Petition for Writ of Certiorari — Angelone v. Montcalm Publishing Corp.

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Supreme Court, U.S.

FILED

No. 9-96 156 JUL 2 9 199%

‘%

OFFICE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1995

EDWARD MURRAY, in his official capacity as Director of

the Virginia Department of Corrections (VDOC); JOHN

DOE, 1 - 7, in their official capacities such fictitious

names being designated to identify those VDOC

employees whose true identities are now unknown to

plaintiff-intervenor, but who serve as (a) members of the

VDOC Publication Review Committee, (b) Warden or

Superintendent of Keen Mountain Correctional Center

(KMCC), and (c) functional KMCC mailroom censor,

y Petitioners,

MONTCALM PUBLISHING CORPORATION,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fourth Circuit

PETITION FOR A WRIT OF CERTIORARI

James S. Gi_more, III

Attorney General

Davip E. ANDERSON

Chief Deputy Attorney General

Mark R. Davis

Senior Assistant Attorney General

Counsel of Record

Jui_L Bowers

Mary E. SHEA

Assistant Attorneys General

Office of the Attorney General

900 East Main Street

Richmond, Virginia 23219

(804) 786-5631

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831 \

QUESTIONS PRESENTED

1. Whether a commercial publisher of graphic sex-

ual material has a legitimate expectation, protected by the

First Amendment, of distributing a publication contain-

ing explicit descriptions or pictures of sexual intercourse

to state prisoners, such that the Due Process Clause of the

Fourteenth Amendment requires the State to provide: (1)

personal notice to the publisher whenever such a publica-

tion has been denied for receipt into the State’s prisons;

and (2) an individualized opportunity to challenge the

decision?

2. Whether Montcalm Publishing Corporation had

continued standing to pursue its facial challenge to the

lack of a notice provision in Virginia’s prison regulation

governing incoming publications, once it had been deter-

mined that Gallery magazine consistently contains

graphic sexual material that violates prison regulations,

and the prison regulations are constitutional?

TABLE OF CONTENTS

Page

TABLE OF AUTHIORITIES . cciisccicoccesuussyeevon Vv

OPINIONS BELOW. . 0 i6 eiovtireseetet vctas iesnyeu 1

FURISDICTION os i cin0ss<pupadiaenn eeasas sane 1

CONSTITUTIONAL AND STATUTORY PROVI-

SIONS INVOLVED ic ccécexekcases «anwesuneese 1

STATEMENT OF THE CASE. oo iicsccscsvevceus eens 2

REASONS FOR GRANTING THE WRIT ........... 5

I. A COMMERCIAL PUBLISHER OF GRAPHIC

PORNOGRAPHY HAS NO INTEREST PRO-

TECTED BY THE FIRST AMENDMENT IN

SELLING AND DISTRIBUTING ITS PRODUCT

TO STATE PRISONERS, SUCH THAT DUE PRO-

CESS REQUIRES THE STATE TO PROVIDE

INDIVIDUAL NOTICE AND AN OPPOR-

TUNITY TO RESPOND WHEN ITS PUBLICA-

TION IS WITHHELD FROM AN INMATE

SUE RIG 0 Sk 5a Ca edabee sa eeaee eae penhes 6

A. Publisher First Amendment Interests Are

Severely Restricted In The Prison Setting... 7

B. A Publisher Of Graphic Pornography Cannot

Have An Expectation Of Constitutional Pro-

tection To Disseminate Its Obscene Materials

Inséiie A PRIMO Voi occ socks Ghee eee ee 11

C. The Fundamental Error In Requiring Indi-

vidualized Notice To Publishers Wrongly

Interposes The Federal Judiciary Into The

Operation Of State Prisons ................ 17

;

imeem

ili

TABLE OF CONTENTS -— Continued

Page

Il. MONTCALM’S FAILURE TO CHALLENGE THE

JUDICIAL DETERMINATION THAT GALLERY

MAGAZINE IS PROPERLY EXCLUDED FROM

VIRGINIA’S PRISONS REMOVED THIS CASE

FROM THE SCOPE OF ARTICLE III JURISDIC-

TION, THUS WARRANTING REVERSAL OF

THE JUDGMENT BELOW ...........+----0+-55: 23

CRP A PIEE sivas scatpeneresscccevenssenvessooss 27

Appendix A...... 2. cece cece cece erent een eneaeeees la

Appendix B .... 22... . cece eee e cece etree eeeee 13a

Appendix C ...... 0 eee secs cece cer eccccceeecces 29a

Appendix D..........-. ee eee e cece reece tenner eee 3la

Appendix E ........ 2.6 ee cece cece cence cen eccccceees 64a

Appendix F ....... 2... cece eee c cece eer e reer eeneenes 66a

ApPONdIx Go. noc s cee esses eee er ere ecessescccennss 67a

Appendix H..........-cccccccccecscccccccccccecece 68a

Appendix A

Appendix B

Appendix C

Appendix D

INDEX TO APPENDICES

Decision of the Fourth Circuit Court of

ADDORIS 202 eve cc ce evcwrsssmocessenss la

Decision of the District Court for the

Western District of Virginia.......... 13a

Final Judgment of the District Court

for the Western District of Virginia .. 29a

Report and Recommendation of the

United States Magistrate Judge...... 3la

TABLE OF CONTENTS - Continued

Appendix E

Appendix F

Appendix G

Appendix H

Page

Order of the Fourth Circuit Court of

Appeals Denying Petition for Rehear-

ing and Suggestion for Rehearing En

PERT IEE OEE OP OTT ETON Teer ee OF 64a

Constitution of the United States of

pee Pr. © Per or ee Pert, oF aa 66a

ASR Fs fone Vina esneee 66a

PERREIORORC ASS 3k ss chs ceunsiexees 66a

Se A avon ccd awed aereee es 67a

Commonwealth of Virginia, Depart-

ment of Corrections, Division of

Adult Institutions, Operating Pro-

Cucmuane Weeey Gear « os sche sac cukesss 68a

TABLE OF AUTHORITIES

Page

Cases

Bell v. Wolfish, 441 U.S. 520 (1979) ............. 8, 9, 14

Bethel School District No. 403 v. Fraser, 478 U.S. 675

CRN nice 5 43 Viens oie Bhp dk ESR ed ee bee h eaeae 16

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

Blount wu Rize, 400 US: 420 CIS7E) «oct vcccccwns tsar 20

Broadrick v. Oklahoma, 413 U.S. 601 (1973) ........... 26

Cofone v. Manson, 409 F. Supp. 1033 (D. Conn.

ROU co ccc El retvevcadiaceteverdasuonsoenss passim

Denver Area Educational Telecommunications Consor-

tium, Inc. v. F.C.C., 64 U.S.L.W. 4706 (June 28,

TOOG) 6 ook c ku aaanduw ci puaedanceceeee peceaeseeeaal 15

FCC v. Pacifica Foundation, 438 U.S. 726 (1978)....... 15

Freedman v. Maryland, 380 U.S. 51 (1965) .........--. 20

Ginsberg v. New York, 390 U.S. 629 (1968).....----.-- 15

Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260

CRIID ona ss tana ws ny consvie bee Se cannes eieeeeeeeae es 16

Hodges v. Commonwealth, 871 F. Supp. 873 (W.D.

Win. TOPE oo vec ba ee cetenecvockarcueanertnnetnenstias 1

Houchins v. KQED, Inc., 438 U.S. 1 (1978) ....... aéeee 8

Jones v. North Carolina Prisoners’ Labor Union, Inc.,

433 U.S. 119 (1977) ..ocvccccccccescccecesseses passim

Kentucky Dept. of Corrections v. Thompson, 490 U.S.

B54 C909) Bric cc ta Ge vies eeead eve bucapecsen ees 5

Lawson v. Dugger, 840 F.2d 781 (11th Cir. 1987)...... 18

Lewis v. Casey, 64 U.S.L.W. 4587 (June 24, 1996)..... 26

TABLE OF AUTHORITIES - Continued

Page

Los Angeles v. Lyons, 461 U.S. 95 (1983)..........-.... 27

Martin v. Kelley, 803 F.2d 236 (6th Cir. 1986) ........ 19

Massachusetts v. Oakes, 491 U.S. 576 (1989)........... 16

Mathews v. Eldridge, 424 U.S. 319 (1976)......... passim

Miller v. California, 413 U.S. 15 (1973) ........... passim

Montcalm Publishing Corp. v. Beck, 80 F.3d 105 (4th

A Ber eter pera y pa ee RECN eee 1

New York v. Ferber, 458 U.S. 747 (1982).............. 15

Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973) .... 13

Pell v. Procunier, 417 U.S. 817 (1974) ........... 7, 8, 14

Preiser v. Newkirk, 422 U.S. 395 (1975).. cen teeeereees 25

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

Rhodes v. Chapman, 452 U.S. 337 (1981)............... 5

nizzo 0. Goode, 423: US... 362 GFE «cds inca scetenses 26

Saxbe v. Washington Post Co., 417 U.S. 843 (1974) ...7, 8

Secretary of the State Maryland v. J. H. Munson Co.,

SBT UB SEF CGS «isso on tntennkss een hecures 25

Southeastern Promotions, Ltd. v. Conrad, 420 U.S.

DOO (EGF co iis Scien s Heese ee net athe 20

Steffel v. Thompson, 415 U.S. 452 (1974).............. 25

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

Trudeau v. Wyrick, 713 F.2d 1360 (8th Cir. 1983)...... 19

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

Vii

TABLE OF AUTHORITIES - Continued

Page

Wolff v. McDonnell, 418 U.S. 539 i | PPP rarer re 5

Warth v. Seldin, 422 U.S. 490 (1975) ........-22- eee 25

FEDERAL STATUTES AND RULES

. Boke ode B's | ee rerrre rrr? Tr rere rr crake 1

, Bil tat Ber EP ererrrerr ys rrr rir oti y 2

<i tame @, Re erowrery ee ey Parr eT rer oy try t 2

Supreme Court Rule 10..........----seeeeeeeeeeeee 5, 6

CONSTITUTIONAL PROVISIONS

8, A rer ee ee rer eT eEsy eee ee eee passim

eee NE EET AO POC E OO GES Ley 1

OTHER AUTHORITIES

VDOC Division Operating Procedure 852........ passim

OPINIONS BELOW

Hodges v. Commonwealth, 871 F. Supp. 873 (W.D. Va.

1994) reprinted in the Appendix, (App. herein), 13a;

Montcalm Publishing Corp. v. Beck, 80 F.3d 105 (4th Cir.

1996) reprinted in the Appendix, App. 1a. Order Denying

the Petition for Rehearing with Suggestion for Rehearing

En Banc, filed April 30, 1996, reprinted in the Appendix,

App. 64a.

JURISDICTION

The Fourth Circuit decision was reached on April 2,

1996; the Petition for Rehearing with Suggestion for

Rehearing En Banc was denied on April 30, 1996. This

Court has jurisdiction of this appeal under 28 U.S.C.

§ 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The First Amendment to the United States Constitu-

tion provides in pertinent part:

Congress shall make no law .. . abridging the

freedom of speech, or the press... .

The Fourteenth Amendment to the United States

Constitution provides in pertinent part:

Nor shall any State deprive any person of life,

liberty, or property, without due process of

law....

42 U.S.C. § 1983 provides in pertinent part:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage of any

State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of

the United States or other person within the

jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the

party injured in an action at law, suit in equity,

or other proper proceeding for redress.

STATEMENT OF THE CASE

Two Virginia Department of Corrections (“VDOC”)

inmates commenced this 42 U.S.C. § 1983 proceeding pro

se by filing separate actions challenging the denial of

multiple issues of Gallery magazine, a publication that

consistently contains graphic descriptions of sexual inter-

course. Jurisdiction was predicated upon 28 U.S.C.

§ 1331. The district court denied summary judgment and

referred the matter to a magistrate judge for an evidenti-

ary hearing. After the cases had been consolidated for

trial, the Respondent herein, Montcalm Publishing Cor-

poration (“Montcalm”), intervened and filed its own

Complaint.

Montcalm’s Complaint echoed the inmates’ challenge

to the prison officials’ repeated decisions to disallow

Gallery for receipt into Virginia’s prisons. Touting Gal-

lery’s literary content, Montcalm contested the facial val-

idity of the VDOC regulation governing inmate receipt of

publications because the regulation failed to incorporate

all prongs of the Miller v. California, 413 U.S. 15 (1973),

test for obscenity. Montcalm also challenged the constitu-

tionality of the particularized decisions to disallow var-

ious issues of Gallery into Virginia’s prisons, because,

allegedly, inconsistent decisions had been reached under

the regulation with respect to Gallery and other sexually

explicit publications. These legal questions have been

decided adversely to the inmates and Montcalm, and are

no longer a part of this case.

The only issue Montcalm raised that has survived the

proceedings below is a challenge to the facial validity of a

prison regulation governing receipt of publications where

the regulation does not provide for notice to the pub-

lisher of a magazine disallowed for receipt, as well as an

administrative opportunity for the publisher to challenge

such decisions. The magistrate judge, having completely

validated the VDOC’s decision to prohibit for inmate

receipt approximately 15 consecutive monthly issues of

Gallery, nonetheless recommended that the district court

require the VDOC to notify publishers of magazines dis-

approved for receipt within Virginia’s prisons, and to

further require the VDOC to afford the publisher an

opportunity to contest the decision.

The inmates and the defendants objected to the mag-

istrate judge’s report and recommendation. Montcalm did

not. The district court agreed with the magistrate judge in

all respects, except as to notice and opportunity to

respond. The court readily recognized that a magazine

publisher does not occupy the same position as does the

sender of a personal letter. Accordingly, the court found

the individualized notice requirement of Procunier v. Mar-

tinez, 416 U.S. 396, 417-18 (1974), overruled on other

grounds by Thornburgh v. Abbott, 490 U.S. 401 (1989), inap-

posite. Believing itself bound by language in Abbott, 490

U.S. at 408, that seems to recognize a First Amendment

interest of publishers in communicating with willing

inmate subscribers, the trial court analyzed what process

is due a publisher when a magazine is not allowed inside

a state prison. The court balanced the limited First

Amendment interest it found the publisher had with the

unique interest the state has in running its prisons, and

found that the notice already provided the affected

inmate was adequate to protect the publisher’s interest as

well. In reaching that decision, the court employed the

three-part test for due process established in Mathews v.

Eldridge, 424 U.S. 319 (1976), and found that the VDOC

regulation did not pose an undue risk of depriving Mont-

calm or other publishers of any First Amendment inter-

est. Any additional procedures, the court determined,

would not provide a necessary safeguard missing from

the regulation, but rather would be duplicative of safe-

guards already available through notice to the inmate.

The court concluded its analysis by finding that the

VDOC would incur substantial financial and administra-

tive burdens if it were required to provide publishers

individualized notice and an opportunity to respond.

Only Montcalm appealed, challenging the district

court’s decision with respect to a notice requirement. The

Fourth Circuit, characterizing the issue solely as a legal

one, reversed and remanded with instructions to the dis-

trict court to determine appropriate process for pub-

lishers. Recognizing the 20 year old decision in Cofone v.

Manson, 409 F. Supp. 1033 (D. Conn. 1976), as the only

case ever to find a constitutional requirement of pub-

lisher notice, the court of appeals declined to follow this

Court’s decision in Jones v. North Carolina Prisoners’ Labor

Union, Inc., 433 U.S. 119, 130-31 (1977), characterizing this

Court’s First Amendment rule in Jones with respect to

prison bulk mailings as “barely implicated” in this case.

Instead, the court decided, a publisher of a magazine,

including one containing obscene descriptions of sex acts

which has been properly disallowed for receipt into

prison, stands on a footing essentially equal to a sender

of a personal letter. Without discussing this Court's

Mathews v. Eldridge, 424 U.S. 319 (1976), due process

analysis upon which the district court had relied, the

court of appeals found that Montcalm had a constitu-

tional entitlement to individualized notice and an oppor-

tunity to respond.

The VDOC, through its Director, requests this Court

to grant certiorari to reverse the decision of the court of

appeals.

REASONS FOR GRANTING THE WRIT

This Court should grant review of the judgment of

the court of appeals because this case presents questions

of substantial importance for prison administration

throughout the country. Sup. Ct. R. 10.1(c); Rhodes v. Chap-

man, 452 U.S. 337, 344 (1981) (“We granted the petition for

certiorari because of the importance of the question to

prison administration.”); accord Kentucky Dept. of Correc-

tions v. Thompson, 490 U.S. 454, 459 (1989); Wolff v. McDon-

nell, 418 U.S. 539, 542 (1974). The decision of the court of

appeals conflicts with prior opinions of this Court man-

dating substantial judicial deference to state prison

administrators, and holding that First Amendment rights

are properly limited in the prison setting. Sup. Ct. R.

10.1(c). The decision of the court of appeals also departs

from the accepted and usual course of judicial proceed-

ings, in that it reaches to decide a federal question when

there was no longer a live case or controversy. Sup. Ct. R.

10.1(a).

