Amicus Curiae Brief — Beard v. Banks

| FEB 16 2005

No. 04-1739 —— Of — p-ERK

=e Ur TUS.

IN THE

Supreme Court of the United States

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* BEST AVAILABLE COPY (~o)

JEFFREY A. BEARD, SECRETARY,

PENNSYLVANIA DEPARTMENT OF CORRECTIONS,

Petitioner,

RONALD BANKS, et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIRCUIT

BRIEF OF THE AMERICAN CIVIL LIBERTIES UNION,

ACLU OF PENNSYLVANIA, THE LEGAL AID SOCIETY,

PEOPLE FOR THE AMERICAN WAY FOUNDATION,

AMERICAN FRIENDS SERVICE COMMITTEE, AND

CALIFORNIA PRISON FOCUS AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

STEVEN R. SHAPIRO JEFFREY M. MONKS

AMERICAN CIVIL LIBERTIES DAVID C. FATHI

UNION FOUNDATION Counsel of Record

125 Broad Street, 18th Floor ELIZABETH ALEXANDER

New York, New York 10004 AMERICAN CIVIL LIBERTIES

(212) 549-2500 UNION FOUNDATION

915 15th Street, NW, 7th Floor

Washington, D.C. 20005

(202) 393-4930

Attorneys for Amici

(Counsel continued on inside front cover)

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TABLE OF AUTHORITIES

INTERESTS OF AM/C] CURIAE

BEAD eemeees COP POU CARS 2 on. wc ccc eserves

SUMMARY OF THE ARGUMENT

ARGUMENT

TABLE OF CONTENTS

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TURNER DEFERENCE IS

INAPPROPRIATE ON THE

FACTS OF THIS CASE -...........

A. An amorphous interest in

general deterrence is not

entitled to Turner deference

B. The nature of Respondents’

asserted nght supports a

heightened standard

| Le ane i ere

EVEN UNDER TURNER,

PETITIONER’S POLICY IS AN

“EXAGGERATED RESPONSE” ......

A. Banning all news and

commentary 1s not

logically connected with

Petitioner's asserted

interest in deterrence ..........

SS @€.8 oe 6 O24. © oO 68 4.09 6 a a6

1. The Court of Appeals

did not err in evaluating

a errr ry 15

2. Even if Petitioner was

not required to adduce

evidence, the policy is

not logically connected

to a legitimate

penological interest ..... 19

B. The policy leaves

Respondents with no

alternatives for exercising

their First Amendment

Ee ae ia oe wince 23

C. Accommodating

Respondents’ First

Amendment nghts will

have no more than a de

minimis etfect on legitimate

penological interests ........... 26

D. Turner is not toothless ............ 28

I ia oo oa aks oa ek oon once weeds 30

APPENDIX

INTERCOtS OF AMICICURIAE ................. la

ill

TABLE OF AUTHORITIES

CASES

Abdul Wali v. Coughlin, 754 F.2d 1015

ot Breen rir ee en St 20

Ashker v. California Dep't of Corrections,

Coe kg ek ere ee 17

Banks vy. Beard, 399 F.3d 134

tole eer rrr rrr errr

Beerheide v. Suthers, 286 F.3d 1179

ft er er mer ees eee 17

Bell v. Wolfish, 441 U.S. 520 (1979) ................- 7

Board of Trustees of Univ. of Alabama

vy. Gepost, S31 US. SIO GIGS) co kes stkverredes 16

Central Virginia Community College v. Katz,

tk ee Pee: ere eee 11

Clement v. California Dep't of Corrections,

220 F.Supp.2d 1098 (N.D. Cal. 2002),

aff'd, 364 F.3d 1148 (9th Cir. 2004)... 2.0.0.0... 20)

Connick v. Myers, 461 U.S. 138 (1983) ............. }2

Daigre v. Maggio, 719 F.2d 1310

et DFR Eee Orr 20

Davis v. Norris, 249 F.3d 800 (8th Cir. 2001) 2.2.2... 1?

IV

Estelle v. Gamble, 429 U.S. 97 (1976) .............. 2)

Flagner v. Wilkinson, 241 F.3d 475

ee eet ee een deers 17

Garrison v. Louisiana, 379 U.S. 64 (1964) ........... 1]

Gregory v. Auger, 768 F.2d 287

NE Oe ae 20

Grosjean v. American Press Co.,

Ee a) i we ecwwen 11

Guajardo v. Estelle, 568 F. Supp. 1354

ES SS 7, 20

In Re Medley, 134 U.S. 160 (1890) ................. 18

Jacklovich v. Simmons, 392 F.3d 420

es os wees 20, 21

Johnson v. California, 543 U.S. 499

ES

Jones v. North Carolina Prisoners’ Labor

Union, Inc., 433 U.S. 119 (1977) ....

Jones ‘El vy. Berge, 164 F.Supp.2d 1096

a ira oe g's g A e:0 4

Kimberlin v. U.S. Dep't of Justice,

150 F.Supp.2d 36 (D.D.C. 2001) _..

Kimberlin v. U.S. Dep't of Justice,

318 F.3d 228 (D.C. Cir. 2003) ......

Vv

King v. Fed. Bureau of Prisons,

a 6, 16

Knecht v. Collins, 903 F. Supp. 1193

(S.D. Ohio 1995), rev'd on other grounds,

187 F.3d 636 (6th Cir. June 15,1999) ............ 20

Lewis v. Casey, 518 U.S. 343 (1996) ................ 13

Lutle v. Norris, 787 F.2d 1241

EER ee ETT DLT AI Eb ae Bees 20

McKune v. Lile, 536 US. I oid tak 0 ee ok Be ta 6

Miller-El v. Cockrell, 537 U.S. 322 (2003) ........... 28

Morrison v. Garraghty, 239 F.3d 648

I id a ht hl nate te re eis ie 17

Morrison v. Hall, 261 F.3d 896

RRS ee. ee en may oe 20

New York State Club Ass'n, Inc. v.

City of New York, 487 U.S. 1 (1988) ............. 16

O'Lone v. Estate of Shabazz,

I Pn sr a passim

Overton v. Bazzetta, 539 U.S. 126 (2003) ......... passim

Pell v. Procunier, 417 U.S. 817 (1974) ............ 7, 25

Procunier v. Martinez.

es SI, 0 hn cla c 0 u'uh wa dda eee ie ¢ passim

v1

Red Lion Broadcasting Co. v. F.C.C.,

EE «bce 4600 od band > he cuea nies 23

Romer v. Evans, 517 U.S. 620 (1996) ................ 7

Rust v. Sullivan, 500 U.S. 173 (1991) ............... 16

Shaw v. Murphy, 532 U.S. 223 (2001)... ..... 4,7,11,29

Spellman v. Hopper, 95 F.Supp.2d 1267

I EE a'n' bare ik aa 059 64 wins oh 7, 20

Thornburgh v. Abbott, 490 U.S. 401

SE piu we unveenedencidessheuescecdeiin passim

Trop v. Dulles, 356 U.S. 86 (1958) .............. 11,12

Turner v. Saflev, 482 U.S. 78 (1987) .. 2.2... 26... passim

Washington v. Harper, 494 U.S. 210

EE 5% ah 4d oiin'e i ed hele ob whe ae eee 4, 16,17

STATUTES AND REGULATIONS

mee Oe. cc ie: 2

RI Greet eRe Reese pain As 21, 22

os SO Geen iy eereeery ee 21

I oe ee ee

Vil

OTHER AUTHORITIES

American Correctional Association,

Standards for Adult Correctional

i a. iw whee ween’

Harry Elmer Barnes, Evolution of Penology

RR ere ror ee

M. Keith Chen and Jesse M. Shapiro,

Does Prison Harden Inmates?

A Discontinuity-based Approach (2005),

http://www.som. yale.edu/Faculty/keith.

chen/papers/pnson072405S pdf ..................

