3d 929 (9th Cir. 1998) (internal quotation marks omitted);

Weaver v. Toombs, 756 F. Supp. 335, 339 (W.D. Mich. 1989) (prison

authorities have legitimate interest in preventing “potential ex-

ploitation” by inmates providing legal assistance), aff’d, 915 F.2d

1574 (6th Cir. 19990).

confer on inmates who provide legal assistance a type of

special status that often is disruptive in the prison

world, where uniformity is vital to ensuring order. Cf.

Prisoners’ Labor Union, 433 U.S. at 127-129. And it

would present additional opportunities for inmates—

under the guise of proViding legal assistance—to formu-

late escape plans, pass contraband through correspon-

dence designated as “legal,” and carry out other illegal

activities both inside and outside the prison walls. As

we discuss below, this Court has recognized many of

these same concerns in upholding regulations restrict-

ing inmate correspondence on general matters. See pp.

25-26, infra."

At the same time, inmate legal assistance programs

serve many salutary ends, including helping to ensure

that illiterate or non-English speaking inmates have

meaningful access to the courts. Prison officials may

permit inmates to provide legal assistance to other

inmates. Indeed, many States have adopted “inmate

law clerk assistance” programs like that of Montana,

and permit inmates to assist one another in legal mat-

ters in accordance with other prison rules. Similarly,

BOP regulations permit an inmate to provide legal

assistance to another inmates in the same institution,

though they provide that “(t]he Warden at any institu-

tion may impose limitations on an inmate’s assistance to

another inmate in the interest of institution security,

good order, or discipline.” 28 C.F.R. 543.11(f)(1) and

(4). Properly managed, those programs can assist

inmates without undermining valid correctional

'! Recognizing a First Amendment right of inmates to practice

jailhouse law also would invite a new avenue for prisoner litigation

challenging the adequacy of prison libraries or other legal support

services that this Court has recently sought to quell. Cf. Lewis v.

Casey, supra.

objectives. But whether or not such programs are

viewed as good prison policy, the Federal Constitution

does not guarantee inmates the right to assist other

inmates in legal matters. Cf. Prisoners’ Labor Union,

433 U.S. at 137 (Burger, C.J., concurring).”

B. Respondent’s First Amendment Claim Is Governed By

A Conventional Turner Analysis

1. Prison inmates do enjoy a First Amendment right

of free speech. See Thornburgh v. Abbott, 490 U.S. at

407. And they retain that right when they speak on

12 Most courts of appeals that have considered the issue agree

that inmates do not enjoy a constitutional right to provide legal

assistance. See, e.g., Goff v. Nix, 113 F.3d 887, 890 (8th Cir. 1997)

(“A jailhouse lawyer has no independent right to provide legal ad-

vice.”); Gibbs v. Hopkins, 10 F.3d 373, 378 (6th Cir. 1993) (“(T]here

is no constitutional right to assist other prisoners with their legal

matters.”); Smith v. Maschner, 899 F.2d 940, 950 (10th Cir. 1990)

(inmates “do{] not have a protected interest in providing legal rep-

resentation to other inmates”); Gassler v. Rayl, 862 F.2d 706, 708

(8th Cir. 1988) (“[A]n inmate simply does not have the right to

provide his fellow inmates with legal assistance.”). Accord Tighe v.

Wall, 100 F.3d 41, 43 (5th Cir. 1996) (per curiam); Williams v. Niz,

1 F.3d 712, 716 (8th Cir. 1993). As the Eighth Circuit reasoned in

Gassler, “[i]t is well established that inmates have a constitutional

right of access to the court.” 862 F.2d at 707. “ This right entitles

inmates to receive legal assistance from fellow inmates unless

prison officials provide reasonable alternative assistance.” /bid.

(citing Johnson v. Avery, supra). But “an inmate simply does not

have the right to provide his fellow inmates with legal assistance.”

Id. at 708.

Similarly, there is no basis in our history or tradition for rec-

ognizing a First Amendment right of prisoners to provide legal

assistance to other inmates. Cf. Lewis v. Casey, 518 U.S. at 382

(“The rise of the prison law library and other legal assistance pro-

grams is a recent phenomenon, and one generated largely by the

federal courts.”) (Thomas, J., concurring) (citing studies).

legal matters. As a result, there remains the question

whether respondent was impermissibly penalized under

the First Amendment based on the content of his letter.

