Amicus Curiae Brief — Beard v. Banks

BEST AVAILABLE COPY.

_ON.Wnit oF Cexrionani To Tue Une STATS.

: - COURT OF ARPEALS For THE THIRD CIRCUIT.

g BRIEF FOR PRIGON LEGAL NEWS, REPORTERS Og

“AMICI CORIAE IN SUPPORT OF RESPONDENT

Lucy A. DALGLISH Sars SANFORD JAY ROSEN

~ SUSAN K. BURGESS JANETTUNG *

-. Reporters Committee for Rosen, Bien & Asaro, LLP

. ‘Freedom ofthe Press 155:Montgomery Street

1101 Wilson Bivd., Suite 1100 Eighth Floor...

Arlington, VA 22209 San Francisco, CA 94104

a a ai : (415) 433-6830

RACHEL G. BALABAN

- Sonnenschein Nath & Rosenthal LLP

1221 Avenue of the Americas

New York, NY. 10020

TABLE OF CONTENTS

INTEREST OF THE AMICI CURIAE ....0... eee eeeeeeeeeee l

ES GIUE BUEN te cicenctinnciictieninieniiiiiieconniensiionseicaoen 2

SUMMARY OF ARGUMENT. .......00c.cccccscscssessscssereReccceeses 3

SENEITUEE <oissilinshitciisateatidesiartsbetsacheasheinsiandiiihideadiinabidiisiiiiaitilans 7

I. ©PENNSYLVANIA’S PRISON POLICIES VIOLATE

THEE FIRST AMENDIBGENT, ...ccccsccccsescccosecoessocevesessees 7

A. The First Amendment Right of Access to

If.

Newspapers and Magazines in Prison Is Not

Inconsistent With the Legitimate Purposes of

PD AI sc cnccinictinsienininianiniccnniniannien 10

The Pennsylvania Prison Regulations Disrupt the

Essential Function of the Print Media and Amount

to an Attempt to Restructure the Modes of First

Pe BID iicesstccnsictcsncittinciectticsnssitaiiainate 13

The Pennsylvania Prison Regulations

Impermissibly Discriminate Against Non-

Religious, Non-Legal Newspapers

OE en cenisstischiartiesiisiniiiigutinnentisinininditannhiones 16

TURNER DOES NOT DELEGATE THE

CONSTITUTIONAL RESPONSIBILITY OF

COURTS TO PRISON OFFICIALS... 17

THE THIRD CIRCUIT CORRECTLY APPLIED

TURNER'S REASONABLE RELATIONSHIP TEST

TO PENNSYLVANIA‘’S COMPLETE DENIAL OF

NON-RELIGIOUS, NON-LEGAL NEWSPAPERS

FOF RD etiivinintcselieniuniinnnniapmaniasnivncnniden 20

A.

