# Petition for Writ of Certiorari — Hammer v. Ashcroft > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1169%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2010 - **Citation:** 559 U.S. 991 ## Text Supreme Court, U.S. OF ILE hi 09-504 OCT 23 2009 No. cee cere bff ap paeficeenenhapiatentnmenmemanere- IN THE Supreme Court of the United Sites DAVID PAUL HAMMER, Petitioner, Vv. JOHN D. ASHCROFT, HARLEY G. LAPPIN, KATHLEEN HAWK-SAWYER, and KEITH OLSON, Respondents. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit PETITION FOR A WRIT OF CERTIORARI Jerold S. Solovy Barry Sullivan Counsel of Record Cooney & Conway Chair in John R. Storino Advocacy and Professor of Law Chad E. Bell LOYOLA UNIVERSITY CHICAGO JENNER & BLOCK LLP 25 East Pearson Street 353 N. Clark Street Chicago, Illinois 60611 Chicago, IL 60654 (312) 915-7787 (312) 222-9350 Attorneys for Petitioner QUESTIONS PRESENTED FOR REVIEW Under 28 C.F.R. § 540.63, federal prisoners may be interviewed face-to-face by the press, unless the warden determines after an individualized inquiry that the interview would endanger the interviewer or “probably cause serious unrest or disturb the good order of the institution.” However, after the broadcast of an interview with Timothy McVeigh, Attorney General John Ashcroft banned all face-to- face press interviews with male federal death row inmates. The Attorney General cited no security reasons, but stated that such prisoners should be denied “a podium” to communicate their ideas. Two - questions are presented: 1. Whether the en banc Seventh Circuit erred in upholding this abridgement of First Amendment rights, when it held, contrary to decisions of the Second, Third, Fighth, and Ninth Circuits, that the “legitimate penological interest” required by Jurner v. Safley, 482 U.S. 78 (1987), may be established as a matter of law through post-hoc iitigation declarations referrirg to “security concerns,” or, alternatively, by a court’s ability to imagine or hypothesize such concerns, even where the stated reason for the abridgement was unconstitutional. 2. Whether the en banc Seventh Circuit erred by ignoring the four factor test set forth in Turner and by adopting a test of its own, under which it held that a permanent ban on _ face-to-face _ press interviews with male-death-row inmates, a sub-class of federal prisoners, does not violate the First Amendment. ll PARTIES TO THE PROCEEDING Petitioner David Paul Hammer was the plaintiff- appellant below. Respondents John D. Ashcroft, Harley G. Lappin, Kathleen Hawk-Sawyer, and Keith Olson were defendants-appellees below. lll TABLE OF CONTENTS QUESTIONS PRESENTED FOR REVIEW ............... i PARTIES TO THE PROCEEDING ............. eee i Eels CO PALF Cee Reee FB esintssvicnisssssancsanaictecavssvsanes vi PETITION FOR A WRIT OF CERTIORARI ............. 1 STE SEAT vitnsanenes ease snnussessvaninicanenslainssaieaiid 1 STATEMENT OF JURISDICTION .......0 ee. 1 CONSTITUTIONAL AND REGULATORY Rr VES BOE I RED isin ces senssvassucdvecevevedisrseiene 2 STATEMEGINE OF TEE CABS .00.00cccccccscsssvssssrnsesenssrees 2 Bi, — TR Re sen siiccsaiieivsnacodancesenssctuersvaracees 2 BH. FEAL E CP PACTS cvcsicccicccoscssecencssssene 4 C. PRROPCIDIUAL, FEEL IEE ciccccsccnsssccveccssseesess 8 REASONS FOR GRANTING THE WRIT................ 11 I. The Decision Below Conflicts With Prior Decisions Of This Court, And With Decisions Of Other Federal Courts Of Appeals, By Holding That T7urners “Legitimate Penological Interest” Requirement May Be Satisfied By FPost- Hoc, Litigation Declarations Or By Purely Hypothetical Explanations, Even Where Contemporaneous Statements Show That The Restriction Was Adopted For Patently Unconstitutional Reason... .................sccccscscseeseeeee 13 1V II. The Decision Below Departs From This Court’s Prior Holdings By Disregarding Turner And Upholding The Constitutionality Of A Permanent Restriction On The First Amendment Rights Of A Sub-Class Of Prisoners.................... IIT sa vies ischeixiscacashuinibedadsscsivmoscanusesiabiciins Appendix A Hammer v. Ashcroft, 570 F.3d 798 (7th Cir. RRS ROA EL GOT es AE. Hee evn Appendix B Hammer v. Ashcroft, 512 F.3d 961 (7th Cir. RE ee rear ie MORE AACR PS eR SEE PER EOD Appendix C Hammer v. Ashcroft, No. IP 01-558-C-T/G, 2006 WL 456177 (S.D. Ind. Feb. 23, 2006) eeeteee Appendix D Hammer v. Ashcroft, 42 F. App’x 861 (7th pS AASR Aa ees Dea! Ben shAL DO ie he contra Appendix E Hammer v. Ashcroft, No. IP 01-558-C-T/G (S.D. Ind. May 24, 2001) See eee eee eeeeeeeeeeeeeeeeeeeeeeseee Appendix F Constitutional Provisions and Regulations INI ic 7c. co canchcacgeueacsiaiaicrsdeaneeinateussuagnioareenveueen 80a Appendix G Ashcroft Press Conference..............cccccecesecececeees 85a Appendix H Institution Supplement THA-1480.05A.......... 103a v1 TABLE OF AUTHORITIES CASES Abu-Jamal v. Price, 154 F.3d 128 (3d Cir. eee daseowenei 12, 19 Battle v. Anderson, 564 F.2d 388 (10th Cir. Teen seecennell 15 Beard v. Banks, 548 U.S. 521 (2006).. 13, 23, 27, 28 Bell v. Wolfish, 441 U.S. 520 (1979) ........ccc:cccceeees 27 Burlington Truck Lines, Inc. v. United States, 371 U.S. 156 (1962) .............ccsccsssssssoeses 17 Citizens to Preserve Overton Park, Inc. v. ee, BOT TFB. GE CITED vninsecccscssscesisessessess..:. 17 Johnson v. California, 543 U.S. 499 (2005).......... 15 Motor Vehicle Manufactures Ass’n of the United States, Inc. v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29 SR LE IY 9: a ON RT OP 17 O’Lone v. Estate of Shabazz, 482 U.S. 342 is 13, 23, 27 Overton v. Bazzetta, 539 U.S. 126 (2003)..... 13, 16, 23, 27, 28 Pell v. Procunter, 417 U.S. 817 (1974) .......... 15, 23, 24, 27 Police Department of Chicago v. Mosley, ee I aa aiicccchacssacecnucoustneseetemssauscicans 26 Quinn v. Nix, 983 F.2d 115 (8th Cir. 1993)....12, 20 vii RA.V. v. City of St. Paul, 505 U.S. 377 III is scersina sina sacebsahaadhasmeapaataieasae snare mea dnaiabuseliaed 26 Salahuddin v. Goord, 467 F.3d 263 (2d Cir. a SaaS Se Os 12, 18, 19 Saxbe v. Washington Post Co., 417 U.S. 843 a ee 23, 24 SEC v. Chenery Corp., 318 U.S. 80 (1943)........... 17 SEC v. Chenery Corp., 332 U.S. 194 (1947)......... 17 Thornburgh v. Abbott, 490 U.S. 401 (1989)...23, 27 Turner v. Safley, 482 U.S. 78 (1987) ............ passim United States v. Hammer, 404 F. Supp. 2d 676 (M.D. Pa. 2005), appeals dismissed, BO4 F.BG GES God Cle. BOODP cocccccesccccsccescoscccocseoccs 4 Walker v. Sumner, 917 F.2d 382 (9th Cir. | ___RaRRReas Sa acne Re es NEN NPE NSAN APS TOO MAU A 12, 20 West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943)... cece cece eee 22 Whitney v. California, 274 U.S. 357 (1927), overruled in part on other grounds by Brandenburg v. Ohio, 395 U.S. 444 Lcd eh Ree SO ct SSI SUT) NET OI OO 14 Wirdmar v. Vincent, 454 U.S. 263 (1981).............. 26 Williams v. Rhodes, 393 U.S. 23 (1968) ............... 26 Wolff v. McDonnell, 418 U.S. 539 (1974) ............. 14 STATUTES ee ek, Ss iia chic eknci'sa bashed vasuuedeeka vaciuaececovscesaneens 2 Se ets Oe I cahabaiesececbocsasencncaes 2, 0, bp Ge Bb, OO 28 U.S.C. § 540.63(g)(4) .........ccccccsccccceees acdatae neuen 27 OTHER AUTHORITIES OR, Tes Cae We i kccdcindisiacecentsa cae 8 Mary Bosworth, The U.S. Federal Prison I Fi ikasesecstevcsecvearedanseeeeee 15 PETITION FOR A WRIT OF CERTIORARI David Paul Hammer respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Seventh Circuit in this case. OPINIONS BELOW The Seventh Circuit, by a vote of 5-to-3, reversed the unanimous panel decision in this case. The majority and dissenting opinions of the en banc court are reported at 570 F.3d 798 (7th Cir. 2009) and reprinted at App. la-30a. The panel opinion is reported at 512 F.3d 961 (7th Cir. 2008) and reprinted at App. 31la-48a. The memorandum opinion and order of the United States District Court for the Southern District of Indiana, which granted summary judgment in favor of respondents and dismissed petitioner’s pro se amended complaint, is not reported, but is reprinted at App. 49a°62a. An earlier Seventh Circuit opinion, reversing the district court’s dismissal of petitioner’s original pro se complaint for failure to state a claim, is reported at 42 F. App’x 861 (7th Cir. 2002) and reprinted at App. 63a-70a. The district court’s memorandum opinion and order dismissing the original complaint is not reported, but is reprinted at App. 7la-79a. STATEMENT OF JURISDICTION The Seventh Circuit entered judgment on June 25, 2009. (App. la). On September 15, 2009, Justice Stevens extended the time in which to file a petition for a writ of certiorari to and including October 23, 2 2009. This Court has jurisdiction under 28 U.S.C. § 1254. CONSTITUTIONAL AND REGULATORY PROVISIONS INVOLVED The First and Fifth Amendments to the United States Constitution and the pertinent provisions of Section 540.63 of Title 28, Code of Federal Regulations, and Institution Supplement THA- 1480.05A are reprinted at App. 80a-84a, 103a-111a. STATEMENT OF THE CASE A. Introduction To strike a proper balance between First Amendment rights and prison security, the Federal Bureau of Prisons (“BOP”), after notice-and-comment rulemaking, promulgated 28 C.F.R. § 540.63, which allows federal inmates to participate in face-to-face press interviews, unless the warden determines, after a individualized inquiry, that the interview would “endanger the health or safety of the interviewer, or would probably cause serious unrest or disturb the good order of the institution.” (App. 82a). Absent such a finding, the interview must proceed. Following a nationally-televised interview with Timothy McVeigh, however, Attorney General John D. Ashcroft banned face-to-face interviews with all male federal death row inmates. (App. 90a). The Attorney General did not rely on any security concern or other “legitimate penological purpose,” but on his personal view that such prisoners should 3 be prevented from communicating their ideas to the public. (App. 90a). He ordered the ban “to restrict a mass murderer’s access to the public podium” and to prevent the “irresponsible glamorization of a culture of violence.” (App. 90a). Warden Harley G. Lappin, who was then the warden at the United States Penitentiary at Terre Haute, Indiana (“USP-TH”) (which houses all male federal death row inmates), subsequently memorialized the ban in Institution Supplement THA-1480.05A. (App. 103a-111a). Petitioner David Paul Hammer, a male federal death row inmate, brought this pro se action to challenge the constitutionality of the ban. The district court dismissed his complaint for failure to state a claim (App. 79a), but the Seventh Circuit reversed and remanded, with instructions that the case proceed to discovery. (App. 70a). On remand, respondents refused to answer any of Mr. Hammer's pro se discovery requests. (7th Cir. JA at 76-86). The district court nonetheless granted respondents’ motion for summary judgment and again dismissed Mr. Hammer’s pro se claims. (App. 62a). On appeal, a panel of the Seventh Circuit unanimously reversed the district court’s dismissal order, and once again remanded for discovery and trial. (App. 48a). The Seventh Circuit granted respondents’ petition for rehearing en banc. By a 5-to-3 vote, the en banc court reversed the panel decision, holding that respondents were entitled to summary judgment because Mr. Hammer was not entitled to discovery and had not presented a triable issue. (App. 15a). According to the Seventh Circuit 4 majority, and contrary to the decisions of every other circuit to have considered the question, respondents’ actual reasons for adopting the total ban were not relevant to the inquiry mandated by Turner v. Safley, 482 U.S. 78 (1987). According to the majority, Turners “legitimate penological interest” requirement may be satisfied, as a matter of law, by the submission of conclusory, post-hoc declarations as to the existence of “security concerns.” (App. 10a- lla). Indeed, the majority held that Turner would be satisfied even without such declarations, if a court could simply imagine or hypothesize a “legitimate penological interest” for violating First Amendment rights. (App. 5a). Thus, summary judgment was appropriate, according to the majority below, even though Attorney General Ashcroft had cited only constitutionally impermissible reasons to justify the ban at the time he announced it. B. Statement of Facts Mr. Hammer, who was sentenced to death for killing a cellmate, resides at the Special Confinement Unit (““SCU”) of USP-TH. (7th Cir. JA at 125).' The Although Mr. Hammer’s death sentence was later vacated, no date has been set for resentencing, and the government has been granted an extension of time to April 28, 2010 to state its intentions with respect to resentencing. See United States v. Hammer, No. 96-CR-239 (M.D. Pa. Aug. 27, 2009) (order granting United States an extension of eight months to indicate whether it will request a new death penalty phase trial); United States v. Hammer, 404 F. Supp. 2d 676 (M.D. Pa. 2005), appeals dismissed, 564 F.3d 628 (3d Cir. 2009). As respondents concede, Mr. Hammer continues to reside on death row and is subject to the policy. (App. 4a, 32a n.1) 5 SCU houses all male federal prisoners who have been sentenced to death. (7th Cir. JA at 200). In addition, the SCU houses prisoners who have not been sentenced to death, but who have been placed on “administrative detention status.” (7th Cir. JA at 200). Mr. Hammer has received many requests for press interviews to discuss conditions on death row, his own case, and other matters related to his confinement. In 1999, Mr. Hammer participated without incident in three face-to-face press interviews. (7th Cir. JA at 126-28). Those interviews were conducted under 28 C.F.R. § 540.63, which permits federal prisoners to participate in face-to-face interviews unless a warden determines, after an individualized inquiry, that the interview would “endanger the health or safety of the interviewer, or would probably cause serious unrest or disturb the good order of the institution.” (App. 82a). On March 12, 2000, “60 Minutes” aired an interview with Timothy McVeigh, a federal death row inmate known as the Oklahoma City Bomber. (7th Cir. JA at 175). The public outcry was immediate. Among other things, on March 14, 2000, Senator Byron Dorgan sent a letter to BOP Director Kathleen Hawk-Sawyer, to demand that the BOP prohibit future interviews with federal death row inmates. (7th Cir. JA at 175). 