Turner v. Safley supplies the standard for analyzing

that question. In Turner, the Court held that prison

regulation of inmate correspondence is permissible if it

is “reasonably related to valid corrections goals,” in-

cluding “institutional security and safety,” and “it is not

an exaggerated response to those objectives.” 482 U.S.

at 93." The Turner analysis governs both “facial” and

“as applied” challenges. See id. at 99-100 (upholding

“facial validity” of regulation, but remanding for deter-

mination whether regulation was valid as applied);

Thornburgh v. Abbott, 490 U.S. at 419 (same). Respon-

dent brings an as-applied challenge to the enforcement

of petitioners’ disciplinary rules against him on the

basis of the content of his February 16, 1995, letter.

See J.A. 66 (Compl. 4 17); Br. in Opp. 3, 8-9.

2. a. This Court has recognized many legitimate pe-

nological interests in restricting, and even prohibiting,

forms of inmate correspondence. “{C]ommunication

with other felons is a potential spur to criminal behav-

ior.” Turner, 482 U.S. at 91. Inmate correspondence

'3 In determining whether a regulation passes muster under

Turner, the Court considers four criteria. First, the Court looks to

whether there is “a valid, rational connection between the prison

regulation and the legitimate governmental interest put forward to

justify it.” 482 U.S. at 89 (internal quotation marks omitted).

Second, the Court looks to whether “there are alternative means of

exercising the right that remain open to prison inmates.” /d. at 90.

Third, the Court considers the “impact [that] accommodation of the

asserted constitutienal right will have on guards and other in-

mates, and on the allocation of prison resources generally.” [bid.

Fourth, the Court looks for “the existence of obvious, easy

— Ibid. See Abbott, 490 U.S. at 414-418 (discussing

“can be used to communicate escape plans,” “arrange

assaults and other violent acts,” and develop prison

gangs and other “informal organizations that threaten

the core functions of prison administration, maintaining

safety and internal security.” Jd. at 92 (citing G. Camp

& C. Camp, U.S. Dep’t of Justice, Prison Gangs: Their

Nature and Impact on Prisons 64-65 (1985)). Corre-

spondence among inmates in heightened security units

“present(s] special disciplinary and security concerns.”

Casey, 518 U.S. at 361; see 62 Fed. Reg. 4890, 4891

(1997) (legal assistance to inmates in special housing is

restricted “[flor reasons of security, discipline, and

good order”). In explaining the Montana inmate corre-

spondence policy, petitioners have cited many of the

same considerations. See J.A. 96-97.

In reviewing restrictions on inmate speech, it is im-

perative to take into account the prison context. Lan-

guage that may be deemed simply vulgar or tasteless

outside the prison can amount to “fighting words”

within it. Thus, for example, BOP regulations specifi-

cally authorize prison authorities to restrict inmate

correspondence containing “gratuitous profanity.” 28

C.F.R. 540.15(5); see also 28 C.F.R. 541.13 (inmates may

be disciplined for “abusive or obscene language”) (Table

3, Code 404); Abbott, 490 U.S. at 407 (conduct that is

“seemingly innocuous to laymen” may “have potentially

significant implications for the order and security of the

prison”). Language that “draw(s] inferences about

[others’] beliefs, sexual orientation, or gang affiliation”

can be particularly disruptive in the prison yard. 490

U.S. at 412. “Insolence” also threatens prison order. 28

C.F.R. 541.13 (Table 3, Code 312). In addition, prison

officials need not wait for disturbances to erupt; it is

“rational” for authorities to restrict communications

“that, although not necessarily ‘likely’ to lead to

violence, are determined * * * to create an intolerable

risk of disorder under the conditions of a particular

prison at a particular time.” Abbott, 490 U.S. at 417.

“In the volatile prison environment, it is essential

that prison officials be given broad discretion” in

determining what steps are necessary “to prevent

* * * disorder.” Abbott, 490 U.S. at 413. This Court

has acknowledged “that the judiciary is ill-equipped to

deal with the difficult and delicate problems of prison

management,” and therefore “afford[s] considerable

deference to the determinations of prison administra-

tors who, in the interest of security, regulate the

relations between prisoners and the outside world.” Jd.

at 407-408 (internal quotation marks omitted). See

Turner, 482 U.S. at 77-78. When, as here, “a state penal

system is involved, federal courts have * * *

additional reason to accord deference to the appropriate

prison authorities.” Jd. at 85.

b. Inmate-to-inmate correspondence on legal mat-

ters may, or may not, raise the sort of legitimate

penological concerns implicated by other types of

inmate correspondence. As the letter at issue in this

case demonstrates, inmate correspondence on legal

matters can easily touch on non-legal matters."* While

routine discussion of legal matters or proceedings may

not raise legitimate concerns, accusations, threats,

4 Recognizing a First Amendment right of inmates to provide

legal assistance to other inmates—and to correspond on such

matters—would invite fact-intensive litigation over whether an

inmate was acting in his capacity as a law clerk or assistant when

he undertook a particular act, or whether an inmate was offering

legal advice or assistance, and thus was entitled to such protection.