Valid, Rational Connection Between the Prison

Regulation and the Stated Government Interest.. 22

1. Application of the Turner Standard

Permits Courts to Examine the

PUREED TUGOGIE oc ccccccesccesceseseesnsvecsorsccsces 22

2. The Logical Connection Between the

Regulation and the Government’s

Stated Goal of Behavior Modification

Is, At Best, Extremely Attenuated............... 24

B. Availability of Alternative Means to Exercise

the Constitutionally Protected Right................... 26

C. Effect of AcCOmmmOGRtIOR ......00..0ccccccseessooceseveesees 28

D. Availability of Reasonable Alternatives ............. 29

Ge ANT iisiciuicepenecticiinsshianiaucntinniuiubenidaeasessutcitbnpusicie 30

APPENDIX: INDIVIDUAL STATEMENTS

OF INTEREST OF THE AMICI CURIAE .................. App 1

-

TABLE OF AUTHORITIES

CASES

Adderly v. Florida,

a Iii sitetichhdeicapiiareitcntindbbinaniiatatabtusiinnasaindiionael 8

Allen v. Coughlin, -

SC, i clatialetleill 6

Amatel v. Reno,

a ee Oe rs Gee Be eccincccctcsiceceetininennestnce 21, 22

Arkansas Educational Television Comm'n v. Forbes,

F_un s HONE EOD eae 8, 16

Arkansas Writers’ Project, Inc. v. Ragland,

a Ss ee ee aseiideadiciclniiieichsieniieainiititenditbginiotiidthiceatii 16

Ashcroft v. Free Speech Coalition,

fg 2 BD EIA ALE RD OPO San aE OS 7

Associated Press v. United States,

SI a 7

Banks v. Beard,

yg Bt ee passim

Beerheide v. Suthers,

pS RE i) +, See 24

Bell ». Wolfish,

SE Sa: Se MARIE iin sven scieentinnsnincitendenncnaenanieasebhiiipits 23

Bradley v. Hall,

Bw kee 7 ee eee 21

ill

Cornelius v. NAACP Legal Defense and

Educational Fund, Inc.,

G79 BB. FES COST wesccsvinnsinesrinsstrcinsiensnitiaeadaaiaa 9

Crofton v. Roe,

PP bg. 1k | nen 2 23, 24

Davis v. Norris,

DOD FFE GED GD Ce, Bee Piccccsnisicascecveistitsiusiiisinsuiiibann 23

DeHart v. Horn,

BEE OO SF GG, Bee rdivessctivesniincicinitinasaaialaaiibiias 21,22

Delker v. McCullough,

103 Fed. Appx. 694 (3d Cir. 2004) oo... eececeeeeees 13

FCC v. Beach Communications, Inc.,

508 U.S. 307 (1993)........-sesssescessessssscsssssssenssssesressseseee 23

Grosjean v. American Press Co., Inc., — -

SPT a ERO CED cictcinnsinsntsinettintsaitasiapianaiaiiaaieenlaan 13

Houchins v. KQED,

GOS UB. BG Fit cc cissncsiotimedinbimepsamesiienemedaiaaan 3

International Society for Krishna

Consciousness, Inc. v. Lee,

Fe Che Gee Ce ri evescinssstinsidienttiviiaiiebaameann passim

Jacklovich v. Simmons,

T52 FFE Sa Ce Ce FR eiicncieecncnscctnsttengiiiceasmpensi 21

Johnson v. California,

FO ES, Ga ass tesstnaiititansarinennin seasilasiheaddegiliitilaas 19

iV

Johnson v. United States,

I aa aeeccernees 17

Jones v. North Carolina Prisoners’ Labor Union,

I cetaapenntntonnt 28

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

al ee 6, 29

Kleindienst v. Mandel,

ET 20

Lamb's Chapel v. Center Moriches Union

Free School Dist.,

cal tammenntonate 16

Legal Services Corp. v. Velazquez,

RE oe 14

Madrid v. Gomez,

889 F. Supp. 1146 (N.D. Cal. 1995) 0... ececceeeeees 15

Martin v. City of Struthers,

cnn haismaenegnnngtensesnesocennesane 7,8

McConnell v. Federal Election Comm'n,

ETS A SO 14

Mcaune v. Lile,

as creessermnenenanenonans 25

O'Lone v. Shabazz,

SEEN EE 18,24

Overton v. Bazzetta,

i cesinidauiionenes passim

Pell v. Procunier,

417 U.S. 817 (1974)..............00e a, Wer 3, 12, 19, 27

Perry Education Association v. Perry

Local Educators’ Ass'n,

a BF ee ccihicccccctsiialiiarapeicisitititatateuniinsaiiiiinianigeibaas 9,10

Prison Legal News v. Cook,

ye A ee 6, 22

Procunier v. Martinez,

TD incesensnictcietncietiiindannnppcidnmegiapmieciie 4

Rosenberger v. Rector and Visitors of

the University of Virginia,

4&0 eee 16, 17

Shaw v. Murphy,

4 Sf 0 eee 10, 22, 23

Shoats v. Horn,

213 F.3d 140 (3d Cir. 2000)... a 13

Thornburgh v. Abbott,

ee Se Ce cishicesienitelncenisainsiihciciiiedeniinansiantiiniesiia passim

Turner Broadcasting System v. FCC,

I es Ce ee ccicciciasivintattisisistntinianiasiidlisehnientamaaic 13, 23

Turner v. Saflev,

Re. ee passim

United States v. Booker,

OR aes See eine ctiininsivienishtichancneietiadirenncininiiaianaisitadenes 17

vi

United States v. Kokinda,

ey ee inetnriehenitanmiienieniteninninennina 9,10, 11

United States v. Playboy Entertainment Group, Inc.,

a ey eC ccciicccncgiininsinitaninntinncitiiinnentanntetacsaniiantta 7

MISCELLANEOUS

Dannie M. Martin & Peter Y. Sussman,

Committing Journalism — The Prison Writings of

FE OO ccccctintneretnvmeniseriememmncinenitimpmntion 14

Dannie Martin, Doing Time with Disease,

Of By eee 14

Bob Minzesheimer, The Written Word Unshackled,

i ) Oe 15

Chase Riveland, U.S. Dep't of Justice,

Supermax Prisons: Overview and General

I vcsccecencestnenetsiisioniisinninasinninaptiianiilapaing 4

Seth Rosenfeld, State's Top Prison Too Cruel, Judge

Says, S.F. Examiner, Jan. 11, 1995 ...............-...ccsseeeseee 14

Vincent Schiraldi, Prison Bureaucrats Hide Abuses

by Banning the Press, S.F. Examiner, Feb. 5,

William Yardley, Jnmate Can Keep Money Earned

from a PEN Literary Award N.Y. Times, Apnil

vil

INTEREST OF THE AMICI CURIAE'

Amici curiae, publishers, reporters, librarians,

retailers, and other disseminators of books, newspapers and

magazines, carry on the strong historic tradition recognizing

the importance of an informed citizenry and thus provide

communicative works, both serious and entertaining, which

for more than 200 years have becn protected by the First

Amendment. Amici file this brief because the Pennsylvania

Department of Corrections’ blanket policy banning access

for an indefinite period to virtually any and all newspapers,

magazines and photographs, irrespective of content, by Level

2 inmates is an unconstitutional infringement on the rights of

those prisoners. The extreme broad-brush policy

impermissibly stifles the constitutionally protected free flow

of information and communication in the prison context.

The night to open access to the media, including sources for

discussions of current national and worldwide news and

events, is a fundamental right safeguarded by the First

Amendment. The policy imposed by Pennsylvania violates

the prisoners’ ability to exercise this basic mght and also

unnecessarily interferes with the public interest in bringing

to light possible abuse or inhumane conditions in prisons.

Access to media reports of, and discussion of issues

related to, current news and events is critical. Prisoners

should not be denied the right to full information concerning

the United States and countnes around the world,

particularly against the backdrop of recent geopolitical

events. Nor should prisoners be prohibited from reading

short stories, reports about what is happening in sports and

other areas of general interest, or lighter materials. The

ability to access information by reading newspapers and

' 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 submission of this brief. Pursuant to Supreme Court

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

filed with this Court.

Magazines is essential to the education and advancement of

all persons—including, in particular, those who presently are

in prison but may return to society.

The statements of interests of the individual amici

curiae are set forth in the Appendix.

STATEMENT OF THE CASE

This case is about the free speech rights of prisoners

and their media correspondents. Pennsylvania imposes a set

of prison regulations that impermissibly curtails the First

Amendment rights of newspaper and magazine publishers

and writers to transmit ideas and information. Unless a

publication is deemed by prison officials to be religious or

legal in nature, publishers have no way of sending

newspapers and magazines to individuals housed in Level 2

of Pennsylvania’s Long Term Segregation Unit (“LTSU”).

Banks v. Beard, 399 F.3d 134, 137 (3d Cir. 2005). Whether

a publication falls into one of these categories is left to the

standardless discretion of prison officials. As the exceptions

have been applied, the free speech nights of some religious

publishers have been infringed, see Jt App 179 (Level 2

inmates not permitted to receive the Christian Science

Monitor, a weekly newspaper published by the First Church

of Christ, Scientist), as have the nghts of legal news

publishers, see Jt App 49 (Level 2 inmates not permitted to

receive Graterfriends, a monthly publication containing

news on legal and other developments affecting prisoners).

A prisoner may be kept at Level 2 indefinitely. Jt

App 131 (the duration of a prisoner's classification at Level

2 is a minimum of 90 days and has in some cases lasted

months and even vears). Prison officials encourage inmates

entering LTSU to cancel all newspaper and magazine

subscriptions. Jt App 158. If the prisoner does not cancel

the subscription, the publications are kept in a property box

for him; after the box capacity is filled, the publications are

destroyed or otherwise disposed of. Jt App 159.

i)

SUMMARY OF ARGUMENT

This case strikes at the heart of the First

Amendment's protection of the exchange of information and

enlightened participation of all citizens in a democratic

government. Although the direct effect of the challenged

prison regulation is to block the flow of information into the

prison, its impact extends beyond prison walls. It treads

heavily on the rights of the print media and interferes with

the media’s central function as “a mighty catalyst in

awakening public interest in governmental affairs, exposing

corruption among public officers and employees and

generally informing the citizenry of public events and

occurrences.” Houchins v. KOED, 438 U.S. 1, 17 (1978)

(Stewart, J., concurring). The media’s ability to fulfill its

function as the so-called Fourth Estate depends on its access

to the darkest comers of the nation, “acting as the ‘eyes and

ears’ of the public,” and, at times, as its voice. /d. at 8

(opinion of Burger, C.J., announcing judgment of the Court).

Where the venue is under the exclusive control of the

goveinment, as with prisons, several principles deserve

consideration. It is true that the Constitution’s guarantees of

free speech and press do not grant the media a freestanding

right to enter governmental institutions. Sce Pell vy.

Procunier, 417 U.S. 817, 834 (1974). Its access can, and has

been, tightly circumscribed. See, ¢.g., id. (pnsons may deny

journalists access to face-to-face interviews with specific

prisoners); KQED, 438 U.S. | (jail can prohibit use of sound

and image recording devices and can restrict media tours).

But the media's interest in access to prisons is not limited to

direct investigative reporting. Printed publications convey

information as well as provide a forum for discussion and

response. An inmate who has access to newspapers and

magazines might, for example, read a news article discussing

matters he is personally familiar with -perhaps prison

conditions—-and respond to the editor by offering relevant

information or a unique perspective. Only his receipt of the

3

news publication enables this important mechanism of

exchange to occur. The media entities’ and prisoners’

speech nghts are, in this manner, “inextricably meshed.”

Procunier v. Martinez, 416 U.S. 396, 409 (1974).

Here, the constriction on media access is too tight for

the Constitution to tolerate. Pennsylvania’s policies destroy

the mechanism of expressive exchange between print media

entities and the affected class of prisoners. Its attempt to

amputate a segment of the prison population from the outside

world harms the rest of society, and is precisely the type of

government action that the First Amendment was designed

to restrain. Under the circumstances created by the near-

absolute ban on newspapers and magazines, the competing

interest of allowing the government broad discretion in the

administrative duties of running a prison cannot trump the

weighty concerns of the press and the public in fostering the

healthy exchange of ideas.

Aside from personal letters, news clippings related to

the inmate or his family, and a narrowly drawn category of

religious and legal materials, the only written materials

available to Level 2 inmates are “leisure books” from the

prison library. Banks, 399 F.3d at 137; Jt App 48. As a

result, inmates effectively are cut off from news of current

events and other developments in the outside world. See id.

(inmates are shut in single occupancy cells for twenty-three

hours a day with no radio or television and permitted only

one visit per month with immediate family members).

Prison policies provide for a behavioral review where,

subject to the discretionary decision of prison officials, an

inmate can be promoted to a less restricted status. Banks,

399 F.3d at 141; Jt App 26. Due to the subjective nature of

the review, there is no reasonable assurance that even

exemplary behavior in Level 2 status will earn a relaxation

of the restrictions. Accord Chase Riveland, U.S. Dep't of

Justice, Supermax Prisons: Overview and General

Considerations 8-9 (1999) (“[A]dministrative segregation of

4

an inmate...is an approved remedy [in some institutions]

without application of objective criteria or verified

misconduct.... Following periodic reviews, segregation of

such inmates may then be continued, despite exemplary

behavior in segregation...."’).