6 No other face-to-face interview with a male federal death row inmate was ever allowed.” In late 2000 and early 2001, Mr. Hammer attempted to communicate with the press through press releases issued by his attorney, through personal written correspondence, and by using his ordinary 15-minute daily allotments of telephone time. Even in these contexts, Warden Lappin repeatedly warned Mr. Hammer that he was prohibited from disclosing “any information about another inmate through any manner of communication (oral, written, etc.).” (7th Cir. JA at 172) (emphasis in original). On April 12, 2001, Attorney General Ashcroft and BOP Director Hawk-Sawyer held a press conference announcing a categorical ban on _ face-to-face interviews with male federal death row inmates. That ban (which was not adopted pursuant to notice- and-comment rulemaking) permanently and categorically prohibits male federal death row inmates (but not female death row inmates, non- death row inmates housed on the SCU, or, indeed, any other inmate in the federal prison system) from having face-to-face interviews with any print or broadcast journalist on any subject at any time. (App. 95a-96a). The Attorney General explained: From March 2000 until April 16, 2001, USP-TH Warden Lappin denied all media requests for face-to-face interviews with male federal death row inmates, including nine such requests for interviews with Mr. Hammer. (7th Cir. JA at 177- 92). After April 16, 2001, THA-1480.05A was specifically invoked to bar such interviews. (App. 105a). 7 As an American who cares about our culture, I want to restrict a mass murderer’s access to the public podium. On an issue of particular importance to me as Attorney General of the United States, I do not want anyone to be able to purchase access to the podium of America with the blood of 168 innocent victims. ... I’m concerned about irresponsible glamorization of a culture of violence, and that concern has shaped our approach to these _ issues profoundly. (App. 90a, 97a). Four days later, Warden Lappin signed Institution Supplement THA-1480.05A, which purportedly was designed to “provide guidelines for implementing” the case-by-case review process required by 28 C.F.R. § 540.63. (App. 103a). In fact, THA-1480.05A did not “implement” the regulation; it negated the regulation insofar as death row inmates were concerned. In place of the case-by-case review required by 28 C.F.R. § 540.63, THA-1480.05A substituted a permanent and total ban, stating that “in-person interviews (including video-recorded interviews) will not be permitted.” (App. 105a). In addition to banning the broadcast of recorded interviews, the policy banned all face-to-face interviews, even non-recorded interviews with print journalists. (App. 105a). It is undisputed that THA-1480.05A does not apply (a) to prisoners housed on the SCU on “administrative detention status,” (b) to female federal prisoners sentenced to death, (c) to other 8 federal prisoners who have been convicted of murder, but not sentenced to death, or (d) to other federal prisoners who may be objects of acute public interest because of who they are or what crimes they have committed. (App. 35a, 105a). With respect to each of those four groups of prisoners, interview requests remain subject to the case-by-case policy set forth in 28 C.F.R. § 540.63. (App. 81a-84a). C. Procedural History Mr. Hammer filed an amended pro se complaint on January 2, 2003, claiming that THA-1480.05A violated both his First Amendment rights and his Fifth Amendment right to equal protection of the laws. He sought declaratory and injunctive relief, as well as damages, under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). (7th Cir. JA at 26-40).° Mr. Hammer served three separate pro se discovery requests. (7th Cir. JA at 56-62). Respondents objected to all of those requests and moved for summary judgment, without complying with any of the requests. (7th Cir. JA at 63-65, 76-86). Mr. Hammer filed a pro se motion to extend the time for discovery under Fed. R. Civ. P. 56(f), but the district court denied that motion. (7th Cir. JA 87-90, 3 Mr. Hammer filed his original pro se complaint on April 24, 2001. The district court dismissed that complaint for failure to state a valid claim for relief. (App. 79a). Mr. Hammer filed a pro se appeal. The Seventh Circuit reversed and remanded the case for further proceedings, including discovery, on July 26, 2002. (App. 70a). 9 225). Thereafter, the district court granted summary judgment against Mr. Hammer, holding that “Hammer has not identified a genuine issue of material fact as to his claims... .” (App. 62a). Mr. Hammer filed a timely notice of appeal, and the Seventh Circuit later appointed counsel to assist Mr. Hammer with the briefing and argument of his appeal. (7th Cir. JA at 238-39). On January 15, 2008, a panel of the Seventh Circuit unanimously reversed the district court’s grant of summary judgment. The panel held that Mr. Hammer had raised a triable issue of fact as to whether the “proffered [security] justification for the policy banning face-to-face interviews is pretextual.” (App. 32a). That was so, according to the panel, because Attorney General Ashcroft’s contemporaneous’ explanation conflicted with respondents’ litigation declarations and showed that the actual purpose of the ban was “to control a disfavored message rather than to secure the SCU.” (App. 41a). The Seventh Circuit granted respondents’ petition for rehearing en banc. (App. 3a). On June 25, 2009, the Seventh Circuit, by a 5-to-3 vote, held that “Institution Supplement THA 1480.05A is consistent with the Constitution.” (App. 15a). In an opinion by Chief Judge Easterbrook, the court held that respondents’ actual reasons for adopting the ban were not relevant because “lilt is not clear why one bad motive would spoil a rule that is adequately supported by good reasons.” (App. 10a). The “good reasons,” of course, were not those 10 stated at the time the ban was adopted, but those that respondents put forth in defense of Mr. Hammer’s litigation, some three years later. Indeed, according to the majority, it was not necessary for respondents to provide any reasons at all, even after the fact. So long as a court could hypothesize “good reasons” for the ban, there was no need for discovery or a trial concerning the abridgement of Mr. Hammer’s First Amendment rights. (App. 5a, 10a- lla). The majority further held that “[t]he Supreme Court did not search for ‘pretext’ in Turner; it asked whether a rule is rationally related to a legitimate goal. That’s an objective inquiry.” (App. 10a). Three judges dissented. Judge Rovner, joined by Judge Bauer, noted that: With scarcely a reference to 7urner, today’s opinion holds that a ban on face-to-face interviews in the prison system is justified if a judge can “imagine” a legitimate basis for its existence, glosses over facts regarding the application of the relevant policies, and concludes with the astonishing proposition that the government may limit a prisoner’s access to the media based on its distaste for the anticipated content of the prisoner’s speech. (App. 16a). Judge Wood dissented separately. Among other things, she noted that “the majority has. . . adoptled] a rule permitting wholesale censorship in prisons — one that goes much farther than anything the 11 Supreme Court sanctioned in Pell v. Procunier, 417 U.S. 817 (1974), or Saxbe v. Washington Post Co., 417 U.S. 848 (1974).” (App. 24a). REASONS FOR GRANTING THE WRIT 1. This case raises a fundamental question of First Amendment law on which the courts of appeals are divided. In a 5-3-decision with far-reaching consequences, the en banc court held that a federal prisoner could not challenge the constitutionality of a policy prohibiting him from having face-to-face access to print or broadcast journalists, even if there was evidence to show that the ban was adopted for unconstitutional, content-based purposes. Indeed, the evidence here was compelling: Attorney General Ashcroft stated that the purpose of the ban was to prohibit death row inmates from communicating their ideas to the public, not because of any reason related to prison security, but because the Attorney General deemed such prisoners, and any ideas they might express, to be repugnant and unworthy of First Amendment protection. (App. 90a, 97a). That evidence was irrelevant, according to the majority below, because respondents had provided litigation declarations asserting that the ban served a “legitimate penological interest.” That evidence was also irrelevant, according to the majority below, because a court could “imagine” a legitimate purpose that might be furthered by the ban. This Court has never held that the abridgement of First Amendment rights may be justified by after- the-fact or imagined reasons, or that the actual, 12 unconstitutional reasons for an abridgement of First Amendment rights should be ignored. Clearly, the decision below conflicts with this Court’s decision in Turner v. Safley, 482 U.S. 78 (1987). In addition, the decision below conflicts with decisions of the Second, Third, Eighth, and Ninth Circuits, all of which have held that the existence of a “legitimate penological interest,” and thus the constitutionality of restrictions placed on a prisoner’s First Amendment rights, must be measured by reasons that were put forth at the time the policy was adopted. In those courts, unlike the Seventh Circuit, First Amendment rights do not give way to post-hoc, \et alone hypothetical, explanations. See Salahuddin v. Goord, 467 F.3d 263, 276-77 (2d Cir. 2006); Abu-Jamal v. Price, 154 F.3d 128, 132-34 (3d Cir. 1998); Quinn v. Nix, 983 F.2d 115, 118-19 (8th Cir. 1993); Walker v. Sumner, 917 F.2d 382, 385-87 (9th Cir. 1990). 2. Although this Court has held that prison restrictions on First Amendment rights are to be evaluated under the four-part test articulated in Turner v. Safley, 482 U.S. 78 (1987), the Seventh Circuit barely mentioned any of the Turner factors and effectively created an analytical framework that stands in competition with Jurner. The Seventh Circuit’s decision did not even purport to address the question whether THA-1480.05A “is reasonably related to legitimate penological interests” under the four-factor Turner test, and it never considered whether the ban provided male federal death row inmates with any reasonable alternative means for 13 communicating with the press. See Turner, 482 U.S. at 89-90. Furthermore, the decision below constitutes a dangerous innovation in First Amendment law: no other reported decision has ever upheld the constitutionality of a permanent restriction on the First Amendment rights of a sub- class of prisoners, particularly a sub-class identified solely based on gender and sentence. Indeed, this Court previously has expressed skepticism that a permanent ban on the First Amendment rights of a sub-class of prisoners could ever be deemed “reasonable” under the Vurner criteria. Beard v. Banks, 548 U.S. 521, 535-36 (2006); Overton v. Bazzetta, 539 U.S. 126, 134 (2003). This case squarely presents that question. I. The Decision Below Conflicts With Prior Decisions Of This Court, And With Decisions Of Other Federal Courts Of Appeals, By Holding That Zurner’ “Legitimate Penological Interest” Requirement May Be Satisfied By Post-Hoc, Litigation Declarations Or By #£Purely Hypothetical Explanations, Even Where Contemporaneous Statements Show That The Restriction Was Adopted For Patently Unconstitutional Reasons. This Court has long recognized that “(lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights . justified by the considerations underlying our penal system.” O'Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987) (quoting Price v. Johnson, 334 U.S. 266, 285 (1948)). But this Court also has recognized that 14 there is no “iron curtain drawn between the Constitution and the prisons of this country.” Wolff v. McDonnell, 418 U.S. 539, 555-56 (1974). Indeed, this Court has recognized that the ability to share one’s ideas and opinions with others is a fundamental right that is central to the concept of human personhood and citizenship in a democratic society. As Justice Brandeis noted long ago: Those who won our independence believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth: that without free speech and assembly discussion would be futile: that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty, and that this should be a fundamental principle of American government. Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring), overruled in part on other grounds by Brandenburg v. Ohio, 395 U.S. 444 (1969). The right to communicate one’s thoughts — a right that is no less important to those who have lost their physical freedom — is not extinguished by conviction and incarceration. Once the requirements of prison security have been satisfied, “a prison inmate retains those First Amendment rights that 15 are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system.” Pel/ v. Procunier, 417 U.S. 817, 822 (1974); see also Johnson v. California, 543 U.S. 499, 510 (2005). In that way, our law gives recognition to the fundamental principle that “persons are sent to prison as punishment, not for punishment.” Battle v. Anderson, 564 F.2d 388, 395 (10th Cir. 1977); see also Mary Bosworth, The U.S. Federal Prison System 53 (2004). To reconcile the First Amendment rights of prisoners with legitimate penological demands, this Court, in Turner v. Safley, 482 U.S. 78, 89-90 (1987), announced a framework for evaluating’ the constitutionality of prison regulations. In Turner, the Court held that “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” /d. at 89. To structure that inquiry, the Court adopted a four- factor test, focused on: (1) whether there is “a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it”; (2) whether “alternative means of exercising the right . . . remain open to prison inmates”; (3) whether accommodating the constitutional right will significantly impact prison resources; and (4) whether there are “ready alternatives” that could address the penological interest without infringing on constitutional rights. Id. at 89-91. 16 In Turner, this Court did not specifically explain how, in the context of Turners first requirement, the requisite reasonable relationship between a restriction and a legitimate penological purpose was to be established. /d. at 89. In subsequent cases, the Court likewise has not had occasion to consider whether a “legitimate penological interest” must be articulated at the time the policy is adopted. Thus, while this Court has held that TVurner requires courts to “accord substantial deference to the professional judgment of prison administrators,” Bazzetta, 539 U.S. at 132, the Court did not consider whether such deference must be given to non- contemporaneous explanations offered only in litigation declarations authored by lawyers long after the fact. Certainly, no case from this Court suggests that a post-hoc explanation will be given conclusive effect in the face of contemporaneous statements which admit that the contested action was taken for constitutionally impermissible reasons. Moreover, relevant decisions from the courts of appeals have categorically rejected that notion. In addition, this Court has never suggested that the Turner test will be satisfied whenever the reviewing court can “imagine” a_ legitimate penological interest. Indeed, the holding below simply negates this Court’s decision in 7urner, which assumed that the courts would inquire into the adequacy of the real reasons for administrative action, rather than some hypothetical reason that might be conjured to justify the administrative 17 determination. That is not the standard by which administrative action is evaluated.