I. A COMMERCIAL PUBLISHER OF GRAPHIC POR-

NOGRAPHY HAS NO INTEREST PROTECTED BY

THE FIRST AMENDMENT IN SELLING AND DIS-

TRIBUTING ITS PRODUCT TO STATE PRIS-

ONERS, SUCH THAT DUE PROCESS REQUIRES

THE STATE TO PROVIDE INDIVIDUAL NOTICE

AND AN OPPORTUNITY TO RESPOND WHEN

ITS PUBLICATION IS WITHHELD FROM AN

INMATE SUBSCRIBER

The failure of the court of appeals to consider the

graphic sexual character of Gallery magazine when it

formulated a constitutional right to publisher notice

should cause this Court to accept review of this case to

correct the error of the court below. Virginia and those

other states compelled to follow this decision now find

themselves bound, as a matter of constitutional law, to

incur substantial additional financial and administrative

burdens to provide commercial purveyors of hard core

pornography notice and opportunity to respond when

they have no legitimate constitutional expectation that

their product will be admitted within prison walls. The

effect of the court of appeals’ decision is certain to spread

to other circuits, needlessly inviting federal judicial

entanglement in a heretofore unrecognized constitutional

arena. The court of appeals committed undoubted error,

and its judgment should be reversed.

A. Publisher First Amendment Interests Are

Severely Restricted In The Prison Setting

This Court has never expressly held that publishers

wishing to communicate with state prisoners have a First

Amendment right to do so. Those few decisions suggest-

ing that publishers have a First Amendment right in the

prison setting have assumed the right to exist. To the

extent that this Court’s precedent recognizes such a First

Amendment right to communicate with state prisoners,

the right is properly viewed as a de minimis interest which

must bow to legitimate penological concerns.

In Procunier v. Martinez, 416 U.S. 396 (1974), the first

significant case discussing First Amendment rights in the

prison context, this Court held that the author of a per-

sonal letter written to an inmate has some First Amend-

ment right to communicate to the inmate, and is therefore

entitled to notice if his letter is rejected for receipt into

the prison. 416 U.S. at 417-19. The Martinez court

expressly reserved judgment as to whether mass mailings

were entitled to the same constitutional protection as

individual correspondence, 416 U.S. at 408, n. 11, and did

not opine at all as to whether publishers of graphic sexual

material had any First Amendment interest in peddling

their wares to inmates.

In the companion cases of Pell v. Procunier, 417 US.

817 (1974), and Saxbe v. Washington Post Co., 417 U.S. 843

(1974), this Court upheld California and federal prison

regulations which prohibited face-to-face interviews

between prisoners and members of the news media. Pell

v. Procunier discussed the rights of the inmates. Saxbe

solely involved the rights of the media, as only the news-

paper and reporter brought suit challenging the prison

regulations. Both cases articulated the principle that the

media has no special right of access to prisoners beyond

that afforded to the general public. Pell, 417 U.S. at 834;

Saxbe, 417 U.S. at 849. This principle was affirmed a few

_years later in Houchins v. KQED, Inc., 438 U.S. 1 (1978)

(plurality).

This Court revisited the issue of mass mailings in the

prison context that was reserved in Procunier v. Martinez,

and determined that First Amendment rights to free

speech are “barely implicated” where bulk mailings are

restricted from a prison. Jones v. North Carolina Prisoners’

Labor Union, Inc., 433 U.S. 119, 130-31 (1977). The Jones

decision upheld prison regulations prohibiting the deliv-

ery of packets of Union publications which had been sent

in bulk to several inmates for redistribution among other

inmates. 433 U.S. at 121. This Court found any First

Amendment burden on the Union to be essentially de

minimis and justified by legitimate penological concerns.

433 U.S. at 130-31.!

The decision in Bell v. Wolfish, 441 U.S. 520 (1979),

upheld a federal prison regulation restricting inmates’

receipt of hardback books unless mailed directly from the

1 This Court further found that state prisons are not “public

forums” entitled to any special First Amendment

considerations. 433 U.S. at 134.

YAW WEAN

sh vain hy alte le a ta ‘

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publisher, book club, or book store, and in Block v. Ruther-

ford, 468 U.S. 576 (1984), this Court upheld a prison

regulation banning contact visitation. Both cases manda-

ted deference to the expertise of prison administrators,

finding these regulations to be rational responses to the

concerns of the experts. Bell v. Wolfish, 441 U.S. at 551;

Block v. Rutherford, 468 U.S. at 586.

Turner v. Safley, 482 U.S. 78 (1987), upheld prison

regulations which effectively prohibited prison inmates

from corresponding with one another, unless they were

family members. In so doing, this Court recited the

authority discussed above and stated:

If Pell, Jones, and Bell have not already resolved

the question posed in Martinez, we resolve it

now: when a prison regulation impinges on

inmates’ constitutional rights, the regulation is

valid if it is reasonably related to legitimate

penological interests.

Turner v. Safley, 482 U.S. at 89. The federal courts should

look at several factors to make this determination. The

prison regulation should be objective and neutral, in that

there must be a valid and rational connection between the

regulation and the interest being asserted by the govern-

ment. The courts should examine whether there are alter-

native means of exercising the constitutional right being

asserted, and the impact any accommodation of the

asserted right would have on the prison. Finally, the

courts should examine whether there are “ready alterna-

tives” and whether the prison’s response is “exagger-

ated” to determine the reasonableness of the regulation.

482 U.S. at 89-91. A more deferential standard is neces-

sary in the prison setting, as “prison administrators

., and not the courts, [are] to make the difficult

judgments concerning institutional operations.” 482 U.S.

at 89, citing Jones v. North Carolina Prisoners’ Union, Inc.,

433 U.S. at 128.

This Court subsequently upheld federal prison regu-

lations which banned publications upon the warden’s

finding that the publication was “detrimental to the secu-

rity, good order, or discipline of the institution or if it

might facilitate criminal activity.” Thornburgh v. Abbott,

490 U.S. 401, 404 (1989). This Court yet again affirmed the

principle that, while prison walls do not automatically

extinguish the First Amendment rights of prisoners or

persons seeking to communicate with prisoners,

we have been sensitive to the delicate balance

that prison administrators must strike between

the order and security of the. internal prison

environment and the legitimate demands of

those on the “outside” who seek to enter that

environment, in person or through the written

word. Many categories of noninmates seek

access to prisons . . . yet prison officials may

well conclude that certain proposed interac-

tions, though seemingly innocuous to laymen,

have potentially significant implications for the

order and security of the prison. Acknowledg-

ing the expertise of these officials and that the

judiciary is “ill equipped” to deal with the deli-

cate problems of prison management, this Court

has afforded considerable deference to the

determinations of prison administrators who, in

the interest of security, regulate the relations

between prisoners and the outside world.

Abbott, 490 U.S. at 407-08 (citations omitted). The Abbott

decision adopts the deferential Turner v. Safley test as

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applicable, even though noninmates were affected by the

regulation. This Court expressly rejected the Martinez

test, which had required a “tighter fit” between the chal-

lenged regulation and the government interest asserted.

Abbott overruled Martinez to the extent it suggested a less

deferential test would apply to incoming publications. To

the extent Martinez survives at all, it applies only to

personal correspondence from prisoners to persons out-

side the prison. 490 U.S. at 413-14.

Abbott assumed that publishers generally had a First

Amendment right to communicate with inmates who

were “willing recipients” of their publications, 490 U‘S. at

408, but did not discuss the scope of this First Amend-

ment interest. The court of appeals in this case has effec-

tively equated the interest of publishers of magazines

with that of the senders of personal correspondence, sug-

gesting that the due process protections for both are the

same. The VDOC urges this Court to grant review of this

case and determine that First Amendment rights of pub-

lishers to communicate with prisoners are de minimis, see

Jones, 433 U.S. at 130-31, and thus procedural due process

is barely implicated, and certainly does not mandate indi-

vidualized notice to the publisher and a right to be heard.

B. A Publisher Of Graphic Pornography Cannot

Have An Expectation Of Constitutional Protec-

tion To Disseminate Its Obscene Materials

Inside A Prison

Montcalm has never suggested that Gallery, or any

particular issue of Gallery, does not violate the VDOC

regulation on obscenity. Montcalm instead repeatedly

urged the court below to rule that DOP 852 was not

facially constitutional because it did not precisely track

the Miller v. California, 413 U.S. 15, 24 (1973), definition of

obscenity, a requirement allegedly compelled by the regu-

lation’s reference to “obscenity criteria.” Under Miller, an

utterance or expression is not protected by the First

Amendment where a normal person applying contempor-

ary community standards would find that the work,

taken as‘a whole, appeals to a prurient interest in sex; the

work depicts or describes sexual conduct in a patently

offensive way; and the work, taken as a whole, lacks

serious literary, artistic, political, or scientific value. 413

U.S. at 24. The trial court correctly rejected Montcalm’s

argument on this issue, noting that the VDOC was not

required to follow the Miller v. California definition, and

that the proper constitutional test for a prison regulation

limiting receipt of publications had been articulated in

Abbott.

The VDOC cannot be required to follow the Miller v.

California standard, because prison officials need not eval-

uate the publication “taken as a whole” to determine

whether it has value despite the sexually explicit content.

Compare Abbott, 490 U.S. at 407-12, 418-19; Miller v. Cali-

fornia, 413 U.S. at 24. It cannot be and has not been

disputed, however, that the VDOC regulation at issue in

this case tracks the Miller v. California test for obscenity,

except that the VDOC is not required to evaluate the

publication “taken as a whole” under community stan-

dards. Id.

The explicit sexual nature of the letters contained in

the “Feedback” section of every issue of Gallery prompted

the VDOC to conclude that Gallery violated its obscenity

BA RA Se LE oe GE ING

Pcie nD ALANS OM ee SN A WS

ee A ee eR

criteria for publication disapproval. App. 35a; see App.

74a (VDOC Division Operating Procedure (“DOP”)

852.VIII.D). These letters are, without question, devoid of

any ideas that have an entitlement to constitutional pro-

tection. The district court conclusively determined that

the “Feedback” section of Gallery graphically and offen-

sively depicts sexual activity and sexual intercourse, and

“a reasonable person viewing the material as a whole

would ostensibly conclude that it appeals to a prurient

interest in sex.” App. 52a. The letters themselves are

clearly obscene and, viewed apart from the rest of the

magazine, would be entitled to no First Amendment pro-

tection in free society. See Miller v. California, 413 U.S. 15

(1973); Paris Adult Theatre | v. Slaton, 413 U.S. 49 (1973).2

* With our apologies to the Court, we believe a brief excerpt

from just one of the “Feedback” letters conclusively

demonstrates the obscene nature of the material that is each and

every month interspersed throughout Gallery magazine.

Darting my tongue out, I licked the soft inner

flesh of my wife’s pussy. Carol reached down to

spread her lips to give me access. Exquisite pleasure

flowed through me as Sandy’s mouth encompassed

my spent prick. The more she sucked and licked my

cock, the more active my tongue became on the clit I

was teasing.

After I licked my wife to orgasm, she moved off

my face to kneel on the bed so I could fuck her doggie

style. At first, Sandy watched us, but it got too much

for her to take. Moving between my legs, with her

head beneath my crotch, she rose so she could lick my

balls as my hard cock thrust into Carol’s wet cunt-

tunnel. On each backward motion of my thick shaft,

her tongue would lave the juices my cock had pulled

out of my wife’s juicy slit.

This Court has repeatedly determined, where the

audience is comprised of prisoners, that the scope of the

First Amendment right at issue is narrow. See Thornburgh

v. Abbott, 490 U.S. 401, 407-12 (1989); Bell v. Wolfish, 441

U.S. 520, 545-48 (1979); Jones v. North Carolina Prisoners’

Labor Union, Inc., 433 U.S. 119, 129-33 (1977); Pell v. Pro-

cunier, 417 U.S. 817, 822-28 (1974); Procunier v. Martinez,

416 U.S. 396, 408-13 (1974). While this Court has never

articulated a standard of obscenity for prisons, it has

repeatedly articulated special considerations in First

Amendment jurisprudence where children are in the

Trial testimony conclusively proved the detrimental impact

that prisoner possession of such material has upon security and

rehabilitation efforts. App. 44a-45a. This type of material is used

by inmates to harass female employees, is mailed by inmates to

“unwilling recipients” on the outside, and is also used as

valuable barter amoung inmates. Considerable staff time is

diverted from security and administrative tasks to try and

police the possession of this contraband, thereby increasing the

already difficult job of running a safe and effective prison. The

sex acts so vividly described as something the reader should

also desire actually violate Virginia’s criminal proscription of

fornication, as well as anal and oral intercourse, further eroding

the already low respect these felons have for the criminal law.

Perhaps most telling is the adverse impact of the material

on efforts to rehabilitate the many sex offenders behind prison

walls. These lurid fantasies perpetuate the myth that women

want to be utilized sexually by men; it demeans the victims of

the assaults by sexual predators through depiction of women as

willing recipients of every sex act imaginable. See also App. 21a

(referencing empirical studies in support of this conclusion). We

would be remiss if we failed also to point out the testimony

about the concern that possession of the material may increase

the number of sexual assaults by prisoners against one another,

as well as female staff.

audience. These cases are instructive on the issue as it

applies to prisons.

In Ginsberg v. New York, 390 U.S. 629 (1968), this

Court articulated the “variable obscenity” doctrine, find-

ing a more flexible approach to the term “obscenity”

appropriate where children are in the audience. Ginsberg

affirmed a statute banning the sale of sexually oriented

material to minors, even though the material (1) was not

“obscene”; (2) was entitled to First Amendment protec-

tion with respect to adults; and (3) was available to

adults. Subsequently, in FCC v. Pacifica Foundation, 438

U.S. 726 (1978), the Court held that the FCC has power to

regulate a radio broadcast which is “indecent” but not

“obscene,” because children are reasonably presumed to

be present in the early afternoon audience. This principle

was most recently re-affirmed in Denver Area Educational

Telecommunications Consortium, Inc. v. F.C.C., 64 U.S.L.W.

4706 (June 28, 1996).

Criminal statutes prohibiting the distribution of

materials depicting children engaged in sexual activity

have been upheld, even though the activity depicted may

not satisfy the Miller v. California obscenity test. New York

v. Ferber, 458 U.S. 747 (1982). Such depictions of children

engaged in sex acts are not protected by the First Amend-

ment; the Miller v. California test is inappropriate and

needs to be adjusted for this context. In particular, Ferber

rejected precisely those aspects of the Miller v. California

test which the VDOC declined to incorporate into its

regulation: the inquiry whether the sexual conduct was

portrayed in a patently offensive manner, and the

requirement to review the material “taken as a whole.”

et ee cee eee

458 U.S. at 764-65. The state’s legitimate interest in pro-

tecting the physical and psychological welfare of minors

has to be balanced against any de minimis interest in

permitting this form of expression. While statutes prohib-

iting this type of expression may not be overbroad, see

Massachusetts v. Oakes, 491 U.S. 576 (1989), the definition

of obscenity is appropriately adjusted to meet the govern-

ment’s legitimate interests.

Similarly, in Bethel School District No. 403 v. Fraser, 478

U.S. 675 (1986), this Court held that a fourteen year old

had no First Amendment protection that attached to

“lewd,” “indecent,” and “offensive” speech directed at an

audience of his student peers. The Court deferred to the

schools to preserve the values of “a civilized social

order,” and found that the school could prohibit this

speech without affronting the First Amendment, even

though there was no finding that the speech was

“obscene.” 478 U.S. at 683, 685. This Court subsequently

adopted a deferential standard of evaluating school regu-

lation over the style and content of student speech in

school-sponsored activities. Hazelwood School Dist. v.

Kuhlmeier, 484 U.S. 260, 272-73 (1988). In Hazelwood, this

Court upheld the censorship of two articles written for

the student newspaper, one article concerning teenage

pregnancy, and another concerning divorce. 484 U.S. at

274-75. The standard articulated by this Court for the

school setting is strikingly similar to the standard articu-

lated in Turner v. Safley for the prison setting. Educators

may regulate speech “so long as their actions are reason-

ably related to legitimate pedagogical concerns.” 484 U.S.

at 273. This standard was adopted in recognition of the

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deference owed to state and local school officials by the

federal courts. Id.

The court of appeals never addressed the VDOC’s

argument that Gallery magazine, by graphically depicting

sexual acts of intercourse in every issue without excep-

tion, is legally obscene for purposes of receipt into Vir-

ginia state prisons. By ignoring this argument, the court

could not properly address the procedural due process

issue, as will be discussed further below. The VDOC

urges this Court to grant review of this case, to determine

that the definition of legal obscenity may be adjusted in

the prison context, and to find that, where the material is

obscene in a prison setting, due process requires nothing

beyond the procedures the district court found the regu-

lation already provides.

C. The Fundamental Error In Requiring Individu-

alized Notice To Publishers Wrongly Interposes

The Federal Judiciary Into The Operation Of

State Prisons

It is “sentimental hallucination” to hold freedom of

speech so sacrosanct that any publisher seeking access to

a state prison as a forum for expressive activity could

invoke the power of the federal court to cut himself a

pass key to the state prison’s gate, regardless of the

content of his publication. It is an equal jurisprudential

absurdity that a publisher may - by asserting a right to

utter obscenity to Virginia’s prisoners, and despite the

fact that the federal courts have conclusively resolved

that the publication is appropriately disallowed - compel

prison administrators to provide it with notice and an

opportunity to be heard each and every time its obscene

matter is disallowed for receipt. Yet this is the result of

the lower court’s decision.

Putting the obscene nature of Gallery magazine to one

side, the requirement of individualized notice to any

publisher wrongly increases the expense and burdens of

prison administration, as the district court correctly

found, and also creates a heretofore unrecognized basis

for federal judicial supervision of state prisons. The lower

court did virtually no analysis to conclude that individu-

alized notice and an opportunity to be heard was neces-

sary to adequately protect the limited First Amendment

interests at stake. The notice and opportunity the VDOC

already provides to the intended inmate recipient satis-

fies any due process protection a publisher might be

owed.