Publishers, editors, and writers have little effective

means of communicating with these inmates. Direct

personal letters to individual prisoners are not a realistic

option for print media since ideas and information expressed

through printed publications lose fundamental characteristics

if redirected through individual letters. Personal Ictters to

prisoners cannot contain the same breadth of information,

juxtaposition of different opinions, or graphics and

photographs, or capture the common experience enjoyed by

‘those who read the same article in a_ publication.

Corresponding this way is practically impossible for

publishers and writers given the fundamental purpose of the

printed publication to facilitate widespread dissemination of

information at minimal cost. Although an inmate can initiate

correspondence with the editor of a particular publication by

sending a personal letter, the Level 2 policies deny the

inmate access to the materials most likely to cause him to

correspond in the ffirst instance—the publications

themselves. In this way, the prison’s ban on gencral

publications disrupts the basic discursive function of

informative or opinion pieces, which catalyze idea exchange

by presenting views likely to generate responsive expression.

First Amendment rules applicable to non-public fora

govern the Court's review of the Pennsylvania policy. In the

prison context, these rules are set forth in a multifactor test

that requires federal courts to balance cautiously the

legitimate needs of prison administration and “the need to

protect constitutional rights.” Turner v. Saflev, 482 U.S. 78,

85 (1987) (alteration omitted). The manifold nature of the

Turner test recognizes the tension between these competing

goals. At risk on one hand is judicial disruption of the

5

“inordinately difficult undertaking that is modern prison

administration.” Thornburgh v. Abbott, 490 U.S. 401, 407

(1989) (quotation marks omitted). On the other hand are the

vulnerable interests of prisoners, who, though they must give

up liberties “inconsistent with proper incarceration,”

nonetheless do not relinquish their constitutional nghts at the

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

as well as the interests of the media and the public.

The various concerns at stake require that the 7urner

test be applied with an eye towards the competing principles

and the ultimate inquiry: Is the challenged restriction on

constitutional rights “reasonably related to legitimate

penological interests” or is it an “exaggerated response” to

prison concerns? Turner, 482 U.S. at 89, 91. It stands to

reason that the broad focus of the test should not permit its

application as either judicial bludgeon or rubber stamp. As

testimony to the “express flexibility of the Turner

reasonableness standard,” Thornburgh, 490 U.S. at 414,

lower court decisions have come down both ways on a

variety of different prison regulations. Compare, e.g.,

Kimberlin v. U.S. Dep't of Justice, 318 F.3d 228 (D.C. Cir.

2003) (upholding prison ban on electric and electronic

musical instruments) with Prison Legal News v. Cook, 238

F.3d 1145 (9th Cir. 2001) (striking down restriction on

subscription non-profit organization mail) and Allen v.

Coughlin, 64 F.3d 77 (2d Cir. 1995) (reversing summary

judgment in favor of prison officials who confiscated

newspaper clippings). This case presents the opportunity to

reaffirm the careful balance Justice O’Connor struck in her

opinion for the Court in Turner. If the Court is to remain

true to its promise that the Turner standard “is not toothless,”

Thornburgh, 490 U.S. at 414, it must affirm the decision of

the Court of Appeals for the Third Circuit. Pnson policies

like Pennsylvania’s cannot be permitted to suppress the

ability of print media to facilitate “the widest possible

dissemination of information from diverse and antagonistic

6

sources...[, a task] essential to the welfare of the public.”

Associated Press v. United States, 326 U.S. 1, 20 (1945).

ARGUMENT

I. PENNSYLVANIA’S PRISON POLICIES

VIOLATE THE FIRST AMENDMENT

—

Where a state action impinges on the expressive

rights of citizens, as here, analysis of its lawfulness is guided

by basic First Amendment precepts. At the foundation of the

Constitution’s protection of the right to speech is the belief

that free and vigorous exchange of opinions and information

is what enables our democracy to thrive. Accord United

States v. Playboy Entm’t Group, Inc., 529 U.S. 803, 817

(2000) (“It is through speech that our convictions and beliefs

are influenced, expressed, and tested.”). Although some

ideas, in and of themselves, might not contribute to the

betterment of society, it is their role in the process of

experimentation, adaptation, and expression that the First

Amendment protects. See id. (“The line between speech

unconditionally guaranteed and speech which may

legitimately be regulated, suppressed, or punished is finely

drawn. Error in marking that line exacts an extraordinary

cost.” (alteration omitted)); Ashcroft v. Free Speech

Coalition, 535 U.S. 234, 253 (2002) (“The right to think ts

the beginning of freedom, and speech must be protected

from the government because speech is the beginning of

thought.”). Watchful guardianship of these core principles is

“essential if vigorous enlightenment was ever to triumph

over slothful ignorance.” Martin v. City of Struthers, 319

U.S. 141, 143 (1943).

Thus, in general, courts must uphold the rule that “the

First Amendment bars the government from dictating what

we see or read or speak or hear.” Free Speech Coalition,

535 U.S. at 245. When government action threatens the role

of the print media in facilitating idea exchange, the right to

speech and expression must be more jealously guarded. Sve

Martin, 319 U.S. at 143 n.3 (“The only security of all is in a

free press.”). Naturally, these are guiding principles, not

absolute rules. As many decades of this Court’s precedent

and the practicalities of government instruct, the contours of

the First Amendment must fit the context and nature of the

state action that impairs the freedom of speech. When the

government owns and controls the venue in which it seeks to

regulate speech, First Amendment doctrine imposes a

tripartite framework, which looks first, as a threshold matter,

at the purpose of the forum. /nternational Soc'v for Krishna

Consciousness, Inc. v. Lee, 505 U.S. 672, 678 (1992)

(hereafter “JSKCON’”) (A long line of speech rights cases

“reflect, either implicitly or explicitly, a ‘forum based’

approach for assessing restrictions that the government seeks

to place on the use of its property.”). The three types of fora,

in descending order of the First Amendment's vigilance, are:

the traditional public forum; the designated public forum;

and the non-public forum, which encompasses “all

remaining public property.” See id. at 678-79.

There is no question here that a state prison is not a

public forum, and its rules therefore are not subject to strict

scrutiny under the First Amendment. See, e.g., Adderly v.

Florida, 385 U.S. 39 (1966) (restriction of First Amendment

activities on jailhouse curtilage subject to reasonableness

review). But “nonpublic forum status does not mean that the

government can restrict speech in whatever way it Jikes.”

Arkansas Educ. Television Comm'n v. Forbes, 523 U.S. 666,

682 (1998) (quotation marks omitted). State action imposing

“a restriction on speech in a nonpublic forum is ‘reasonable’

when it is ‘consistent with the government's legitimate

interest in preserving the property for the use to which it is

lawfully dedicated.”” JSKCON, 505 U.S. at 688 (O°Connor,

J., concurring in the judgment) (quoting Perry Education

Ass'n v. Perry Local Educators’ Ass'n, 460 U.S. 37, 50-51

(1983); quotation marks, alterations, and ellipsis omitted).

Government regulations may “limit{] a nonpublic forum to

8

activities compatible with the intended purpose of the

property,” but ultimately the “touchstone for evaluating these

[regulations] is whether they are reasonable in light of the

purpose which the forum at issue serves” and are viewpoint

neutral. Perry, 460 U.S. at 49; see also Cornelius v. NAACP

Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 806 (1985).

Turner v. Safley reaffirmed these principles and set

forth guidelines for their application in the prison context.

See 482 U.S. at 89-91 (outlining four factors relevant to

determining whether a prison regulation is “reasonably

related to legitimate penological interests” and “‘operate[s] in

a neutral fashion”). Turner and subsequent cases made clear

that prison free speech cases are subject to the same

“reasonableness” inquiry applied to non-public forum cases

generally. The prison-specific Jurner line of cases

coevolved with the development of general forum based

First Amendment doctrine. In the 1980s, as the focus on the

“nature of the relevant forum” became established as the

primary threshold inquiry for all government speech

regulation, the prison context became determinative of the

applicable standard of review. See, e.g., United States v.

Kokinda, 497 U.S. 720, 726 (1990) (explaining that in 1983,

Perry “announced a tripartite framework for determining

how First Amendment interests are to be analyzed with

respect to Government property,” which had been in

development since a decade prior).