Corrections Compendium, High Level

Security Inmates, September 2003,

SEE ERACdkales Adank 6e6benu sew ab oewe ets

Richard Morin, 7ime /n and Time Out,

Washington Post, Feb 2, 2006, at A2.............

David J. Rothman, Perfecting the Prison,

in Oxford History of the Pnson,

(Morns & Rothman eds.1995) ..................

United Nations Congress on Prevention

of Cnme and Treatment of Offenders,

Standard Minimum Rules for the

Treatment of Prisoners (1955) ..................

22

18

8

18

_-_-

INTERESTS OF AMICI CURIAE'

The statements of interest of the amici curiae are set

forth in the Appendix.

STATEMENT OF THE CASE

Opened in April 2000, the Long Term Segregation Unit

(LTSU) at SCI-Pittsburgh is designed to make life as unpleas-

ant as possible for those prisoners who are deemed incormigible

and recalcitrant by prison administrators. Respondents are a

class of all “current and future [Level] 2 Long Term Segrega-

tion inmates.” J.A. 3.

Respondents are subject to nearly total isolation and

idleness. They are locked 1n their cells for al! but one hour

each day, and are prohibited from purchasing commissary

items and engaging in educational activities, group religious

services and pnson jobs. J.A. 32-33, 38, 100, 102. Human

contact is limited to a few pnson employees, legal counsel and

once-a-month, one hour, weekday visits from immediate

family members. J.A. 48,98. Telephone calls are permitted

only in emergencies. J.A. 48, 102.

Respondents are tsolated not only from other people,

but also from current thoughts and ideas. The challenged

policy prohibits Respondents from receiving or reading all

non-religious newspapers, magazines and articles cut out of

newspapers and magazines, unless the article relates to the

prisoner or a family member. J.A. 48, 91, 102. Respondents

are also prohibited from ordering books, watching television

' No counsel for any party authored any part of this brief No persons

or entities other than the amici curiae made any monetary contribution to

the preparation or submussion of this bnef. Pursuant to Supreme Court

Rule 37.3, copies of letters of consent to the filing of this bref have been

lodged with the Court

2

and listening to the radio. J.A. 102. As a result, they are

completely cut off from public affairs and other current

political, social, moral, aesthetic and educational news and

commentary.

Respondent Ronald Banks filed a lawsuit under 42

U.S.C. § 1983, challenging Petitioner's ban on newspapers and

magazines as a First Amendment violation. The United States

District Court for the Western Distnct of Pennsylvania granted

Banks’ motion for class certification, but laterdeni espon-

dents’ motion for summary judgment and granted Peutioner’s,

concluding that Petitioner’s asserted interests in security and

rehabilitation were reasonably related to the ban, under Turner

v. Saflev, 482 U.S. 78 (1987). The Court of Appeals for the

Third Circuit reversed the order granting Petitioner's motion

for summary judgment and remanded for further proceedings.

Banks v. Beard, 399 F.3d 134 (3d Cir. 2005). The court

concluded that Petitioner was not entitled to judgment as a

matter of law under 7urner, with respect to either a security or

rehabilitation rationale. P

The Third Circuit demed Beard’s petition for rehearing

en banc, and this Court granted certiorart.

SUMMARY OF THE ARGUMENT

In Turner v. Safley, 482 U.S. 78 (1987), this Court set

forth a multi-factor test for evaluating many, but not all,

constitutional claims brought by prisoners. As the Court has

subsequently explained, 7urner establishes a deferential

standard of review that 1s most appropnate when considering

“regulations that are centrally concemed with the maintenance

of order and secunty." Thornburgh v. Abbott, 490 U.S. 401,

409-10 (1989). In addition, the Court has applied /urner

deference when it has concluded that the rights asserted by

pnsoner plaintiffs are inconsistent with the fact of incarcera-

tion. Overton v. Bazzetta, 539 U.S. 126, 131 (2003).

This case fits neither category. The “primary”

3

justification for the challenged publication ban is not security

but general deterrence or what Petitioner has descnbed as

“behavior modification,” an amorphous, ill-defined and

potentially boundless interest. Conversely, the mght asserted

by Respondents — reading news and commentary ~ is entirely

consistent with their status as prisoners and, if anything, assists

their eventual reentry to society by allowing them to remain

informed citizens.

Amici are aware of no decision, from this Court or any

other court, that has ever sustained such a sweeping restriction

of prisoners’ First Amendment nights. Nor has this Court ever

approved a challenged prison restriction based solely on such

a potentially limitless rationale as general deterrence. Al-

though Petitioner argues that a ruling in his favor involves no

more than an application of well-settled principles, Petitioner's

construction of 7urner has no logical stopping point. If his

arguments are accepted, there will be nothing left of the First

Amendment for prisoners because any restriction on prisoner

rights, whether it applies only to “recalcitrant” pnsoners or to

pnsoners in general population, could be justified on the

ground of general deterrence. Only the Eighth Amendment

will remain as a potential substantive limit on deprivations

imposed on prisoners.

These factors strongly counsel against applying 7urner

and argue instead for requiring “a closer fit,” Thornhurgh, 490

U S. at 412, between Petitioner’s asserted interest and the

means employed to further it. Alternatively, if the Court

determines that 7urner provides the appropriate standard, 11 1s

critical that the Court conduct a searching inquiry under

Turner into whether Petitioner's policy constitutes an “exag-

gerated response” to the state's asserted interests. Petitioner

can only prevail if Turner is “toothless,” and this Court has

clearly held that itis not. Thornhurgh, 490 U.S. at 414.

4

ARGUMENT

I. TURNER DEFERENCE IS INAPPROPRIATE ON

THE FACTS OF THIS CASE

Although there is language in this Court’s opinions

suggesting that 7urner is a “unitary” standard, Shaw v.

Murphy, 532 U.S. 223, 229 (2001), and that it “applies to all

circumstances in which the needs of prison administration

implicate constitutional rights,” Washington v. Harper, 494

U.S. 210, 224 (1990), the Court’s actual practice has been

more nuanced. Just last Term, the Court declined to apply

Turner when reviewing a claim of racial segregation. Johnson

v. California, 543 U.S. 499, 509-510 (2005). The Court has

also recognized that the interests asserted by the government

are necessarily relevant in determining whether Turner applies.

Thornburgh, 490 U.S. at 412.

In this case, the Court should hold that 7urner is

inapplicable for several reasons. First, Petitioner's interest in

general deterrence does not implicate security or other core

needs of “running a prison,” 7urner, 482 U.S. at 84. Second,

the nght to read news and commentary is not only consistent

with incarceration, it is a critical means by which prisoners

maintain their status as citizens. Third, given the amorphous

and boundless nature of Petitioner’s deterrence interest, any

reliance on Turner’s deferential standard threatens the continu-

ing viability of the First Amendment in the prison context.

Accordingly, the Court should require “a closer fit,”

Thornburgh, 490 U.S. at 412, between Petiiioner’s means and

ends. F.g., Procunier v. Martinez, 416 U.S. 396, 414 (1974)

(requiring prison officials to show that regulation is “generally

necessary to protect . . . legitimate government interests”).

Because amic: do not believe the challenged policy can

survive 7urner scrutiny, see Part Il, infra, it plainly cannot

survive the more exacting scrutiny that is required if 7urner

does not apply.

A. An amorphous interest in general

deterrence is not entitled to Turner

deference

“Behavior modification” is the “primary reason”

asserted by Petitioner as justification for his policy prohibiting

Respondents from reading all non-religious newspapers and

magazines.” J.A. 197. See also Br. for Pet. at 4. Petitioner

asserts a “hope” that making life as unpleasant as possible will

both force Respondents to improve their behavior and deter

others from misbehaving. Banks, 399 F.3d at 142. Such a

boundless and ill-defined goal should be rejected as illegiti-

mate where it is used as an excuse to limit First Amendment

nghts. At the very least, Petitioner's interest should be

assessed under heightened scrutiny.