The court of appeal’s holding that magazine pub-

lishers have a First Amendment right protected by indi-

vidualized notice and opportunity to respond represents

a case of first impression in the federal circuits. The only

other circuit court decision on the subject is dicta in an

Eleventh Circuit case expressing “concern” that a Florida

Department of Corrections review procedure did not

“provide notice and opportunity to the sender [a pub-

lisher] to protest the exclusion, and the reasons for the

exclusion.” Lawson v. Dugger, 840 F.2d 781, 786-87 (11th

Cir. 1987), vacated, 490 U.S. 1078 (1989), on remand, 897

F.2d 536 (11th Cir. 1990), on remand, 844 F. Supp. 1538

(S.D. Fla. 1994). The district court ultimately determined

that Florida’s revised review procedures were substan-

tially similar to the Bureau of Prisons’ regulations at issue

in Abbott, and thus there was no reason to question the

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necessity or the adequacy of the procedural protections.

844 F. Supp. at 1543-45.

The appeals court’s decision recognizes the paucity

of case law on the subject of whether a publisher seeking

to communicate to prisoners has a First Amendment right

protected by procedural due process, App. 9a, referenc-

ing two cases that admittedly had nothing whatever to do

with publishers, but instead plainly involved the Mar-

tinez set of facts. Ultimately, the only arguable case on

point the cour! could cite was Cofone v. Manson, 409 F.

Supp. 1033 (D. Conn. 1976). The trial court in Cofone

applied the Procunier v. Martinez test to incoming publica-

tions in a prison setting, reasoning almost inconceivably

that publications as a general rule present less of a threat

to prison security and good order than does personal

correspondence. 409 F. Supp. at 1039. Cofone goes even

further than applying strict scrutiny to the censorship of

incoming publications in prisons by suggesting that a

“clear and present danger” test applies in this context,

409 F. Supp. at 1040, reasoning that was squarely and

soundly rejected in Abbott, 490 U.S. 401. Rather, as this

Court in Abbott held, incoming publications pose more of

a security risk to prisons than does personal correspon-

dence. 490 U.S. at 411-12, n. 10.

Although the absence of precedent does not mean

that the lower courts have incorrectly found due process

procedures generally applicable, a fundamental error was

committed when the court identified individualized

3 Martin v. Kelley, 803 F.2d 236, 243-44 (6th Cir. 1986);

Trudeau v. Wyrick, 713 F.2d 1360 (8th Cir. 1983).

notice as the mandated process. The court of appeals

failed to recognize the circumscribed nature of any First

Amendment interest asserted by Montcalm, and failed to

recognize the purposes of the process to be provided.

Where the government seeks to restrain speech in

free society, procedural due process requires no more

than a prompt procedure to determine whether the

speech may be limited in conformity with First Amend-

ment principles. Southeastern Promotions, Ltd. v. Conrad,

420 U.S. 546 (1975); Blount v. Rizzi, 400 U.S. 410 (1971).

For example, in Freedman v. Maryland, 380 U.S. 51 (1965),

this Court held that if a filmmaker is subjected to a

licensing system to determine whether his film is obscene

in free society, he is entitled to a prompt and fair pro-

cedure to determine the obscenity. The rationale for pro-

viding procedural due process, within or without prison

walls, is simply to prevent arbitrary and capricious gov-

ernmental denial of an important interest. Procunier v.

Martinez, 416 U.S. at 418. The VDOC regulation already

does that.

Where fundamental due process rights are impli-

cated, three factors are balanced to determine the amount

and nature of procedural safeguards required, articulated

by this Court as follows:

First, the private interest that will be affected by

the official action; second, the risk of an erro-

neous deprivation of such interest through the

procedures used, and the probable value, if any,

of additional or substitute procedural safe-

guards; and finally, the Government's interest,

including the function involved and the fiscal

and administrative burdens that the additional

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or substitute procedural requirement would

entail.

Mathews v. Eldridge, 424 U.S. 319, 335 (1976).

As has been discussed above, to the extent that Mont-

calm has any First Amendment interest in sending Gallery

magazine to Virginia inmates, it is undeniable that this

interest is severely limited by the nature of the prison

setting. The district court conclusively determined that

the VDOC has numerous legitimate penal reasons to keep

magazines such as Gallery out of Virginia’s prisons, see

note 2 supra, and that the VDOC regulation at issue is

rationally related to these stated reasons. Furthermore,

the district court has conclusively found that the VDOC

has lawfully and properly applied its prison regulation to

Gallery magazine based upon the obscene “Feedback”

section of the magazine. These conclusions are unassail-

able, and in any event were not appealed by Montcalm.

Montcalm relies heavily, as it must, on the language

of Abbott suggesting that publishers have some First

Amendment interest in communicating their materials to

prisoners. The language upon which Montcalm relies,

however, squarely suggests that the publisher’s interest is

limited to communication with those inmates who wish

to receive the communication. 490 U.S. at 408. As the

district court properly recognized, the publisher’s right

to communicate with an inmate can be no greater than

the inmate’s right to receive that communication. If the

inmate, however, is so uninterested in Gallery that he

chooses not to challenge its disapproval, Montcalm can

scarcely be heard to claim that it has been denied commu-

nication with a “willing recipient.” Conversely, if the

inmate chooses to contest the denial, both he and Mont-

calm will have received a further review, at the inmate’s

behest, by a party other than the person who initially

found the magazine improper under the regulatory cri-

teria.

With regard to the second factor of the Mathews v.

Eldridge analysis, Montcalm cannot show that notice and

an opportunity to be heard will protect its rights any

better than the current procedure. 424 U.S. at 335. In the

first instance, the regulation provides for automatic

review by the VDOC’s Publications Review Committee

(“PRC”) whenever a decision is made at the institutional

level not to allow a magazine for inmate possession. DOP

852.VIII.C.1; App. 73a. Additionally, the inmate can uti-

lize the inmate grievance procedure to appeal both the

initial institutional decision, as well as any subsequent

action of the PRC confirming that determination. DOP

852.VII.D.1-2; App. 71a. The regulation thus already pro-

vides at least four layers of administrative review, includ-

ing one automatic layer of review that does not even

depend upon the inmate’s request. The purpose of a

further review is not to entertain arguments as to why the

publication should be allowed, but simply to make sure

that, under the regulatory definition, there has not been a

mistake. That is all that due process could possibly

require where First Amendment rights are so limited,

especially where the regulation has been determined to

be constitutionally valid.

The VDOC has a significant administrative interest in

limiting the burdens which would result from providing

magazine publishers with notice and an opportunity to

be heard. The VDOC reviews magazines issue by issue,

and there is significant evidence on the record regarding

the sheer volume of magazines which are reviewed at

VDOC institutions. Additionally, the regulation already

affords multiple layers of review. As the district court

correctly found, providing Montcalm with notice and an

opportunity to be heard every time its magazine is disal-

lowed would increase administrative expense, at the very

least in terms of postage, copying costs, and additional

labor, without adding any protection that the regulation

does not already provide. In addition, the judgment of

the court of appeals places an unnecessary strain upon

the relationship between the federal judiciary and state

prison administrators. The balance of interests simply do

not mitigate in favor of providing publishers, including

Montcalm, with individualized notice and an opportunity

to be heard when their publications are disapproved for

receipt into state prisons.

Il. MONTCALM’S FAILURE TO CHALLENGE THE

JUDICIAL DETERMINATION THAT GALLERY

MAGAZINE IS PROPERLY EXCLUDED FROM

VIRGINIA’S PRISONS REMOVED THIS CASE

FROM THE SCOPE OF ARTICLE III JURISDIC-

TION, THUS WARRANTING REVERSAL OF THE

JUDGMENT BELOW

The magistrate judge’s report and recommendation

completely validated the VDOC decision to bar Gallery

magazine from Virginia’s prisons, noting that “[p]laintiffs

do not argue that Gallery does not violate DOP 852.” App.

52a. In fact, every monthly issue of Gallery published

from September 1992 up to the December 1993 court

hearing had been disapproved because of the magazine's

vivid descriptions of sexual intercourse of every nature

imaginable. App. 35a. Even several issues that had been

admitted into prison before September 1992 were, upon a

better review, found violative of the regulation. App.

34a-35a. Nonetheless, because the regulation provided for

regular reviews, rather than simply an outright ban of

Gallery, the magistrate judge recommended that the dis-

trict court require the VDOC to provide Montcalm notice

and an opportunity to protest each and every time the

VDOC disallows an issue of Gallery into Virginia’s

prisons. App. 54a-56a; 62a.

The district court rejected the inmates’ objections to

the report and recommendation, but found that the

VDOC already afforded Montcalm adequate notice. Not-

ing the diminished First Amendment interest a publisher

has vis-4-vis inmate subscribers, the court found that the

process afforded the inmates adequately protected the

publisher’s interest as well.

The ability of Hodges and Flora, and other sub-

scriber inmates, to challenge any decision to

withhold a publication from them safeguards

the First Amendment interests of both the sub-

scriber inmates and the publishers. The addi-

tional procedural safeguards outlined by the

magistrate judge would duplicate process and

substantially increase administrative and fiscal

burdens for the VDOC. In sum, the value of the

extra procedures fails to justify the onerous bur-

den they would create. The Constitution does not

require them.

App. 27a (emphasis added).

Only Montcalm appealed. The court of appeals,

apparently equating the publisher’s First Amendment

interest to that of a mother writing her son in prison,

App. lla, found the procedures generally outlined in

Procunier v. Martinez, 416 U.S. 396 (1974), overruled in part

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

and instructed the district court to make “a determination

of the appropriate process to be provided to publishers of

rejected publications.” App. 12a. The appeals court's

determination to plow ahead and adjudicate the notice

issue in the absence of a then existing case or controversy

is so far afield of the acceptable and usual course of

judicial proceedings as to necessitate the exercise of this

Court’s supervisory power. Sup. Ct. R. 10.

An elementary notion of Article III jurisdiction is that

a case or controversy must exist at every stage of review.

Preiser v. Newkirk, 422 U.S. 395, 401 (1975); Steffel v.

Thompson, 415 U.S. 452 (1974); see generally Secretary of the

State of Maryland v. J. H. Munson Co., 467 U.S. 947 (1984);

Warth v. Seldin, 422 U.S. 490 (1975). Once a final judicial

determination had been made that the VDOC effectively,

and correctly, banned Gallery from Virginia’s prisons - an

issue that became final when the inmates and Montcalm

failed to appeal the district court’s judgment on that issue

~ no case or controversy existed any longer.

* The court of appeals perhaps intended to suggest that

Montcalm has standing to prosecute the notice challenge on

behalf of all publishers. But if Montcalm itself does not

demonstrate actual injury at every stage of the proceeding, the

question of its jurisprudential standing will not be addressed.

See generally Secretary of the State of Maryland v. ]. H. Munson Co.,

supra; Warth v. Seldin, supra. We additionally note that Montcalm

has never purported to stand in any shoes but its own.

The requirement of a live case or controversy

becomes perhaps even clearer when the object of a law-

suit is to seek federal judicial intervention against state

and local officials. Rizzo v. Goode, 423 U.S. 362, 378-380

(1976). Federalism principles militate against a grant of

federal equitable relief other than “in the most extraordi-

nary circumstances,” id. at 379, a situation most obviously

absent when the issue at bar has become moot. Despite

this Court’s repeated and pointed articulation of the fed-

eralism interest, this case serves as yet another prime

example of a willingness to subordinate federalism con-

cerns to a federal court’s perceived need to grant equita-

ble relief against state officials. See, for example, Lewis v.

Casey, 64 U.S.L.W. 4587 (June 24, 1996). Requiring the

VDOC to engage in a monthly discourse with Montcalm

about whether one month’s “Feedback” descriptions of

voyeurism, fellatio, cunnilingus, masturbation combined

with voyeurism, lesbian sexual intercourse combined

with voyeurism, “daisy chains,” sexual assault of a victim

depicted as willing, adultery and the condonation of

adultery combined with voyeurism, etc., is more or less

explicit than issues previously disallowed, is fiscal and

administrative unreason of an extremely high order. Yet it

is precisely this senseless and wasteful discourse to

which the Fourth Circuit’s ruling, granting Montcalm

Even where jurisprudential standing is permitted, the cases

are limited to facial overbreadth challenges, which this case

certainly is not. See Broadrick v. Oklahoma, 413 U.S. 601 (1973). We

finally note that even if Montcalm had jurisprudential standing,

its standing is properly limited to publishers of sexually explicit

materials, that being the only portion of the incoming

publications regulation at issue in this case.

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prospective procedural relief, condemns the VDOC.

Gross speculation that Gallery may one day change its

stripes — or, as one of the lower court judges put it,

“become Jack and Jill magazine” — is precisely what this

Court has deemed to be completely inappropriate. See Los

Angeles v. Lyons, 461 U.S. 95 (1983). The Fourth Circuit's

insistence on demanding equitable relief on the broad

issue of publisher notice in the absence of a live case or

controversy demands corrective action from this Court.

CONCLUSION

For the reasons stated above, the Court should grant

the petition for a writ of certiorari to the United States

Court of Appeals for the Fourth Circuit.

Respectfully submitted,

EDwarD Murray, et al.

Petitioners

James S. Gitmore, III

Attorney General

Mark R. Davis

Senior Assistant Attorney General

Counsel of Record

Jit. Bowers

Mary E. SHEA

Assistant Attorneys General

Office of the Attorney General

900 East Main Street

Richmond, Virginia 23219

(804) 786-5631

INDEX TO APPENDICES

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Appendix A_ Decision of the Fourth Circuit Court of

he een cS EEEELE DP PE eee la

Appendix B_ Decision of the District Court for the

: Western District of Virginia.......... 13a

Appendix C Final Judgment of the District Court

for the Western District of Virginia .. 29a

Appendix D Report and Recommendation of the

United States Magistrate Judge...... 3la

Appendix E Order of the Fourth Circuit Court of

Appeals Denying Petition for Rehear-

ing and Suggestion for Rehearing En

ne, SLE E ETE CL OCEANA 64a

Appendix F Constitution of the United States of

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Amonament XIV. . 2.0.0... cccrcsces 66a

én cement TS. . eee 67a

Appendix H Commonwealth of Virginia Depart-

ment of Corrections Division of Adult

Institutions Operating Procedure

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APPENDIX A

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MONTCALM PuBLISHING CORPORATION, )

Plaintiff-Appellant, )

and

Donatp Artis Hopces; MICHAEL

GLYNN FLora,

Plaintiffs,

R.J. Beck; J. Horton; R.A. Younc;

E.C. Morris; Ms. SumMMers; Epwarp )

Murray, in his official capacity as )

Director of the Department of

Corrections of the Commonwealth )

of Virginia; John Doe, 1-7, in )

their official capacities such

fictitious names being designated )

to identify those VDOC employees )

whose true identities are now )

unknown to plaintiff-intervenor,

but who serve as (a) members of )

the VDOC Publication Review )

Committee, (2) Warden or

Superintendent of Keen Mountain )

Correctional Center (KMCC), and )

(3) functional KMCC mailroom )

censor; J. PHippin; Mr. Beck; )

)

COMMONWEALTH OF VIRGINIA,

Defendants-Appellees.

)

No. 95-6190

Appeal from the United States District Court

for the Western District of Virginia, at Roanoke,

Samuel G. Wilson, District Judge.

(CA-92-696-R, CA-92-907-R)

Argued: December 8, 1995

Decided: April 2, 1996

Before ERVIN and MOTZ, Circuit Judges, and

WILLIAMS, Senior United States District Judge for the

Eastern District of Virginia, sitting by designation.

Reversed by published opinion. Judge Ervin wrote the

opinion, in which Judge Motz and Senior Judge Williams

joined.

COUNSEL

ARGUED: Keith S. Orenstein, ORENSTEIN & ORENS-

TEIN, P.C., New York, New York, for Appellant. Mark

Ralph Davis, Assistant Attorney General, Criminal Law

Division, OFFICE OF THE ATTORNEY GENERAL, Rich-

mond, Virginia, for Appellees. ON BRIEF: James S. Gilm-

ore, III, Attorney General, Mary E. Shea, Assistant

Attorney General, Criminal Law Division, OFFICE OF

THE ATTORNEY GENERAL, Richmond, Virginia, for

Appellees.

OPINION

ERVIN, Circuit Judge:

A Virginia Department of Corrections (“VDOC”)

Operating Procedure ailows prison authorities to deny

LE ee OT eee Oe ee

inmates access to obscene publications. A publisher of

disapproved magazines appeals the district court’s ruling

that the policy is constitutional in spite of its failure to

provide for notice to such publishers. We hold that pub-

lishers are entitled to notice and an opportunity to be

heard when their publications are disapproved for receipt

by inmate subscribers. Accordingly, we reverse the judg-

ment of the district court.

VDOC Department Operating Procedure (“DOP”)

852 allows prison officials to deny inmates access to

certain written publications, including those deemed

obscene. The rule establishes a procedure by which the

warden or superintendent approves or disapproves pub-

lications “on a case-by-case and/or issue-by-issue” basis.

The warden or his designee reviews all publications

received at the jail and all inmate requests for publica-

tions to determine whether they are permissible. If the

warden deems them disallowed, he must make a written

record, inform the inmate of the decision, and inform the

inmate of the right to appeal. A Publication Review Com-

mittee reviews denials “to ensure department-wide con-

sistency in those publications disapproved for entry into

facilities,” and a list of all disapproved publications is

circulated to all prisons.