* The Seventh Circuit held otherwise. The Seventh Circuit noted that Mr. Hammer had presented evidence (including the Attorney General’s contemporaneous explanation for his actions) to show that “those who adopted or approved THA 1480.05A took content or viewpoint into account” * this Court often has had occasion to hold that administrative determinations may be upheld only on grounds that the agency actually relied on at the time it acted, and that the propriety of an agency’s action must be evaluated based on a properly developed administrative record. SEC v. Chenery Corp., 318 U.S. 80, 95 (1943) (“Chenery I); SEC v. Chenery Corp., 332 U.S. 194, 196 (1947) (“Chenery IJ’); Motor Vehicle Mfrs. Ass'n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50°52 (1983). “It will not do for a court to be compelled to guess at the theory underlying the agency’s action; nor can a court be expected to chisel that which must be precise from what the agency has left vague and indecisive.” Chenery //, 332 US. at 196-97. A reviewing court “must judge the propriety of such action solely by the grounds invoked by the agency lat the time it acted]. If those grounds are inadequate or improper, the court is powerless to affirm the administrative action by substituting what it considers to be a more adequate or proper basis.” /d. at 196; accord Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 419-20 (1971). Contrary to the decision below, untested, post-hoc litigation affidavits cannot fill that void, particularly where, as here, the affidavits directly contradict the rationale given by the decision-maker at the time he acted. See Overton Park, 401 U.S. at 419; Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168-69 (1962); Chenery /, 318 U.S. at 87. 18 when they adopted the permanent ban. (App. 7a, 8a- 9a). According to the Seventh Circuit, however, a contemporaneous admission of an unconstitutional purpose was not relevant to Jurners’ “legitimate penological interest” requirement, so long as the court record contained a post-hoc litigation declaration asserting that the challenged action furthered some legitimate penological interest. (App. 10a-lla). Indeed, the Seventh Circuit held that a court could enter summary judgment so long as it could hypothesize a plausible permissible penological interest, even where a patently unconstitutional, contemporaneous explanation had been given. (App. 5a, 10a-lla). The Seventh Circuit majority stated: “It is not clear why one bad motive would spoil a rule that is adequately supported by good reasons.” (App. 10a). The Seventh Circuit’s decision clearly conflicts with decisions of the Second, Third, Eighth, and Ninth Circuits, which have held that the only relevant “penological interest” is that which actual/y motivated the policy’s adoption. In Salahuddin v. Goord, 467 F.3d 263 (2d Cir. 2006), the Second Circuit reversed a district court’s dismissal, on summary judgment, of a prisoner's challenge to a rule requiring Sunni and Shi'ite Muslim inmates to participate in joint Ramadan services, as well as the dismissal of his claim that he was denied the opportunity to participate in Islamic holiday services while placed in_ disciplinary keeplock. The Second Circuit held that “[ulnder both Turner and O'’Lone, once a prisoner shows that a 19 prison regulation impinges on a protected right, prison officials must show that the disputed official conduct was motivated by a legitimate penological interest.” Salahuddin, 467 F.3d at 276-77. According to the Second Circuit, Turners “legitimate penological interest” standard ‘“requires’ the government to close the circle — prison officials must have been pursuing the interest in inmate safety when limiting” First Amendment rights. /d. at 277. “This requirement makes good sense because it ensures that prison officials actually had, not just could have had, a legitimate reason for burdening protected activity.” Jd. In Abu-Jamal v. Price, 154 F.3d 128 (3d Cir. 1998), the Third Circuit ordered the district court to issue a preliminary injunction enjoining enforcement of a policy that prohibited inmates from running businesses after the policy was challenged by a death row inmate who was publishing articles, books, and radio commentaries. In that case, as here, the inmate had presented evidence to show that the “(t]he Department [of Corrections] began its investigation [into the inmate’s press communications] under public pressure to do so, and because of the content of [his] writing,” and that the decision to enforce the policy against him was “motivated, at least in part, by the content of his articles.” Abu-~Jamai/, 154 F.3d at 134. Based on this evidence of an improper purpose, the Third Circuit held that the policy did not satisfy Turners “legitimate penological interest” requirement. /d. at 134, 137. 20 In Quinn v. Nix, 983 F.2d 115 (8th Cir. 1993), the Eighth Circuit likewise held that a “pretextual” post- hoc articulation of security concerns could not satisfy Turner, because “[p]rison officials are not entitled to the deference described in Turner and Procunier [v. Martinez, 416 U.S. 396, 404-05 (1974)] if their actions are not actually motivated by legitimate penological interests at the time they act.” Quuznn, 983 F.2d at 118 (emphasis added). Finally, in Walker v. Sumner, 917 F.2d 382 (9th Cir. 1990), the Ninth Circuit held that “{plrison officials must ‘put forward’ a __ legitimate governmental interest to justify their regulation, and must provide evidence that the interest proffered is the reason why the regulation was adopted or enforced.” Jd. at 385-86 (internal citations omitted). Post-hoc declarations created for litigation were not sufficient to satisfy Turner. “Prison authorities cannot rely on general or conclusory assertions to support their policies. Rather, they must first identify the specific penological interests involved and then demonstrate both that those specific interests are the actual bases for their policies and that the policies are reasonably related to the furtherance of the identified interests.” Jd. at 386. The Seventh Circuit’s holding directly conflicts with these decisions, as Judge Rovner recognized: With scarcely a reference to Turner, today’s opinion holds that a ban on face-to-face interviews in the prison system is justified if a judge can “imagine” a legitimate basis for its existence, glosses over facts regarding the 21 application of the relevant policies, and concludes with the astonishing proposition that the government may limit a prisoner’s access to the media based on its distaste for the anticipated content of the prisoner's speech. The en banc opinion thus authorizes the government to deny the public a chance to hear directly from prisoners who can offer a glimpse of situations that may embarrass the government, such as torture and prisoner abuse, by invoking pretextual justifications for policies that are unrelated to security. (App. 16a). There is no constitutional right more precious in a democratic society than the right to speak, convey information about the workings of government, and communicate one’s ideas, whatever they may be. Equally important is the right to receive information and to hear what others have to say about matters of public concern. In our day, much public attention has been given to the administration of the death penalty and to the proper treatment of prisoners. Indeed, these matters have been the subject of acute public attentic.: and vigorous debate. In this context, the ban ordered by Attorney General Ashcroft does not simply abridge the First Amendment rights of those with special knowledge and a particular viewpoint, it impedes the right of all of us to hear what those individuals know and think. Judge Wood illustrated this point with a vivid example: 22 It is likely that the military authorities running the infamous Abu Ghraib prison would not have wanted the inmates talking to the media, either about their own experience or those of their fellow prisoners (some of whom may have been too injured, or too intimidated, to speak for themselves). Closer to home, the sad but true fact is that abuse by prison guards or police has not been entirely abolished. One prisoner might want to write letters that are self-aggrandizing, just as the authorities feared, but another might want to alert the media to the fact that human rights abuses were occurring in a place like the Special Confinement Unit. (App. 28a). The rights to speak and hear are too important in themselves, and play too important a role in the workings of a democratic society, to be extinguished by executive fiat simply because the Attorney General, no matter how wise or well-meaning, finds communications from a subset of federal prisoners to be personally repugnant. Justice Jackson identified the genius of our governmental system, and its relationship to First Amendment freedoms, when he wrote: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion.” West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943). 23 Mr. Hammer may have been convicted of serious crimes, but he retains the right to speak, subject to the legitimate demands of prison security. And the rest of us, subject to those demands, have the right to hear what Mr. Hammer has to say. Neither the Attorney General nor the court below paid sufficient attention to that basic fact of democratic government, and the decision below requires review for that reason. Il. The Decision Below Departs From This Court’s Prior Holdings By Disregarding TYurner And Upholding The Constitutionality Of A Permanent Restriction On The First Amendment Rights Of A Sub-Class Of Prisoners. This Court has repeatedly held that Turners four-factor analysis “contain[s] the basic substantive legal standard[s]” and is the proper inquiry for evaluating constitutional challenges to prison regulations. Banks, 548 U.S. at 528-29; Bazzetta, 539 U.S. at 132; Thornburgh v. Abbott, 490 U.S. 401, 404, 413-14 (1989); O'Lone, 482 U.S. at 348-50. The decision below warrants review for the additional reason that the Seventh Circuit simply disregarded Turner and its progeny, and chose to create its own standard for reviewing the constitutionality of prison restrictions. Instead of assessing Mr. Hammer’s claims under the Yurner framework, the court below used the opinions in two older cases — Pell v. Procunier, 417 U.S. 817 (1974), and Saxbe v. Washington Post Co., 24 417 U.S. 843 (1974) — to fashion an alternative test. (App. la-2a, 4a-7a, 13a-14a). Obviously, it is not the business of an intermediate appellate court to improve on this Court’s jurisprudence. Even if it were, the court below erred because neither Pel/ nor Washington Post would support upholding THA-1480.05A. Unlike the policy upheld in this case, the press restrictions in Pel] and Washington Post applied equally to all inmates in their respective prison systems. Pell, 417 U.S. at 819; Washington Post, 417 U.S. at 844. In addition, and also unlike the case at bar, it was undisputed in both Pel/ and Washington Post that the restrictive policies were actually motivated by legitimate “security” concerns. Fell, 417 U.S. at 826; Washington Post, 417 U.S. at 848- 49. Moreover, neither policy restricted an inmate’s ability to communicate with the press through written correspondence (Pe//, 417 U.S. at 824, 827- 28; Washington Post, 417 U.S. at 847-48), whereas Mr. Hammer has_ been_ prohibited from communicating to the press “any information about another inmate through any manner. of communication (oral, written, etc.).” (7th Cir. JA at 172). As Judge Wood stated in dissent: [Nleither Pel/ nor Washington Post approved a total ban on contact with the media. To the contrary, Fel] relied on the existence of “alternative methods of communication that are open to prison inmates,” 417 U.S. at 504, and Washington Post made clear that 25 “members of the press are accorded substantial access to the federal prisons in order to observe and report the conditions they find there,” 417 U.S. at 518. Washington Post mentioned specifically the fact that “[olutgoing correspondence from inmates’ to _ press representatives is neither censored nor inspected.” Jd. To the extent that the majority’s opinion has swept away the need to show adequate alternative avenues for communication [under Turner’ second factor], it has, in my view, overstepped an important boundary that the Court has drawn. (App. 29a). Unlike Pell and Washington Post, Mr. Hammer presented evidence creating a _ triable question as to whether any “reasonable alternatives” existed for him to communicate with the press regarding his case or his observations of prison conditions — both being subjects that he was prohibited from discussing in amy manner because of the ban on communications regarding fellow inmates. (App. 110a; 7th Cir. JA at 172). The court below also erred in holding that this Court’s decisions in Pel/ and Washington Post can be extended to justify First Amendment restrictions applied only to a sub-class of prisoners — especially a sub-class defined solely by gender and sentence. While Pel/ and Washington Post may permit prison officials to bar all inmates equally from face-to-face communication with the media, the Constitution does not permit prison officials to grant the right to communicate with the press selectively, or to deny 26 face-to-face communication with the press to a disfavored group. See Widmar v. Vincent, 454 U.S. 263, 267-68 (1981) (“The Constitution forbids [the government] to enforce certain exclusions from a forum generally open to the public, even if it was not required to create the forum in the first place”); R.A.V. v. City of St. Paul, 505 U.S. 377, 391-92 (1992) (holding that government’s power to proscribe “fighting words” generally does not include power to punish only “fighting words” directed at particular disfavored topics). While real differences between male and female death row inmates (or between death row inmates and inmates convicted of similar crimes but not sentenced to death) might necessitate some differences in their conditions of confinement, it is not clear how those differences could ever be relevant to adopting, let alone justifying, differential treatment under the First Amendment. “Freedom of expression, and its intersection with the guarantee of equal protection, would rest on a soft foundation indeed if government could distinguish among [groups] on such a wholesale and categorical basis.” Police Dep’t of Chicago v. Mosley, 408 U.S. 92, 101 (1972). This Court has recognized that “invidious distinctions [in the allocation of cor.stitutional rights] cannot be enacted without a violation of the Equal Protection Clause.” Williams v. Rhodes, 393 U.S. 23, 30 (1968). Restricting only male federal death row inmates from face-to-face interviews with both print and electronic media (while allowing such access to all other federal prisoners, including female federal 27 death row inmates) fails even rational-basis analysis under Yurners first criteria that a restriction be “reasonably related to legitimate penological interests.” 