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

prison speech cases with the rest of “forum based” doctrine.

It resolved any lingering ambiguity that the identity of the

holder of the right, rather than the nature of the forum, could

dictate the application of a fatal, or near-fatal, strict scrutiny

approach. 490 U.S. at 409-14 & n.9 (“{OJur rejection of the

regulation at issue [in Procunier v. Martinez, 416 U.S. 396

(1974),} resulted not from a least restrictive means

requirement, but from our recognition that the regulated

activity centrally at issue in that case-—outgoing personal

9

correspondence from prisoners—did not, by its very nature,

pose a serious threat to prison order and security.”). What

these two decades of decisions teach is that, notwithstanding

Petitioner’s arguments to the contrary, prisons are not sui

generis for First Amendment purposes. They are instead a

type of non-public forum subject to the same basic

constitutional principles and constraints as other non-public

fora, such as airports, see ISKCON, 505 U.S. 672, and public

school mail systems, see Perry, 460 U.S. 37.

A. The First Amendment Right of Access to

Newspapers and Magazines in Prison Is Not

Inconsistent With the Legitimate Purposes of

Prison Administration

A broad-based restriction of speech on a non-public

forum must be supported by at least “some explanation as to

why [the restricted] speech is inconsistent with the intended

use of the forum.” JSKCON, 505 U.S. at 691-92 (O’Connor,

J., concurring in the judgment); cf Shaw v. Murphy, 532

U.S. 223, 229 (2001) (“In the First Amendment

context,...some nghts are simply inconsistent with the status

of a prisoner or ‘with the legitimate penological objectives of

the corrections system.””). Without some sort of

justification, the government regulation is likely to be

unreasonable in relation to the legitimate needs of the forum,

or in Turner’s terms, an “exaggerated response” to

administrative concerns. Turner, 482 U.S. at 90. Although

the nature of the forum plays an important role in

determining compatibility, some liberties that fall within the

First Amendment’s ambit are consistently more easily

curtailed than others. Associational rights involving in-

person, physical interaction tend to pose the greatest security

risks and administrative costs in many different contexts.

See, e.g., Overton, 539 U.S. 126 (prison visitation);

ISKCON, 505 U.S. 672 (in-person solicitation inside airport);

Kokinda, 497 U.S. 720 (solicitation and demonstration on

post office premises). Regulations limiting freedom of

~-

10

association are perhaps the most frequently and casily

sustained. Accord Overton, 539 U.S. at 131 (“[F]reedom of

association is among the rights least compatible with

incarceration.”). The problems accompanying physical

association are sometimes so “obvious that its regulation

may ‘ring of common sense.”” /SKCON, 505 U.S. at 690

(O’Connor, J., concurring in the judgment) (quoting

Kokinda, 497 U.S. at 734). Other First Amendment rights,

by contrast, are more compatible with the purpose of the

government property, and are more robust in the face of

extensive regulation. Cf Kokinda, 497 U.S. at 739

(Kennedy, J., concurring in the judgment) (“[I]}n-person

solicitation deserves different treatment from alternative

forms of solicitation and expression.”’).

The opposite results reached in the /nfernational

Society for Krishna Consciousness decisions (collectively,

“ISKCON”), 505 U.S. 672 and 505 U.S. 830, illustrate the

constitutional difference between regulating rights requiring

physical interaction and regulating free speech rights

exercised through printed materials. /SKCON concerned a

challenge to restrictions limiting solicitation and distribution

of leaflets in New York area airports. 505 U.S. 672; 505

U.S. 830. The solicitation ban was a legitimate response to

the airport’s need to avoid disrupting the flow of traffic and

prevent the nmsk of duress, and its inability to monitor

problems arising from solicitation. 505 U.S. at 683-85. By

contrast, the prohibition of leafleting could not withstand

First Amendment scrutiny even though it was supported by

many of the same justifications. 505 U.S. at 831. Justice

O’Connor, authoring the concurring opinion and stating the

narrowest grounds for the holding as to the leafleting ban,

explained that it could not stand because it “effect[ed] an

absolute prohibition and [was] not supported by any

independent justification outside of the problems caused by

the accompanying solicitation.” /d. at 691. The availability

of “alternative channels” for distributing Icaflets—the

11

sidewalks outside the airport terminals—was not enough to

protect the First Amendment rights of leafletters from the

“total ban” imposed inside the terminal buildings. /d. at 692.

The appropriate focus was on the area impacted by the

agency regulation—the inside of the airport—where the

restriction was sO sweeping in scope that it could not be

explained as a reasonable measure designed to “preserve the

property for the several uses to which it has been put.” /d.

First Amendment concerns in the prison context are

no different. Limitations on in-person associational rights

require little work to justify because the “very object of

imprisonment is confinement.” Overton, 539 U.S. at 131;

see also Pell, 417 U.S. 817. In-person association in the

prison context also poses serious safety and security risks,

which unquestionably are an area of concern primary to the

government's legitimate purpose of running a prison. See

Overton, 539 U.S. at 133-34. Just as the burden on visitation

rights in Overton is analogous to the prohibition on airport

solicitation, so is the near-“absolute ban” on published

materials in this case analogous to the rule against

distributing printed leaflets in the airport terminal in

ISKCON. In several ways, the speech nights of newspaper

and magazine publishers suffer even more severe oppression

here than those of the leafletters in JSKCON. Publishers

attempting to send subscription periodicals to Level 2

prisoners are prevented from engaging in a desired, indeed

contracted-for, expressive exchange. In /SKCON, however,

the speakers’ activity was likely to be unwanted by most

potential listeners. Even with the ban in place in JSKCON, a

traveler so desiring could always seek out leaflet distributors

outside the terminal building. But in the Pennsylvania prison

system, the publisher’s access to the subscriber is cut off

completely and indefinitely.” Because nothing in this case

* Indefinite detention is more than merely theoretical. Pennsylvania

prisoners have actually been held in segregation for over 30 years. Sve,

12

explains why the First Amendment nght to send newspapers

and magazines to prisoners is incompatible with the central

purposes of running a prison, just as with the /SKCON

leafletters, application of the Turner reasonableness inquiry

should yield the same result.

B. The Pennsylvania Prison Regulations Disrupt the

Essential Function of the Print Media and

Amount to an Attempt to Restructure the Modes

of First Amendment Discourse

The special role of the press as catalyst and facilitator

of expressive exchange is a well-recognized and driving

force of First Amendment law. See, e.g., Grosjean v.

American Press Co., Inc., 297 U.S. 233, 250 (1936) (The

Constitution must “preserve an untrammeled press as a vital

source of public information. The newspapers, magazines,

and other journals of the country...have shed and continued

to shed[] more light on the public and business affairs of the

nation than any other instrumentality of publicity....”). Its

unique position “as one of the great interpreters between the

government and the people,” id., necessitates the rule that

“laws that single out the press, or certain elements thereof,

for special treatment pose a particular danger of abuse by the

State, and so are always subject to at least some degree of

heightened First Amendment scrutiny.” 7urner Broad.

System, Inc. v. Fed. Communications Comm'n, 512 U.S.

622, 640-41 (1994) (quotation marks omitted); Grosjean,

297 U.S. at 250 (“{S]ince informed public opinion is the

most potent of all restraints upon misgovernment, the

suppression or abridgement of the publicity afforded by a

free press cannot be regarded otherwise than with grave

concern.”).

e.g., Delker v. McCullough, 103 Fed. Appx. 694, 2004 WL 1552608 (3d

Cir. 2004) (unpublished) (inmate had been held in administrative

segregation since 1973); see also Shoats v. Horn, 213 F.3d 140 (3d Cir.

2000) (inmate held in segregation for 8 vears). The Pennsylvania prison

policy thus raises the specter of a lifetime publication ban.

13

- Any attempt by the government, whether overt or

not, to “determin[e] what future course the creation of ideas

and the expression of views must follow” should be treated

with suspicion. See McConnell v. Fed. Election Comm'n,

540 U.S. 93, 305 (2003) (Kennedy, J., concurring in the

judgment in part and dissenting in part). When the

government imposes a special burden on the media, as

Pennsylvania has here, the constitutional concerns multiply.