The policy specifically defines obscenity:

1. The publication depicts or describes

sexual conduct in such a way to include,

either:

a. Representation or descriptions of

actual sexual intercourse, normal or

perverted, anal or oral; or,

b. Representations or descriptions of

excretion in the context of sexual

activity; and

2. A reasonable person viewing the depic-

tion or representation would find that

the material taken as a whole appeals to

a prurient interest in sex.

A publication may also be disapproved on the grounds

that it has not been received in accordance with pro-

cedure; its content “may be detrimental to the security,

good order or discipline of the institution”; or it contains

instructions on manufacturing weapons or drugs, vio-

lence or terrorist activities, defeating security devices, or

physically disabling another person.

Appellant Montcalm Publishing Corporation pub-

lishes Gallery, a monthly magazine that includes “inter

alia articles, fiction, commentary, photographic layouts of

nude women, and paid advertisements.” Montcalm

claims that Gallery has never been deemed obscene in a

court action to which Montcalm was a party.

Michael Flora and Donald Hodges, inmates at the

Keen Mountain Correctional Center (KMCC), subscribed

to Gallery. When VDOC notified them that they would

not be allowed to receive the June and September 1992

issues, Hodges and Flora initiated pro se civil rights

actions. Prison officials had based their decision to disap-

prove the magazines on some of the written content, not

the nude photographs. Later, two previously approved

issues were disapproved. Montcalm was permitted to

intervene in the prisoners’ action after learning of the suit

by way of Flora’s request for a refund of his subscription

fee.

Magistrate Judge Cynthia Kinser held a hearing, and

issued a Report-Recommendation. She recommended that

judgment be entered in favor of the defendants, except as

to Montcalm’s procedural due process claim. She found

that, although the regulation adequately safeguarded

inmates’ procedural due process rights, the same was not

true as to publishers, who “have no way of knowing

when their publications have been banned from the

prisons.” Magistrate Judge Kinser found that providing

procedural protection to publishers of disapproved pub-

lications would impose a minimal burden on prison

authorities. Moreover, to the VDOC’s argument that

granting injunctive or declaratory relief to Montcalm

would be useless now that the publisher actually has

notice that Gallery violates the regulation, Judge Kinser

held that the policy in fact mandates case-by-case or

issue-by-issue determinations, and that the prisons will

review disapproved publications “again and again.” She

held that, at a minimum, the publisher must be given

notice, the opportunity to protest, and review by a disin-

terested party.

The district court upheld the obscenity regulation,

and determined that Montcalm was not entitled to notice

and an opportunity to be heard. Hodges v. Commonwealth

of Virginia, 871 F. Supp. 873 (W.D. Va. 1994). The court

first found that prison authorities’ decisions to withhold

inmate mail must provide minimum procedural safe-

guards in light of the First Amendment concerns of

inmates and their correspondents. Id. at 878 (citing Pro-

cunier v. Martinez, 416 U.S. 396, 417-18 (1973), overruied on

other grounds by Thornburgh v. Abbott, 490 U.S. 401 (1989)).

The court distinguished the safeguards required in cases

of personal mail from those dealing, as here, with maga-

zines. Id. Analyzing the case under the factors specified

in Mathews v. Eldridge, 424 U.S. 319, 335 (1975), the district

court concluded that “the First Amendment interests of

Montcalm, and similar publishers, are adequately pro-

tected by the procedures outlined in DOP 852.” Id. at

878-80. The court noted that subscriber-inmates can chal-

lenge the decision to withhold a publication, which pro-

tects the First Amendment interests of the publisher, and

concluded that “the value of the extra procedures fails to

justify the onerous burden they would create.” Id. at 880.

Issues of law are reviewed de novo on appeal. Waters

v. Gaston County, N.C., 57 F.3d 422, 425 (4th Cir. 1995).

The Supreme Court has recognized that the First

Amendment plays an important, albeit somewhat limited,

role in the prison context. In Procunier v. Martinez the

Court considered the proper standard of review for

prison regulations that restrict inmates’ freedom of

speech. 416 U.S. 396, 406 (1974). The Court specifically

limited its consideration to regulations of “direct per-

sonal correspondence between inmates and those who

have a particularized interest in communicating with

them,” id. at 408, as opposed to “mass mailings,” for

which “[d]ifferent considerations may come into play,” id.

at n.11. The Court found that censorship of inmate mail —

whether the inmate writes or receives it — “works a

consequential restriction on the First and Fourteenth

Amendment rights of those who are not prisoners.” Id. at

409. The Court held that censorship of prisoner mail is

justified if, first, “the regulation or practice in question| ]

further[s] an important or substantial governmental inter-

est unrelated to the suppression of expression.” Id. at 413.

Second, restrictions of First Amendment free speech must

be “no greater than is necessary or essential to the protec-

tion of the particular governmental interest involved.” Id.

The Martinez Court further held that “the decision to

censor or withhold delivery of a particular letter must be

accompanied by minimum procedural safeguards.” Id. at

417. The Court upheld the district court’s requirements of

notice to the inmate, the opportunity for the letter’s

author (inmate or otherwise) to protest, and review by

someone other than the initial decision-maker. Id. at

418-19.

The Supreme Court clarified the standard to be

applied when addressing the constitutionality of prison

rules in Turner v. Safley.1 482 U.S. 78 (1987). The Court

held that “when a prison regulation impinges on inmates’

constitutional rights, the regulation is valid if it is reason-

ably related to legitimate penological interests.” Id. at 89.

The decision specifically rejected the application of strict

' Turner may have been superseded by the Religious

Freedom Restoration Act, 42 U.S.C.A. §§ 2000bb to 2000bb-4 -

an issue we do not decide. Since no such religious interests are

at stake here, the Turner reasonableness standard governs.

scrutiny, in deference to the judgments of prison adminis-

trators faced with difficult problems. Id. The Court articu-

lated a number of factors to guide the review process: a

“valid, rational connection” between the challenged regu-

lation and the interest that justifies it; “whether there are

alternative means of exercising the right that remain open

to prison inmates”; how accommodation of the prisoners’

right will affect prison staffing and resource allocation;

and whether “ready alternatives” are available. Id. at

89-90 (quotations and citations omitted). The Court

applied these factors and upheld a Missouri prison regu-

lation that prohibited correspondence between inmates in

different prisons, finding it to be based on legitimate

security concerns. Id. at 91.

In 1989 the Supreme Court held that the Turner rea-

sonableness standard must be applied to regulations of

publications. Thornburgh v. Abbott, 490 U.S. 401, 413

(1989). At issue were federal regulations that allowed

federal prisoners to subscribe to publications, but

allowed prison authorities to reject publications deemed

harmful to security, order, or discipline. Id. at 404. The

regulations provided procedural protection, including

notice and independent review. Id. at 406. The Court

specifically limited Martinez to “regulations concerning

outgoing correspondence,” which the Court found to

pose no significant danger inside the prison. Id. at 411-13.

The Court also specifically overruled Martinez to th:

extent that it suggested a “distinction between incoming

correspondence from prisoners . . . and incoming corre-

spondence from nonprisoners.” Id. at 413-14.

ee ee ee e

The Abbott Court explicitly pointed out that the regu-

lations at issue in that case established procedural protec-

tion, including providing the publisher or sender of

rejected publications a copy of the rejection letter and

allowing the publisher to obtain independent review of

the decision. Id. at 406. Three lower courts have similarly

held that those who send written communications to

inmates are entitled to notice and an opportunity to be

heard when those communications are censored or with-

held. In Martin v. Kelley, the Sixth Circuit required that

notice and an opportunity to protest be provided to the

“author of [a] rejected letter,” because the author’s First

Amendment interests are implicated by the rejection, and

the author’s assistance may be necessary for the inmate’s

efforts to challenge the decision. 803 F.2d 236, 243-44 (6th

Cir. 1986). The Eighth Circuit reached a similar decision

in Trudeau v. Wyrick, 713 F.2d 1360, 1366 (8th Cir. 1983).

Both of these cases dealt with personal letters, however,

which aligns them more closely with Martinez than with

the present case. Cofone v. Manson, 409 F. Supp. 1033 (D.

Conn. 1976), is a closer case. The court held that “the

prisoner, himself, has the right to the publisher’s aid in

submitting written objections to the [l]ibrary [c]lommit-

tees,” since the publisher is familiar with the material. Id.

at 1042. Appellees contend that Cofone is a questionable

precedent, because the inmate-plaintiff may not have had

standing to raise the issue of publisher notice.

The cases on which the district court relied in ruling

that Montcalm was entitled to no procedural protection

when its magazines are withheld do not resolve the ques-

tion. First, the court cited Jones v. North Carolina Prisoner's

10a

Union, in which the Supreme Court held that a prohibi-

tion against bulk mailings by a prisoner’s union was

reasonable, given the availability of alternative means to

share information. 433 U.S. 119, 130-31 (1977) (“First

Amendment speech rights are barely implicated in this

case” because only bulk mailings were at issue, not “mail

rights” themselves.). Jones does not control the outcome

of this case for two reasons. First, this case does not

concern bulk mailings, but rather the sending of publica-

tions to those who have specifically subscribed to them.

Second, the Jones Court simply held that the prisoners’

loss of the ability to save money by using bulk mail did

not implicate the First Amendment. In this case, prisoners

are completely precluded from receiving the publications

to which they have subscribed.

The district court also relied on Gregory v. Auger, 768

F.2d 287 (8th Cir.), cert. denied, 474 U.S. 1035 (1985). The

Eighth Circuit upheld an Iowa prison policy that

restricted the mail privileges of inmates in disciplinary

detention, and held that particular chambc~ > f commerce

which sent mail temporarily withheld from an inmate

were not entitled to notice. Id. at 291. The court found no

indication “that the chambers of commerce had any par-

ticularized interest in being apprised of when [the

inmate] received his mail.” Id. The district court in the

present case held that Montcalm similarly had “no special

interest in immediate communication with Hodges and

Flora.” But Gregory also fails to resolve the precise issue

before this court, because the mail at issue in that case

was withheld only temporarily, whereas VDOC has per-

manently disallowed the Gallery magazines.

lla

The Supreme Court has clearly recognized a First

Amendment interest in those who wish to communicate

with prison inmates, although it has expressly reserved

the question of how that interest operates in the case of

“mass mailings.” We do not believe, however, that mass

mailings are at issue. Although Montcalm mails Gallery to

thousands of subscribers nationwide, this case involves

only the relationship between Montcalm and particular

inmate-subscribers.2 Despite the First Amendment’s

somewhat limited reach in the prison context, it cannot

fairly be said that Montcalm has no First Amendment

interest at stake.

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Having recognized that Montcalm indeed has a con-

stitutional interest in communicating with its inmate-

subscribers, we cannot conclude that it is entitled to no

process at all when VDOC prevents the subscribers from

receiving Montcalm’s publications. An inmate who can-

not even see the publication can hardly mount an effec-

tive challenge to the decision to withhold that

publication, and while the inmate is free to notify the

publisher and ask for help in challenging the prison

authorities’ decision, the publisher’s First Amendment

right must not depend on that.

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At present, VDOC procedures require written notice

to inmates when a publication is disapproved. We believe

that providing a copy of this notice to publishers of

disapproved publications and allowing the publishers to

respond in writing would pose a minimal burden on

PCAC Herald acs Vadis aio pa Bh

* In contrast, a publisher who wished to send a particular

publication to each and every inmate at a given institution could

be said to be undertaking a mass mailing.

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12a

corrections officials. We note, however, that on remand

the district court is free to fashion the remedy it deems

most appropriate.

If.

We reverse the decision of the district court denying

all relief to Montcalm, and remand for a determination of

the appropriate process to be provided to publishers of

rejected publications.

REVERSED AND REMANDED.

~ Pe ee ee ae eg

13a

APPENDIX B

UNITED STATES DISTRICT COURT

IN THE WESTERN DISTRICT OF VIRGINIA

ROANOKE DIVISION

DONALD A. HODGES,

Plaintiff, Civil No. 92-0696-R

COMMONWEALTH OF

VIRGINIA, et al.,

Defendants. Civil No. 92-0907-R

and

MICHAEL G. FLORA,

MEMORANDUM

OPINION

Plaintiffs,

)

V. )

COMMONWEALTH OF )

VIRGINIA, et al., )

) (Filed Dec. 19, 1994)

Defendants. )

and )

)

MONTCALM PUBLISHING

CORP.,

Plaintiff-Intervenor,

EDWARD W. MURRAY, et al.,

Defendants.

This is a disposition of two actions filed separately

under 42 U.S.C. § 1983 by plaintiffs, Donald A. Hodges

l4a

and Michael G. Flora, who assert that Keene Mountain

Correctional Center’s (“KMCC”) publication policy,

which restricts inmate access to sexually explicit publica-

tions, infringes upon their First Amendment rights.

Hodges and Flora named the Commonwealth of Virginia

and individual employees at the KMCC as defendants.!

Montcalm Publishing Corporation (“Montcalm”), owner

and publisher of Gallery magazine, the publication that

was denied to Hodges and Flora under the challenged

policy, intervened in both actions as an additional plain-

tiff. Montcalm further named Edward C. Murray, director

of the Virginia Department of Corrections (“WDOC”), and

John Does 1-7, unknown VDOC employees, as defen-

dants.

Pursuant to 28 U.S.C. § 636, the United States Magis-

trate Judge conducted a joint evidentiary hearing of the

complaints lodged by Hodges and Flora. In a thoughtful

report, the magistrate judge found that KMCC’s publica-

tion policy was substantively constitutional, on its face

and as applied. However, the magistrate judge found that

the publication policy, which requires notification to an

inmate when a publication addressed to him is denied

entry into the prison but does not require notification to

the publisher sending the material, failed to provide the

necessary procedural safeguards to publishers such as

Montcalm. The magistrate judge concluded that the pub-

lication policy was substantively reasonable, but pro-

cedurally defective, and she recommended that

judgement be entered accordingly. The magistrate judge

' Hodges named R.J. Beck, |. Horton, R.A. Young, E.C.

Morris, and Ms. Summers. Flora named M. Beck and J. Phippin.

15a

further recommended that injunctive relief be granted

requiring the VDOC to provide procedural safeguards as

outlined in her report.

The matter is now before this court on objections to

the magistrate judge’s report by plaintiffs and defen-

dants. The court finds that KMCC’s publication policy

does not infringe upon the constitutional rights and pro-

tections of plaintiffs. As such, the court will adopt the

magistrate judge’s recommended findings of fact and

conclusions of law in regards to the substantive constitu-

tionality of KMCC’s publication policy. Contrary to the

magistrate judge’s recommendation, however, the court

finds that the policy satisfies the requirements of pro-

cedural due process.

Donald Arlis Hodges and Michael Glynn Flora are

inmates at KMCC located in Keene Mountain, Virginia.

Hodges and Flora both subscribe to Gallery magazine, a

publication which contains sexually explicit writings and

nude photos of women posing alone in various settings.

Inmates held in Virginia prisons are allowed access to pub-

lications of their choice subject to limited prison regulations.

In June of 1992, KMCC personnel inspected the June

issue of Gallery and, suspecting that the publication vio-

lated Department Operating Procedure (“DOP”) 852,?

* This regulation provides that:

The warden/superintendent, or his designee, will

disapprove a publication for receipt and possession

by an inmate on grounds of obscenity if:

16a

forwarded it to the Publication Review Committee

(“PRC”) of the Virginia Department of Corrections in

Richmond, Virginia.*> Upon review of Gallery’s June issue,

1. The publication depicts or describes sexual

conduct in such a way to include, either:

a. Representation or descriptions of actual

sexual intercourse, normal or perverted, anal

or oral; or,

b. Representations or descriptions of excretion

in the context of sexual activity or lewd

exhibitions of uncovered genitals in the

context of masturbation or other sexual

activity; and

2. A reasonable person viewing the depiction or

representation would find that the material taken

as a whole appeals to a prurient interest in sex.

Department operating Procedure 852 VII. D [hereinafter DOP

852].

3 KMCC follows certain procedures when a publication

possibly violative of DOP 852 enters the institution. The postal

clerks conduct an initial inspection of the publication. If it

appears to be prohibited under DOP 852, the publication is

forwarded to the warden or his designee, who conducts a

second inspection. If the warden determines that the issue

violates DOP 852, the inmate subscriber is notified of the name

of the publication, the issue, and the page numbers of concern.

The publication is then sent to the PRC in Richmond, Virginia,

which makes a final determination regarding the violative

nature of the publication. If the PRC finds that the publication

complies with DOP 852, it is returned to the KMCC and

delivered to the subscriber inmate. If the PRC concludes that the

publication violates DOP 852, the publication is returned to the

KMCC and the subscriber inmate determines whether the

publication be destroyed or sent elsewhere. Over time, the PRC

creates a “Disapproved Publications List” which instructs

prison personnel of those publications violative of DOP 852 and

which should be barred.

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17a

the PRC determined that the written material violated

DOP 852 and disapproved its delivery to Hodges and

Flora. KMCC delivered the July 1992 issue of Gallery to

Hodges and Flora without objection. However, it for-

warded the August 1992 issue to the PRC for review,

which then approved the issue for dissemination.5 Begin-

ning with the September 1992 issue of Gallery, the PRC

has consistently disapproved the magazine for delivery

to inmates.

Hodges filed a complaint pursuant to 42 U.S.C.