Petitioner characterizes his interest as one of “rehabili-

tation,” which the Court has recognized as legitimate, although

never as the sole justification for a restriction. E.g., O'Lone

v. Estate of Shabazz, 482 U.S. 342, 351 (1987). However,

Petitioner’s attempt to shoehorn his policy into the box of

* In the courts below, Petitioner asserted two justifications for his policy.

an interest in “rehabilitation,” which amici suggest is more accurately

characterized as “general deterrence” or “behavior modification,” and an

interest in “security.” specifically, the potential danger caused by allowing

Respondents to handle periodicals. This brief does not focus on Petitioner's

security interest, which the Court of Appeals correctly found ts not

reasonably related to the ban on newspapers and magazines. As stated in

the court's opinion, the policy ts an “exaggerated response” to any security

concerns. Banks, 399 F 3d at 146-47. One obvious alternative would be

to jumut the number of newspapers and magazines that Respondents may

keep in thei cell and take them away from those who abuse them. Because

Petitioner already allows Respondents to keep up to “one records box of

religious materials,” J A. 178, there would be no cost to extending this

policy to other publications.

o

“rehabilitation” 1s mconsistent with common sense and this

Court’s and other courts’ understanding of the term.

Th. ordinary meaning of “rehabilitation” is preparation

for releas: back into society. See McKune v. Lile, 536 U.S. 24,

36 (2002) (plurality opinion) (noting that rehabilitation is

objective of corrections system because "most offenders will

eventually return to society”). In a constitutional democracy,

however, any conception of rehabilitation must include

allowing prisoners to become or remain informed and engaged

citizens. Petitioner's policy has precisely the opposite effect

To the extent that deprivation is used as a means of

rehabilitation, there 1s generally a specific goal targeting

specific behavior, often related to the prisoner's conviction.

Eg, McKune, 536 US. at 30: King y Fed Bureau of Prisons.

415 F.3d 634, 639 (7th Cir. 2005) (Posner, J.). Here, Peti-

tioner’s interest in “rehabilitation” 1s vague at best, which by

itself should heighten the Court's skepticism of its legitimacy.

Petitioner 1s not targeting behavior related to Respondents’

convictions ~ he is not targeting any specific behavior at all.

Moreover, the conduct he is prohibiting is unrelated to Peti-

tioner’s determination that Respondents are “recalcitrant and

incorngible,” Br. for Pet. at 4, as there is nothing in the record

to suggest that a significant number of Respondents have

abused newspapers or magazines in the past or were trans-

ferred to the LTSU because of such conduct.

Although Petitioner claims that the ban on newspapers

and magazines ts not intended to suppress expression, that 1s

undoubtedly its effect. And at least on some level, that 1s

Petitioner’s purpose: he censors nearly all incoming publica-

tions primarily because he believes that doing so will make Irfe

more miserable for Respondents. Under such circumstances,

it becomes difficult to distinguish Petitioner’s motives from

those the Court has condemned tn the past. particularly where

Petitioner has so many other ways to modify Respondents’

behavior, including withdrawing privileges that do not

7

implicate First Amendment nghts. See Romer v. Evans, 517

U.S. 620, 635 (1996) (concluding that law was motivated by

animus 1n part because it inflicted “immediate, continuing, and

real injunes that outrun and belie any legitimate justifications

that may be claimed for it”).’

However, even assuming that Petitioner’s general

interest in deterrence is legitimate on its face, it is not entitled

to 7urner deference. This Court has never afforded that level

of deference to such an interest, but rather has consistently

identified security as the most important goal of a prison and

the interest that 1s most entitled to deference. F.g., Pell v.

Procunier, 417 U.S. 817, 823 (1974) (“[C]Jentral to all other

corrections goals is the institutional consideration of internal

security within the corrections facilities themselves.”). In fact,

in every case in which the Court has upheld a prison policy

against a First Amendment challenge, the Court has empha-

sized the detrimental impact that the behavior could have on

safety, order or security. FE.g., Shaw, 532 U.S. at 231;

Thornburgh, 490 U.S. at 416-17; O ‘Lone, 482 U.S. at 350-51,

Turner, 482 U.S. at 91-92; Bell v. Wolfish, 441 U.S. 520, 550

(1979); Jones v. North Carolina Prisoners’ Labor Union, Inc.,

433 U.S. 119, 132-33 (1977); Pell, 417 U.S. at 827.

These cases show that determining the appropriate

standard of review is closely tied to the nature of the risk

involved in the event of an erroneous decision. Government

actors need greatest discretion where limiting it could have

serious consequences for personal safety. But where giving

greater protection to constitutional mghts does not entail a

See also Spellman v Hopper, 95 F.Supp.2d 1267, 1281 (M.D. Ala.

1999) (stating that it 1s “questionable” whether it is legitumate interest to

punish prisoners “for being problem inmates in general”), Guayardo v

Estelle. 568 F Supp 1354, 1366 (S.D. Tex 1983) (holding that prison

officials “may not infringe upon first amendment nghts of an inmate tn

solitary confinement solely to enhance the punishment’)

credible risk of harm, the need for deference 1s diminished

significantly, and a heightened standard of review is appropri-

ate.

Thornburgh provides support for this approach. In

that case, the Court explained that it had departed from the

heightened scrutiny of Martinez in later cases, such as Turner,

because “‘such a strict standard simply was not appropnate for

consideration of regulations that are centrally concerned with

the maintenance of order and security.” Thornburgh, 490 US.

at 409-10. In Martinez, less deference was appropriate

because the outgoing correspondence at issue did not “pose a

serious threat to prison order and secunty.” Thornburgh, 490

U.S. at 411. More generally, Thornburgh makes clear that

where the government’s asserted interest does not require the

same degree of discretion as a security interest, “‘a closer fit

between the regulation and the purpose it serves may safely be

required.” 490 U.S. at 412 (emphasis added). Because in this

case neither the form nor the content of the banned materials

implicate security, the Court should require a “closer fit”

between the publications ban and Petitioner’s asserted interest

in deterrence.

More fundamentally, applying 7urner to Petitioner’s

general deterrence interest is simply incompatible with

Turner’s four-factor test, at least as Petitioner seeks to apply it.

As pointed out by Judge Tatel in Kimberlin vy U.S. Dep't of

Justice, 318 F.3d 228, 239-40 (D.C. Cir. 2003) (Tatel, J.,

concurring in part and dissenting in part), evaluating a prison’s

interest in general deterrence under 7urner is a nonsensical

exercise 1f the government’s assertions are taken at face value.

In this case, if one accepts Petitioner’s theory that depriving

prisoners of constitutional nights will improve behavior, there

can be no “exaggerated response” to any policy enacted to

further this interest because the more severe the restriction, the

more likely it will deter. Any accommodation of the prisoner’s

First Amendment nights, no matter how easily and inexpen-

9

sively implemented, could undercut that interest.

Petitioner's argument has no stopping point, because

all prison policies that restnct constitutional nghts could be

defended on the basis of deterrence. Although Petitioner

claims that Respondents represent the “worst of the worst”

prisoners, constitutional deprivations imposed on prisoners in

general population equally could be justified as intended to

make the prison sufficiently miserable so as to deter both

prisoners (from reoffending after release) and those outside the

prison (from committing their own crimes). See, eg.,

Kimberlin v. U.S. Dep't of Justice, 150 F.Supp.2d 36, 45

(D.D.C. 2001) (upholding ban on musical instruments for

general population prisoners on ground of deterrence, “‘[t}hat

is, prisons should be seen as a ternble place to effectively deter

crime’), aff'd on other grounds, 318 F.3d 228 (D.C. Cir.

2003). A belief that harsh conditions will deter misconduct

may actually be more rational with respect to non-prisoners

and prisoners in general population than those prisoners who

are “incorrigible and recalcitrant.” Certainly, the regulations

struck down in Turner and Martinez could be quickly revived —

and justified on deterrence grounds just as easily as Peti-

tioner’s publication ban. Marnage and correspondence would

be at least as powerful as newspapers and magazines as

“incentives” in any attempt to modify behavior.