Not only do such regulations stifle expressive acts, they pose

a special danger to the First Amendment because they

jeopardize certain forms of expressive exchange. Where the

government tries to “foreclose new and creative partnerships

for speech,” such as by preventing one segment of the prison

population from engaging in productive discourse, its action

“is consistent with neither the traditions nor principles of our

Free Speech guarantee.” Jd; cf Legal Services Corp. v.

Velazquez, 531 US. 533, 544 (2001) (striking down

restriction that had the effect of “distort[ing] the legal system

by altering the traditional role of the attorneys in much the

same way broadcast systems or student publication networks

were changed” by unconstitutional restrictions).

The ability of prisoners to communicate outside

prison walls is essential to the media’s role in exposing

important public controversies. History contains countless

examples of the media’s involvement in bringing to light,

and eventually to justice, instances of prison abuse and

inhumane conditions. See, e.g., Dannie M. Martin & Peicr

Y. Sussman, Committing Journalism — The Prison Writings

of Red Hog (W.W. Norton & Co. 1995) (news stories about

Kevin Sherbondy, sentenced to 15 years for “possession” of

a firearm he owned for decorative purposes brought

significant attention to the case and resulted in the Ninth

Circuit overturning his sentence); Dannie Martin, Doing

Time with Disease, S.F. Chronicle, June 12, 1994, at 4

(calling attention to feces-contaminated drinking water at

Terminal Island Federal Prison); Scth Rosenfeld, State's Top

14

Prison Too Cruel, Judge Savs, $.F. Examiner, Jan. 11, 1995,

at Al (public outcry after media reports of inmate being

boiled alive led to class-action litigation and, ultimately, a

court ruling finding conditions at Pelican Bay prison

unconstitutional); Vincent Schiraldi, Prison Bureaucrats

Hide Abuses by Banning the Press, S.F. Examiner, Feb. 5,

1996, at A13 (prison administrators imposed a ban on media

interviews with prisoners partly in reaction to bad publicity

generated by “60 Minutes” exposé on prisoner abuse

incident); see also Madrid v. Gomez, 889 F. Supp. 1146,

1280 (N.D. Cal. 1995) (“dry words on paper can not

adequately capture the senseless suffering and sometimes

wretched misery that defendants’ unconstitutional practices

{at Pelican Bay] leave in their wake.”); Bob Minzesheimer,

The Written Word Unshackled, USA Today, April 20, 2004,

at 4D (strong public reaction to cancellation of pmson

rehabilitation writing program and denial of royalty fees and

prize money to prisoners led to reinstatement of program and

prize money); William Yardley, /nmate Can Keep Money

Earned from a PEN Literary Award, N.Y. Times, Apnl 17,

2004, at B1 (rehabilitation program was reinstated, according

to state Attorney General, because communicating with the

public gives “prisoners the right and opportunity to express

themselves and to rehabilitate in the best sense of the word”).

The proper functioning of the media depends not

only on prisoners’ ability to transmit information outside the

prison, but also on their ability to receive news from the

outside. At times, a newspaper writer or editor may be able

to confirm whether an incident was an isolated event or

widespread prison condition only through disseminating

information to prisoners and collecting their responses. Any

government interference in this process, Iet alone

Pennsylvania’s attempt to entirely quash it with respect. to

the Level 2 prisoners, threatens an essential means of

holding a powerful government institution accountable.

15

C. The Pennsylvania Prison Regulations

Impermissibly Discriminate Against Non-

Religious, Non-Legal Newspapers and Magazines

The First Amendment requires prison regulations to

be viewpoint neutral. Thornburgh, 490 U.S. at 417; see also

Arkansas Educ. Television Comm'n, 523 U.S. at 682 (“To be

consistent with the First Amendment, the exclusion of a

speaker from a nonpublic forum must not be based on the

speaker’s viewpoint....”). Viewpoint discrimination occurs

not just when one particular point of view is suppressed, but

also when “an entire class of viewpoints” is disfavored.

Rosenberger v. Rector and Visitors of the University of

Virginia, 515 U.S. 819, 831 (1995). The Constitution does

not tolerate regulations that burden those wishing to exercise

their First Amendment rights on the grounds that their point

of view is religious. See Lamb's Chapel v. Center Moriches

Union Free School Dist., 508 U.S. 384, 393-94 (1993); see

also Rosenberger, 515 U.S. at 831 (public university could

not treat disfavorably “student journalistic efforts with

religious editorial viewpoints.”)

But just as the state cannot disfavor publications

featuring a religious “standpoint from which a variety of

subjects may be discussed and considered,” Rosenberger,

515 U.S. at 831, neither can it discriminate against the non-

religious viewpoint expressed through newspapers and

magazines. The Pennsylvania pnson policies are not

viewpoint neutral because they do exactly that. The

collection of religious viewpoints discriminated against in

Rosenberger is the flip side of the coin to the set of non-

religious viewpoints prohibited here, and no principled

distinction can be drawn between the restriction at issue in

Rosenberger and the policies at issue here. Accord Arkansas

Writer's Project, Inc. v. Ragland, 481 U.S. 221, 230-31

(1987) (holding unconstitutional a tax on publications that

exempted religious and sports magazines, and

acknowledging that the distinction between content and

16

viewpoint-based discrimination is not always clear). Even

more antithetical to the First Amendment is the fact that

Pennsylvania’s policies grant prison officials the discretion

to determine whether a publication is religious. As this

Court has cautioned: “The first danger to liberty lies in

granting the State the power to examine publications to

determine whether or not they are based on some ultimate

idea and, if so, for the State to classify them.” Rosenberger,

505 U.S. at 835. This warning is particularly apt here, where

no safeguards exist to prevent the state from exercising its

discretion to permit the materials of one religion while

prohibiting the materials of another.

Also suspect is the application of the policy to legal

materials. News of important legal developments and court

decisions are often contained in a wide array of publications,

the. vast majority of which are prohibited under the

Pennsylvania policy. Cf Jt App 49. This Court's decisions

related to criminal procedure, civil liberties, and federal

habeas law, for example. are often reported by national print

media. Decisions such as United States v. Booker, 543 U.S.

220 (2005) (criminal sentencing), Johnson v. United States,

544 U.S. 295 (2005) (time limitation of federal habeas

statute), or the result of this case, could directly affect

inmates in segregated housing. Only through access to

general publications can these prisoners receive necessary

information about changes in their legal rights and therefore

exercise their right to access courts.

Il. TURNER DOES NOT DELEGATE THE

CONSTITUTIONAL RESPONSIBILITY OF

COURTS TO PRISON OFFICIALS

In Turner v. Saflev, this Court reaffirmed the duty of

“federal courts...to protect constitutional nghts” in the face

of “a prison regulation or practice [that] offends a

fundamental constitutional guarantee.” 482 U.S. at 84

{quoting Martinez, 416 U.S. at 405-06 (1974)). Turner

decisively rejected the notion that fundamental rights

17

enjoyed by free citizens vanish upon incarceration. See id. at

94-95 (rejecting prison officials’ argument that the

constitutional right to marriage does not apply “in...a prison

forum”). Subsequent decisions likewise acknowledged

courts’ obligation to examine prison regulations alleged to

infringe on constitutional nghts. See, e.g., Overton v.

Bazzetta, 539 U.S. 126, 137 (2003) (Stevens, J., concurring)

(“Our decision today is faithful to the principle that ‘federal

courts must take cognizance of the valid constitutional

claims of prison inmates.’” (quoting Turner, 482 U.S. at

84)). Recognizing, however, the risk that courts engaged in

constitutional review might too easily displace the reasoned

judgment of prison administrators, the Court explained that

the proper inquiry was whether the challenged prison

regulation was “reasonably related to legitimate penological

interests.” Turner, 482 U.S. at 89.

To strike the right balance between the competing

interests of oversight and deference, Turner laid out four

factors that help inform courts whether a_ challenged

restriction passes constitutional muster or whether it is an

“exaggerated response’ to prison concems.” /d. at 89-91.