§ 1983 alleging that KMCC’s application of DOP 852

violated his constitutional rights. Several months later,

Flora filed a similar action under § 1983 challenging the

constitutionality of DOP 852. Montcalm intervened in

both suits as an interested plaintiff. The magistrate judge

conducted a joint evidentiary hearing of the cases and

issued a report and recommendation. The matter is now

before this court on objections to the magistrate’s report

and recommendation by the plaintiffs and the defen-

dants.

* KMCC personnel had forwarded Gallery’s February,

March, April, and May 1992 issues to the PRC for review. The

PRC approved each publication, apparently on the basis of its

pictorial content only - the KMCC personnel had not flagged

the written material for review.

° Since the initiation of this suit, the PRC has examine[d]

the July 1992 issue, reexamined the August 1992 issue, and

concluded that both issues violate DOP 852.

18a

Il.

In her report and recommendation, the magistrate

judge first analyzed whether DOP 852 infringes upon the

plaintiffs’ First Amendment rights, either on its face or as

applied. Reiterating the standard articulated by the

Supreme Court in Thornburgh v. Abbott, 490 U.S. 401

(1989), the magistrate judge stated that prison regulations

which restrict publications delivered to inmates must be

“reasonably reiated to legitimate penological interests.”

(Mag. Rep. & Rec. at 28, May 5, 1994.) In determining

whether the standard had been met, the following factors,

set forth in Turner v. Safley, 482 U.S. 78, 89 (1987), guided

the magistrate judge’s analysis:

1. Whether the regulation is neutral and rea-

sonably related to a legitimate governmental

interest;

2. Whether alternative means are available to

the inmate to exercise the asserted right in

question;

3. Whether accommodating that right will

have a significant ripple effect on fellow

inmates, prison staff and prison personnel;

and

4. Whether the alternatives available suggest

that the status quo is actually an exagge

rated response to prison concerns.

The magistrate judge concluded that DOP 852 is rea-

sonably related to a legitimate governmental interest. The

articulated penological interests at stake, including secu-

rity, discipline, order, public safety, and rehabilitation,

were found to be legitimate. Giving deference to the

testimony of Edward C. Morris, Deputy Director of the

19a

VDOC, who stated that publications which violate DOP

852 “significantly hinder inmate rehabilitation,” the mag-

istrate judge found that the regulation was reasonably

related to a valid governmental interest.¢ (Mag. Rep. &

Rec. at 14-15.) It was further concluded that DOP 852 is

neutral because it is objective and unambiguous, and its

distinctions are based on the potential impact the publica-

tions may have on legitimate penological interests. (Mag.

Rep. & Rec. at 29.)

Turning to the second factor, the magistrate judge

found that alternative means of exercising the First

Amendment right were available to Virginia inmates

because DOP 852 does not deprive inmates of all sexually

explicit publications. (Mag. Rep. & Rec. at 30.) However,

in a footnote, the magistrate judge expressly reserved the

question of whether the VDOC could ban all sexually

explicit material. (Mag. Rep. & Rec. at 18, n.17.) Under

the third factor, it was found that accommodation of the

plaintiffs’ First Amendment rights would adversely affect

the rehabilitation process - specifically, a significant neg-

ative ripple effect would occur within the prison in the

form of increased bartering. (Mag. Rep. & Rec. at 19.)

® In her conclusicns of law, the magistrate judge stated that

“la] lack of empirical evidence substantiating a causal

connection between excluding Gallery publications and security,

order or successful rehabilitation is not necessary.” (Mag. Rep.

& Rec. at 29.) Although the double negative in this sentence

changes it to mean that empirical evidence is indeed necessary

in order to establish a causal connection, the magistrate judge

concluded that a sufficient causal connection exists and she did

not mention the empirical evidence relied upon. As such, the

court suspects that the double negative is a grammatical error

and will treat it as such.

20a

Last, the magistrate judge concluded that no less intru-

sive alternatives were readily available to the VDOC in

preservation of its penological interests. (Mag. Rep. &

Rec. at 19-20.)

The magistrate judge then considered the constitu-

tionality e° DOP 852 as applied. Rejecting the argument

that DOP 852 is applied in an arbitrary and capricious

manner, the court attributed the few inconsistencies in

the approval of Gallery for dissemination as forgivable

imperfections in the VDOC’s system of review. In sum,

the magistrate judge found that DOP 852 does not violate

the plaintiffs’ First Amendment rights, either substan-

tively or as applied.

Plaintiffs Hodges and Flora object to the portion of

the magistrate judge’s report and recommendation

detailed above. They have lodged specific objections to

numerous findings — both factual and legal. After review

of the report and recommendation, however, this court

finds that the magistrate judge conducted a proper anal-

ysis of the plaintiffs’ First Amendment rights. As such, it

will adopt the magistrate judge’s report with several

modifications.

As stated previously, a prison regulation that restricts

the delivery of publications to inmates must be reason-

ably related to a legitimate penological interest. The inter-

ests articulated by the VDOC, security, discipline, order,

public safety, and rehabilitation, need no defense. The

more compelling question here is whether sexually

explicit publications have a negative impact on those

interests. In her report and recommendation, the magis-

trate judge acknowledged such a causal connection based

2la

upon the assertions of the VDOC’s Deputy Director,

which merit deference, and she held that empirical evi-

dence need not necessarily establish that connection. This

court agrees. However, the magistrate judge’s failure to

rely upon empirical evidence regarding this issue should

not be read to mean that none exists.” Neither is this issue

one of first impression. Other courts have found that

sexually explicit publications negatively impact valid

penological interests.* These considerations further sup-

port the connection between DOP 852 and KMCC’s inter-

ests.

7 Indeed, studies have beer published which show such

correlations. See Sheila J. Winkelman, Making a Woman's Safety

More Important Than Peep Shows: A Review of the Pornography

Victims’ Compensation Act, 44 WASH. U.J. URB. & COMTEMP. L.

237 (1993) (finding empirical support of a connection vetween

sexually explicit publications and violence in 1986 ATT’Y GEN.

COMM’N ON PORNOGRAPHY FINAL REP. and other

studies). But see George C. Thomas, III., A Critique of the Anti-

Pornography Syllogism, 52 MD. L. REV. 122 (1993) (concluding

that the link between pornography and rape is conjectural).

8 See Dawson v. Scurr, 986 F.2d 257, 261 (8th Cir. 1993)

(finding a “rational connection” between the penological

interests of security and rehabilitation and the restriction of

certain sexually explicit publications), cert. denied, 114 S. Ct. 232

(1993); Thompson v. Patteson, 985 F.2d 202, 206 (5th Cir. 1993)

(finding that pornographic materials could exacerbate problems

of nonconsensual homosexual acts within the prison); Harper v.

Wallingford, 877 F.2d 728, 733 (9th Cir. 1989) (stating that an

organizational bulletin of the North American Man/Boy

Association could encourage violence within the prison and

undermine rehabilitation).

22a

Il.

The magistrate judge next analyzed whether the

plaintiffs, Hodges, Flora, and Montcalm, were afforded

procedural due process when KMCC withheld Gallery

from dissemination. In her report and recommendation,

the magistrate judge concluded that DOP 852 does not

adequately protect the interests of publishers, such as

Montcalm, because it fails to require notification of a

publisher whose publication is denied entry into the

prison.? (Mag. Rep. & Rec. at 25.) The magistrate judge

stated that minimum safeguards include notice to the

publisher, an opportunity for the publisher to protest an

adverse determination, and a disinterested party review

of the original decision to exclude the publication. (Mag.

Rep. & Rec. at 31.) The magistrate judge recommended

declaratory and injunctive relief in favor of Montcalm.

The defendants have objected to the magistrate judge’s

due process analysis, which would require them to notify

a publisher every time it rejects a publication. The defen-

dants further object to an award of declaratory or injunc-

tive relief on the grounds that it would serve no practical

purpose since Montcalm has actual notice that its publica-

tions were withheld. After close review of the issue, this

court finds that the VDOC provides sufficient procedural

° According to DOP 852, the VDOC must provide

notification to an inmate whose publication will not be

delivered. The inmate may then appeal the decision through the

Inmate Grievance Procedure. The publisher is not notified,

however. See supra note 3. The magistrate judge concluded that

these procedures adequately protect the interests of subscriber

inmates such as Hodges and Flora. (Mag. Rep. & Rec. at 25.)

This court agrees and will not address that issue further.

aS Pilates ad

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23a

safeguards to publishers, such as Montcalm, that circulate

materials to a general audience.

When a prison withholds inmate mail, it must provide

minimum procedural safeguards to protect the First Amend-

ment liberty interest of prisoners and their correspondents.

Procunier v. Martinez, 416 U.S. 396, 417-18 (1973), overruled on

other grounds by Thornburgh v. Abbott, 490 U.S. 401 (1989). In

Procunier v. Martinez, the Supreme Court affirmed a district

court's judgment that a prison must notify an inmate of “the

rejection of a letter written by or addressed to him, that the

author of that letter be given a reasonable opportunity to

protest that decision, and that complaints be referred to a

prison official other than the person who originally disap-

proved the correspondence.” Id. That decision determines

the procedural safeguards necessary in the instance of per-

sonal correspondence, however, not widely-distributed pub-

lications aimed towards a general audience. Publishers,

indeed, have a First Amendment interest in communicating

with prisoners who seek their point of view through sub-

scriptions. Thornburgh v. Abbott, 490 U.S. at 408. However,

that interest is lesser than the interest held by authors of

personal correspondence.!° Thus, the procedural safeguards

required in the context of withholding Gallery from an

‘© First Amendment interests exist in different magnitudes.

For example, the interest implicated in sending or receiving a

personal letter is greater than the interest implicated in sending

or receiving a generalized publication, which in turn is greater

than the interest implicated in sending or receiving bulk

mailings. See Jones v. North Carolina Prisoner’s Union, 433 U.S.

119, 130-31 (1976) (stating that “First Amendment speech rights

are barely implicated” when bulk mailings are restricted from a

prison).

24a

inmate need not be identical to those required when a letter

written by an inmate or addressed to him is withheld. The

Supreme Court has not articulated the procedural safeguards

necessary to protect a publisher’s First Amendment interest

when its publication is withheld from a prison. Neither has

the Fourth Circuit addressed the issue. As such, this question

is one of first impression for the court.

When determining the amount and nature of pro-

cedural safeguards required, a court should consider the

following factors:

First, the private interest that will be affected by

the official action; second, the risk of an erro-

neous deprivation of such interest through the

procedures used, and the probable value, if any,

of additional or substitute procedural safe-

guards; and finally, the Government’s interest,

including the function involved and the fiscal

and administrative burdens that the additional

or substitute procedural requirement would

entail.

Mathews v. Eldridge, 424 U.S. 319, 335 (1975). Due process

is not a technical concept, however, wholly unrelated to

the unique time, place and circumstances involved:

“[D]ue process is flexible and calls for such procedural

protections as the particular situation demands.” Id. at

334 (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)).

At stake here is Montcalm’s First Amendment inter-

est in communicating with Hodges and Flora through its

publication, Gallery. As recognized above, Montcalm pos-

sesses such an interest, which is theoretically infringed

when its publication is not delivered to subscribing

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25a

inmates. Because Gallery is aimed towards a general audi-

ence, however, Montcalm’s interest in communicating

specifically with Hodges and Flora is attenuated. The

implication of Montcalm’s interest is further diminished

by the fact that, according to DOP 852, Hodges and Flora

may request that withheld publications, such as Gallery,

be sent elsewhere — perhaps to a friend, family member,

or other location where the publications may be stored

until these inmates are released from prison. In such a

scenario, Montcalm’s communication with Hodges and

Flora is not prevented, but only delayed. Montcalm has

no special interest in immediate communication with

Hodges and Flora. See Gregory v. Auger, 768 F.2d 287, 291

(8th Cir. 1985) (finding that a chamber of commerce had

no “particularized interest” of being notified that its mail-

ings were temporarily withheld from an inmate), cert.

denied, 474 U.S. 1035 (1985).

The court must next consider whether DOP 852 poses

an undue risk of erroneously depriving Montcalm and

other publishers of their First Amendment interests and

whether additional or alternative procedures would pro-

vide more valuable safeguards. The VDOC’s current pro-

cedural mechanism provides a subscriber inmate notice

and an opportunity to challenge PRC’s decision to with-

hold a publication. Providing the publisher these same

procedures, notice and an opportunity to challenge,

would surely safeguard any of its First Amendment inter-

ests that are implicated. However, the question is

whether the additional procedures would provide a nec-

essary safeguard that is now absent or whether they

would merely duplicate the safeguards already provided

26a

through the subscriber inmate. Since the First Amend-

ment interests of both inmate and publisher are impli-

cated through one act of correspondence, a challenge by

the subscriber inmate to a decision withholding that cor-

respondence would also address the interests of the pub-

lisher.'! In essence, a subscriber inmate has the means to

protect both his own First Amendment interests and

those of a publisher when he challenges the PRC’s deci-

sion.'? It also seems appropriate that the subscriber

inmate be the party to challenge the PRC’s decision

because the publisher’s right to communicate with an

'l Although a subscriber inmate has no access to the

suspect publication when he challenges the prison’s decision to

withhold it, this fact, alone, fails to show that he cannot

adequately protect both his own and the publisher’s First

Amendment interests. If a subscriber inmate wishes to mount a

serious challenge to a prison’s withholding decision, he could

request that the publication be sent to a family member or friend

who could then assist him. Furthermore, nothing prevents the

subscriber inmate from notifying and enlisting the help of the

publisher as he challenges the decision to withhold its

publication.

12 The ability of one party to raise, and thus protect, the

rights of another party has long been accepted in contexts where

the first party is in a better position to act. For example, criminal

juries cannot be selected on racial grounds because it violates

the Fourteenth Amendment rights of potential jurors and

criminal defendants. Akins v. Texas, 325 U.S. 398 (1945); Batson v.

Kentucky, 476 U.S. 79, 87 (1985). Although a criminal defendant

has no right to a jury of the same race, he may challenge the

selection of a jury as discriminatory. Atkins v. Texas, 325 U.S. at

403. Thus, the criminal defendant protects both his own right to

a fairly chosen jury and the rights of prospective jurors to

participate in jury service without discriminatory exclusion.

27a

inmate can be no greater than the inmate’s right to

receive that communication.

The last factor for consideration is the government's

interest. Requiring the VDOC to notify a publisher every

time it withholds a publication from an inmate would be

an onerous burden. Although the magistrate judge rec-

ommended that the publisher be sent only a copy of the

notification given to the inmate, this, in itself, requires

the VDOC to allocate significantly more money and labor

to the regulation of prisoner mail. At a minimum, it

would result in additional postage and copying costs and

in more employee time spent compiling publisher’s

addresses, copying notification letters, and addressing

envelopes. The VDOC would incur even further expense

when providing the publisher an opportunity to chal-

lenge the PRC’s decision and allowing for disinterested

review. At a time when resources are scarce, these addi-

tional procedures would significantly burden the VDOC.

After considering the relevant factors, this court

finds that the First Amendment interests of Montcalm,

and similar publishers, are adequately protected by the

procedures outlined in DOP 852. The ability of Hodges

and Flora, and other subscriber inmates, to challenge any

decision to withhold a publication from them safeguards

the First Amendment interests of both the subscriber

inmates and the publishers. The additional procedural

safeguards outlined by the magistrate judge would dupli-

cate process and substantially increase administrative

and fiscal burdens for the VDOC. In sum, the value of the

extra procedures fails to justify the onerous burden they

would create. The Constitution does not require them.

28a

IV.

Accordingly, the court will adopt the magistrate

judge’s report and recommendation in part and modify it

in part as set forth above.

ENTERED this 19th day of December, 1994.

/s/ Samuel G. Wilson

UNITED STATES

DISTRICT JUDGE

A TRUE COPY, TESTE:

MORGAN E. SCOTT, JR., CLERK

BY: /s/ Carolyn Proffitt

DEPUTY CLERK

. : , ee re -

4 hale tle P PEST Ea Cee TMI eed tet ne NESS ty ee Tie eo ae ete

PMA haa lt VBA PNA en WNL BS cD tired take cease nae Ri Bare

29a

APPENDIX C

UNITED STATES DISTRICT COURT

IN THE WESTERN DISTRICT OF VIRGINIA

ROANOKE DIVISION

DONALD A. HODGES,

Plaintiff, Civil No. 92-0696-R

COMMONWEALTH OF

VIRGINIA, et al.,

Defendants.

and

MICHAEL G. FLORA, Civil No. 92-0907-R

Plaintiff,

COMMONWEALTH OF FINAL ORDER

VIRGINIA, et al.,

Defendants.

and

MONTCALM PUBLISHING

CORP.,

Plaintiff-Intervenor,

(Filed Dec. 19, 1994)

EDWARD W. MURRAY, et al.,

Defendants.

SN Se et Se at a! Sel Sea? Sea Sat Sa Saad! Saat Sage? ee aa Seale Nene tad Mine) Set eat “i Mi Meet east

For the reasons stated in the Memorandum Opinion

entered on this date, it is ORDERED and ADJUDGED

that judgment be and the same hereby is entered in favor

30a

of defendants, the Commonwealth of Virginia, R.J. Beck,

J. Horton, R.A. Young, E.C. Morris, Mrs. Summers, M.

Beck, J. Phippin, Edward C. Murray, and John Does 1-7,

and against plaintiffs, Donald A. Hodges, Michael G.

Flora, and Montcalm Publishing Corporation.