Applying Turner deference to a policy based on a

general interest in deterrence not only undermines Turner, but

also provides an extraordinary incentive for pnson officials to

enact the harshest restrictions. Under Petitioner's theory, the

more miserable a restriction makes life for prisoners, the more

likely it will deter, and therefore, the more likely it will be

upheld as “reasonably related” to deterrence. See Br. for Pet.

at 31 (arguing that ““diminish{ing] the seventy” of restriction

will “diminis[h] its value . .. as a deterrent”); Br. for U.S. at 22

(arguing that potential long duration of deprivation enhances

its deterrent effect); Br. for Council of State Governments at

10

18 (arguing that burden on nght must be significant or it will

have no deterrent effect). The Court can avoid this self-

justifying result by either concluding that Petitioner may not

deprive Respondents of First Amendment nghts as a way to

deter general misconduct or declining to apply 7urner defer-

ence to Petitioner’s interest in behavior modification.

B.. ~The nature of Respondents’ asserted

right supports a heightened standard

of review

Just last Term, the Court made clear that it may depart

from Turner depending on the right at stake: “|W]Je have

applied 7urner’s reasonable-relationship test on/y to nghts

that are inconsistent with proper incarceration.” Johnson, 543

U.S. at 510 (emphasis in original) (internal quotation marks

omitted). In upholding restrictions, the Court has similarly

emphasized the extent to which the asserted right was funda-

mentally inconsistent with incarceration. For example, in

Overton v. Bazzetta, 539 U.S. 126, 131 (2003), the Court

upheld restrictions on prisoner visitation while noting that

“freedom of association is among the nghts least compatible

with incarceration.” See also Jones, 433 U.S. at 126. Thus,

in determining whether 7urner should apply to a particular

regulation, the question is whether the nght at issue is one

“that need necessarily be compromised for the sake of proper

prison administration.” Johnson, 543 U.S. at 510.

The Court did apply 7urner in Thornburgh, which

involved restrictions on incoming publications. But in that

case, there was a fundamental incompatibility between the

restricted conduct ~ reading material that was “detrimental to

security” — and the operational needs of the prison.

Thornburgh, 490 U.S. at 415. See supra Part 1.A. The nature

of the deprivation was also different, as it only minimally

limited the information prisoners could seek out.

Here, Petitioner’s policy attempts to cut off Respon-

1]

dents from all information about the outside world, which

prevents them from being informed and engaged citizens. As

the Court observed in Garrison v. Louisiana, 379 U.S. 64,

74-75 (1964), “speech concerning public affairs is more than

self-expression; it is the essence of self-government.” See also

Grosjean v. American Press Co., 297 U.S. 233, 250 (1936)

(noting that “informed public opinion is the most potent of all

restraints upon misgovernment”). To deny prisoners all

traditional outlets for learning about political affairs and other

news is to deny their very citizenship -- 1.e., to say that because

they are deemed “recalcitrant,” their knowledge and under-

standing on matters of public affairs no longer matter.’

This Court made clear long ago that citizenship is not

something that a prisoner forfeits upon incarceration. See Trop

* In Shaw, 532 U.S at 230, the Court stated, “the Turner test, by its

terms, simply does not accommodate valuations of content.” However, the

question before the Court in Shaw was not whether the nature of the nght

is relevant, but whether First Amendment claims by “jailhouse lawyers”

should be given heightened protection. /d at 225. The Court dechined to

do so, at least in part because of the sigmficant security problems granting

such heightened protection would cause. /d at 231 (“[E}ven if we were to

consider giving special protection to particular kinds of speech based upon

content, we would not do so for speech that includes legal advice,” noting

that prisoners often abuse legal assistance programs to pass contraband or

communicate instructions regarding unlawful behavior). Simply granting

prisoners some access to the news does not implicate the security concerns

that were present in Shaw

Further, as noted, the Court Aas considered the mght at issue in

particular cases, at least the extent to which the right 1s inconsistent with

incarceration. E g , Overton, 539 U.S at 131. Thus, amici respectfully

request that the Court reconsider its broad statement in Shaw for a more

context-sensitive approach See Central Virginia Community College v

Katz,- U.S - , 1268 Ct. 990, 996 (2006) (“we are not bound to follow our

dicta in a prior case in which the point now at issue was not fully debated”).

To the extent that the Court concludes that 7urner 1s incompatible with

such an approach, this provides a further argument why the Court should

not apply 7urner in this case.

12

v. Dulles, 356 U.S. 86, 101 (1958) (holding that denationaliza-

tion as punishment for crime violates Constitution in part

because it "strips the citizen of his status in the national and

international political community"). See also Overton, 539

U.S. at 138 (Stevens, J., concurring) (“‘a criminal conviction

...do[es] not place the citizen beyond the ethical tradition that

accords respect to the dignity and intrinsic worth of every

individual’’’) (citation omitted). To the contrary, in a free

society, any goal of rehabilitation must allow room for a

prisoner to become educated about the affairs of his own

country and the world in which he lives. Thus, like the nght

to equal treatment considered in Johnson, allowing prisoners

to remain informed “is not only consistent with proper prison

administration, but also bolsters the legitimacy of the entire

criminal justice system.” 543 U.S. at 511. ,

It is entirely appropriate to consider the nature of the

speech being suppressed in deciding what standard of review

to apply. The Court has done so in various other contexts,

even those in which it usually affords greater deference

because of concerns about the operation of government. E£.g.,

Connick v. Myers, 461 U.S. 138, 152 (1983) (government may

need a “stronger showing” of disruption to justify discipline of ~

employee “if the employee's speech more substantially

involved matters of public concern”). It is also likely that the

nature of the speech at issue was a concern of the Court in

Martinez, 416 U.S. at 415-16, in striking down a policy that

censored statements by prsoners that “unduly complain,”

“magnify grievances,” or express “inflammatory political,

racial, religious or other views.” Although one could plausibly

It scarcely needs mentioning that the policy restricts not only the nghts

of prisoners but also of any member of the press seeking to communicate

with them. Thernburgh, 490 U.S at 408 (“publishers who wish to

communicate with those who, through subscription, willingly seek their

point of view have a legitimate First Amendment interest im access to

prisoners’).

13

believe that these kinds of statements could undermine pnson

security (whether included in incoming or outgoing mail), a

stronger evidentiary showing was necessary because it is

simply antithetical to the First Amendment to censor criticism

of the government. It is similarly antithetical to free speech

values to force ignorance and apathy on any segment of

society, as Petitioner has done in this case.

Even if one accepts that the censorship in this case is

incidental rather than purposeful, failing to give adequate

consideration to the nght at issue in this case will give prison

officials carte blanche to act as censors in the future. Under

the guise of “behavior modification,” they may prohibit any

form of speech they disfavor. Such censorship would still be

“neutral” under Turner so long as the government could

articulate a reason for believing that censoring the speech

provided some “incentive” to better behavior. See

Thornburgh, 490 U.S. at 415 (stating that prison regulation is

“neutral” if it furthers interest “unrelated to the suppression of

expression’). For example, would it not be reasonable to

believe under Petitioner's logic that recalcitrant prisoners

would be deterred by a policy that forbade them from com-

plaining about pnson conditions or from filing litigation

challenging those conditions or their cnminal convictions?

See Lewis v. Casey, 518 U.S. 343, 361-62 (1996) (applying

Turner standard to claim about court access). Certainly, these

are forms of speech that prisoners consider to be very impor-

tant and withdrawing their ability to engage in them would

make their lives more miserable. The First Amendment could

not tolerate such a ban and it cannot tolerate Petitioner’s.

Both the nature of Petitroner’s asserted interest and

Respondents’ asserted nght require that there be a “closer fit”

between the asserted interest in deterrence and the restnction

imposed. Whether the Court applies a standard akin to

.Martinez, 416 U.S. at 414, requiring the government to show

that its policy is “generally necessary” to further a legitimate

14

interest, or even a minimally heightened standard of review,

this policy would certainly fail. Petitioner has provided

absolutely no support for the propositions that depriving

Respondents of newspapers and magazines will improve their

behavior and that using any number of other approaches for

behavior modification would not be at least as effective.