482 U.S. at 89. The permanent nature of the Attorney General’s ban also offends the Constitution. Indeed, neither this Court nor any other court has approved a permanent restriction on First Amendment rights that applies only to a sub-class of prisoners, let alone a sub-class defined entirely by gender and sentence. This Court has upheld prison restrictions on First Amendment rights in two contexts. First, the Court has upheld “permanent” restrictions that apply equally and neutrally to an entire prison population. See Abbott, 490 U.S. at 409-10, 415-16; Turner, 482 U.S. at 81, 89-90; O’Lone, 482 U.S. at 350-52; Pell 417 U.S. at 828; Bel] v. Wolfish, 441 U.S. 520, 551 (1979). Second, this Court has upheld temporary restrictions on First Amendment rights applied to a sub-class of recalcitrant inmates as a disciplinary sanction. See Bazzetta, 539 U.S. at 134; Banks, 548 U.S. at 535-36. No reported case, however, has upheld a permanent prison restriction on First Amendment rights applied only to a sub-class of prisoners based on gender and sentence. Under 28 C.F.R. § 540.63, a federal prisoner will be permitted to participate in a face-to-face press interview unless his warden determines, after a case- specific inquiry, that permitting the interview would endanger the safety of the interviewer or “would probably cause serious unrest or disturb the good order of the institution.” 28 C.F.R. § 540.63(g)(4) 28 (emphasis added) (App. 82a). Female federal death row prisoners, prisoners housed in the SCU with death row prisoners because of individualized security concerns, and all other non-death row prisoners are entitled to have press interview requests evaluated by their respective wardens, on a case-by-case basis, under the test set forth in 28 C.F.R. § 540.63. (App. 81a-84a). In the case of male death row prisoners, however, no such case-by-case analysis is available, and the warden has no duty to make the reasoned decision required by 28 C.F.R. § 540.63. Instead, male inmates sentenced to death are categorically prohibited from having face-to-face press interviews by THA-1480.05A. (App. 105a). This Court has previously expressed skepticism that a permanent restriction on the _ First Amendment rights of a sub-class of prisoners could ever satisfy the Turner standard. In Bazzetta, 539 U.S. at 134, the Court stated: We agree the restriction is severe. And if faced with evidence that [the] regulation is treated as a de facto permanent ban on all visitation for certain inmates, we might reach a different conclusion in a challenge to a particular application of the regulation. Those issues are not presented in this case... . 539 U.S. at 134; see also Banks, 548 U.S. at 536. Here, of course, those issues are squarely presented. The Seventh Circuit went well beyond this Court’s jurisprudence by upholding a ban on 29 First Amendment rights that was both “severe” and “permanent” and applied only to “certain inmates.” It is not surprising that the Seventh Circuit declined to evaluate the ban at issue in this case under the Turner framework. ‘The reason is clear: it is inconceivable that the First Amendment restrictions imposed by THA-1480.05A could ever pass muster under Turner and its progeny. This case warrants review for that reason as well. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted, Jerold S. Solovy Barry Sullivan Counsel of Record Cooney & Conway Chair in Advocacy John R. Storino and Professor of Law Chad E. Bell LOYOLA UNIVERSITY CHICAGO JENNER & BLOCK LLP 25 East Pearson Street 353 N. Clark Street Chicago, Illinois 6061 1 Chicago, IL 60654 (312) 915-7787 (312) 222-9350 Attorneys for Petitioner October 23, 2009 APPENDIX la Appendix A United States Court of Appeals, Seventh Circuit DAVID PAUL HAMMER, Plaintiff-Appellant, Vv. JOHN D. ASHCROFT, et al., Defendants-Appellees. No. 06-1750 ARGUED SEPTEMBER 10, 2008— DECIDED JUNE 285, 2009 Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. IP 01-0558-C-T/G—John Daniel Tinder, Judge. Before EASTERBROOK, Chief Judge, and BAUER, POSNER, KANNE, ROVNER, WOOD, EVANS, and SYKES, Circuit Judges.t EASTERBROOK, Chief Judge. “[Nlewsmen have no constitutional right of access to prisons or their inmates beyond that afforded to the general public.” Pell v. Procunier, 417 U.S. 817, 834 (1974). The Supreme Court applied that principle in Saxbe v. Washington Post Co., 417 U.S. 843 (1974), when holding that the Federal Bureau of Prisons did not violate tiie Constitution by preventing face-to-face interviews between reporters and inmates. * Circuit Judges Flaum, Williams, and Tinder did not participate in the consideration or decision of this appeal. 2a In the years after Washington Post the Bureau authorized some in-prison interviews. By the late 1990s reporters could talk to prisoners throughout the federal system. See Program Statement 1480.05 (News Media Contacts) (promulgated Sept. 21, 2000, and in force since). That changed in 2001, however, for inmates housed in some of the Bureau’s most- secure locations—including the “Special Confinement Unit” at the prison in Terre Haute, Indiana, which houses most federal prisoners under sentence of death, plus some others in administrative detention for disciplinary or security reasons. Program statements generally applicable to federal prisons may be modified by institution-specific supplements. See Program Statement 1480.05(13) (applying this exception-making power to media contacts in particular). The Warden of Terre Haute proposed, and the Bureau’s Director approved, Institution Supplement THA 1480.05A, which bans person-to-person meetings between reporters and inmates of the Special Confinement Unit, though it allows phone calls and correspondence. (The current revision, THA 1480.05B, contains the same rule; for simplicity we refer only to THA 1480.05A.) Phone calls with reporters are subject to Program Statement 1480.05(7)(d), which provides that “[a] representative of the news media may not obtain and use personal information from one inmate about another inmate who refuses to be interviewed.” Correspondence is unlimited; an inmate’s letters to reporters are not subject to inspection or censorship. 3a “All properly identified and labeled correspondence from an inmate who is not on restricted mail status to qualifying representatives of the news media shall be sealed and forwarded without inspection, directly and promptly.” Program Statement 5265.11(17)(a) (July 9, 1999). David Paul Hammer, who was sentenced to death for killing another federal prisoner, contends in this suit under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), that he is entitled to money damages from former Attorney General Ashcroft and other public officials who drafted or approved THA 1480.05A. Relying on Fel/ and Washington Fost, the district court’ granted summary judgment for the defendants. 2006 U.S. Dist. LEXIS 9306 (S.D. Ind. Feb. 23, 2006). A panel of this court reversed, 512 F.3d 961 (7th Cir. 2008), and that decision was vacated in turn by the order granting defendants’ petition for rehearing en banc. Hammer's’ attempt to obtain damages _ has complicated matters. The validity of federal administrative rules usually is resolved in actions under the Administrative Procedure Act seeking prospective relief, not in suits for money against officials whose positions and roles generally entitle them to qualified if not absolute immunity. A district judge held the policy valid, after all. Although the panel thought that, on an enlarged record, Hammer might yet prevail, “liJf judges . . . disagree on a constitutional question, it is unfair to subject [public officials] to money damages for picking the losing 4a side of the controversy.” Wilson v. Layne, 526 U.S. 603, 618 (1999). Accord, Pearson v. Callahan, 129 S. Ct. 808, 823 (2009). Indeed, a Bivens action is improper when statutes specify how administrative deeds are reviewed. See Wilkie v. Robbins, 127 8S. Ct. 2588, 2597-2605 (2007). But because we agree with the district court that THA 1480.05A is valid, we sidestep the complications introduced by Hammer’s quest for damages. (Hammer’s death sentence was set aside in 2005, United States v. Hammer, 404 F. Supp. 2d 676 (M.D. Pa. 2005), but he remains in the Special Confinement Unit pending appeal, now under advisement in the Third Circuit, and so has an ongoing interest in the rule’s constitutionality. His other sentences exceed 1,200 years’ imprisonment, so release is not imminent.) Pell v. Procunier and Saxbe v. Washington Post establish that the Bureau of Prisons could enforce a system-wide rule against personal or _ video interviews between. prisoners and _ reporters. Hammer contends, however, that by curtailing press access to some prisoners but not others, the Bureau offends the equal-protection component of the due process clause in the Constitution’s fifth amendment. Yet it is hard to understand why all prisoners should be treated the same. Some are in minimumz-security prisons and others in more secure confinement; no one thinks these differences unconstitutional. The Justices observed in Pel/ and Washington Post that the principal reason for limiting press contacts is the maintenance of security; this implies that the greater the need for security at a given prison (or unit within da a prison), the easier it is to justify limits on meetings between reporters and prisoners. By the time the Court decided Washington Fost, the Bureau of Prisons had begun to allow reporters to interview inmates of minimum-security prisons. See 417 U.S. at 844 & n.2. The Justices did not perceive any problem in this distinction. It is easier to justify limiting press contacts at the few places holding the most incorrigible prisoners (USP Florence and the Special Confinement Unit at Terre Haute) than at all medium- and maximum-security prisons. Hammer’s argument amounts to a contention that, once a prison system starts to allow access more liberally, it must go all the way; any intermediate position violates equal-protection principles. That understanding is inconsistent with many established doctrines. For example, thirty years ago a court held that Congress had violated equal-protection limits by subjecting members of the diplomatic service, but not other federal workers, to mandatory retirement. The Justices held, however, that it is possible to draw such lines as long as a rational basis for them may be imagined; the basis need not be supported in the record. Vance v. Bradley, 440 U.S. 93 (1979). Just as it was possible to imagine a rational basis for distinguishing diplomats from postal carriers, so it is possible to imagine a_e rational basis for distinguishing the nation’s most secure institutions from others. Indeed, to state the distinction is to furnish the justification: security. 6a The security justification that carried the day in Pe// and Washington Post was that interviews with the press make celebrities of some inmates. This increases tensions within prisons (those who don’t receive public attention may react with envy); and if some inmates use the press to disparage others (or their beliefs, or the organizations to which they belong), the tensions will be greater. More: the interviewed prisoners get swelled heads and “tend to become the source of substantial disciplinary problems that can engulf a large portion of the population at a prison.” Washington Post, 417 U.S. at 848-49. Prisons for tax evaders and credit-card forgers may tolerate such tensions; prisons for killers are more explosive, and the need to prevent lighting the fuse to the powder keg is compelling. Hammer maintains that prisons must use the least- restrictive available options and that the Bureau’s experience since Washington Post shows that the risks associated with interviews are manageable. This line of argument marks a transition from equal protection to the first amendment, for it incorporates elements of both bodies of doctrine. But this, too, is a tired theme. It has been made in several cases dealing with press interviews and correspondence among prisoners, and the Justices have rejected it. See, e.g., Thornburgh v. Abbott, 490 U.S. 401, 409— 14 (1989); cf. Shaw v. Murphy, 532 U.S. 223 (2001). The question is not whether prisons could find ways to accommodate one or another change. It is whether the rule that the prison chooses to implement is “reasonably related to legitimate security interests.” 