Plaintiffs are advised that they may appeal this deci-

sion pursuant to Rules 3 and 4 of the Federal Rules of

Appellate Procedure by filing a notice of appeal with this

court within thirty (30) days of the date of entry of this

Order, or within such extended period as the court may

grant pursuant to Rule 4(a)(5).

The Clerk is directed to send certified copies of this

Order and the accompanying Memorandum Opinion to

each of the plaintiffs and to counsel of record for the

defendants.

ENTERED this 19th day of December, 1994.

/s/ Samuel G. Wilson

UNITED STATES

DISTRICT JUDGE

A TRUE COPY, TESTE:

MORGAN E. SCOTT, JR., CLERK

BY: /s/ Carolyn Proffitt

DEPUTY CLERK

——<—<— lc

3la

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF VIRGINIA

ABINGDON DIVISION

DONALD A. HODGES

Plaintiff CIVIL ACTION NO. 92-0696-R

COMMONWEALTH OF VIRGINIA,

et. al.

Defendants

MONTCALM PUBLISHING CORP.

Plaintiff-Intervenor

EDWARD W. MURRAY,

et al.

Defendants.

and

MICHAEL G. FLORA CIVIL ACTION NO. 92-0907-R

Plaintiff

(Filed May 5, 1994)

COMMONWEALTH OF

VIRGINIA, et al.

Defendants.

: Report and Recommendation

By: Cynthia D. Kinser

United States Magistrate

Judge

32a

Donald A. Hodges (“Hodges”) and Michael G. Flora

(“Flora”), inmates at Keen Mountain Correctional Center

(“KMCC"), filed separate pro se civil actions pursuant to

42 U.S.C. § 1983. They allege that defendants violated

their First Amendment rights by prohibiting their receipt

of Gallery magazine. Jurisdiction is pursuant to 28 U.S.C.

§ 1343. The defendants’ motions for summary judgment

were denied, and United States District Judge Samuel G.

Wilson referred these cases to the undersigned United

States Magistrate Judge to conduct appropriate proceed-

ings pursuant to 28 U.S.C. § 636(b)(1)(B). Montcalm Pub-

lishing Company (“Montcalm”), the publisher of Gallery

magazine, moved to intervene in the suit. The court

granted the motion on September 30, 1993, and consoli-

dated these cases for trial. On December 13, 1993, this

court conducted an evidentiary hearing and now offers

this report recommending that judgment be entered for

defendants, except on the issue of the publisher’s pro-

cedural due process rights.

I. Facts

Hodges and Flora are inmates at KMCC. Hodges is

serving a forty year term for sodomy and rape. (Tran-

script (“Tr.”) at 19). Flora is serving forty years for rob-

bery and malicious wounding. (Tr. at 30). Hodges and

Flora both subscribed to Gallery magazine,! a pornog-

raphic magazine which describes in graphic written

! At KMCC, inmates earn approximately $25.00-$30.00 per

month for various jobs they perform at the institution and may

spend this money on items, such as cigarettes, clothes, or

subscriptions to magazines.

tSee Seog thee aeath Aas

33a

detail coitus, fellatio, and cunnilingus. They each

received the monthly publication until the Publication

Review Committee (“PRC”) of the Virginia Department of

Corrections (“VDOC”) determined that the magazine vio-

lated Departmental Operating Procedure (“DOP”) 852.2

When KMCC receives a pornographic magazine,

such as Gallery, the postal clerks conduct an initial inspec-

tion to determine whether it violates DOP 852. If it

appears to violate DOP 852, they forward the magazine to

the warden or his designee, who conducts a second

inspection. If this inspection also results in finding the

publication to violate DOP 852, the inmate is informed of

the name of the publication, the issue, and the page

numbers which violate the DOP. (Tr. at 180). The publication

* DOP 852 VIII.D. provides:

The Warden/Superintendent, or his designee, will

disapprove a publication for receipt and possession

by an inmate on grounds of obscenity if:

1. The publication depicts or describes sexual

conduct in such a way to include, either:

a. Representation or descriptions of actual

sexual intercourse, normal or perverted, anal

or oral; or,

b. Representations or descriptions of excretion

in the context of sexual activity or lewd

exhibitions of uncovered genitals in the

context of masturbation or other sexual

activity; and

2. A reasonable person viewing the depiction or

representation would find that the material taken

as a whole appeals to a prurient interest in sex.

34a

is then forwarded to the PRC? in Richmond, Virginia. The

PRC makes the final determination as to whether the

publication violates DOP 852.

Specifically, the PRC reviews the parts of the publica-

tion that the KMCC personnel mark as the basis for the

alleged DOP violation. If it determines that the material

complies with the DOP, it returns the publication to the

inmate. If, however, the PRC concludes that the publica-

tion violates the DOP, it returns the publication to the

institution, which then allows the inmate the option of

having the magazine either destroyed or sent elsewhere.

Based on its review, the PRC creates a “Disapproved

Publications List,” a compilation of those publications

which violate DOP 852 and should not be permitted into

the prison. That list is updated monthly after the PRC’s

monthly review, DOP 852 VII.A., and is circulated to the

personnel in the correctional facilities who are charged

with enforcing DOP 852.

Hodges received Gallery through May 1992 and the

July and August 1992 issues as well, (Tr. 15-16), and Flora

received the May, July, and August 1992 issues. (Tr. at 23).

KMCC had forwarded Gallery’s February, March, April,

and May 1992 issues to the PRC for further review, but

the PRC approved those issues for dissemination to the

inmates. Apparently, with respect to these issues, the PRC

only reviewed Gallery’s pictorial content, which, alone,

did not violate DOP 852.4 (Tr. at 160, 168, 202-03). It was

not until the June 1992 issue that KMCC objected to

3 The PRC meets monthly and consists of five members

who are appointed by the Deputy Director of the VDOC.

4 KMCC had objected only to the piciorial content of these

issues.

35a

Gallery's written content. Upon review of this issue, the

PRC concluded that the written material violated DOP

852 and disapproved its dissemination. The July 1992

issue was never forwarded to the PRC for review and was

consequently permitted into the prison. (Tr. at 164).

KMCC objected again to the written material in the

August 1992 issue, but the PRC, after its review,

approved the issue for entry. (Tr. at 166). After this suit

was filed, the PRC examined the July 1992 issue and

reexamined the August 1992 issue and concluded that

they violate DOP 852. (Tr. at 165-66). Since September

1992, the PRC has consistently disapproved Gallery maga-

zine each month for dissemination based on the DOP 852

criteria.

The focus of this dispute has not been on Gallery's

pictorial content, but on its written material. Gallery's

pictures are of women, posing alone in the nude in differ-

ent settings. They do not violate DOP 852. Gallery’s writ-

ten material, on the other hand, is unlike its pictures in

that it describes actual sexual intercourse. For example,

the “Feedback” section of the June 1992 issue included

letters allegedly from four readers. In three of the letters,

the male authors vividly described actual sexual episodes

with females, providing graphic detail about penetration,

positioning, and their physical and vocal responses. Feed-

back, Gallery, June 1992, at 10-12, 92-93, 100. In the fourth

article, the male described having sex with his wife’s best

friend. At the conclusion of the encounter, the male

learned that his wife had been watching with approval

and subsequently joined the two of them for more sexual

activity. Id. at 12. The focus of this opinion is therefore on

36a

the constitutionality of DOP 852 and its use in excluding

Gallery based on its written content.

II. Introduction

Once it was thought that “the place which society has

assigned for repentance, ought to present no scenes of

pleasure and debauch.” Lawrence M. Friedman, A History

of American Law 297 (1985) (quoting Alexis de Tocqueville

and Gustave de Beaumont, On the Penitentiary System in

the United States and Its Application to France (1833)). The

penal system of today, however, little resembles that of

yesteryear.> Reforms have slowly extended to prisoners

rights that heretofore were uncommon in the traditional

prison environment. But despite the wave of changes,

inmates do not, nor should they ever, enjoy the sarne

freedom and privileges that those who choose to obey the

law enjoy. Prisons are built to punish the criminally devi-

ant, to protect society, and to effectuate some sort of

internal change in the inmates so that when they are

released they will not soon return. For prisons to serve

those purposes, “ ‘lawful incarceration [must] bring[ ]

about the necessary withdrawal or limitation of many

privileges and rights.’ ” Vester v. Rogers, 795 F.2d 1179,

5 Charles Dickens once lamented the penal nature of prison

life when he wrote, “Over the head and face of every prisoner

who comes into this melancholy house, a black hood is drawn;

and in this dark shroud . . . he is led to the cell. ... He is a man

buried alive.” Lawrence M. Friedman, A History of American Law

297 (1985) (quoting Charles Dickens, American Notes 118, 121

(1842)). Much has changed since the days Charles Dickens

satirized the life and times of prisoner life.

37a

1182 (4th Cir. 1986), cert. denied, 482 U.S. 916 (1987) (quot-

ing Price v. Johnson, 334 U.S. 266, 285 (1948)).

This court must decide whether the Commonwealth

may restrict an inmate’s access to sexually explicit mate-

rial. In doing so, this court will determine whether the

regulation at issue is reasonable in its substantive and

procedural due process aspects. This opinion will focus

first on the constitutional standard that regulations of this

sort must satisfy and whether DOP 852 in particular

satisfies that standard, and will then address whether the

minimum procedural safeguards are in place to protect

adequately the rights of those who have a legitimate

interest in communicating with prisoners.

Ill. Prison Regulations and The Standard of Review

In 1989, the Supreme Court decided the standard of

review for regulations that affect “the sending of a pub-

lication . . . to a prisoner.” Thornburgh v. Abbott, 490 U.S.

401, 413 (1989). The regulation the Court faced in Abbott

excluded publications that were considered detrimental

to “the security, good order, or discipline of the institu-

tion,”° including sexually explicit material that involved

homosexuality, sado-masochism, bestiality, and children.

Id. at 404, 405 n. 6 (footnote added). In deciding what

constitutional standard to apply, the Court had two

options. It could have adopted its reasoning in Procunier

publisher and inmate by requiring the warden to notify both

when a publication was excluded.

38a

v. Martinez, 416 U.S. 396 (1974), which required regula-

tions to pass a heightened scrutiny, or its more recent

analysis in Turner v. Safley, 482 U.S. 78, 89 (1987), which

adopted a reasonableness test.

Specifically, Martinez required regulations to “further

an important or substantial governmental interest,” such

as security, order, or rehabilitation, and be “generally

necessary” to protect one or more of those interests.

Martinez, 416 U.S. at 413-14. Turner, on the other hand,

required the regulations to be only “reasonably related to

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

Four factors guide the Turner analysis.

1. Whether the regulation is neutral and rea-

sonably related to a legitimate governmental

interest;

2. Whether alternative means are available to

the inmate to exercise the asserted right in

question;

Whether accommodating that right will

have a significant ripple effect on fellow

inmates, prison staff and prison personnel;

and

4. Whether the alternatives available suggest

that the status quo is actually an exagge-

rated response to prison concerns.

Abbott, 490 U.S. at 414-19; Turner, 482 U.S. at 89-91. The

Court settled the emerging controversy by adopting

Turner’s reasonableness standard in determining the con-

stitutionality of regulations restricting the entry of pub-

lications into prisons.

39a

An underlying theme of the Turner analysis is the

deference afforded to the expert judgment of those who

are responsible for managing prisons. See generally Bell v.

Wolfish, 441 U.S. 520 (1979) (upheld the “publisher-only”

rule which prohibited inmates from receiving hard-cover

books that are not mailed directly from publishers, book

clubs, or bookstores because of perceived security risks);

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

119 (1977) (the Court accepted the expert judgment of

prison officials who determined that Union bulk-mailings

posed a greater risk to security than did bulk-mailings

from other organizations and, thus, permitted the pro-

scription of Union bulk-mailings). Deference is necessary

because “the problems of prisons in America are complex

and intractable[] and... are not readily susceptible of

resolution by decree.” Martinez, 416 U.S. at 404-05. As a

consequence, “the courts are ill equipped to deal with the

increasingly urgent problems of prison administration

and reform.” Id. at 405 (footnote omitted). This does not

require the courts to trust blindly the judgment of prison

officials. Instead, it forces prison officials to make reason-

able judgments regarding how they manage prison life.

IV. The Facial Challenge to the Regulation

The first Turner factor requires the regulation to be

neutral and reasonably related to a legitimate govern-

mental objective. Abbott, 490 U.S. at 414. The expressed

interest furthered by DOP 852 is “security, discipline, and

good order of the facility.” DOP 852 IV. The Common-

wealth also contends DOP 852 furthers the interest of

40a

“public safety” which includes rehabilitation.”? These are

without dispute legitimate penological interests. O’Lone v.

Estate of Shabazz, 482 U.S. 342, 348 (1987); Martinez, 416

U.S. at 412; Pell v. Procunier, 417 U.S. 817, 822-23 (1974).

Thus, the analysis of this first factor focuses only on

whether the regulation is in fact neutral in regards to the

content of expression and reasonably related to the prof-

fered penological interests.

Plaintiffs first argue that the regulation is not neutral

because its definition of obscenity is so broad that it

“encourages arbitrary and capricious enforcement, based

upon personal prejudices and opinions” and, thus, poses

the same problems as the regulation in Martinez. (Mont-

calm’s Pre-trial Brief at 12). They also contend that the

court should read the regulation as incorporating the

Miller v. California, 413 U.S. 15 (1973), definition of

obscenity because the term “obscenity” appears in DOP

852 VIII.D., and it should be read in light of its “tradition

of specific legal significance.” (Montcalm’s Post-trial Brief

at 8 n. 3).

7 Edward C. Morris, the Deputy Director of VDOC,

testified that “[t]he presence of these materials in the prison

environment undermines our mission, which is public safety.

Public safety many people tend to think of, as preventing

escape, but it is really much broader and more complicated than

that. Our mission is to protect the public by controlling

prisoners who are confined in a prison system and offering

them opportunities to be rehabilitated while they are in our

custody, and the presence of the type of materials that we are

attempting to regulate make it difficult for us to accomplish that

mission.” (Tr. at 53).

4la

This court does not find plaintiffs’ analogy to Mar-

tinez persuasive given the differences between the regula-

tions in each case. The regulation at issue in Martinez was

by its very nature ambiguous, and any meaningful

enforcement necessarily required subjective judgments by

those prison officials who determined its applicability.’

DOP 852 VIII.D., on the other hand, requires material to

satisfy two criteria. The first focuses specifically on sex-

ual conduct and activity not on what prison personnel

find to be personally offensive. The standard is objective

and unambiguous. The second prong requires that a “rea-

sonable person . .. find .. . the material taken as a whole

[to] appeal[] to a prurient interest in sex.” DOP 852

VIII.D.2. This does not amount to vesting unbridled dis-

cretion in prison personnel because the second prong of

the regulation cannot be read without the first.? Thus,

° The regulation in Martinez allowed Officials to exclude

inmate correspondence that “unduly complain[ed],”

“magniflied] grievances,” “express[ed] inflammatory political,

racial, religious or other views or beliefs,” or contained matter

deemed “lewd, obscene... . defamatory” or “otherwise

inappropriate.” Martinez, 416 U.S. at 399-400.

* The two criteria must be read in tandem. As an example,

Hodges introduced at trial Firefly, by Piers Anthony, a book he

claims he checked out of the prison library. In one part of the

book, a small child describes a sexual encounter she had with an

older man. The description seems to violate the first prong of

DOP 852 VIII.D. as it describes an act of sexual intercourse.

However, the material, taken as a whole, must also appeal to a

prurient interest in sex before it will violate DOP 852. It clearly

does not violate this second prong as this description is but a

small part of the entire Story. In fact, the description takes place

during the course of a criminal trial to punish the older man

who engaged in sexual intercourse with the child.

42a

DOP 852’s clarity distinguishes it from the regulation the

Court faced in Martinez, and does not pose the same type

of enforcement problems that concerned the Court in that

case.

DOP 852 is also neutral with respect to the content of

the publications it excludes. Regulations may distinguish

among publications so long as such distinctions are based

on the potential impact the publications may have on

legitimate penological interests.!° Abbott, 490 U.S. at 415;

Jones, 433 U.S. at 132. In this case, VDOC has done just

that. It distinguishes among publications based on their

potential impact on order within the prison and on the

potential adverse effect they may have on inmate reha-

bilitation. KMCC personnel may not exclude a publica-

tion simply because it offends their personal sensibilities.

Thus, while content is certainly considered, the regula-

tion is still neutral “in the technical sense.” Abbott, 490

U.S. at 416.

Plaintiffs cite the lack of empirical evidence linking

the possession of Gallery magazine to disruptive sexual

behavior or to unsuccessful rehabilitation efforts as evi-

dence of the regulation’s unreasonableness. This lack of

proof, claim the plaintiffs, vividly illustrates the point

that the stated penological interests are not furthered by

the magazine’s exclusion.!! Prison regulations, however,

10 In fact, the Court in Abbott stated that “[w]here . . . prison

administrators draw distinctions between publications solely

on the basis of their potential implications for prison security,

the regulations are ‘neutral’ in the technical sense in which we

meant and used that term in Turner.” Abbott, 490 U.S. at 415-16.

'! The Commonwealth also justifies its exclusion of certain

sexually explicit publications because such material is more

43a

need not necessarily be substantiated by empirical evi-

dence to comply with the Constitution. Often times,

prison officials are unable to demonstrate an actual causal

connection between the challenged regulation and _ its

purpose, but that is precisely why prison officials are

given discretion to anticipate problems before they occur.

