# Petition for Writ of Certiorari — Angelone v. Montcalm Publishing Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_1217%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1996 - **Citation:** 519 U.S. 928 ## Text 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. 4 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Fourth Circuit 6 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? il TABLE OF CONTENTS Page TABLE OF AUTHIORITIES . cciisccicoccesuussyeevon Vv OPINIONS BELOW. . 0 i6 eiovtireseetet vctas iesnyeu 1 FURISDICTION os i cin0ss 13 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. 14 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. 15 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 16 458 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 i oe a op a ee ee bs Bad ORRIN Decals eit ahd Choe F, Ae tee ch hel has a Sahel: Ntehy bla ne tn Centos eink io, LONI a SAE ay ORB te SR ooh s heigs 17 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 18 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 Le ee ne Pe oe eee 1 San DA Me AA ae Te whiSakt iene: 19 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). 20 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 an a eee ewe : | 21 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 22 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, 23 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 24 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 25 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. 26 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. | toy be RPT ORR, Sopra hare aentnd a Aes me LQ eR wha Da Ri Rew Pat BAYS CRA ARS TR OR WK RE aay 27 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 ewe eee eee 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 I enter yh hetero dog oe as 66a Ne TE ae 66a 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 dere ee alt LEE es 68a la 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, v. 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; ) ) ) i COMMONWEALTH OF VIRGINIA, Defendants-Appellees. ) No. 95-6190 2a 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 3a 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. I. 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: 4a 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 5a 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 6a 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. I. 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 — 7a 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. 8a 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 9a 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. ee ee ee Ter eee rs SAS ewe Sia aN ee | aah We Riel Rk 4 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. Wi ih LB Ct SRSA ian inl ae OTR Alaa bata Bla spt ee at le ad 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. PMs Oia abla Leet Ga Menk GG 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 V. 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, v. 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. I. 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. cir oats alll ee ee ~ j 5 $ betta ‘a OTe Saget SBEN Dia aa: aa Sik Ee tel Mii) BS AENEAN CE OR AC MRL, SOT 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 ase Sa ary th CO Sens) eo 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 Hea es NPAC i eben asta PISS WT antacid UE NET italy day Silat RM al i a Rowe Seseaatetad ec i hoo ee Pee SENSO tM See re oie ees ee Oye Cet eae haar A Wa 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 V. COMMONWEALTH OF VIRGINIA, et al., Defendants. and MICHAEL G. FLORA, Civil No. 92-0907-R Plaintiff, v. COMMONWEALTH OF FINAL ORDER VIRGINIA, et al., Defendants. and MONTCALM PUBLISHING CORP., Plaintiff-Intervenor, (Filed Dec. 19, 1994) V. 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 —— 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. ee 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 © The regulation provided procedural safeguards to the 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; Ww 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. 5la 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 V. 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 per [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_1217%3A1. Public record. Not legal advice.