7a Turner v. Safley, 482 U.S. 78, 91 (1987). And the Court has held in Pel/ and Washington Post that a no-interview policy is “reasonably related to legitimate security interests.” The Justices added that an attempt to be “less restrictive” by making individual decisions could undermine security: “such a selective policy would spawn serious discipline and morale problems of its own by engendering hostility and resentment among inmates who were refused interview privileges granted to their fellows.” Washington Post, 417 U.S. at 849. Hammer maintains, however, that the Bureau has engaged in content or viewpoint discrimination by silencing inmates on death row. This may well be true of a selective (or “less restrictive”) approach; wardens who allow some prisoners but not others to invite the press into their cells might well take account of what they expect the inmates to say or the reporters to relate to the public. But a blanket ban— no inmate in a given prison or unit may meet face-to- face with any reporter—is neutral with respect to both content and viewpoint. This is one reason why the Justices approved the policies at issue in Pe// and Washington Post, giving the exception-free quality of the policies as proof that the decisions were not based on content. See Pel/ 417 U.S. at 825-26. Perhaps Hammer’s point is not that the ru/e employs content or viewpoint as a ground of decision, but that those who adopted or approved THA 1480.05A took content or viewpoint into account when deciding to change the rules for some federal prisoners but not 8a others. This line of argument starts with the fact that reporters freely interviewed inmates of the Special Confinement Unit, including Hammer himself, for the first nine months of the Unit’s existence—until shortly after an interview with Timothy McVeigh was broadcast by CBS on “60 Minutes” in March 2000. (The Special Confinement Unit was established in July 1999; Hammer and McVeigh were among its first inmates.) McVeigh had been sentenced to death for killing 168 people by bombing the Murrah Federal Building in Oklahoma City. He used the forum of national TV to justify and extol terrorism. Shortly after the interview was broadcast, Byron Dorgan, who represents North Dakota in the Senate, wrote to Kathleen Hawk- Sawyer, Director of the Bureau of Prisons, complaining about the interview. Senator Dorgan stated, among other things: The American people have a right to expect that the incarceration of a convicted killer will not only remove him physically from society, but will also prevent him from further intrusion in our lives’ through television interviews and from using those forums to advance his agenda of violence. About a month after Senator Dorgan sent that letter, Attorney General Ashcroft and Director Hawk- Sawyer announced arrangements for closed-circuit telecasting of McVeigh’s execution and took some questions. Ashcroft also announced that the Bureau would replace its case-by-case evaluation system with a prohibition on in-person interviews of inmates 9a at the Special Confinement Unit. Hammer finds telling these statements: I am aware that several media outlets have requested access to interview inmate McVeigh. As an American who cares about our culture, I want to restrict a mass murderer’s access to the public podium. On an issue of particular importance to me as Attorney General of the United States, I do not want anyone to be able to purchase access to the podium of America with the blood of 168 innocent victims. I’m concerned about irresponsible glamorization of a culture of violence, and that concern has shaped our approach to these issues profoundly. On April 15, 2001, three days after the press conference, Harley Lappin, the Warden of Terre Haute, issued Institution Supplement THA 1480.05A. Hammer wants discovery during which former Attorney General Ashcroft, former Director Hawk- Sawyer, and former Warden Lappin must explain under oath why they adopted the policy in question. If a belief that terrorists should not be able to obtain publicity by committing murder played a role in the decision, Hammer contends, the motivation for the policy is infirm, and the policy itself would fall with the bad motive. 10a It is not clear why one bad motive would spoil a rule that is adequately supported by good reasons. See Mueller v. Allen, 463 U.S. 388, 394-95 (1983). The Supreme Court did not search for “pretext” in Turner; it asked instead whether a rule is rationally related to a legitimate goal. That’s an objective inquiry. If motive matters, why examine the thoughts of those who adopted the rule to the exclusion of those who have maintained it in force?— Attorney General Gonzales, Solicitor General Clement (who authorized the petition for rehearing en banc), Attorney General Mukasey (who was in office when the Department of Justice defended the policy before the en banc court), and Attorney General Holder, who could revoke THA 1480.05A with one sentence plus a signature but has not done so. (There is no special burden to justify a change of administrative policy. See FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800, 1810-11 & n.2 (2009).) Nor do we see how a demand that a Cabinet officer give testimony about his thinking could be squared with United States v. Morgan, 313 U.S. 409 (1941), and PBGC v. LTV Corp., 496 U.S. 633 (1990). These decisions hold that courts evaluating the validity of an administrative action may not enlarge the administrative record by demanding that the people who proposed or approved the rule testify about their thinking. See also Richard J. Pierce, Jr., I Administrative Law Treatise § 8.6 (2002). lla For current purposes, however, we assume that Attorney General Ashcroft’s successors share his views. There’s nothing unconstitutional about them, so we need not decide whether they led to the policy’s adoption and maintenance, how motivation could be proved consistent with Morgan, or what role it plays in evaluating a policy’s validity. Opposing a “culture of violence” is an ordinary, and desirable, goal for a criminal prosecutor. Attorney General Ashcroft’s statements combine the idea that criminals should not be allowed to benefit from their deeds (see Simon & Schuster, Inc. v. New York Crime Victims Board, 502 U.S. 105 (1991) (a state may apply all of a criminal’s income, including royalties from books, to satisfy restitution awards, though it can’t pick and choose among books)) with variations of propositions that can be found in Pell and Washington Post. One of the reasons that state and federal prison administrators gave for curtailing press access was that they did not want people to become celebrities by committing crimes. The Justices thought this a good basis to curtail press access, not a constitutionally infirm one. See Washington Post, 417 U.S. at 848-50. This is a reason why prisoners are separated from society: Most prisons are remote, and access to them tightly controlled, not simply to make escape difficult, but because solitude is a legitimate part of punishment. Becoming a celebrity makes crime more attractive—and if not so attractive as to outweigh the costs of prison, still anything that reduces the (effective) punishment for crime is of legitimate concern to Attorneys General 12a and prison officials. For murderers on death row or serving life sentences, celebrity is especially attractive, as these persons do not expect to return to the civilian world. They will receive few other rewards in life. Some criminal acts are both costly to society and potentially attractive to imitators; the most notorious criminals can be trend-setters. Timothy McVeigh was such a person. He had a following, and one of his admirers was recently convicted of threatening to blow up a federal building in Milwaukee. See United States v. Parr, 545 F.3d 491 (7th Cir. 2008). Other “cause” criminals want to recruit; think of those who blow up abortion clinics and kill physicians. Social interests in curtailing and punishing crime support keeping these prisoners in seclusion. No one doubts—at least, no one should doubt—that a person serving time for tax evasion may be prevented from using the prison print shop to run off tracts advocating the proposition that the _ sixteenth amendment is invalid and no one need pay a penny of taxes. See United States v. Benson, 561 F.3d 718 (7th Cir. 2009) (affirming an injunction that prevents a convicted tax evader from selling a “16th Amendment Reliance Package” that purports to give other tax protesters a means to avoid both payment and criminal liability). If what Attorney General Ashcroft said in April 2001 evinces’ an unconstitutional motive, much of what this court wrote in Benson suffers from the same failing. l3a Naturally, Hammer insists that he is no McVeigh and would not use the press to promote murder. He wants to speak instead about prison conditions, his current professed respect for life, and what he sees as misconduct by guards and wardens. A system of rules that permitted prison administrators to conceal beatings or starvation of prisoners, violations of statutes and regulations, and other misconduct would be intolerable. The Court said as much in Pe// and Washington Fost. It was important to both decisions that all prisoners could correspond freely with reporters, even though face-to-face interviews were impossible. See fell, 417 U.S. at 824-28; Washington Post, 417 U.S. at 847-48. Hammer sees this as an opening, because (he says) the Bureau of Prisons does not allow any uncensored channel of communication to the press. This line of argument relies on Program Statement 1480.05(7)(d), which we quoted at the outset of this opinion. It provides: “A representative of the news media may not obtain and use personal information from one inmate about another inmate who refuses to be interviewed.” As far as we can tell, this rule applies to interviews (in person or by telephone) but not to correspondence. Program Statement 5265.11(17)(a), which sets out the rules for written exchanges, says that “[a]ll properly identified and labeled correspondence from an inmate who is not on restricted mail status to qualifying representatives of the news media shall be sealed and forwarded without inspection, directly and promptly.” That’s exactly the sort oof uncensored outgoing l4a correspondence that the Court deemed adequate in Pell and Washington Post. (Hammer does not contend that persons held in the _ Special Confinement Unit are “on restricted mail status” or that the prison has ever red-penciled any letter he sent to a reporter.) The limit on information about other inmates deals only with oral interviews. And if Hammer were to prevail in this suit, he would not be rid of Program Statement 1480.05(7)(d), for it covers in-person and televised interviews as well as phone interviews. To the extent that Hammer may be contesting the validity of Program Statement 1480.05(7)(d) as applied to phone calls with the press (the only way it affects him), he has not’ established any constitutional problem. The restriction is a rational one, for reasons covered in Fel/ and Washington Post. Telling tales about fellow inmates may make them angry (if the tales are defamatory) or may make yet other inmates envious (if the tales are flattering). In either event, disorder may follow. As the district court put it, “insults or provocations, real or imagined, can result in inmate-on-inmate violence and thus can have dire consequences for inmates, penitentiary staff, and the public at large.” 2006 U.S. Dist. LEXIS 9306 at *11-*12. Defamation is less likely if the other inmate agrees to talk to the press; Hammer may discuss such inmates by phone with reporters. And if, to take the worst case, another inmate is beaten and unable to talk, Hammer remains free to send a letter informing a reporter about that event. Pel// and Washington Post held that 15a free correspondence supplies the needed channel of communication; Hammer has that plus 15 minutes of telephone time a day. Correspondence is not the only way to expose misconduct by guards and administrators. Prisoners are free to file lawsuits, and papers sent to courts (or lawyers) cannot be censored. See Bounds v. Smith, 430 U.S. 817 (1977); Procunier v. Martinez, 416 U.S. 396 (1974). So the limit in Program Statement 1480.05(7)(d) is not going to conceal any misconduct in which the public has a legitimate interest. Institution Supplement THA 1480.05A is consistent with the Constitution, and the judgment of the district court is AFFIRMED. ROVNER, Circuit Judge, with whom Judge Bauer joins, dissenting. The original panel’s opinion was firmly rooted in the Supreme Court’s long-standing rule that a prison regulation infringing on an inmate’s constitutional rights is valid only if “it is reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987). When a prisoner challenges a prison policy on constitutional grounds, the government must put forward a “legitimate” government interest to justify the restriction. Jd. Suppressing speech because government officials find the content offensive is not a legitimate penological interest. /d. at 90. The original panel concluded that David Paul Hammer presented evidence that created a question of 16a material fact that the district court overlooked: is the jailhouse-celebrity concern articulated by the warden “legitimate,” or is it simply a convenient explanation to justify a policy designed to control the speech content of a particular subset of prisoners? Given the fact dispute, the original panel reached the limited— indeed, even pedestrian—conclusion that a trier of fact must resolve the conflict. Today’s en banc opinion is almost entirely unmoored from the original panel’s narrow treatment of the issues presented in this appeal. With scarcely a reference to Turner, today’s opinion holds that a ban on face-to-face interviews in the prison system is justified if a judge can “imagine” a legitimate basis for its existence, glosses over facts regarding the application of the relevant policies, and concludes with the astonishing proposition that the government may limit a prisoner’s access to the media based on its distaste for the anticipated content of the prisoner’s speech. The en banc opinion thus authorizes the government to deny the public a chance to hear directly from prisoners who can offer a glimpse of situations that may embarrass the government, such as torture and prisoner abuse, by invoking pretextual justifications for policies that are unrelated to security. For the reasons set forth in the original pancl’s opinion, I dissent. I write separately only to memorialize my additional disagreement with the unexpected breadth of the en banc opinion. Let me begin with the most troubling aspect of today’s opinion: the majority’s willingness to push 17a aside Attorney General Ashcroft’s statement that “as an American who cares about our culture” and is “concerned about the irresponsible glamorization of a culture of violence,” he wanted to prevent death-row inmates, and only death-row inmates, from engaging in face-to-face interviews with the media on any subject. This rationale for censorship assumes that what death-row inmates have to say, if broadcast outside the prison, necessarily corrodes American culture. But First Amendment jurisprudence is grounded in the idea that the government may not prevent a person, including a prisoner, from speaking merely because it disapproves of the speaker or what the speaker might say. See, e.g, R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992) (noting that “content-based restrictions are presumptively invalid”); Turner, 482 U.S. at 90 (stating that prison regulations that infringe on inmates’ First Amendment rights must operate “in a neutral fashion, without regard to the content of the expression”); Regan v. Time, Inc., 468 U.S. 641, 648- 49 (1984) (“Regulations that permit the Government to discriminate on the basis of the content of the message cannot be tolerated under the First Amendment.”). Indeed, this court has recognized that the government may not