See U.S. v. Stotts, 925 F.2d 83, 87 (4th Cir. 1991) (“We will

not require that an actual breach of security occur before

upholding regulations designed to prevent it.”); Espinoza

v. Wilson, 814 F.2d 1093, 1099 (6th Cir. 1987) (“[A]n actual

danger need not be demonstrated, it is enough to show

that a potential danger exists.”). In fact, “it is ratio-

nal... to exclude materials that, although not necessarily

‘likely’ to lead to violence, are determined by the warden

to create an intolerable risk of disorder under the condi-

tions of a particular prison at a particular time.” Abbott,

490 U.S. at 416 (footnote omitted). Thus, the absence of

empirical evidence in this case does not vanquish the

regulation.

valued in the inmate population than other items and,

consequently, could pose a threat to prison order. The plaintiffs

claim that the regulation canrot be reasonably based on this

justification because prison officials allow countless other items

into the prison which may not be sexually explicit but are

nevertheless highly valued. If it is the value itself that poses the

threat to order, then, according to the plaintiffs, prison officials

should exclude all items that possess value to the inmates. Such

an exclusion, however, would clearly be an exaggerated

response to the penological interests involved. (Montcalm’s Pre-

trial Brief at 15, 16). The court need not address the merits of this

argument because it finds the regulation reasonably related to

the penological interest in rehabilitation.

44a

In determining whether the relationship between the

regulation and the stated penological interest is reason-

able, the underlying basis for the regulation must be

examined. The Commonwealth established through testi-

mony from VDOC’s Deputy Director, who is one of the

officials responsible for prison operation, that a chief

concern of VDOC is not only to punish criminals for their

past conduct, but also to rehabilitate them. The Deputy

Director testified that an important step in the rehabilita-

tion process is to have the inmates convicted of sexual

offenses view the incident from the victim’s perspective,

to see the pain the inmate caused, and more importantly,

to instill some respect for members of the opposite sex.!?

Placing such material in the hands of those who have

12 The Deputy Director testified that “permitting access to

those kinds of materials undermines that very effort [of

rehabilitation], and particularly with respect to the 20 percent or

so of our inmates who are sex offenders. . . .

“The treatment of sex offenders is, obviously, a very

difficult area, [it] . . . is basically treating him to control that

behavior, and a good part of the energy in treating a sex

offender is getting them [sic] to empathize with the victim and

to understand the impact that abuse, their [sic] sexual abuse of

the victim has on that person. [The material barred by DOP 852]

portray[s] the victim . . .as somebody who wants it, who desires

it. They build on those fantasies that . . . this is normal,

acceptable behavior, and I don’t know how we would be

expected to rehabilitate or treat people if, on the one hand, we

are trying to get them to empathize with the victims and on this

other hand we are giving them materials that continue to

portray their victims as willing participants who actually want

to be raped and sodomized. . . . Whether violence or force is a

part of it, I think it demeans victims . . . and does not enable the

sex offender to reach a true understanding of the impact that his

abuse has on the people he victimizes in society.” (Tr. at 57-60).

45a

already demonstrated a lack of control in this area would

only reinforce the attitudes that led to their deviant

behavior in the first place. (Tr. at 59). Thus, in the Deputy

Director’s judgment, this type of material significantly

hinders the rehabilitation process.

The Deputy Director’s diagnosis of the problem such

material poses to inmates is not iv any way novel. In

Dawson v. Scurr, 986 F.2d 257, 262 (8th Cir. 1993), cert.

denied sub nom. Shearon v. Lynch, 114 S.Ct. 232 (1993), the

court stated that “[a]llowing . . . publications [that depict

nudity] into individual cells, where they would likely be

disseminated to other inmates, would substantially inter-

fere with defendants’ rehabilitation and security objec-

tives.” Id.; See also Espinoza, 814 F.2d at 1098-99 (upheld a

regulation that prohibited entry of certain homosexual

publications because, in the expert judgment of the War-

den, such material posed dangers to the prison environ-

ment). This type of judgment by prison personnel has

been accorded deference by the courts in the past, and

this court finds no reason why their judgment in this

instance should not be accorded similar deference. Accord

Abbott, 490 U.S. 401; Turner, 482 U.S. 78; Bell, 441 U.S. 520;

Jones, 433 U.S. 119; Pittman v. Hutto, 594 F.2d 407, 411 (4th

Cir. 1979) (“Significantly for our purpose, the Court made

clear that prison officials may limit first amendment

rights, whether of speech or association, whenever they

reasonably conclude that the exercise of such rights pos-

sesses the likelihood of disruption of prison order or

stability or otherwise interferes with the penological

objectives of the institution.”). Because the material

46a

excluded under DOP 852 significantly hinders the reha-

bilitation process, this court finds a reasonable relation-

ship between the penological interest and DOP 852.

As to plaintiffs’ second argument, this court remains

unpersuaded that the term “obscenity” must be read in

light of Miller. Although DOP 852 VIII.D. states that a

publication may be refused on “grounds of obscenity,” it

defines exactly what it means by that. It makes no refer-

ence to Miller’s standard of obscenity, and this court finds

it unnecessary to read into the regulation that which is

not supported by the regulation’s plain language. The

question still remains, though, whether the regulation’s

definition of obscenity must incorporate Miller to comply

with the Constitution.!> To answer this question, a closer

scrutiny of the environment and the audience is neces-

sary.'4 This court need only mention that there are stark

13 Plaintiffs and the Commonwealth cite Donald v. Spann,

No. 84-0088-H (4th Cir. Oct. 10, 1984) and Spaulding v. West, No.

796473 (4th Cir. Jan. 2, 1980) to support their positions. This

court finds both these cases to provide very little insight into the

relationship between Miller and Turner. The regulations at issue

in those cases incorporated the Miller standard. Thus, they did

not address whether Miller was a vital and necessary aspect of

the regulations.

14 It is not uncommon for the Court to consider the

audience involved to determine whether it is permissible to

regulate the speech in question. For example, in Ginsberg v. New

York, 390 U.S. 629 (1968), the Court permitted an adjustment to

the definition of obscenity where children are involved because

“the power of the state to control the conduct of children

reaches beyond the scope of its authority over adults. ...” Id. at

638 (quoting Prince v. Mass., 321 U.S. 158, 171 (1944)). Thus, it is

not inconsistent with First Amendment jurisprudence to

consider the prison environment and the audience involved

47a

differences between the prison environment and the out-

side world. In the prison environment, the state is exten-

sively involved in the management of the everyday

affairs of the inmates. It is responsible for maintaining

order and security, and rehabilitating the inmates. Thus,

the responsibility the state assumes in a prison is unlike

its responsibility in society in general. The audience is

also significantly different. The Deputy Director testified

that “[w]e are not talking about people on the street here,

but a confined population, male felons, in this case, the

majority of whom are committed for violent offenses, and

who, characteristically, want what they want imme-

diately, and who often use violence as a means to achieve

their ends.”15 (Tr. at 63). These differences in the environ-

ment and audience mandate a different standard. Thus,

non-obscene sexually explicit material (e.g., material that

when examining the extent of a prisoner’s First Amendment

rights. Other courts have agreed that “[t)]he first amendment

rights of the prisoners cannot be evaluated without reference to

that environment and to the type of audience it involves.”

Guajardo v. Estelle, 580 F.2d 748, 762 (5th Cir. 1978).

'S The Deputy Director testified further that “when you

have a confined population without normal heterosexual

contact, it would seem to me there would certainly have to be a

certain amount of tension and frustration present in that

environment, and we have cases each year where inmates are

sexually assaulted. . . . [G]iven the population that we are

talking about, that a person who has constant exposure to this

kind of material and who may have a disposition to acting

violently and seeking immediate gratification, that the presence

of that material is going to make our job more difficult in

preventing sexual assaults and providing for the safety of the

inmates. ...” (Tr. at 63-4).

48a

does not violate Miller), the dissemination of which can-

not be limited in society, may be excluded from the

prison environment given the appropriate justifications. '®

See Guajardo, 580 F.2d at 762; Thompson v. Patteson, 985

F.2d 202, 205 (5th Cir. 1993).

The second Turner factor is “whether there are alter-

native means of exercising the right that remain open to

prison inmates.” Abbott, 490 U.S. at 417 (quoting Turner,

482 U.S. at 90). “The right” is not to be read narrowly, but

“sensibly and expansively.” Id. at 417. For example, in

Pell, 417 U.S. 817, the progenitor of this factor, the Court

upheld a regulation that prohibited face-to-face inter-

views between inmates and the media because alternative

means of communication were available to the inmate to

communicate with the outside world. The Court focused

on whether the regulations at issue precluded all manner

of exercising the asserted right. Because the inmates

could visit with family, clergy, attorneys, and write to

media representatives, the Court found no constitutional

problem with that policy of exclusion. Pell, 417 U.S. at

824-25; See also O’Lone, 482 U.S. 342 (upheld a regulation

that limited the time Muslim inmates could attend their

religious services because the regulation did not pro-

scribe in toto inmates practicing their religious beliefs).

16 The plaintiffs argue that Miller is at least relevant to the

Turner analysis. However, the sole inquiry is the reasonableness

of the regulations, and Turner and Abbott have given the court

the relevant factors in making that determination. This point is

really not seriously contested. Montcalm has conceded that

VDOC may exclude material that does not violate Miller, (Tr. at

213), but continues to argue that the court should at least

consider the factors outlined in Miller in examining DOP 852.

49a

In Abbott, this factor was satisfied because “the regu-

lations at issue . . . permit[ed] a broad range of publica-

tions to be sent, received, and read... . ” Abbott, 490 U.S.

at 418. The same is true in this case. DOP 852 does not, as

the plaintiffs contend, “totally deprive[ |] inmates of their

right to receive legally non-obscene, sexually-oriented

publications.” (Montcalm’s Pre-trial Brief at 21). On the

contrary, the range of sexually explicit material excluded

by DOP 852 is quite limited. Inmates can still regularly

receive other sexually explicit publications that do not

violate DOP 852. Thus, as in Abbott, this factor is clearly

satisfied because alternative means are available to the

inmates to receive other sexually explicit publications.!7

The third Turner factor addresses the “impact that

accommodation of the asserted constitutional right will

have on others (guards and inmates) in the prison.”

Abbott, 490 U.S. at 418. Plaintiffs contend that accom-

modation will have “no adverse impact because the

VDOC already has procedural mechanisms in place for

reviewing and distributing incoming publications to

inmates,” and that accommodation would reduce “the

natural animosity engendered by the censorship pro-

cess.”!18 (Montcalm’s Pre-trial Brief at 21-22). While

'7 The court does not intimate that inmates must receive at

least some sexually explicit material for this factor to be

satisfied. It makes no ruling whether VDOC could ban all

sexually explicit material.

'® The animosity engendered by the censorship process is

not a concern to this court. The focus of the court’s inquiry is not

how regulations affect inmates’ attitudes regarding legitimate

censorship, but whether the regulations are reasonably related

to a legitimate purpose.

50a

accommodation may not have an adverse impact on the

use of prison resources, a “significant ‘ripple effect’ on

fellow inmates” is a distinct possibility because of the

frequency that bartering occurs among the inmates.!9 See

also Dawson, 986 F.2d at 262. As a consequence, accom-

modation would adversely affect the rehabilitation pro-

cess.

Finally, “the existence of obvious, easy alternatives

may be evidence that the regulation is not reasonable, but

is an ‘exaggerated response’ to prison concerns. .. . [I]f an

inmate claimant can point to an alterative [sic] that fully

accommodates the prisoner’s rights at de minimis cost to

valid penological interests, a court may consider that as

evidence that the regulation does not satisfy the reason-

able relationship standard.” Abbott, 490 U.S. at 418 (quot-

ing Turner, 482 U.S. at 90-91).

Plaintiffs have proposed an alternative policy in

which the publishers send their publications directly to

the PRC which then decides which ones violate DOP 852.

(Tr. at 107). This would, by removing the initial review by

the postal clerks at each correctional facility, result in

greater uniformity in the application of DOP 852 because

only one group would be applying the regulation. While

this alternative may lead to more uniform results, it also

carries with it greater burdens on the PRC and potentially

more expense than the current system. The Deputy Direc-

tor described the proposal as not practical given the

19 The Deputy Director acknowledged that bartering occurs

within the system notwithstanding regulations to the contrary.

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volume of publications reviewed by the postal clerks.2°

(Tr. at 107). The court agrees that this proposal is not an

“obvious, easy alternative[ ]” to the current system.

Abbott, 490 U.S. at 418 (quoting Turner, 482 US. at 90).

Moreover, no evidence has been presented of any other

alternatives, leaving this court to conclude that the cur-

rent review system is constitutional.

At the root of this conclusion is the deference the

court affords decisions that affect the management of the

prison. “Deference requires that courts not second-guess

a prison administrator’s choice among alternative poli-

cies unless an alternative exists that would meaningfully

enhance an inmate’s ability to exercise his constitutional

rights.” Hause v. Vaught, 993 F.2d 1079, 1083 (4th Cir.

1993), cert. denied, 114 S.Ct. 702 (1994). Plaintiffs’ proposal

does not “meaningfully enhance” an inmate’s ability to

exercise his rights. It would impose an enormous burden

on a part-time committee to achieve only greater unifor-

mity in the publications excluded. The proposal would

have no impact on an inmate’s ability to exercise his

rights. It should also be noted that “[w]ithout some evi-

dence regarding the extent to which the proffered alterna-

tive would enhance an inmate’s ability to exercise his

constitutional rights, this court will not second-guess

prison officials’ regulatory choices.” Id. at 1083.

20 Between 100 and 150 publications are reviewed by

KMCC personnel daily. (Tr. at 188).

52a

V. DOP 852 is Constitutional as Applied

First of all, there can be no dispute that the written

material found in Gallery runs afoul of both prongs of

DOP 852 VIII.D. The letters in the “Feedback” section of

each issue undoubtedly satisfy the first prong of DOP 852

because they all describe graphically sexual intercourse.

The second prong is also met because a reasonable person

when viewing the material as a whole would ostensibly

conclude that it appeals to a prurient interest in sex. All

of the disputed publications in this case fall squarely

within DOP 852’s ambit.

Plaintiffs do not argue that Gallery does not violate

DOP 852. Instead, they focus on the manner in which it

has been applied, contending that its application has been

arbitrary and capricious. To support this contention, they

point to the postal clerks who as the initial screeners of

all the publications that enter the system receive little if

any formal training other than receiving a copy of the

regulation itself. This, they contend, results in a haphaz-

ard manner of enforcement with inconsistent results

month-to-month within the particular institution and

statewide. This arbitrariness, according to the plaintiffs,

is not remedied by the PRC’s review because it has

admitted and excluded indistinguishable issues of Gall-

ery.

The current review process has been inconsistent in

the application of DOP 852 to Gallery. Before June 1992,

only one issue of Gallery was ever excluded, notwith-

standing its written material. Even after the PRC

excluded the June 1992 issue based on its written mate-

rial, the postal clerks at KMCC permitted the July 1992

53a

issue into the institution. Moreover, the PRC, after

reviewing the August 1992 issue’s written material,

approved the issue for dissemination, which was con-

cededly inappropriate.

These inconsistencies, however, do not render the

process arbitrary and capricious. “[W]hat may appear to

be inconsistent results are not necessarily signs of arbi-

trariness or irrationality.” Abbott, 490 U.S. at 417 n.15.

First, the PRC has been consistent in excluding Gallery

since September 1992. Second, even though the PRC actu-

ally approved the August 1992 after reviewing the writ-

ten material, a PRC member testified that the issue’s

initial approval was improper. The July 1992 issue, which

was never forwarded to the PRC, and the August 1992

issue were subsequently disapproved by the PRC asier

this suit was filed. Moreover, the approval of the August

1992 issue is quite an anomaly in the history of the PRC’s

application of DOP 852, at least with respect to Gallery.

Prior to June 1992, the PRC evaluated Gallery’s pictorial

content, and correctly concluded that based solely on its

pictures, Gallery did not violate DOP 852. Plaintiffs and

defendants agree with this assessment of Gallery’s photo-

graphs. This court is of the opinion that these inconsisten-

cies do not make the system arbitrary and capricious. To

rule so would be to mandate perfection, something that

cannot be created by judicial fiat.

VI. Minimum Procedural Safeguards

In examining the procedural requirements for prison

regulations, Martinez is the starting point. Martinez is best

54a

understood if it is bifurcated into substantive and pru-

cedural due process aspects. See Parker v. McKenzie, No.

76-2083, slip op. at 3 (4th Cir. May 1, 1978) (“[Martinez]

has two aspects: one substantive and the other pro-

cedural.”). Substantively, it implemented a heightened

scrutiny test for prison regulations. Procedurally, it estab-

lished “minimum procedural safeguards” for those with a

legitimate interest in communicating with inmates.?! Mar-

tinez, 416 U.S. at 417. These procedural safeguard require-

ments included “appropriate notice, a reasonable

opportunity to challenge the initial determination, and an

ultimate decision by a disinterested third party.” Parker,

No. 76-2083, slip op. at 3; Martinez, 416 U.S. at 418-19.

Other courts have followed Martinez and similarly

required such procedural protection. See Smith v. Don-

ohue, 977 F.2d 585, 1992 WL 238340 at *4 (7th Cir. Sept. 24,

1992) (“In [Martinez], overruled on other grounds by

[Abbott], the Supreme Court stated that the decision to

censor inmate mail must be accompanied by minimum

procedural safeguards, including notice of censorship to

the sender and recipient of the mail, and an opportunity

to protest to an official other than the censor.”); Martin v.