Rather, Petitioner’s only hope in this case is that the Court will

simply afford unquestioning deference to his unsupported

allegations. :

II. EVEN UNDER TURNER, PETITIONER’S

POLICY IS AN “EXAGGERATED RESPONSE”

If the Court does apply the test of 7urner v. Saflev, 482

U.S. 78 (1987), it should nevertheless affirm the Court of

Appeals’ decision. Part of the merit of the Turner test is its

“express flexibility.” Thornburgh, 490 U.S. at 414. Such

flexibility—in particular, sensitivity to context is essential if

the Court applies 7urner to all prison First Amendment

challenges. This is especially true when the asserted interest

is general deterrence. Because that rationale is potentially

boundless, the Court must weigh each of the four factors

carefully, lest prisoners’ First Amendment nghts be completely

eradicated.

Turner itself illustrates this point. There, the Court

upheld a restriction on prisoner correspondence while stnking

down a restriction on prisoner marriage. It certainly could be

(and was) argued that it was “rational” for the government to

believe that prisoner marriages would lead to problematic

“love tnangles” and would encourage dependency among

some prisoners. The Court nevertheless concluded that the

marriage restriction was an exaggerated response to the

government’s expressed concerns, despite the dissent’s

observations that the test would require that the marnage

regulation be sustained if it were applied in the same manner

as it had been to the ban on prisoner correspondence. Ser

15

Turner, 482 U.S. at 112-13 (Stevens, J., dissenting). However,

these seemingly disparate results can be explained easily if one

recognizes that application of 7urner is sensitive to context,

including the interest asserted by the government, the night

cldimed by the prisoner, and the severity of the deprivation of

the right. Each of these factors demonstrates that Petitioner’s

policy is an exaggerated response to his stated concerns.

A. Banning all news and commentary

is not logically connected with

Petitioner’s asserted interest in

deterrence

Under the first Turner factor, a prison policy must have

a valid, logical connection with a legitimate penological

interest. 482 U.S. at 89. For the reasons discussed in Part I,

supra, the Court should conclude that the attempt to modify

prisoners’ behavior by depriving them of information neces-

sary to preserve their status as citizens is not a legitimate

penological goal. However, even assuming that an interest in

general detérrence is valid in this context, there is simply no

logical connection between an interest in general deterrence

and a denial of all news and commentary.

1. The Court of Appeals did not

err in evaluating the evidence

Petitioner contends that the Court of Appeals imposed

a “hostile scrutiny” on his policy, focusing primarily on the

Third Circuit's consideration of the evidence that the parties

presented to the district court. Br. for Pet. at 22-23, 27. In

arguing that the court erred, Petitioner relies almost entirely on

one sentence in Overton, 539 U.S. at 132: “The burden . . . is

no! on the State to prove the validity of prison regulations but

on the prisoner to disprove it.” Petitioner, however, interprets

this statement far too broadly. Even in non-prisoner cases, the

ultimate burden 1s almost always on the party contending that

16

the regulation or statute is unconstitutional. See, e.g., Rust v.

Sullivan, 500 U.S. 173, 183 (1991); New York State Club

Ass'n, Inc. v. City of New York, 487 U.S. 1. 17 (1988). But

that does not mean that the government is completely relieved

of all obligation to justify its decisions. Further, under 7urner,

the Court has assumed that the government has some burden

to justify its actions, because the Court has never considered a

rationale for a policy unless it was actually advancec sy the

government, unlike cases in which the Court has ap,..1ed a

rational basis analysis. See Board of Trustees of Univ. of

Alabama vy. Garrett, 531 U.S. 356, 367 (2001) (stating that,

under rational basis review, challenging party has burden to

negate “any reasonably conceivable state of facts that could

provide a rational basis for the classification”) (internal

quotation marks omitted).

In practice, this Court has in many cases evaluated the

evidence presented by the government. In Turner, 482 U.S. at

98, the Court found that the marnage restriction was an

exaggerated response to security objectives, in part because the

government’s position was not supported by evidence. And

in O'Lone, 482 U.S. at 345-46, 350-51, the Court carefully

explained the long history of security problems that prevented

officials from allowing prisoners to attend specific religious

services. See also Harper, 494 U.S. at 226 & n.9 (citing

evidence that “proper use of [anti-psychotic] drugs is one of

the most effective means of treating and controlling a mental

illness likely to cause violent behavior’); Johnson, 543 U.S. at

525-527 (Thomas, J., dissenting) (applying 7urner and

discussing evidence adduced by state that racial segregation is

required by prison gang violence). Further, the circuits are in

agreement that, at least in some circumstances, prison officials

must come forward with evidence showing the connection

between their interest and the restriction. See King, 415 F.3d

at 639 (Posner, J.) (“the government must present some

evidence to show that the restriction is justified”). Accord

17

Ashker v. California Dep't of Corrections, 350 F.3d 917,

922-23 (9th Cir. 2003); Beerheide v. Suthers, 286 F.3d 1179,

1189 (10th Cir. 2002); Davis v. Norris, 249 F.3d 800, 801 (8th

Cir. 2001); Flagner v. Wilkinson, 241 F.3d 475, 486 (6th Cir.

2001); Morrison v Garraghty, 239 F.3d 648, 660-61 (4th Cir.

2001).

Even assuming that it is appropmate to credit a

“because we said so” argument by the government where there

is a plain and indisputable relationship between the challenged

restriction and the governmental interest, that assumption does

not apply here for at least three reasons, all of which counsel

in favor of requiring some showing that there is an actual fit

between means and end.

First, as explained in Part I, Petitioner’s behavior

modification interest is ill-defined and does not implicate

security. When safety 1s an issue, it is reasonable, even ~

necessary, to allow prison officials to act before a problem

arises. See Turner, 482 U.S. at 89. In these circumstances,

prison officials have not only an interest, but also an obligation

to protect those inside the prison, Harper, 494 U.S. at 225,

and the consequences of an error may be so grave that more

leeway should be allowed. See, e.g., Overton, 539 U.S. at 129

(explaining security problems associated with increasing levels

of visitation and prisoner drug abuse and drug smuggling);

Turner, 482 U.S. at 91 (noting Missouri’s “growing problem

with prison gangs’”’).

When the interest asserted is general deterrence, the

need for deference to the judgment of prison officials is

significantly diminished. No not will occur if Respondents are

allowed to read the news and no contraband will be smuggled

into the prison. The most serious consequence will be that the

cumulative unpleasantness of life on Level 2 will be reduced

by the restoration of a single activity.

Second, there is no obvious link between banning

current publications and rehabilitating prisoners. In some

18

cases, the connection between the interest being asserted and

the restriction imposed is so clear that further evidence is

simply unnecessary. E.g., Turner, 482 U.S. at 91 (“Undoubt-

edly, communication with other felons is a potential spur to

criminal behavior”). The connection between security and the

marriage restriction was not so obvious in Turner, 482 U.S. at

97-98, and the Court appropriately concluded that more was

required from the government than simple rote assertions.

Similarly, in this case, one cannot seriously argue that

an obvious connection exists. Common sense does not support

a belief that allowing prisoners to read newspapers and

magazines will make them “act worse” in some undefined

way, particularly when, according to Petitioner, they have

already failed to respond appropriately after numerous other

privileges were taken away. To the contrary, common sense,

scholarship and Pennsylvania’s own history suggest that

intellectually isolating Respondents will have only a negative

impact on their prospects of rehabilitation.® Thus, this is

Lt

A recent study by economists at Yale University and

the University of Chicago refutes Petitioner's basic premise that

imposing harsher conditions on prisoners will improve _ their

behavior, M_ Keith Chen and Jesse M. Shapiro, Does

Prison Harden Inmates? A Discontinuity-based Approach (2005),

http.//www.som. yale.edu/Faculty/keith.chen/papers/prison072405 pdf, at

| (“We find that harsher prison conditions are associated with significantly

more post-release crime”). See also Richard Morin, Time In and Time

Out, Washington Post, Feb. 2, 2006, at A2 (summarizing study’s findings).