pass_ speech restrictions in an effort to preserve its own notions of valued American culture: Racial bigotry, anti-semitism, violence on television, reporters’ biases-these and many more influence the culture and shape our socialization. None is directly answerable by 18a more speech, unless that speech too finds its place in the popular culture. Yet all is protected as speech, however insidious. Any other answer leaves the government in control of all of the institutions of culture, the great censor and director of which thoughts are good for us. See American Booksellers Assn, Inc. v. Hudnut, 771 F.2d 323, 330 (7th Cir. 1985) (Easterbrook, J.). Yet Attorney General Ashcroft said publicly that preserving his version of American culture is exactly why the Bureau decided to limit death-row inmates’ access to the media. In order to circumvent this problem, the majority applies its own interpretive spin to Attorney General Ashcroft’s statements and decides that the Attorney General meant that “criminals should not be allowed to benefit from their deeds.” The majority thus concludes that Attorney General Ashcroft articulated a legitimate penological purpose to the interview ban because he saw restricting face-to-face interviews as a form of punishment or deterrence. But that is a question for a fact finder, who might reject this post- hoc rationalization and instead take Attorney General Ashcroft at his word and conclude that what actually “shaped” his mind in enacting the ban is his desire to prevent death-row_ prisoners’ from influencing our “culture.” That desire is not a legitimate penological purpose. The majority's comparison of this case to United States v. Benson, 561 F.3d 718 (7th Cir. 2009), is 19a unhelpful. In Benson we held that a convicted tax offender may not market materials that encourage other people to evade tax laws. Benson dealt with commercial speech, which occupies its own niche in First-Amendment jurisprudence, see Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n of New York, 447 U.S. 557, 562-63 (1980), and concluded tliat it is permissible to enjoin a person from making false statements in connection with the sale of a product, Benson, 561 F.3d at 725-26. Even accepting the majority’s assumption that Attorney General Ashcroft wanted to prevent inmates’ from encouraging violence, the parallel to Senson is unpersuasive. Deceiving the public into buying a product designed to evade payment of required taxes is illegal, see 26 U.S.C. § 6700(a); advocating unpopular ideas is not, see Brandenburg v. Ohio, 395 U.S. 444, 448-49 (1969). The original panel was also concerned that the Special Confinement Unit’s prohibition on face-to- face interviews does not leave sufficient alternatives for death-row inmates to access the media. Today’s opinion concludes that the alternatives are sufficient because death-row inmates have 15 minutes of telephone time each day that they can use to speak with reporters, and because they are entitled to unlimited correspondence. But the government concedes that death-row inmates are not allowed— 1 Of course the government may regulate speech that amounts to incitement of violence, see Brandenburg, 395 U.S. at 447, but not even today’s majority suggests that Ashcroft intended the media ban to target that category of speech. 20a through any method of communication—to discuss other inmates with members of the media. I am particularly troubled by this aspect of the policy because it may prevent inmates from reporting prison abuse. Under the current policies an inmate could be disciplined for informing the media— whether on the phone or by letter—that another inmate is being abused by a guard. When this concern was raised at the en banc argument, counsel for the defendants asserted that a victimized inmate could report the abuse himself. But that suggestion ignores the reality that any guard who abuses an inmate is likely to pressure his victim not to disclose the abuse, and such threats are particularly effective. Today the majority brushes aside this concern, because “as far as [it] can tell,” the ban on talking about other inmates does not apply to written correspondence. It relies on a program statement that says that outgoing mail to the media is sent without inspection. But at the en banc argument, counsel for the defendants said that all mail sent by inmates at the Special Confinement Unit must be given to prison officials unsealed for inspection before it is mailed. When asked what would be the consequence to an inmate who sends a letter discussing another inmate, counsel for’ the government had no answer. Thus our original fears are unabated; on this record we cannot tell whether there is any satisfactory alternative for inmates at the Special Confinement Unit to give the media any information that involves other inmates. 21a Which leads to another concern that today’s opinion glosses over completely—Hammer was denied the opportunity to create a full record at the summary judgment stage. As discussed in the original opinion, the government moved for summary judgment before the close of discovery and only then responded to Hammer’s discovery requests by objecting to them. Hammer asked for a continuance to allow him to build an adequate record, but the district court did not rule on his motion before the deadline for his summary-judgment response. To avoid missing his deadline, Hammer was forced to respond without receiving any discovery from the defendants. Today’s opinion is quick to fill in the blanks itself in the face of ambiguity about the interests underlying the challenged policy. That is a task that may not have been necessary had Hammer had the chance to conduct proper discovery or if the district court had granted any of Hammer’s three requests for counsel. The majority's treatment of Hammer’s_ equal- protection argument is also untethered from the governing legal standard and the facts of this case. The majority assumes that the media ban applies to all inmates housed in the Special Confinement Unit and concludes that the policy passes constitutional muster because the majority can “imagine a rational basis for distinguishing the nation’s most secure institutions from others.” But the parties agree that the media ban applies only to those members of the Special Confinement Unit who are under a death sentence. It is not, as the majority assumes, a unit- 22a wide ban, as not all inmates at the Special Confinement Unit are death-row inmates. That distinction casts doubt on the legitimacy of the ‘Jailhouse celebrity’ concern articulated by the government because, as Hammer point out, it is irrational to distinguish among inmates based solely on their particular sentence. Under the policy as applied by the Bureau of Prisons, famous mafia members, leaders of violent drug gangs, and the former governor of Illinois may all meet face-to-face with the press. But an unknown inmate under a death sentence may not because, the Bureau says, such access could make them “jailhouse celebrities.” It is unclear why speaking in-person with a journalist would give an unknown death-row inmate more influence over other prisoners than would, for example, allowing Martha Stewart or George Ryan to give face-to-face interviews during their incarceration, which they would have been or are free to do under the Bureau’s policies. As the majority points out, distinguishing among inmates risks “engendering hostility and resentment among inmates who were refused interview privileges granted to their fellows.” See Saxbe v. Washington Post Co., 417 U.S. 8438, 849 (1974). Yet here the Bureau of Prisons applies the media ban in such a way as to risk the very dangers it says it wants to avoid. Finally, the majority is concerned that a remand in this case could subject the former, and perhaps current, Attorney General to discovery, and that any demand for his testimony would rub up against 23a United States v. Morgan, 313 U.S. 409 (1941). The Morgan cases hold that an agency head should not be required in lhitigation to explain all of the considerations that went into a decision that was the result of formal rulemaking or a quasi judicial proceeding. /d. at 421-22. Administrative decisions must be judged based on the administrative record or evidence adduced by the parties. The Morgan principle is not offended here because the media ban was not the result of any formal agency process. On the contrary, there was neither notice nor a hearing before the media ban went into effect. Accordingly, even if on remand Hammer sought to depose Attorney General Ashcroft—who, after all, chose to speak publicly about the rationale behind the media ban—such scrutiny would not upset “the integrity of the administrative process.” /d. I believe that in the rare circumstances where a prisoner submits evidence casting doubt on the legitimacy of the security rationale supposedly supporting a policy, he deserves to have the chance to create a full record to shed light on those circumstances, and ultimately, to have a trier of fact resolve disputes of fact. I stand by that holding, and accordingly, I dissent. WOOD, Circuit Judge, dissenting. Although I agree with much of Judge Rovner’s dissent, I write separately in order to highlight my own concerns with the majority’s opinion. Bricfly put, they are as follows: first, the record does not support certain key assumptions made in the majority’s opinion; second, 24a and related to the first point, it was error to grant summary judgment in favor of the defendants without permitting the plaintiff, David Hammer, to develop the record properly; and third, the majority has erred by adopting a rule permitting wholesale censorship in prisons—one that goes much farther than anything the Supreme Court sanctioned in Pel/ v. Procunier, 417 U.S. 817 (1974), or Saxbe v. Washington Post Co., 417 U.S. 843 (1974). First, we must look at the record. Central to the majority’s analysis is the assumption that inmate “(clorrespondence is unlimited; an inmate’s letters to reporters are not subject to inspection or censorship.” Ante at 3. In support of this proposition, the majority cites Bureau of Prisons (“BOP”) Program Statement (“PS”) 5265.11(17)(a) (July 9, 1999). It then goes on to say that “[p]hone calls with reporters are subject to [PS] 1480.05(7)(d), which provides that ‘[a] representative of the news media may not obtain and use personal information from one inmate about another inmate who refuses to be interviewed.” What the majority brushes over, however, is the fact that there is nothing in paragraph 7(d) of the Program Statement (or any other part of that Statement) that limits this restriction to information collected through telephone calls. In fact, materials in the record suggest strongly that the prohibition extends to all forms of communication. For example, the record includes a letter from Warden Lappin to a lawyer who published a news release that included statements that inmate Hammer made about other inmates. (Plaintiffs Appendix at A169.) The 25a Warden’s letter rebukes the lawyer and informs him that 28 C.F.R. § 540.61(d) prohibits this publication. That regulation applies to all collection of information by the media, not just to telephone calls. Id. In a memorandum of December 22, 2000, from the Warden directly to Hammer, the Warden reprimands Hammer for providing information concerning other inmates “during a recent news media interview.” (Plaintiff's Appendix at A171.) The memorandum says nothing about the form the interview took. Two weeks later, in response to Hammer’s request for clarification, Warden Lappin replies “You are hereby ordered not to provide any information concerning other inmates during news media interviews, social calls, or correspondence with the media.” (Plaintiffs Appendix at A172; emphasis added.) At oral argument before this court, counsel for the governmental defendants did not endorse the narrow rule that the majority has postulated. To the contrary, counsel said that a// mail sent by inmates in the Special Confinement Unit (where Hammer is incarcerated) must be given to prison officials unsealed for inspection before it is mailed. Although this might seem to conflict with PS 5265.11(17)(a), which provides that properly identified and labeled correspondence from an inmate not on restricted mail status to qualifying representatives of the news media “shall be sealed and forwarded without inspection, directly and promptly,” that rule is not unqualified. Most importantly, mail from inmates on restricted special mail status is subject to inspection, 26a and PS 5265.11(17) is expressly made subject to the Program Statement on News Media Contacts—that is, to PS 1480.05. The record does not establish whether Hammer was on restricted mail status, but it indicates that he may have been. (It would not surprise me if everyone in the Special Confinement Unit were subject to additional restrictions.) Furthermore, it is still necessary to reconcile 28 C.F.R. § 540.61(d), PS 5265.11(17), and PS 1480.05(7)(d). It seems most consistent with all of these materials (and consistent with both Warden Lappin’s interpretation and the government's representation) to conclude that if a prisoner wrote a letter to a representative of the media that conveyed information about a fellow inmate, the letter would be confiscated. Without the linchpin provided by its assumption that correspondence is_ free, the majority’s rationale collapses. This brings me to my second point—again one that Judge Rovner has also emphasized: Hammer was blocked completely from developing a record at the summary judgment stage. The government moved for summary judgment before the close of discovery and then refused to comply with Hammer’s requests. This left Hammer with little or nothing on which to rely when he attempted to oppose the summary judgment motion. The majority here sets up a straw man, claiming that the only thing that would suffice would be direct depositions of former Attorney General John Ashcroft, former Director of the BOP Kathleen Hawk-Sawyer, and former Warden of the U.S. Penitentiary at Terre Haute Harley Lappin, in 27a which Hammer tried to unmask their “true” reason for the new rules. The majority is worried that such untrammeled discovery would be inconsistent with United States v. Morgan, 313 U.S. 409 (1941), and PBGC v. LTV Corp., 496 U.S. 633 (1990). Its concerns are misplaced. First, it is a mistake to lump all three defendants into the same group. As the Supreme Court’s recent decision in Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009), undersccres, it is one thing to acknowledge that a high official has knowledge of a particular policy, or even approves of it personally; it is quite another to plead that