Kelley, 803 F.2d 236, 243-44 (6th Cir. 1986); Abdul Wali v.

Coughlin, 754 F.2d 1015, 1027-28 (2d Cir. 1985); Trudéau v.

Wyrick, 713 F.2d 1360, 1366-67 (8th Cir. 1983) (“[T]he

Warden's duty under [Martinez] was to give some form of

21 “In this case, 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.” Abbott, 490 U.S. at

408. As a consequence, they are entitled to “minimum

procedural safeguards.” Martinez, 416 U.S. at 417.

55a

notice to the author and to the intended recipient that

delivery of the letter was being upheld, and then refer the

question to an impartial third party for resolution.”);

Parker, No. 76-2083, slip op. at 3; Cofone v. Manson, 409

F.Supp. 1033, 1041-42 (D.Conn. 1976) (holding a regula-

tion defective because it provided notice only to the

inmate and not the publisher). Although Abbott overruled

Martinez’ substantive aspect, it did not address its pro-

cedural holding because the regulation in Abbott already

“provide[d] procedural safeguards for both the recipient

and the sender.?2 Abbott, 490 U.S. at 406. Thus, Martinez’

procedural holding escaped Abbott unscathed and still

protects those with a legitimate interest in communicat-

ing with inmates.

In this case, while the regulation adequately protects

the interests of the inmates, specifically Hodges and

Flora, it does not afford any procedural safeguards to

protect the interests of publishers such as Montcalm.

22 The regulations in Abbott required the warden to advise

the inmate in writing of the specific reasons for the rejection, 28

C.F.R. § 540.71(d) and provide the publisher a copy of the

rejection letter, 28 C.F.R. § 540.71(e). An independent review is

also available upon request by the publisher. 28 C.F.R.

§ 540.71(e).

*3 DOP 852 VII. provides notice to the inmate and allows

the inmate to appeal through the “Inmate Grievance Procedure”

the decision by either the warden or the PRC to exclude a

publication. Both Hodges and Flora were notified that KMCC

intended to exclude their respective issues of Gallery for the

months mentioned. Although one inmate supposedly received

notice after the time prescribed by the regulation, this did not

amount to any prejudice.

56a

Publishers have no way of knowing when their publica-

tions have been banned from the prison. It was com-

pletely fortuitous that Montcalm learned of KMCC’s

decision to exclude Gallery. Flora wrote Montcalm,

requesting a refund because KMCC refused to permit him

to receive his subscription. Because DOP 852 fails to

comply with Martinez’ procedural requirements, as

adopted by the Fourth Circuit, it is facially defective

procedurally.

It should be noted that compliance with the pro-

cedural requirements will not entail a great burden for

VDOC. In fact, the Constitution may require nothing

more than VDOC sending the publisher a copy of the

letter it sends to the inmate detailing on what basis the

publication is being excluded and providing the pub-

lisher an opportunity to respond in writing. This is

hardly an “unduly burdensome” requirement. Martinez,

416 U.S. at 419.

The Commonwealth contends that granting declara-

tory or injunctive relief on this issue is unnecessary

because the relief would serve no real purpose. (Com-

monwealth’s Post-Trial Brief at 19). Montcalm already has

notice that its publications violated DOP 852 and that

Gallery will not be approved for future dissemination

until its material is “toned down.” Id. at 20. In response to

these contentions, the court need only turn to the review

process itself, which belies the Commonwealth’s position.

The PRC conducts monthly evaluations of publications to

which the individual institutions have objected. The PRC

then determines whether that monthly issue violates DOP

852. It makes no judgment about future issues. Indeed,

DOP 852 VII.A. states that “each facility will approve or

57a

disapprove publications for receipt by inmates on a case-

by-case and/or issue-by-issue basis. .. . ” (emphasis

added). That is why issues from publishers that have

previously appeared on the cumulative list of disap-

proved publications are reviewed by the PRC again and

again. For this reason, the Commonwealth’s position is

untenable, especially in light of the procedures outlined

in DOP 852 VIIA.

VI. Recommended Findings of Fact

1. Donald Hodges and Michael Flora, inmates in the

VDOC penal system, subscribed to Gallery magazine, a

sexually explicit publication which describes graphically

coitus, fellatio and cunnilingus.

2. DOP 852 authorizes the exclusion of publications

that depict sexual conduct in such a way as to include,

inter alia, descriptions of sexual intercourse, or lewd exhi-

bitions of uncovered genitals in the context of masturba-

tion or other sexual activity, and that, taken as a whole,

appeal to a prurient interest in sex as viewed by a reason-

able person.

3. KMCC personnel conduct an initial inspection of

publications that are sent to the institution to verify their

compliance with DOP 852.

4. Once KMCC determines a publication violates

DOP 852, it informs the inmate of the publication and the

guidelines that are believed to be violated. It then for-

wards the publication to the PRC in Richmond, Virginia.

58a

5. The PRC reviews the publications sent by the

institutions and makes the final determination whether

they violate DOP 852.

6. The PRC also creates a “Disapproved Publica-

tions List,” a cumulative listing of the publications

reviewed and disapproved for dissemination. Once an

issue appears on the list, the institutions are not to dis-

seminate it to the inmates.

7. KMCC objected to the February, March, April,

and May, 1992 issues of Gallery based on their pictorial

content. The PRC subsequently determined that these

issues did not violate DOP 852.

8. KMCC objected to the Gallery’s written material

in the June and September 1992 issues. The PRC subse-

quently disapproved these issues for dissemination to the

inmates.

9. Although the July 1992 issue was never for-

warded to the PRC and was, as a consequence, allowed

into the prison, the PRC subsequently examined the issue

and found it to violate DOP 852.

10. Although the PRC initially approved the August

1992 issue based on its written material, it subsequently

retracted its approval, finding that the issue violated DOP

852.

11. The PRC has consistently disapproved Gallery

since September 1992 based on the criteria outlined in

DOP 852 VIII.D.

12. Minimum procedural safeguards have been pro-

vided to the inmates.

59a

13. These safeguards, however, have not been pro-

vided to publishers whose publications have been

excluded.

VIII. Recommended Conclusions of Law

1. Prison regulations affecting the dissemination of

publications to inmates must be reasonably related to a

legitimate penological interest. Turner v. Safley, 482 U.S.

78 (1987)

2. Security, order, and rehabilitation are legitimate

penological interests which are furthered by DOP 852.

3. The written material in all Gallery issues pre-

sented to this court violate both prongs of DOP 852

VIII.D.

4. The articles’ vivid descriptions of sexual inter-

course violate the first prong of DOP 852 VIIID.

5. A reasonable person viewing the material as a

whole would conclude that it appeals to a prurient inter-

est in sex.

6. Turner provides four factors that aid in the deter-

mination of a particular regulation’s reasonableness.

7. DOP 852 satisfies the first Turner factor as it is

neutral with respect to the content of expression and

reasonably related to the penological interest in reha-

bilitation.

8. The regulation the Court faced in Procunier v.

Martinez, 416 U.S. 396 (1974), is not analogous to the

60a

regulation before this court because it permitted person-

nel to inject their own personal prejudices, creating

obvious enforcement problems.

9. DOP 852, on the other hand, is unlike the regula-

tion in Martinez as it is objective, unambiguous and does

not pose the same type of enforcement problems the

Court faced in Martinez.

10. Regulations may distinguish among publica-

tions so long as such distinctions are based on the poten-

tial impact the publications may have on legitimate

penological interests.

11. DOP 852 is neutral with respect to the content of

the publications it excludes because it distinguishes

among publications based on their potential impact on

security, order and rehabilitation.

12. A lack of empirical evidence substantiating a

causal connection between excluding Gallery publications

and security, order or successful rehabilitation is not nec-

essary.

13. Prison officials are given discretion to anticipate

problems of this nature before they occur. U.S. v. Stotts,

925 F.2d 83, 87 (4th Cir. 1991).

14. The Deputy Director’s judgment that Gallery

and other publications that violate DOP 852 significantly

hinder inmate rehabilitation is afforded deference.

15. The term “obscenity,” as it appears in DOP 852

VHIi.D., should not be read in light of its definition in

Miller v. California, 413 U.S. 15 (1973) as its meaning is

clear from the regulation itself.

6la

16. Furthermore, the regulation need not incorpo-

rate the Miller definition of obscenity to comply with the

Constitution as the prison environment and the audience

involved mandate a different standard to be applied.

17. Regulations may exclude sexually explicit pub-

lications that are not “obscene” within Miller

18. The second Turner factor is also satisfied as the

inmates may receive other sexually explicit publications.

DOP 852 excludes only a very narrow group of sexually

oriented publications.

19. The third Turner factor, the effect accommoda-

tion would have on others in the prison, is met because

allowing such publications into the prison may adversely

impact the rehabilitation process of certain inmates.

Accommodation is not necessary.

20. The final Turner factor requires an examination

of other alternatives to determine whether the current

system of review is an exaggerated response.

21. The alternative policy proposed, requiring pub-

lishers to send their publications directly to the PRC, is

not an “obvious, easy alternative.” Abbott, 490 U.S. at 418

(quoting Turner, 482 U.S. at 90-91). The Proposal does not

satisfy the final factor in the Turner analysis, nor does it

meaningfully enhance an inmate’s ability to exercise his

constitutional rights.

22. DOP 852 is facially constitutional as it is reason-

ably related to legitimate penological interests.

23. DOP 852 has not been applied arbitrarily or

Capriciously.

62a

24. Although the current system has produced

inconsistent results in the review of Gallery, such incon-

sistencies do not render the review process arbitrary and

capricious.

25. Martinez mandates that minimum procedural

safeguards be afforded those with a legitimate interest in

communicating with inmates. This aspect of Martinez has

not been overruled by Abbott.

26. The minimum safeguards are notice to the pub-

lisher, an opportunity for the publisher to protest an

adverse determination, and a disinterested party review

of the original decision to exclude the publication.

27. DOP 852 is facially defective procedurally and

as applied. It must afford minimum procedural safe-

guards to publishers such as Montcalm.

28. The review process itself which requires each

issue of a publication to be evaluated makes declaratory

and injunctive relief appropriate to Montcalm under

these circumstances.

IX. Recommended Disposition

This court finds DOP 852 to be substantively reason-

able, on its face and as applied, but procedurally defec-

tive, on its face and as applied, with respect to

publishers’ due process rights. It recommends judgment

be entered accordingly, and injunctive relief be granted,

requiring VDOC to provide procedural safeguards as out-

lined in this report.

Notice to Parties:

Notice is hereby given to the parties of the provisions

of 28 U.S.C. Section 636(b)(1)(C):

63a

Within ten days after being served with a copy

[of this Report and Recommendation], any party

may serve and file written objections to such

Proposed findings and recommendations as pro-

vided by rules of court. A judge of the court

shall make a de novo determination of those

portions of the report or specified proposed

findings or recommendations to which objection

is made. A judge of the court may accept, reject,

or modify, in whole or in part, the findings or

recommendations made by the magistrate judge.

The judge may also receive further evidence or

recommit the matter to the magistrate judge

with instructions.

Failure to file timely written objections to these pro-

posed findings and recommendations within ten days

could waive appellate review. At the conclusion of the

ten-day period, the Clerk is directed to transmit the

record in this matter to the Honorable Samuel G. Wilson,

United States District Judge.

The Clerk is also directed to send certified copies of

this Report of Proposed Findings of Fact, Conclusions of

Law and Recommendations for Disposition to all counsel

of record at this time.

DATED: This Sth day of May 1994.

/s/ Cynthia D. Kinser

United States

Magistrate Judge

A TRUE COPY, TESTE:

MORGAN E. SCOTT, JR., CLERK

BY: /s/ L. Roberts

DEPUTY CLERK

64a

APPENDIX E

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FILED

April 30, 1996

No. 95-6190

CA-92-907-R

CA-92-696-R

MONTCALM PUBLISHING CORPORATION

Plaintiff - Appellant

and

DONALD ARLIS HODGES; MICHAEL

GLYNN FLORA

Plaintiffs

R. J. BECK; J. HORTON; R. A. YOUNG; E. C.

MORRIS, MS. SUMMERS; EDWARD

MURRAY, in his official capacity as Director

of the Department of Corrections of the

Commonwealth of Virginia; JOHN DOE, 1 - 7,

in their official capacities such fictitious

names being designed to identify those

VDOC employees whose true identities are

now unknown to plaintiff-intervenor, but who

serve as (a) members of the VDOC

Publication Review Committee, (2) Warden or

Superintendent of Keen Mountain Correctional

Center (KMCC), and (3) functional KMCC

mailroom censor; J. PHIPPIN, MR. BECK;

COMMONWEALTH OF VIRGINIA

Defendants - Appellees

en er rs

65a

On Petition for Rehearing with suggestion for Rehearing

in Banc

The appellees’ petition for rehearing and suggestion

for rehearing in banc were submitted to this Court. As no

member of this Court or the panel requested a poll on the

suggestion for rehearing in banc, and

As the panel considered the petition for rehearing

and is of the opinion that it should be denied,

IT IS ORDERED that the petition for rehearing and

suggestion fer rehearing in banc are denied.

For the Court,

/s/ Bert M. Montague

CLERK

66a

APPENDIX F

AMENDMENT I

[Freedom of Religion, of Speech, and of the Press]

Congress shall make no law respecting an establish-

ment of religion, or prohibiting the free exercise thereof;

or abridging the freedom of speech, or of the press; or the

right of the people peaceably to assemble, and to petition

the government for a redress of grievances.

AMENDMENT XIV

Section 1. [Citizenship - Due Process of law - Equal

protection.]

All persons born or naturalized in the United States, and

subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. No

State shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life,

liberty, or property, without due process of law; nor deny

to any person within its jurisdiction the equal protection

of laws.

67a

APPENDIX G

§ 1983. Civil action for deprivation of rights

Every person who, under color of any statute, ordi-

nance, regulation, custom, or usage, of any State or Terri-

tory or the District of Columbia, subjects, or causes to be

subjected, any citizen of the United States or other person

within the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the Constitu-

tion and laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper proceeding

for redress. For the purposes of this section, any Act of

Congress applicable exclusively to the District of Colum-

bia shall be considered to be a statute of the District of

Columbia.

68a

APPENDIX H

(Seal) COMMONWEALTH OF VIRGINIA

Ill.

IV.

DEPARTMENT OF CORRECTIONS

DIVISION OF ADULT INSTITUTIONS

OPERATING PROCEDURE

PROCEDURE NUMBER: 852

DATE: APRIL 23, 1990

SUBJECT: INCOMING PUBLICATIONS

Part 1

GENERAL PROVISIONS

PURPOSE

To establish procedures to regulate the receipt and

possession of publications by inmates.

AUTHORITY

Section 53.1 - 35 Code of Virginia

EFFECTIVE DATE: JUNE 1, 1990

DISCUSSION

Inmates should be allowed to subscribe to or other-

wise receive publications direct from a legitimate

source so long as they are not obscene and so long

as they do not pose a threat to the security, disci-

pline, and good order of the facility.

Inmates retain certain First Amendment rights in

regard to free access to publications. Correctional

administrators have equally valid responsibilities

under the Code of Virginia to maintain security,

VI.

69a

discipline, and good order in their facilities. These

responsibilities include control of contraband, con-

trol over disruptive or illegal activities, and con-

cern for the safety and well being of inmates and

institutional staff.

It is recognized that publications can have a posi-

tive rehabilitative effect on inmates. This is evi-

denced by Division-wide efforts to establish and

support institutional libraries and law libraries for

inmate use. This Division Operating Procedure

establishes procedures for the receipt of publica-

tions by inmates direct from approved sources.

APPLICABILITY

This Operating Procedure applies to all institu-

tions, field units, and special facilities, regarding

incoming publications for inmates.

DEFINITIONS

Publication

Any printed communication such as newspapers,

magazines, newsletters, or any other periodicals,

books, paperbacks, brochures, technical manuals,

catalogs and/or pamphlets which can be sub-

scribed to, ordered, or otherwise received direct

from an approved source. Such materials, whether

solicited or unsolicited by the receiving inmate,

should be reviewed in accordance with the require-

ments of this procedure. Printed materials pro-

vided to inmates through facility approved, on-

going programs or special activities are exempt

from this definition and procedure so long as they

are integral to the program/activity and have been

Vil.

70a

approved by the Warden/Superintendent or his

designee specifically for that program or activity.

Approved Source

Place or origin for publications received by

inmates to include commercial sources such as a

publisher, bookstore or book club, and _ not-for-

profit distributors such as a religious organization

or government agency.

Part II

PROCEDURES

ADMINISTRATIVE PROCEDURES

A. The Warden/Superintendent of each facility

will approve or disapprove publications for

receipt by inmates on a case-by-case and/or

issue-by-issue basis in accordance with the

requirements set forth in this procedure.

B. The Warden/Superintendent of each facility

will be responsible for submitting all disap-

proved publications and the complete Disap-

proved Publications Log to the Deputy

Director’s office once each month. (See Attach-

ment 1)

C. The Publications Review Committee will con-

sist of members appointed by the Deputy

Director of the Division of Adult Institutions

and should meet at least monthly to review all

disapproved publications and materials.

D. Appeals of publications disapprovals will be

handled as follows:

7la

In those instances where a publication is

denied by a Warden/Superintendent, the

inmate may appeal this action through the

Inmate Grievance Procedure. (See Section

VIII: B 3).

In those cases where a publication is dis-

approved by the Publication Review Com-

mittee, the inmate may appeal

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