By requiring careful consideration of multiple factors,

Turner declined to abdicate the duty of judicial review to

prison administrators. Cf O’'Lone v. Shabazz, 482 U.S. 342,

348 (1987) (“[C]onvicted prisoners do not forfeit all

constitutional protections by reason of their conviction and

confinement in prison.”). It instead sets forth a flexible

framework that allocates deference where it is due—

evaluation of legitimate penological interests such as

“deterrence of crime, rehabilitation of prisoners, and

institutional security,” id—but contemplates court

intervention when prison restrictions work an unreasonable

deprivation of constitutional rights. See, e.g., Turner, 482

U.S. at 95-100 (invalidating pnson marriage rule). In

formulation and application, it is clear that 7urner’s

reasonableness standard is neither “toothless” formalism nor

18

strict scrutiny, but a deferential inquiry somewhere between

these poles. Thornburgh, 490 U.S. at 414.

. Because the 7urner inquiry integrates all relevant

considerations, it applies regardless of whether the nghts

asserted belong to inmates or free persons. See, e.g., id. at

413-14. Constitutional challenges to prison restrictions that

curb the liberty of free citizens whose interests are

intertwined with those of inmates have come before this

Court with some regularity. F.g., Overton, 539 U.S. 126

(restriction on prison visitation); Thornburgh, 490 U.S. 401

(regulation of incoming publications); Pel/, 417 U.S. 817

(restriction on media interviews of prisoners). In its review

of these cases, the Court has declined to draw a doctrinal line-

based on the identity of the party asserting the nght. F.g.,

Thornburgh, 490 U.S. at 410 n.9. Were an intrusive standard

of scrutiny to apply whenever non-prisoners’ rights are

implicated, prison officials would rapidly lose the ability to

“deal with the difficult and delicate problems of prison

management” free from excessive court interference. /d. at

408. Proper application of the Turner analysis, on the other

hand, enables courts to give the outsiders’ interests their due

weight while maintaining appropriate judicial deference. Cf

Overton, 539 U.S. at 133 (considering in its reasonableness

analysis the interests of children whose visitation was limited

by prison rules). As Turner offers the unitary standard of

review of restrictions “[iJn the prison context, when the

government's power is at its apex,” Johnson v. California,

543 U.S. 499, 125 S.Ct. 1141, 1150 (2005), remaining

faithful to its guiding principles requires considered

examination of all concerns captured by the four factors.

The lopsided formulation urged by Petitioner and its

amici upsets this thoughtful balance. Petitioner's argument

transforms Turner into carte blanche to subjugate the core

constitutional nghts of prisoners and non-prisoners alike in

the name of creating sufficiently harsh conditions of

confinement. Playing by these rules, prisons could freely

19

“exten{d] and withdraw[]” fundamental rights with no more

difficulty than they could grant or deny gym privileges and

commissary access. Brief for the United States as Amicus

Curiae 11. The approach it advocates defines the remaining

three factors as a tautological restatement of the first inquiry,

reducing the analysis to an empty formality irreconcilable

with Turner itself. Application of the Turner test. in this

manner champions form over substance, and derogates the

duty of federal courts to guard against restrictions that

unreasonably invade constitutional boundaries in the name of

prison administration. The Court should reject this thinly

cloaked invitation to erect a de facto “barrier separating

prison inmates from the protections of the Constitution.”

Turner, 482 U.S. at 84.

il. THE THIRD CIRCUIT CORRECTLY APPLIED

TURNER'S REASONABLE RELATIONSHIP

TEST TO PENNSYLVANIA’S COMPLETE

DENIAL OF NON-RELIGIOUS, NON-LEGAL

NEWSPAPERS AND MAGAZINES

It is well established that the First Amendment

protects the right to disseminate as well as “receive

information and ideas.” A/leindienst v. Mandel, 408 U.S.

753, 762 (1972). The mght survives incarceration and

extends to both prisoners and “free citizens...reaching out to

those on the ‘inside.’ Thornburgh, 490 U.S. at 407. And

“there is no question that publishers who wish to

communicate with those who, through — subscription,

willingly seek their point of view have a legitimate First

Amendment interest in access to prisoners.” /d. at 408.

The Pennsylvania prison policy banning newspapers

and magazines in Level 2 of the Long Term Segregation

Unit prevents publishers and inmates from exercising their

First Amendment rights to send and receive publications.

Because the regulations “impinge{] on inmates’

constitutional nghts,” the Third Circuit correctly applied the

analysis set forth in Turner to determine the validity of the

20

prison policy. Banks, 399 F.3d at 139. Under Turner, a

“regulation is valid if it is reasonably related to legitimate

penological interests.” Turner, 482 U.S. at 89.

Consideration of four factors is relevant to the determination.

First, the court “must determine whether the governmental

objective underlying the regulations at issue is legitimate and

neutral, and that the regulations are rationally related to that

objective.” Thornhurgh, 490 U.S. at 414. “A second

factor...is whether there are alternative means of exercising

the right that remain open to prison inmates.” Turner, 482

U.S. at 89. “A third consideration is the impact

accommodation of the asserted constitutional right will have

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

resources generally.” /d. at 90. Fourth, “the existence of

obvious, easy alternatives may be evidence that the

regulation 1s not reasonable, but 1s an ‘exaggerated response’

to prison concerns.” /d.

Neither this Court nor lower federal courts applying

the four 7wrner factors have understood these to be four

distinct litmus tests. Rather, courts consistently have taken

care to consider each of the factors in relation to one another

prior to making the ultimate evaluation of the fit between the

prison policy and the penological goal. F.g., Jacklovich v.

Simmons, 392 F.3d 420, 427 (10th Cir. 2004) (holding in

error the district court's failure to consider al] but the first

factor); DeHart v. Horn, 227 F.3d 47, 59 (3d Cir. 2000)

(“Turner does not call for placing each factor in one of two

columns and tallying a numerical result. The objective is to

determine whether the regulation is reasonable given the

prison administrators’ penological concerns and the inmate's

interest in engaging in the constitutionally protected

activity.”); Amatel v. Reno, 156 F.3d 192, 191-201 (D.C. Cir.

1998) (weighing all four factors before determining that

statute satisfied reasonable relation test); Bradley v. Hall, 64

F.3d 1276 (9th Cir. 1995).

——

It is sometimes said that the first factor of the Turner

test, whether there is a logical connection between the

regulation and a legitimate penological interest, dominates

the inquiry. E.g., Amatel, 156 F.3d at 196 (“The first factor

looms especially large.”). As this Court has explained, the

heightened importance attributed to the logical connection

factor does not mean that the remaining factors should be

ignored in all cases, but arises from the necessary

invalidation of any regulation that does not satisfy its

standard. Shaw v. Murphy, 532 U.S. 223, 229 (2001) (“If the

connection between the regulation and the asserted goal is

‘arbitrary or irrational,’ then the regulation fails, irrespective

of whether the other factors tilt in its favor.”). In other

words, nothing can save a regulation that bears no “logical

connection” to a legitimate goal. See, e.g., Prison Legal

News, 238 F.3d at 1149-51 (invalidating restriction on

subscription non-profit organization mail, “core protected

speech,” after considering first factor). The inverse,

however, is not true. The challenged regulation’s survival of

the first factor still requires reasoned consideration of the

remaining factors. Thus, the purported dominance of the

“logical connection” factor refers to the cases where its

application is fatal to the regulation. In all remaining cases,

Turner requires “a judgment by the court regarding the

reasonableness of the defendant’s conduct under all of the

circumstances reflected in the record.” DeHart, 227 F.3d at

59.

A. Valid, Rational Connection Between the Prison

Regulation and the Stated Government Interest

1. Application of the Turner Standard Permits

Courts to Examine the Evidentiary Record

The first factor presents a twofold inquiry: 1s “the

governmental objective underlying the regulations at issue []

legitimate and neutral, and [are] the regulations [] rationally

related to that objective’? Thornburgh, 490 U.S. at 414.

Among legitimate prison interests, “protecting prison

22

-—~

security[ is] a purpose this Court has said is ‘central to all

other corrections goals.°” Thornburgh, 490 U.S. at 415

(quoting Pell, 417 U.S. at 823); Bell v. Wolfish, 441 U.S.