the official was personally responsible for a_ violation of constitutional rights. Here, the record already includes the public statements—reproduced ante at 8-9—that former Attorney General Ashcroft made about the media ban. In my opinion, the district court could easily respect the policies animating Morgan and LTV simply by limiting to publicly available information (including whatever falls within the scope of the Freedom of Information Act) any further exploration of the Attorney General’s position. It is by no means unprecedented to seek the deposition of the Director of the BOP or the warden of a particular prison. Once again, the district court would be in a position to decide whether such a measure was necessary, or if alternatives (including production of documents oor answers to interrogatories; perhaps even depositions upon written questions) would suffice. Hammer has a right to explore whether the media ban was based 28a upon legitimate penological concerns—in which case it is legal under the well-established standards of Turner v. Safley, 482 U.S. 78, 89 (1987)—or if it was ins*ead designed to stifle speech because the authorities fear that the content will be unwelcome. The latter is, unfortunately, not beyond imagination. It is likely that the military authorities running the infamous Abu Ghraib prison would not have wanted the inmates talking to the media, either about their own experiences or those of their fellow prisoners (some of whom may have been too injured, or too intimidated, to speak for themselves). Closer to home, the sad but true fact is that abuse by prison guards or police has not been entirely abolished. One prisoner might want to write letters that are self- aggrandizing, just as the authorities feared, but another might want to alert the media to the fact that human rights abuses were occurring in a place like the Special Confinement Unit. Censorship of all avenues of communication—which, as I have said, is what this record shows—would be an all-too-effective way to prevent the public from ever learning about such problems. That leads me to the final moint, which is the one that Judge Rovner has emphasized: the First Amendment implications of the media ban. While I certainly agree with her that there is a potential First Amendment problem here, I see this case as a textbook example of the wisdom of the rule of constitutional avoidance. It seems elementary to me that before this court, or any court, should reach an important constitutional question, the record should 29a be developed properly and we should know what we are talking about. That has not happened in this case. The majority has filled in the gaps with speculation, both about possible loopholes that might make written correspondence an adequate outlet for prisoners despite the media rule, and about possible penologicai justifications for the rule. This is not the way that we should approach a question as important as the balance between First Amendment rights of prisoners—which J7urner recognizes are not forfeited entirely—and the critical job of prison officials to ensure security and safety within the prison walls. It is worth noting, however, that neither Pel] nor Washington Post approved a total ban on contact with the media. To the contrary, Pel/ relied on the existence of “alternative methods of communication that are open to prison inmates,” 417 U.S. at 504, and Washington Post made clear that “members of the press are accorded substantial access to the federal prisons in order to observe and report the conditions they find there,” 417 U.S. at 518. Washington Post mentioned specifically the fact that “lolutgoing correspondence from inmates to press representatives is neither censored nor inspected.” /d. To the extent that the majority's opinion has swept away the need to show adequate alternative avenues for communication, it has, in my view, overstepped an important boundary that the Court has drawn. As the original panel opinion did, I would therefore reverse the grant of summary judgment and remand this case to the district court for further proceedings, 30a along the lines I have outlined here. I therefore respectfully dissent. 3la Appendix B UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT DAVID PAUL HAMMER, Plaintiff-Appeliant, Vv. JOHN D. ASHCROFT, et al., Detendants-Appellees. No. 06-1750. Argued Nov. 26, 2007. Decided Jan. 15, 2008. Rehearing En Banc Granted, Opinion Vacated Aug. 19, 2008." ROVNER, Circuit Judge. David Hammer, a federal prisoner on death row, sued various Bureau of Prisons (“BOP”) officials alleging that they violated his First Amendment and equal protection rights by implementing and enforcing a policy that prevents him from giving face-to-face interviews with the media and from talking with the media about other inmates. The current defendants-the former Attorney General of the United States, John Ashcroft; a former BOP Director, Kathleen Hawk-Sawyer: and _ former wardens of the federal prison in Terre Haute, Indiana, Harley Lappin and Keith Olson-moved for * Judges Flaum, Williams and Tinder did not participate. 32a summary judgment, arguing that the challenged policy is rationally related to legitimate penological interests. The district court granted the defendants’ motion, and Hammer appeals. Because we conclude that Hammer raised a genuine issue of fact as to whether the defendants’ proffered justification for the policy banning face-to-face interviews is pretextual, we reverse and remand. I. Background In July 1999 the BOP opened the Special Confinement Unit (“SCU”) at the federal prison in Terre Haute, Indiana, to house male inmates sentenced to death by the federal courts. The SCU also houses inmates who are not under a death sentence, but who are considered to be on “administrative detention status.” Hammer-who was under a federal death sentence for killing his cellmate-was among the first inmates transferred to the SCU.! Between August and December 1999, Hammer gave three face-to-face interviews with members of the media in the SCU’s non-contact visiting area. No ‘ Hammer's death sentence has been vacated, see United States v. Hammer, 404 F. Supp. 2d 676 (M.D. Pa. 2005)-a decision the government is challenging in the Third Circuit Court of Appeals, see Hammer v. United States, No. 06-9001, 128 S. Ct. 43, 169 L. Ed.2d 41. Although Hammer is no longer under a death sentence, Hammer’s counsel informed us during oral argument-and the appellees do not dispute-that he is still housed on death row at the SCU and is still subject to the challenged policy. 33a security problems arose as a result of these interviews. But in late December 2000, Lappin ordered Hammer not to provide information to members of the media about other inmates. When Hammer asked Lappin for clarification, he stated that Hammer was “prohibited from disclosing to a media representative any information about another inmate through any manner of communication (oral, written, etc.).” Just over a month later, the BOP disciplined Hammer for providing information about a fellow death row inmate to a reporter. Lappin did not, however, generally prohibit Hammer from giving face-to-face interviews. That situation changed a few months later. In March 2000, CBS aired a national broadcast of “60 Minutes” featuring an interview with Timothy McVeigh. At that time McVeigh was housed at the SCU awaiting execution for his role in the 1995 bombing of the Alfred P. Murrah federal building in Oklahoma City. Following this interview, U.S. Senator Byron Dorgan wrote to BOP Director Hawk- Sawyer on March 14, 2000, criticizing the BOP for allowing the McVeigh interview and demanding that the BOP prohibit similar interviews with other death row inmates. The published account of this criticism described Dorgan’s view of the value of such interviews: The American people have a right to expect that the incarceration of a convicted killer will not only remove him physically from society, but will also prevent him from further intrusion in our lives through television 34a interviews and from using those forums to advance his agenda of violence. Soon thereafter Lappin (then the SCU warden) denied every media request for a _ face-to-face interview with Hammer. When Hammer filed an administrative grievance to protest these denials, Lappin informed him that the procedures for granting interviews “have evolved” since the SCU opened and that requests for in-person media interviews are evaluated on “a case-by-case basis.” The policy on face-to-face interviews evolved further one month later. On April 12, 2001, Ashcroft and Hawk-Sawyer gave a press conference during which tney announced a change from the case-by- case policy to a blanket policy preventing SCU inmates from having face-to-face interviews with members of the media on any subject at any time. The policy allows SCU inmates to speak to the media only by telephone during their ordinary 15-minute daily allotment of telephone time. In announcing this policy, Ashcroft explained that it is designed to prevent murderers from, in his view, altering our culture by glamorizing violence: I am aware that several media outlets have requested access to interview’ inmate McVeigh. As an American who cares about our culture, I want to restrict a mass murderer’s access to the public podium. On an issue of particular importance to me as Attorney General of the United States, I do not want anyone to be able to purchase access 35a to the podium of America with the blood of 168 innocent victims. kke* I’m concerned about irresponsible glamorization of a culture of violence, and that concern has shaped our approach to these issues profoundly. Hawk-Sawyer announced that the 15-minute telephone limitation “will become the policy for the [SCU] in general.” Three days after the press conference, Lappin signed Institution Supplement 1480.05A (‘the media policy”), which states that “[tlo maintain safety, security and the good order of the SCU, in-person interviews (including video-recorded interviews) will not be permitted.” To gain permission for a 15- minute telephone interview under the new media policy, members of the press must agree that they will not ask an SCU inmate any questions about other federal or state prisoners. And members of the press must agree not to publish any information that an SCU inmate volunteers about other prisoners. All parties agree that the media policy does not apply to all SCU inmates-it applies only to those SCU inmates who have been sentenced to the death penalty. Hammer sued the defendants under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971), alleging that the media policy’s ban on in-person interviews and discussions about other inmates violated his First Amendment and equal protection rights. The district court dismissed the 36a complaint under the Prison Litigation Reform Act, 28 U.S.C. § 1915A(b)(1), but we reversed, finding that Hammer’s allegations-specifically, that the defendants implemented the media policy to prevent death row inmates from speaking publicly rather than to further security concerns-stated a claim, see Hammer v. Ashcroft, et al, 42 Fed. Appx. 861, 863 (7th Cir. 2002). After we remanded the case, Hammer moved three times for the court to recruit counsel on his behalf. The district court denied each motion. Hammer also filed three requests for discovery, but instead of responding to those requests, the defendants moved for summary judgment a full month before the close of discovery. Only after filing their summary judgment motion did the defendants respond to Hammer’s discovery requests by objecting to them all. Hammer filed a motion for a continuance under Federal Rule of Civil Procedure 56(f), arguing that he needed additional time to procure discovery from the defendants. He also filed a brief opposing the motion for summary judgment. The court entered an order granting the continuance “to the extent that his filings in this action ... shall be deemed to have been timely made,” but it denied Hammer any extension of time to conduct further discovery. In support of the defendants’ motion for summary judgment, Lappin submitted a _ declaration purporting to justify the SCU’s media policy. He explained that broadcasting face-to-face interviews of inmates can create “jailhouse celebrities,” giving them heightened status among the inmates and 37a leading to security breaches. He also explained that it was necessary to restrict inmates from discussing other inmates with the media to prevent privacy breaches or “real or imagined slights, insults or provocations” that could inflame tensions in the SCU. In his response, Hammer argued that Lappin’s articulated security rationale for the ban on face-to- face interviews was “a guise” to cover up “the real reason” behind the ban-anger over the McVeigh interview and the resulting outrage over death row inmates speaking to a national audience. The court granted the defendants’ motion for summary judgment, stating that the media policy is reasonably related to legitimate penoiogical interests. Il. Analysis On appeal Hammer argues that the SCU’s media policy preventing death row inmates from giving face-to-face interviews with the media violates his equal protection, First Amendment, and procedural due process rights. Specifically, he argues that the media policy treats death row inmates differently from all other federal inmates based on an untested assumption that giving death row inmates access to the media poses a categorically heightened security risk. Hammer also asserts that he submitted evidence sufficient to show that the media policy was passed for the impermissible reason of preventing death row inmates from speaking publicly, and not to further security interests. He also argues that the manner in which the BOP adopted the media policy deprived him of due process. Finally, Hammer challenges the district court’s denial of his three 38a motions for counsel and his Rule 56(f) motion for a continuance. A. Constitutional Claims We review de novo the district court’s grant of summary judgment for the defendants on Hammer’s constitutional challenges to the media policy. See Steen v. Myers, 486 F.3d 1017, 1021 (7th Cir. 2007). Inmates retain constitutional rights that are consistent with incarceration; those rights include access to the media. See Turner v. Safley, 482 U.S. 78, 84, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987); Pell v. Procunier, 417 U.S. 817, 827-28, 94 S. Ct. 2800, 41 L. Ed. 2d 495 (1974). But recognizing the deference owed to the administrative judgment of prison officials, the Supreme Court has held that a prison regulation infringing on an inmate’s constitutional rights is valid if “it is reasonably related to legitimate penological interests.” Turner, 482 U.S. at 89, 107 S. Ct. 2254. Accordingly, a prison regulation that restricts an inmate’s access to the media will be upheld if there is a “valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it.” Jd. (quotation marks omitted). Other relevant factors include whether the regulation leaves open alternative means of exercising the right; the impact accommodation would have on other inmates, guards, and prison resources; and whether there are obvious, easy alternatives to the restriction. Jd. at 89-90, 107 S. Ct. 2254; see also Lindell v. Frank, 377 F.3d 655, 657 (7th Cir. 2004). 