Indeed, respondent here has taken inconsistent positions on

whether he was in fact acting as a law clerk when he sent the

February 16, 1995, letter. See note 5, supra.

gratuitous profanity, or other disruptive or inflamma-

tory remarks made before, after, or in the course of

discussing legal matters or proceedings may well raise

legitimate concerns. Inmate correspondence on legal

matters, like inmate correspondence on other matters,

can also be used to pass contraband, speak in code, form

disruptive prison alliances, or prompt illegal activity or

prison unrest. In short, the fact that an inmate’s letter

discusses a legal matter or proceeding, in itself, does

not eliminate the legitimate penological concerns

presented by inmate correspondence in general.”

On the other hand, consistent with the First Amend-

ment, prison officials may not penalize inmates simply

because they disagree with the “content of the[ir]

expression,” or for an “arbitrary or irrational” reason.

Turner, 482 U.S. at 90. Cf. Perry Education Ass’n v.

Perry Local Educators’ Ass’n, 460 U.S. 37, 46 (1983)

(even in a nonpublic forum, government may not “sup-

press expression merely because public officials oppose

the speaker’s view”). This Court has held, however,

that when prison administrators “draw distinctions”

between different types of speech or communications

“solely on the basis of their potential implications for

prison security,” they are regulating in a “neutral” and,

thus, constitutional fashion—provided that their actions

5 This case does not present any occasion to consider whether,

or to what extent, inmates are constitutionally entitled to corre-

spond with licensed legal counsel outside the prison walls. The

Court has recognized, however, that such correspondence presents

similar concerns to those presented by inmate-to-inmate corre-

spondence. See Abbott, 490 U.S. at 413; ef. Wolff v. McDonnell,

418 U.S. at 575. On the other hand, incoming and outcoming cor-

respondence with lawyers implicates the First Amendment rights

of those who are not prisoners. BOP and virtually all States,

including Montana, have adopted separate rules governing the

handling of such legal mail. See notes 1, 2, supra.

are “rationally related” to asserted penological inter-

ests such as safety or security. Abbott, 490 U.S. at 415-

416.

3. The court of appeals applied Turner in determin-

ing whether petitioners properly disciplined respondent

on the basis of his letter. See Pet. App. 10-14. But it

did so based on the mistaken premise that respondent

enjoyed a First Amendment right to provide legal ser-

vices to other inmates. Thus, the court of appeals

emphasized that it was dealing with a “particular cate-

gory of protected expression”—“legal correspondence

between an inmate performing the functions of a law

clerk and the inmate he is advising.” Jd. at 11. The

court noted that “the enforcement of the prison

regulations against Murphy infringes on [respondent’s]

First Amendment right to provide legal assistance to

fellow inmates.” Jd. at 12. And the court observed that

“the Prison’s interest in security and order is at a low

ebb when the correspondence in question is legal advice

relating to a pending or potential case.” Jbid. In short,

the court treated respondent’s letter as if it were

entitled to heightened constitutional protection because

it was sent by an “inmate law clerk,” and, at the same

time, unduly discounted the legitimate penological

interests in restricting inmate correspondence on all

matters, including on legal matters.

Because the court of appeals decided respondent’s

First Amendment claim based on an erroneous legal

standard, we suggest that the appropriate relief is to

reverse and remand for application of the correct legal

standard. While petitioners have provided substantial

reasons for adopting the inmate correspondence policy

that permitted them to review respondent’s letter to

inmate Tracy, see J.A. 95-98, we do not believe that the

summary judgment record before this Court con--

clusively demonstrates the particular penological objec-

tives relied upon by petitioners in disciplining respon-

dent in connection with his letter, or whether under the

circumstances petitioners’ actions amounted to an

“exaggerated response” to those objectives. Accord-

ingly, we do not take a position on whether, under a

proper application of Turner, petitioners impermissibly

disciplined respondent based on his letter. Cf. Turner,

482 U.S. at 100 (remanding for determination whether

“correspondence regulation had been applied by prison

officials in an arbitrary and capricious manner”);

Abbott, 490 U.S. at 419 (remanding for “examination of

the validity of the regulations as applied” to particular

publications).

CONCLUSION

The judgment of court of appeals should be reversed

and the case remanded for further proceedings.

Respectfully submitted.