520, 547 (1979). Any regulation whose dominant purpose 1s

to advance prison security would naturally be entitled to

considerable deference. These concerns do not, however,

command that courts give a free pass to prison officials who

utter the right magic words. Courts remain charged with the

task of detecting when a restrictive measure is the kind of

“exaggerated response” this Court has long warned of, lest

constitutional abuses simply be recast through the talismanic.

invocation of “security” and “order.”

Despite Petitioner's contentions to the contrary,

Turner’s rational relation factor has always entailed more

than the bare minimum level of judicial review. Cf. Turner

Broad. Sys., 512 U.S. at 641 (“Where a law is subjected to a

colorable First Amendment challenge, the rule of rationality

which will sustain legislation against other constitutional

challenges typically does not have the same controlling

force.”). Courts applying Turner limit their consideration to

penological goals actually advanced by prison officials.

Compare Shaw, 532 U.S. at 229 (a rational connection must

exist between regulation and the “governmental interest put

forward to justify it”) with FCC v. Beach Communications,

Inc., 508 U.S. 307 (1993) (rational basis review of

Congressional action asks only whether there exists “any

reasonably conceivable state of facts that could provide a

rational basis,” and the inquiry stops as soon as the court ts

able to imagine “‘plausible reasons’ for Congress” action’).

Under the 7urner framework, courts may not invent or

substitute their own penological goals and rationale. Cf

Davis v. Norris, 249 F.3d 800 (8th Cir. 2001) (remanding for

lack of evidence from the government); Crofton v. Roe, 170

F.3d 957, 960-61 (9th Cir. 1999). Courts must base their

evaluation on the evidentiary record and the application of

“common sense.” Turner, 482 U.S. 97-98.

23

Although the burden of proof lies with the prisoner,

Overton, 539 U.S. at 132, nothing about the burden

allocation prohibits courts from “look{ing] closely at the

facts of a particular case and the specific regulations and

interests of the prison system” for evidence of a rational

relationship. Beerheide v. Suthers, 286 F.3d 1179, 1185

(10th Cir. 2002). Where the nexus between a regulation and

the government goal seems weak, the government's lack of

“specific facts or explanation to support its argument,” ~

Crofton v. Roe, 170 F.3d at 960, might well suggest an

attenuated relationship or exaggerated response. Accord

O’Lone, 482 U.S. at 359 (Brennan, J., dissenting) (observing

that “prisou officials are in control of the evidence”). The

Third Circuit engaged in no more searching an inquiry in this

case than was proper under 7urner to test the nature of the fit

between the regulation and the stated goal. See Banks, 399

F.3d at 141-42 & n.10 (observing that the lack of evidence in

the record “reinforces the conclusion” that there is no logical

connection between Pennsylvania's regulation and _ its

asserted purpose). Its analysis of the evidence was not, as

Petitioner suggests, a requirement that the state produce

empirical proof of the efficacy of its methods. Pet. Bnef 23.

2. The Logical Connection Between the Regulation

and the Government’s Stated Goal of Behavior

Modification Is, At Best, Extremely Attenuated

Pennsylvania prison officials assert three penological

goals advanced by the LTSU Level 2 publication ban, of

which behavior modification 1s the “primary, most important

purpose.” Jt App 27. According to the prison rationale,

depnving Level 2 inmates of their First Amendment nghts

* The other two justifications were that “the less material Level 2

prisoners have in their cells, the easier it is for correctional officers to

detect concealed contraband and provide security” and “newspapers and

magazines can be rolled up and used as blow guns or spears, can fuel cell

fires, or can be used as crude tools to catapult feces at the guards.”

Banks, 399 F.3d at 138.

24

would “create an incentive to comply with prison rules and

thereby be removed to Level | and eventually to the general

population.” Banks, 399 F.3d at 138. The prospect of losing

access to newspapers and magazines would also affect the

Level 1 and other inmates by discouraging them from

misbehavior. /d. According to Petitioner’s theory, the loss

of newspaper and magazine rights would either scare or

oppress inmates into compliance and result in greater order

and institutional security. See Pet. Brief 24-25. In essence,

the penological objective of the challenged regulations is to

impose upon Level 2 inmates a quantum of harshness

beyond the severity of less restrictive segregation levels.

Certainly, the establishment of a system of incentives

is a legitimate “tool of prison administration.” McKune vy.

Lile, 536 U.S. 24, 39 (2002) (plurality opinion). This Court

has explained this principle in the First Amendment context:

“Withdrawing visitation privileges is a proper and even

necessary management technique to induce compliance with

the rules of inmate behavior, especially for high-security

prisoners who have few other privileges to lose.” Overton,

539 U.S. at 134. In Overton, the Michigan Department of

Corrections promulgated regulations limiting the number and

manner of visits a prisoner could receive, completely

proscribing visits from most minors, in response to increased

substance abuse problems in the prison. Observing that

“freedom of association is among the nights least compatible

with incarceration,” and acknowledging that “[d]rug

smuggling and drug use in prison are intractable problems,”

the Court applied the Turner factors and upheld the

restriction as a reasonable exercise of administrative

judgment. /d. at 131-36. Overton made clear that the prison

administrative prerogative is at its apex when regulations

govern the physical association of inmates. The strong

relationship between the prison’s interest in preventing drug

smuggling made it casy for all nine Justices to vote in favor

of upholding the regulation.

25

The challenged Pennsylvania regulation, however,

does not concern inmate association and lacks any real

connection to the stated prison objectives. Although the

policy purports to serve a rehabilitative purpose, it prevents

prisoners from receiving publications from rehabilitative

organizations such as Alcoholics Anonymous, Stop Prisoner

Rape, and so on, and exacerbates pervasive illiteracy in

prisons. The blunt design of the regulation belies

Petitioner’s claimed rehabilitative purpose. The behavior

modification rationale advanced by the state officials in this

case reaches dramatically farther than any regulations upheld

by this Court to date. Unlike the limit on in-person visitation

in Overton or the tightly circumscribed category of

prohibited publications in Thornburgh, the liberties that the

LTSU policies curtail lack any nexus to disciplinary

problems in Pennsylvania prisons. Instead, the restricted

First Amendment nights appear to be chosen for limitation

largely because their exercise would be highly valued.

Moreover, because prison officials have framed their

purpose in such a way that the greater the constitutional

deprivation, the more likely it is to bring about the desired

effect, common sense requires a healthy dose of skepticism.

See Brief for the Becket Fund for Religious Liberty as

Amicus Curiae 9-11. When privileges that do not implicate

constitutionally protected rights are available for “extension

and withdrawal,” the prison administrators’ choice to limit

inmates’ First Amendment rights makes the logical

connection between the restriction and any legitimate

penological goal seem dubious at best, and likely to be an

“exaggerated response” to perceived prison needs.

B. Availability of Alternative Means to Exercise the

Constitutionally Protected Right

The second factor concerns the existence of

“alternative means of exercising the right that remain open to

prison inmates.” Turner, 482 U.S. at 90; cf ISKCON, 505

U.S. at 692 (O'Connor, J., concurring in the judgment)

26

(regulations that “leave open ample alternative channels of

communication” are more likely to be constitutional).

Consideration of this factor should be paramount here, where

the logical connection between the regulation and the

legitimate penological goal is tenuous. Indeed, the Court has

anticipated and cautioned against the conditions imposed by

the Pennsylvania Department of Corrections. See

Thornburgh, 490 U.S. at 417 n.15 (remarking that a “broadly

restrictive rule against admission of incoming publications”

might well “run afoul of the second 7urner factor’).

The correct unit of analysis for the second Turner

factor is the group whom the regulation affects—Level 2

inmates. Cf ISKCON, 505 U.S. at 692. Because of the

indefinite duration of LTSU Level 2 tenure and lack of

objective criteria for advancement to Level 1, there is no

assurance that a Level 2 inmate will ever advance to a less

restricted classification. Contrary to Petitioner's arguments,

it 1s therefore inappropriate to inquire whether adequate

alternatives exist for all prisoners generally. Focusing on

Level 2 inmates, prison policies completely restrict the

ability to receive communication from non-religious and

non-legal publishers and writers. Aside from the limited

amount of personal and legal correspondence that is sull

permitted, LTSU Level 2 inmates face a total deprivation of

communication with the secular outside world. As Judge

(now Justice) Alito acknowledged in his dissent from the

Third Circuit opinion, “[t]his is the most troubling of the four

factors.” Banks, 399 F.3d at 149.