This study only confirms what Petitioner surely already knows through

Pennsylvania's own failed and long discredited 19" century practice of

attempting to “rehabilitate” prisoners by cutting off all contact with the

outside world. Harry Elmer Barnes, Evolution of Penology in

Pennsylvania (1968), 290-302; David J. Rothman, Perfecting the Prison,

in Oxford History of the Prison, (Morns & Rothman, eds 1995), 111-29.

See also In Re Medley, 134 U.S. 160, 168 (1890) (noting that “experience

demonstrated. serious objections” to “complete isolation of [a] prisoner

from all human society,” including failure to “recover sufficient mental

activity to be of any subsequent service to the community”).

19

precisely the type of case in which prison officials can properly

be required to come forward with evidence that their interests

are being furthered by the practice at issue.

Finally, as explained below, Petitioner’s position om the

remaining 7urner factors is extremely weak. The nature of

multifactor tests means that the showing required for one

factor depends on the relative strength of the others. For

example, in O'Lone, there were severe security risks in

allowing Muslim prisoners to attend Jumu’ah, nsks which

could not be diminished through lesser restrictions. 482 U S.

at 351 (noting that it would be “extraordinarily difficult” for

officials to allow prisoners to attend service). Because the

first, third and fourth factors favored the prison <fficials so

strongly, the harsh nature of the restriction was not dispositive.

In this case, where the restriction on the right is severe and the

night can be easily accommodated without a significant impact

on security or resources, it is proper to require a stronger

showing from the government than just a “hope” that the

restriction actually accomplishes its goal.

2. Even if Petitioner was not

required to adduce evidence,

the policy is not logically

connected to a legitimate

penological interest

Under any reasonable view of the facts, it is evident

that “the logical connection between the regulation and the

asserted goal is so remote as to render the policy arbitrary or

irrational.” Turner, 482 U.S. at 89-90. Common sense simply

does not establish that prohibiting Respondents from reading

news and commentary will somehow aid in their “rehabilita-

tion.” Long ago, both this Court and the Federal Bureau of

Prisons recognized that rehabilitation of a prisoner is helped,

not hindered, by maintaining communication with the outside

world. Martinez, 416 U.S. at 412 & n.13 (citing BOP Policy

20

Statement).

Numerous other courts have similarly recognized the

rehabilitative effects that reading has on prisoners and the

harm that is caused by its deprivation. Clement v. California

Dep't of Corrections, 220 F.Supp.2d 1098, 1110 (N.D. Cal.

2002), aff'd, 364 F.3d 1148 (9th Cir. 2004); Morrison v. Hall,

261 F.3d 896, 904 n.7 (9th Cir. 2001); Spellman, 95 F.Supp.2d

at 1281; Knecht v. Collins, 903 F. Supp. 1193, 1200 (S.D.

Ohio 1995), rev'd on other grounds, 187 F.3d 636 (6th Cir.

June 15, 1999) (unpublished table decision); Abdul Wali v.

Coughlin, 754 F.2d 1015, 1034, 1036 (2d Cir. 1985). The few

courts that have ruled on similar publication restrictions agree:

there is no logical connection between a total ban on publica-

tions and improving prisoner behavior. Jacklovich v.

Simmons, 392 F.3d 420, 429 (10th Cir. 2004); Spellman, 95

F.Supp.2d at 1281. No court has upheld a publication ban as

restrictive as Petitioner’s.’

It is particularly nonsensical to believe that the prison-

ers at issue in this case will improve their behavior as a result

of a newspaper and magazine ban. By Petitioner’s own

assertion, Respondents are “recalcitrant and incorngible:” most

of these prisoners have already “flunked out” of other “level”

programs that rely on deprivations of privileges to modify

behavior. Br. for Pet. at 4. If Petitioner had no effect (or

perhaps a deleterious effect) on Respondents’ behavior by

placing them in segregation and severely restricting their

exercise, visitation, property and numerous other privileges

(J.A. 90-102), there is no rational basis to believe that the

Those few courts upholding publication bans under a deterrence

rationale have emphasized the limited duration of those bans, which never

exceeded 60 days and which required that the prisoner receive all withheld

publications following the period of confinement. Little vy Norris, 787 F.2d

1241, 1243-44 (8th Cir. 1986), Daigre v Maggio, 719 F.2d 1310. 1313

(Sth Cur. 1983): Gregory v Auger, 768 F.2d 287. 290 (8th Cir 1985):

Guayardo, 568 F. Supp. at 1366.

21

additional deprivation of magazines and newspapers will be

more successful. Certainly, this belief is no more “rational”

than the government’s belief in 7urner that restricting mar-

riage nghts of prisoners would help prevent “love triangles”

and discourage prisoners from forming overly dependent

relationships.

Policy in other prisons confirms the questionable logic

of the newspaper and magazine ban. See Martinez, 416 US.

at 414 n.14 (“policies followed at other well-run institutions

would be relevant to a determination of the need for a particu-

lar type of restriction”); Overton, 539 U.S. at 134 (noting that

“numerous other States have implemented similar restrictions

on visitation privileges”). As noted by the Court of Appeals,

no other segregated prisoners in Pennsylvania are completely

denied newspapers and magazines, even those on death row.

Banks, 399 F.3d at 143. Further, it appears that the vast

majority of other states do not impose restrictions that are

similar to the one at issue here. Corrections Compendium,

High Level Security Inmates, September 2003, at tbl. 4

(surveying 37 states and 4 Canadian prison systems; only 3

limited reading of high security prisoners to books only); see

also Jacklovich, 392 F.3d at 428 (citing expert report of former

Secretary of Kansas Department of Corrections that bans on

publications are rare).

As a matter of general policy, the Bureau of Prisons

also does not ban newspapers and magazines. See 28 C.F.R. §

541.12 (stating that prisoners “have the right to a wide range

of reading materials for educational purposes and for your own

enjoyment. These materials may include magazines and

newspapers sent from the community, with certain restric-

tions.) (emphasis added). Rather, under 28 C.F.R. § 540.71,

BOP restncts reading materials only in number or on the basis

of the potentially dangerous form or content of the material,

even with respect to high security prisoners. Although

prisoners in disciplinary segregation lose some privileges, the

22

regulation governing conditions of those prisoners does not

limit the application of 28 C.F.R. § 540.71 with respect to

newspapers and magazines. 28 C.F.R. § 541.21. See also

United Nations Congress on Prevention of Crime and Treat-

ment of Offenders, Standard Minimum Rules for the Treat-

ment of Prisoners (1955), cited in Estelle v. Gamble, 429 U.S.

97, 103 n.8 (1976), Rule 39 (“Prisoners shall be kept informed

regularly of the more important items of news by the reading

of newspapers, periodicals or special institutional publications,

by hearing wireless transmissions, by lectures or by any similar

means as authorized or controlled by the administration.”’);

American Correctional Association, Standards for Adult

Correctional Institutions (4th ed. 2003) (“Restnction to access

[to publications] should be related directly to maintenance of

institutional order and security.”’)

The LTSU’s own track record dispels any lingering

doubt regarding whether Petitioner’s policy is a logical way to

improve Respondents’ behavior. Over a period of 2 % years,

only 10 prisoners have been moved from LTSU to other

prisons. J.A. 138.* Two others were released directly back

into the community when their sentences expired. /d. Peti-

tioner concedes that “many” prisoners have remained on

Level 2 the entire time that the LTSU has been in operation.