39a Hammer argues that we should apply strict scrutiny to his equal protection claim, rather than the Yurner analysis, because he maintains that Turner applies only to policies that affect all inmates within a prison equally or that apply temporarily to individual inmates in response to a disciplinary infraction. Hammer argues that strict scrutiny should apply here becauce the media policy arbitrarily deprives death row inmates of First Amendment freedoms that other federal prisoners enjoy-namely, face-to-face media access. But the Supreme Court has held that the Turner analysis “applies to all circumstances in which the needs of prison administration implicate constitutional rights.” Washington v. Harper, 494 U.S. 210, 224, 110 S. Ct. 1028, 108 L. Ed. 2d 178 (1990); see also Russell v. Richards, 384 F.3d 444, 447 (7th Cir. 2004). Post-7urner, the Supreme Court applies strict scrutiny only to prison regulations involving suspect classifications such as race. See, eg, Johnson v. California, 543 U.S. 499, 505, 125 S. Ct. 1141, 160 L. Ed. 2d 949 (2005). Federal inmates on death row are not a suspect class. Cf Pryor v. Brennan, 914 F.2d 921, 923 (7th Cir. 1990). Accordingly, courts have declined to apply heightened scrutiny in cases involving equal protection challenges to prison regulations that implicate First Amendment rights, see, eg, Williams v. Lane, 851 F.2d 867, 881 (7th Cir. 1988); Taylor v. Johnson, 257 F.3d 470, 474 (5th Cir. 2001); Morrison v. Garraghty, 239 F.3d 648, 654-55 (4th Cir. 2001), even where the regulations distinguish among groups of inmates within a prison, see DeHart v. Horn, 227 F.3d 47, 61 (3d Cir. 2000); 40a Benjamin v. Coughlin, 905 F.2d 571, 575 (2d Cir. 1990). Thus we view Hammer’s equal protection and First Amendment claims through the 7urner lens. Turning then to the first prong of the J7urner analysis and Hammer’s First Amendment claim, we ask whether a valid, rational connection exists between the media ban on face-to-face interviews and the cited security interest. See Turner, 482 U.S. at 89, 107 S. Ct. 2254. No such connection exists if the purpose of the policy is to suppress the content of the restricted message. See id. at 90, 107 S. Ct. 2254. And the penological interest that the prison officials invoke in court to justify the restriction must have actually motivated them at the time they enacted or enforced the restriction; the invoked interests fail under Turner if they are a pvretext for an illegitimate, content-specific motivation. See Salahuddin v. Goord, 467 F.3d 263, 276-77 (2d Cir. 2006) (holding that prison officials must show that they “actually had, not just could have had, a legitimate reason for burdening protected activity” to survive summary judgment); Abu-Jamal v. Price, 154 F.3d 128, 134 (3d Cir. 1998) (noting that a prison rule is “not content neutral as required by 7urner” if it is enforced at least in part due to public pressure rather than security concerns); Quinn v. Nix, 983 F.2d 115, 118 (8th Cir. 1993) (stating that “[p]rison officials are not entitled to the deference described in Turner ... if their actions are not actually motivated by legitimate penological interests at the time they act.”); Walker v. Sumner, 91: F.2d 382, 386-87 (9th Cir. 1990) (holding that where a prisoner alleges that a policy is enforced for a “dubious purpose” officials 4la must demonstrate that the asserted penological interests “are the actual bases for their policies”); Baraldini v. Thornburgh, 884 F.2d 615, 620 (D.C. Cir. 1989) (noting that “[al reviewing court must always be careful to make certain that prison administrators are not pretextually using alleged concerns in order to punish an inmate for his or her political or other views.”). Here, Hammer submitted evidence suggesting that the driving force behind the ban on face-to-face interviews was not a security concern, but rather outrage over McVeigh’s message and a desire to prevent other death row inmates from expressing their views about themselves or their fates and thereby influencing “our culture.” For example, without any concerns about security breaches Lappin allowed Hammer face-to-face media interviews until the McVeigh interview aired; after that (and after a senator's written protest to the BOP about such broadcasts) Lappin denied all media requests for face-to-face interviews with Hammer. Most significantly, in unveiling the blanket restriction on face-to-face interviews with death row inmates, Ashcroft-with Hawk-Sawyer at his side-explained that he wanted to deny such inmates a platform from which they could spread their “irresponsible glamorization of a culture of violence.” This is evidence from which a jury could conclude that when Ashcroft’s subordinate Lappin implemented the restriction at the SCU just three days later, the defendants desired to control a disfavored message vather than to secure the SCU. 42a The defendants argue that this evidence amounts to nothing more than “a coincidence of timing.” But the evidence is more than just timing. Ashcroft explained that his distaste for the content of interviews given by death row inmates was the reason for the policy. That is direct evidence of the actual motivation, and it creates a genuine issue of material fact as to whether Lappin was motivated by a desire to prohibit a disagreeable viewpoint or to advance prison security. The defendants also argue that we must defer to Lappin’s judgment that the challenged policy is needed to combat the problem of jailhouse celebrities. But in reviewing a grant of summary judgment we must be careful to distinguish between matters of prison administration-on which we give substantial deference to prison officials’ professional judgment-and matters of disputed fact on issues like motivation-on which we draw inferences in favor of the non-moving party. See Beard v. Banks, 548 U.S. 521, 126 S. Ct. 2572, 2578, 165 L. Ed. 2d 697 (2006). If an inmate submits evidence showing that the penological interests invoked by prison authorities are pretextual, the policy is not neutral and fails under Turner. See Abu-Jamal, 154 F.3d at 134. Hammer submitted evidence from which a reasonable jury could conclude that the media policy was implemented and is now enforced not because of safety concerns, but rather in response to public pressure to prevent death row inmates from voicing their views’ publicly. Accordingly, summary judgment is inappropriate on Hammer's First Amendment challenge to the ban on face-to-face 43a interviews based on the first Vurner factor. See Salahuddin, 467 F.3d at 276-77. Summary judgment on the First Amendment claim was also inappropriate as to two other 7urner factors because Hammer has cast doubt on whether the media policy leaves open sufficient alternate routes of access to the media and whether there are reasonable alternatives to the ban on face-to-face interviews. See Turner, 482 U.S. at 90, 107 S. Ct. 2254. For example, Lappin’s justification for the ban on face-to-face interviews is that the broadcast of inmate interviews creates the risk of jailhouse celebrity. The government has not explained why, then, the prison needs to ban face-to-face interviews that are not recorded or broadcast. Moreover, there is a question of material fact whether the ban on discussing other inmates with the media allows Hammer an alternate route for discussing his criminal case. Hammer's goal is to discuss his criminal case (which involves inmate witnesses) with members of the press to highlight his disagreement with the prosecution. But he is subject to discipline if he engages in those discussions. Thus there is a question of material fact as to whether the policy leaves open any meaningful way for Hammer to access the media to discuss his case. Cf Pell, 417 U.S. at 827-28, 94S. Ct. 2800. Turning to Hammer's equal protection claim, we note that the district court gave this claim short shrift, stating only that the media policy applies equally to all inmates housed in the SCU. But this ignores Hammer's evidence that the media policy applies only to SCU inmates under a death sentence, 44a a fact that the defendants do not dispute on appeal. And Hammer’s evidence of pretext also casts doubt on whether the defendants had a valid interest in treating death row inmates differently from all other federal inmates. The equal protection clause prohibits the government from making distinctions among groups of speakers based on the content of their speech. See, e.g., Police Dep't of Chi. v. Mosley, 408 U.S. 92, 96, 92 S. Ct. 2286, 33 L. Ed. 2d 212 (1972). Here, Ashcroft said that his concern about the “glamorization of violence” in American culture shaped the BOP’s approach to the SCU-specific ban on death row inmates giving face-to-face interviews. A reasonable jury could thus conclude that death row inmates are treated differently not because they are disproportionately likely to become jailhouse celebrities or inflame tensions with other inmates, but because the policy makers believed that death row inmates are disproportionately likely to promote a “glamorization of violence.” Accordingly, the defendants are not entitled to summary judgment on Hammer’s equa! protection claim. The district court did not address what Hammer now argues is a claim that the defendants violated his due process rights by adopting the media policy without offering him notice or the opportunity to comment. But the court did not address this claim because Hammer did not make it; nothing in his complaint or opposition to summary judgment would have put the defendants or the court on notice that he objected to the process through which the policy was adopted. Because Hammer’s purported due process claim is outside the scope of the court’s grant 45a of summary judgment for the defendants, we need not address it here. We note that it can be an easy thing for an inmate to allege that prison officials are lying about the rationale behind a prison restriction; it is only because Hammer has backed up his allegations with admissible evidence from which a reasonable jury could infer that an illegitimate reason lies behind the interview ban that his First Amendment and equal protection claims survive summary judgment. B. Personal Involvement The district court granted summary judgment for Ashcroft and Hawk-Sawyer because, in its view, they had no personal involvement in the_ events underlying the allegations. A supervisory defendant is personally involved in and liable for a constitutional violation if he “create[s] a custom or policy fostering the violation or allow[s] the custom or policy to continue after learning of it.” Thomas v. Ashcroft, 470 F.3d 491, 496-97 (2d Cir. 2006). Ashcroft’s and Hawk-Sawyer’s participation in the press conference in which they called for the BOP ban on face-to-face interviews raises a triable issue of whether they fostered the ban for the purpose of suppressing expression. See Whitford v. Boglino, 63 F.3d 527, 531 (7th Cir. 1995). Thus summary judgment on the basis of their non-involvement was unwarranied. Before addressing Hammer’s procedural challenges to the district court’s decision, we note two issues that the district court may address on remand. Hammer has sued the defendants in their 46a individual and official capacities for damages, and for injunctive and declaratory relief. The defendants may be entitled to qualified immunity from damages, but given the unresolved issues of fact, we leave that determination to the district court in the first instance. Hammer’s claim for injunctive relief against the defendants in their individual capacities is now moot because none of the defendants currently hold the positions in which they were sued. But pursuant to Federal Rule of Appellate Procedure 43(c)(2) and Federal Rule of Civil Procedure 25(d), the district court should substitute the current officeholders for the official-capacity claims and consider which of them are proper defendants for injunctive relief under Ex Parte Young, 209 U.S. 123, 157, 28 S. Ct. 441, 52 L. Ed. 714 (1908) (requiring a “special relation” between the public official sued and the challenged rule). C. Denial of Motions for Counsel and for a Continuance Hammer also argues that the district court erroneously denied his three motions to recruit counsel and his Ruie 56(f) motion for a continuance. We review the district court’s rulings on these motions for abuse of discretion. See Johnson v. Doughty, 433 F.3d 1001, 1006 (7th Cir. 2006); Davis v. G.N. Mort. Co., 396 F.3d 869, 885 (7th Cir. 2005). In resolving a motion for the recruitment of counsel, the district court must consider both the complexity of the case and the pro se plaintiffs ability to htigate it himself. Prustt v. Mote, 503 F.3d 647, 654-55 (7th Cir. 2007). The court must analyze the plaintiffs capabilities in light of the challenges specific to his 47va case, including “the tasks that normally attend litigation: evidence gathering, preparing and responding to motions and other court filings, and trial.” Jd. at 655. In reviewing a court’s decision to deny a motion for counsel, we must ensure that the court meaningfully engaged in the correct analysis, and did not render a decision arbitrarily. /d. at 658, 660. Here, the district court’s three orders denying Hammer’s requests for counsel do not demonstrate that the court meaningfully considered’ the complexity of Hammer’s claims. Its first order is silent regarding the difficulty of his case. The second two orders state that Hammer “has demonstrated familiarity with his claims and the ability to present them, because the issues presented by his claims are not complex, and because this does not appear to be a case in which the presence of counsel would make a difference in the outcome.” But this is nothing more than a restatement of the applicable legal standard, without any reasoning showing that the court actually considered the standard in light of the particulars of Hammer’s case. See id. at 660. But we wil! reverse the district court’s decision to deny counsel only on a showi [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_IA40386017_1169%3A1. Public record. Not legal advice.