Petitioner’s pinched application of the second 7urner

factor would approve virtually any limitation on expression,

as long as some means remained for prisoners to “receive

information and communications from the outside world.”

Pet. Brief 29-30. Such an approach misinterprets and vastly

expands this Court’s decisions. In Overton, for example,

visitation rights were only proscribed for one group of

prospective visitors, minors who were not the children,

27

grandchildren, or siblings of the prisoner. The prisoner and

prohibited minors could still communicate with one another

through letters and telephone calls. Overton, 539 U.S. at

135; see also Pell, 417 U.S. at 824-25 (media representatives

who could not conduct in-person interviews could sull

communicate directly with prisoners by letter or telephone);

Jones v. North Carolina Prisoners’ Labor Union, 433 U.S.

119 (1977) (union was prohibited from mass distribution

within prison but could still send materials through

individual mail); see also ISKCON, 505 U.S. 672 (solicitors

could disseminate their messages through distributing

leaflets). The Pennsylvania restriction is categorically

different from the ones upheld in Overton, Pell, and Jones.

The policy here completely closes the avenue of

communication between the prisoner and the “publishers

who wish to communicate with those who, through

subscription, willingly seek their point of view [and who]

have a legitimate First Amendment interest in access to

prisoners.” Thornburgh, 490 U.S. at 408. It 1s much more

akin to the “absolute ban” on leaflet distribution struck down

in ISKCON. 505 U.S. at 831. The second factor weighs

heavily in favor of invalidating the restrictions.

Cc, Effect of Accommodation

The third relevant factor for consideration is the

“impact accommodation of the asserted constitutional right

will have on guards and other inmates, and on the allocation

of prison resources generally.” Turner, 482 U.S. at 90.

After considering the proffered alternatives, the Third Circuit

properly determined that accommodation of the First

Amendment nght in this case would not have a deleterious

“ripple effect” on the rest of the prison population and staff.

Banks, 399 F.3d at 146-48.

Evidence in the record supported the Third Circuit's

determination that any impact on prison resources of

accommodating these prisoner's First Amendment

entitlements would be low, taking into account Jurner’s

28

admonishment that “[i]n the necessanly closed environment

of the correctional institution, few changes will have no

ramifications on the liberty of others or on the use of the

prison’s limited resources for preserving institutional order.”

Turner, 482 U.S. at 90. The number of inmates to whom the

accommodation would apply was only approximately forty,

or 0.1% of the prison population. Jt App 127. Prison

regulations already permitted Level 2 inmates to go to the

mini-law library, Jt App 157, which would minimize the

additional burden of the accommodation suggested by the

Third Circuit. Banks, 399 F.3d at 147 (suggesting as a~

possible accommodation that “individual prisoners could be

escorted to the secure mini-law library to read a periodical of

their choosing”). The Third Circuit correctly determined that

accommodations proposed by Banks were reasonable and

not excessively burdensome to prison administrators.

D. Availability of Reasonable Alternatives

Finally, “the existence of obvious, casy alternatives

[to accomplish prison goals] may be evidence that the

regulation is not reasonable, but is an ‘exaggerated response’

to prison concerns.” Turner, 482 U.S. at 90. The primary

asserted prison concern in this case is to create conditions of

confinement unpleasant enough to deter non-LTSU Level 2

inmates from misbehaving and encourage Level 2 inmates to

behave in the hopes of being promoted to a different leve! of

housing. Pet. Brief 5. Aside from the high value inmates are

likely to place on the exercise of their First Amendment right

to newspapers and magazines, cf. Kimberlin, 318 F.3d at 240

(Tatel, J., concurring and dissenting) (“regulations that

deprive prisoners of their constitutional rights will a/wavs be

rationally related to the goal of making prison more

miserable”), Petitioner demonstrated no specific interest in

depriving inmates of publications.

The alternatives considered by the Third Circuit

appropriately focused on the state's broad asserted goal of

creating a more severe state of confinement than LTSU

29

Level 1. The record shows that Level 1 inmates are allowed

to spend five dollars per week on commissary compared to

no commissary privileges for Level 2 inmates; Level |

inmates are permitted two immediate family visits per month

rather than one, and one phone call a month rather than

emergency calls only; Level 2 inmates are also allowed GED

or Special Ed in-cell study program, are compensated for

work, and can get additional privileges authorized at the

discretion of prison officials. Jt App 32-33, 48, 102. Where,

as here, the penological objective can be fulfilled through

measures that do not burden constitutional rights, the

infringing regulation is likely to be an exaggerated response.

The Third Circuit correctly concluded that these differences

between Levels | and 2 suffice to satisfy prison goals.

CONCLUSION

The judgment of the Court of Appeals should be

affirmed.

Respectfully submitted,

Lucy A. DALGLISH SANFORD JAY ROSEN

GREGG P. LESLIE Counsel of Record

SUSAN K. BURGESS JANET TUNG

Reporters Committee for Rosen, Bien & Asaro, LLP

Freedom of the Press

MICHAEL A. BAMBERGER

RACHEL G. BALABAN

Sonnenschein Nath &

Rosenthal LLP

February 16, 2006 Counsel for Amici Curiae

tod

i)

APPENDIX

INDIVIDUAL STATEMENTS OF INTEREST

OF THE AMICI CURIAE

Prison Legal News (“PLN”) is a_ non-profit,

charitable corporation that publishes a nationally distributed

monthly journal of the same name. Since 1990, Prison

Legal News has reported on news, court decisions, and other

developments relating to the civil and human rights of

prisoners, crime victims, and correctional staff in the United

States and abroad. PLN has the most comprehensive

coverage of detention facility litigation of any publication.

In addition to reporting on the rights of prisoners, PLN also

reports on the rights of crime victims, prison and jail

employees, and prison and jail visitors. Nearly every issue

of PLN covers court decisions and information on the nghts

of prisoners in segregated control units. PLN has

approximately 4,600 subscribers in all fifty states and

abroad. Approximately sixty-five percent of PLN

subscribers are state and federal prisoners, including

prisoners in the custody of the Pennsylvania Department of

Corrections, including its control units, and prisoners in

control units nationwide.

The Reporters Committee for Freedom of the Press 1s

a voluntary, unincorporated association of reporters and

editors that works to defend the First Amendment nights and

freedom of information interest of the news media. The

Reporters Committee has provided representation, guidance

and research in First Amendment and Freedom of

Information Act litigation since 1970.

The Freedom To Read Foundation is a not-for-profit

organization established in 1969 by the American Library

Association to promote and defend First Amendment rights,

to foster libraries as institutions that fulfill the promise of the

First Amendment for every citizen, to support the right of

App |

libraries to include in their collections and make available to

the public any work they may legally acquire, and to

establish legal precedent for the freedom to read of all

citizens.

The Association of American Publishers, Inc.

(“AAP”) is the national trade association of the U.S. book

publishing industry. AAP’s members include most of the

major commercial book publishers in the United States, as

well as smaller and non-profit publishers, university presses,

and scholarly societies. AAP members publish hardcover

and paperback books in every field, educational materials for

the elementary, secondary, postsecondary, and professional

markets, computer software, and electronic products and

services. The Association represents an industry whose very

existence depends upon the free exercise of nghts guaranteed

by the First Amendment.

The American Booksellers Foundation for Free

Expression (“ABFFE”) was organized in 1990. The purpose

of ABFFE is to inform and educate booksellers, other

members of the book industry, and the public about the

dangers of censorship and to promote and protect the free

expression of ideas, particularly freedom in the choice of

reading materials.

The Publishers Marketing Association (“PMA”) is a

nonprofit trade association representing more than 4,200

publisher members across the United States and Canada.

PMA members include independent, non-profit and

university press who publish a variety of literary works,

including fiction and non-fiction books on all topics. The

works of its members contribute to the public debate on

cultural, social and political issues. The nght to open access

to the media, including sources for discussion of current

national and worldwide news and events, is of paramount

concern to PMA’s members. PMA believes that this case

will potentially burden the First Amendment nghts of its

App 2

members and bears directly on the ability of its members to

disseminate and receive ideas and information.

App 3 ;