J.A. 131-32. This suggests strongly that the great majority of

Respondents will remain on Level 2 indefinitely, most likely

* — There 1s nothing in the record to suggest that it was the newspaper and

magazine ban that led to the promotion of those 10 pnsoners. Level 2

imposes a plethora of severe restrictions on prisoners, many of which may

be viewed by Respondents as more burdensome than the publication ban.

It 1s also quite possible that the prisoners who were promoted were

motivated by factors unrelated to the harsh conditions or even that they had

not in fact shown sigmficant behavioral improvement. The first of five

factors listed as considerations for promotion 1s “trme in level.” J.A 40.

Thus, Petitioner may simply give up after a period of time.

23

until their sentences expire. Whatever “hope” that Petitioner

had when the LTSU opened has been shown to be a false one.

B. The policy leaves Respondents

with no alternatives for exercising

their First Amendment rights

The second 7urner factor is the severity of the depriva-

tion, i.e., whether adequate alternatives remain for the exercise

of the constitutional nght. Turner, 482 U.S. at 90. Whether the

Court defines the nght at issue as the nght to read newspapers

and magazines, as the Court of Appeals did, the nght to have

some access to the news, or even more generally as the right

“to receive.suitable access to social, political, esthetic, moral,

and other ideas and experiences,” Red Lion Broadcasting Co.

v. F.C.C., 395 U.S, 367, 390 (1969), the restriction imposed

on Respondents 1s the most severe deprivation of prisoner First

Amendment rights that this Court has ever considered. Then-

Judge Alito conceded in his dissent that “[t]his is the most

troubling of the four factors.” Banks, 399 F.3d at 149.

The deprivation goes much further than a ban on

subscribing to periodicals. Respondents are not only barred

from subscribing to newspapers and magazines, but are

prohibited from reading them: they may not get them from the

general prison library or borrow them from other prisoners.

J.A. 156, 163. If they are found with a newspaper or maga-

zine, it is considered a disciplinary infraction. J.A. 156.

Friends and family are even barred from clipping out individ-

ual articles and sending them to Respondents. J.A. 154-55.

Respondents are also prohibited from owning a television or

a radio o% listening to or viewing a program in a prison

common area. J.A. 102. They may not order any non-religious

publications. /d. They are completely barred from watching,

listening to and reading news and commentary.

Petitioner and his amici appear to suggest that the nght

at issue is no more than maintaining some contact, however

24

slight or restricted, with someone outside the prison, or being

allowed to read something. They argue further that alternatives

to this nght remain because Respondents can receive letters

and request books from the general prison library. Br. for Pet.

at 30; Br. for U.S. at 28.” However, Petitioner’s position both

mischaracterizes the right at issue and adopts an exceedingly

broad view of what constitutes adequate alternatives.

This Court has held that the right in a prisoner case

should be viewed not just “expansively,” but also “sensibly.”

Thornburgh, 490 U.S. at 417. One can always view a right at

a higher level of generality. In Turner, one could have argued

that the nght to marry was simply part of the more general

right of association and that the pnsoners retained adequate

alternatives because they were still permitted to maintain other

types of relationships. In the First Amendment context, one

could argue that if prisoners are allowed to speak at all, then

this factor of Turner is satisfied.

However, neither these views nor Petitioner’s are

faithful to the Court’s instruction to view the nght sensibly,

i.e., practically. In defining a particular right, the Court should

consider what constitutional values are at stake and whether

those values can still be adequately served if the right is

viewed at a higher level of generality. In Turner, it would not

have been proper for the Court to view marriage as simply one

of many kinds of fungible relationships, because marriage has

special personal, spiritual and legal significance that other

relationships do not. 482 U.S. at 95-96.

Similarly, the Court should not view reading news and

commentary as just one of many forms of reading material or

one way to communicate with those outside the prison, with no

more significance to free speech values than writing a letter to

* To receive a book from the library, Respondents must know what to

ask for in advance without the aid of a list or index. J.A. 165-69. They are

limited to no more than two books at one time. J.A. 39, 169.

25

a pen pal or having a conversation with a prison employee.

The press plays an essential role in keeping citizens informed

of public affairs. This role is even more crucial for prisoners,

who necessarily lose many ways to stay active and involved

citizens while they are incarcerated.

Petitioner’s view of what constitutes adequate alterna-

tives cannot be sustained. Its logic leads to the reductio ad

absurdum that a prisoner’s First Amendment rights are not

implicated until he or she is locked in a cell 24 hours a day

with absolutely no ability to communicate, thus effectively

rendering the First Amendment meaningless absent an inde-

pendent Eighth Amendment violation. See Jones ‘El v. Berge,

164 F.Supp.2d 1096, 1120-21 (W.D. Wis. 2001) (recognizing

Eighth Amendment claim for social isolation and sensory

deprivation).

Moreover, Petitioner’s view cannot be squared with

this Court’s precedents. In Turner, the Court invalidated a

marriage restriction even though the regulation permitted

marriages in some circumstances. With respect to First

Amendment nights, the Court has held that alternative means

of communication must be both “reasonable and effective.”

Pell, 417 U.S. at 826. And, in Thornburgh, the Court con-

cluded that the policy provided sufficient alternatives because

The United States suggests that prisoners may stay informed because

farmly members can read newspapers and magazines and piovide

summaries in thei letters or during a visit’ Br. for U.S. at 28. Thus far-

fetched “alternative” 1s musguided for several reasons. First, many

prisoners would hkely be unsuccessful in finding someone both willing and

able to provide such a service. Second, it would sumply be impossible for

anyone to prepare even a minimally adequate summary of public affairs and

other news and commentary in a letter or a once-a-month conversation.

Finally, to the extent that a prisoner was able to obtain the same information

mm newspapers and magazines through letters or visits, this would simply

prove further that the policy was irrational For if the prisoner was still

getting the same information, there would no depnvation, and thus no

“deterrent” effect.

26

it permitted “a broad range of publications to be sent, received,

and read,” and that “a more broadly restrictive rule” could “run

afoul of the second Turner factor.” 490 U.S. at 418, 417 n.15.

These statements make clear that the complete ban on receiv-

ing any non-religious publications is overly restrictive.

Petitioner further argues that Respondents have the

“alternative” of escaping the ban by getting promoted to Lvel

1. Br. for Pet. at 30. But this is not an alternative for exercis-

ing free speech rights any more than it was an alternative for

the prisoners in 7urner to regain their marnage nghts by

obtaining early release through good behavior. This Court has

never analyzed the second Turner factor in the manner urged

by Petitioner. The relevant question has always been: what

alternatives does the prisoner have while the restriction ts in

force? It is no alternative to say that a prisoner may have

rights again at some time in the future.

In any case, the ban is enforced against each prisoner

for a minimum of three ‘months, J.A. 32. And under

Petitioner’s own policy, the ban is intended to last much

longer, J.A. 31 (“Placement is anticipated to be long term.”’),

an intention on which Petitioner has carned through. J.A. 130,

138 (testimony of deputy superintendent that only ten prisoners

had been promoted out of the LTSU in 2 % years and all but

three LTSU prisoners were then on Level 2).

Cc. Accommodating Respondents’ First

Amendment rights will have no more

than a de minimis effect on

legitimate penological interests

The third and fourth 7urner factors assess the impact

on “guards and other inmates, and on the allocation of prison

resources generally” that accommodating the nght would have

and the availability of “ready alternatives” to the restriction

that would have no more than a “de minimis cost to valid

penological interests.” Turner, 482 U.S. at 90-91.

a> *-. *- = e af °

-

27

Here, Petitioner's argument is at its weakest. Respon-

dents are locked in their cells nearly around the clock, are

excluded from all educational activities and other prison

programs, may not work and earn money, may not buy items

from the commissary, are denied all but the most minimal

visiting privileges, and may not use the telephone except in

emergencies. J.A. 32-33, 48, 102. They are excluded from

even the additional privileges allowed to some Level |

prisoners at the discretion of prison officials. J.A. 32-33. Yet

Petitioner would have the Court believe that, in the face of all

these other deprivations, letting the prisoners exercise the First

Amendment night to read even a limited number of magazines

and newspapers would undermine their rehabilitation and

therefore prison security.

Arguably, the “costs” addressed by the third and fourth

factors do not even encompass a state’s interest in general

deterrence. As stated by the Court in Overton, 539 U.S. at

135, the question is whether accommodation would "cause a

significant reallocation of the prison system’s financial

resources” or “impair the ability of corrections officers to

protect all who are inside a prison's walls.” Where the interest

asserted is neither security nor finances, these factors are a

non-issue.

Ifthe Court determines that the Turner framework docs

encompass “costs” to a behavior modification interest, it must

limit either the weight it gives to the third and fourth factors or

the deference it grants to the Petitioner’s allegation that his

ability to deter misconduct will be significantly impaired by

accommodating the right. As explained in Part I, if one

accepts Petitioner’s premise that prohibiting Respondents from

reading the news will improve their behavior, it follows that

any accommodation of Respondents’ First Amendment nights,

no matter how small or easily granted, could potentially impair

Petitioner’s interest in behavior modification. Thus, almost by

definition, there can be no “ready” alternative to the restriction,

28

making it impossible for prisoners to satisfy these factors, and

giving prison officials carte blanche to deprive prisoners of any

right they choose simply by alleging that the deprivation ts part

of a behavior modification plan.

The Petitioner has subjected Respondents to multiple,

cumulative deprivations of the amenities of prison life. In the

context of this massive deprivation of privileges, it is simply

not credible that whatever rehabilitative or deterrent effect the

sum of these deprivations may have will be significantly

impaired by allowing Level 2 prisoners to read some small

number of magazines and newspapers.

Thus, in Turner’s terms, the de minimis cost alternative

is already in place. These numerous other restrictions are

clearly sufficient to preserve Petitioner’s asserted interest in

using disincentives to modify behavior, absent any evidence

that the newspaper and magazine ban contributes in any

significant way to any deterrent effect of placement in Level 2.

Respondents are not being denied news because they

have abused that nght in the past. Petitioner has imposed the

ban only because he believes it is yet another way to make life

less pleasant for Respondents. It cannot be reasonably argued

that lifting this single restriction will make the prison less safe

or Respondents less likely to improve their behavior.

D. Turner is not toothless

This Court has recognized that “deference does not

imply abandonment or abdication of judicial review.”

Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). But if

Petitioner's arguments are accepted, there will simply be

nothing left of the First Amendment for prisoners. Jurner

itself will become obsolete. The Court will return to the long-

abandoned “hands-off” philosophy, in which prisoners are ”

deemed to have no First Amendment nights that the pnson

official is bound to respect. Only the Eighth Amendment will

remain as a potential substantive limit on deprivations :mposed

29

on prisoners. See J.A. 28 (in Petitioner’s summary judgment

materials before district court, stating that it is Eighth rather

than First Amendment that “legitimately constrains the array

of punishments, behavior incentives and forms of deprivation

that the prison system can use to modify the behavior of

recalcitrant inmates’).

Such a result would flatly contradict this Court’s

statement that 7urner’s “reasonableness standard is not

toothless,” Thornburgh, 490 U.S. at 414, as well as the

repeated declarations over the past 30 years that pnsoners do

not sacrifice all of their First Amendment rights when they

pass through the jailhouse gate. FE.g., Shaw, 532 U.S. at 228-

29, Thornburgh, 490 US. at 407; O'Lone, 482 U.S. at 348;

Turner, 482 U.S. at 84. See also Overton, 539 U.S. at 138

(Stevens, J., concurring) (rejecting view that Overton “signals

a resurrection” of hands-off approach). The Court’s review of

prisoners’ constitutional claims must be “responsive both to

the ‘policy of judicial restraint regarding prisoner complaints

and {to] the need to protect constitutional nghts.”” Turner, 482

U.S. at 85 (quoting Martinez, 416 U.S. at 406) (emphasis

added). To do this, the Court must place some limit on the

government’s discretion to restrict constitutional nghts under

the guise of deterrence, or its promises to uphold prisoners’

constitutional rights will be merely empty words.

30

CONCLUSION

The judgment of the Court of Appeals should be affirmed.

Respectfully submitted,

Jeffrey M. Monks

David C. Fathi

Counsel of Record

Elizabeth Alexander

American Civil Liberties

Union Foundation

915 15" Street, NW, 7" Floor

Washington, DC 20005

(202) 393-4930

Steven R. Shapiro

American Civil Liberties

Union Foundation

125 Broad Street, 18" Floor

—— New York, NY 10004

(212) 549-2500

Witold J. Walczak

ACLU of Pennsylvania

313 Atwood Street

Pittsburgh, PA 15213

(412) 681-7864

31

Steven Banks

John Boston

The Legal Aid Society

199 Water Street

New York, NY 10038

(212) 577-3300

Elliot M. Mincberg

Deborah Liu

People For the American Way

Foundation

2000 M Street, N.W., Suite 400

Washington, DC 20036

(202) 293-4999

Charles F.A. Carbone, Esq.

California Prison Focus

2940 16th Street, Suite B-5

San Francisco, CA 94103

(415) 252-9211

APPENDIX

la

INTERESTS OF AMICI CURIAE

The American Civil Liberties Union (ACLU) is a nation-

wide, non-profit, nonpartisan organization of more than

500,000 members dedicated to the principles of liberty and

equality embodied in the Constitution and this nation's civil

rights laws. Consistent with that mission, the National Prison

Project of the ACLU Foundation was established in 1972 to

protect and promote the civil and constitutional nghts of

prisoners. The ACLU of Pennsylvania is a state affiliate of

the ACLU.

The Legal Aid Society is a private organization that has

provided free legal assistance to indigent persons in New Y ork

City for nearly 125 years. Through its Prisoners’ Rights

Proyect, the Society seeks to ensure that prisoners are afforded

full protection of the constitutional and statutory rights. The

Society advocates on behalf of prisoners in New York City

jails and New York state prisons, and conducts litigation on

prison conditions.

People For the American Way Foundation is a nonpartisan,

education-oriented citizens’ organization established to

promote and protect civil and constitutional nghts, including

First Amendment freedoms. Founded in 1980 by a group of

religious, civil and educational leaders, People For now has

over 750,000 members nationwide who are dedicated to the

democratic tradition of liberty and freedom embodied in this

country's Constitution. One of the organization's primary

objectives is to educate the public on the vital importance of

these principles, and to defend them through litigation and

other means as necessary. People For has frequently repre-

sented parties and filed amicus curiae briefs in similar cases

and is vitally concerned with the threat to basic First Amend-

ment freedoms posed by this case

——— -

2a

The American Friends Service Committee (AFSC), the

social justice and peace organization formed by the Religious

Society of Friends (Quakers) in 1917, has worked with

prisoners, their families, and with prison officials since 1947.

AFSC's work stems from the belief that the way a society treats

people convicted of crimes is an indicator of the human values

of that society and Quakers’ belief in the intrinsic work of all

human beings. Quakers not only founded AFSC, they also

founded the penitentiary, institutions initially comprised of

isolation units, the predecessors of today's supermax prisons.

Through AFSC's criminal justice work, especially with

programs developed to monitor the conditions 1n isolation

units across the nation, AFSC believes that isolation units

should be abolished because of the inhumane conditions that

are endemic to these institutions and practices. AFSC has .

published a variety of reports and histories regarding control

or isolation units, and its staff members have testified widely

on the issue. In 1997, AFSC published a "Survivor's Manual,”

written by prisoners who survived isolation for other prisoners

facing the same situation. The policies at issue would ban the

"Survivor's Manual” and other AFSC publications promoting

institutional change through nonviolent means.

California Prison Focus (CPF) is a nearly two decade old

human nghts organization that defends and advances the nghts

of pmsoners in California, particularly those confined in

super-maximum security units. CPF publishes a monthly

newsletter, to which approximately 800 prisoners subscribe.