Opposition Brief — Hammer v. Ashcroft

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Supteme Court. U.S.

Tut ED

JAN 27 2010

No. 09-504 | iil

In the Supreme Court of the Gnited States

DAVID PAUL HAMMER, PETITIONER

Vv.

JOHN D. ASHCROFT, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

ELENA KAGAN

Solicitor General

Counsel of Record

TONY WEST

Assistant Attorney General

BARBARA L. HERWIG

EDWARD HIMMELFARB

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

In Pell v. Procunier, 417 U.S. 817 (1974), and Saxbe

v. Washington Post Co., 417 U.S. 848 (1974), this Court

held that prison policies prohibiting face-to-face inter-

views between prisoners and the media were consistent

with the First Amendment. The question presented

here is:

Whether a policy specific to the death-row unit at the

United States Penitentiary in Terre Haute that permits

prisoners to have contact with media representatives

through written correspondence or approved telephone

calls but prohibits them from conducting face-to-face

interviews with the media is reasonably related to legiti-

mate penological interests.

TABLE OF CONTENTS

Page

CD oon 5 hve be hwenetnnse eee eee 1

pT Ee erry ny rr rye At sa 1

SE. ss uonwWeeewee eee eee cae teeta pean 2

RE Wino 6 hea X00 eos eee eter eee ee 11

CRI oka dd ee eehck eee eee eee 26

TABLE OF AUTHORITIES

Cases:

Abu-Jamal v. Price, 154 F.3d 128 (3d Cir. 1998) ........ 23

Amatel v. Reno, 156 F.3d 192 (D.C. Cir. 1998),

cert. denied, 527 U.S. 1035 (1999) ...............4.. 21

Beard v. Banks, 548 U.S. 521 (2006) ............... 16, 20

Board of T rs. of the Univ. of Ala. v. Garrett, 531 U.S.

ED ik Gavtlex onsen edocs amhan eee seeks 23

Crawford-El v. Britton, 523 U.S. 574 (1998) ........... 22

FCC v. Beach Comme’ns, Inc., 508 U.S. 307 (1993) ..... 21

Frost v. Symington, 197 F.3d 348 (9th Cir. 1999) ....... 25

Johnson v. California, 543 U.S. 499 (2005) ....... ‘acca

Lewis v. Casey, 518 U.S. 343 (1996) ..............2206. 19

Mauro v. Arpaio, 188 F.3d 1054 (9th Cir. 1999},

cert. denied, 529 U.S. 1018 (2000) ............... 21,25

O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987) .... 17,19

Overton v. Bazzetta, 539 U.S. 126 (2003) ........ 13, 16, 19

Patrick v. Burget, 486 U.S. 94 (1988) ..............45. 14

Pell v. Procunier, 417 U.S. 817 (1974) ... 7, 11, 12, 13, 17, 25

Procunier v. Martinez, 416 U.S. 396 (1974) ............ 19

Quinn v. Niz, 983 F.2d 115 (8th Cir. 1993) ............ 24

Salahuddin v. Goord, 467 F.3d 263 (2d Cir. 2006) ...... 23

(IIT)

Cases—Continued: Page

Saxbe v. Washington Post Co., 417 U.S. 843

SE a oe ond a eekdw aah ae ne kes 8, 11, 12, 18, 15, 25

Taylor v. Freeland & Kronz, 503 U.S. 638 (1992) ....... 14

Thornburgh v. Abbott, 490 U.S. 401 (1989) ....... 13, 17, 19

Turner v. Safley, 482 U.S. 75 (1987) ............. passim

Walker v. Sumner, 917 F.2d 382 (9th Cir. 1990) ........ 24

Waterman v. Farmer, 183 F.3d 208 (8d Cir. 1999) ...... 21

Constitution and statute:

08 Bp ere 6, 7, 11, 12

Be os CED 56 65. 55650 s Cecewecvecweestunes 6

Jn the Supreme Court of the GAnited States

No. 09-504

DAVID PAUL HAMMER, PETITIONER

Vv.

JOHN D. ASHCROFT, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The en banc opinion of the court of appeals (Pet. App.

1a-30a) is reported at 570 F.3d 798. The panel opinion

of the court of appeals (Pet. App. 3la-48a) is reported at

512 F.3d 961. The opinion of the district court (Pet.

App. 49a-62a) is unreported. A prior opinion of the

court of appeals (Pet. App. 63a-70a) is not published in

the Federal Reporter but is reprinted in 42 Fed. Appx.

861. The original order of the district court dismissing

the case (Pet. App. 71a-79a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

June 25, 2009. On September 15, 2009, Justice Stevens

extended the time within which to file a petition for a

writ of certiorari to and including October 23, 2009, and

(1)

the petition was filed on that date. The jurisdiction of

this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. Petitioner is a prisoner on federal death row,

housed with the other death-row inmates in the Special

Confinement Unit (SCU) at the United States Peniten-

tiary (USP) in Terre Haute, Indiana. Gov’t C.A. Br. 3.

The Bureau of Prisons (BOP) opened the SCU in July

1999 to house male inmates sentenced to death by fed-

eral courts. Pet. App. 32a. The SCU also houses in-

mates on “administrative detention status.” /bid.

Petitioner pleaded guilty and was sentenced to death

for murdering his cellmate while confined at USP-

Allenwood. As the district court in his criminal case

explained:

[Petitioner] did not dispute that he tied Mr. Marti to

the bed, put a sock in Mr. Marti’s mouth, put Mr.

Marti in a sleeper hold, rendered him unconscious,

and then took a piece of cloth and strangled him to

death. [Petitioner] did not deny that he told inmates

prior to the incident that he was going to kill Mr.

Marti. The portions of Government counsel’s sum-

mary which [petitioner] did not deny compelled the

court to find intent to kill (malice) and premedita-

tion.

United States v. Hammer, 404 F. Supp. 2d 676, 683

(M.D. Pa. 2005), as amended, No. 4:CR-96-239 (M.D. Pa.

Jan. 3 and 4, 2006).’

' The court upheld petitioner’s guilty plea, but vacated the death sen-

tence subject to retrial on the penalty for reasons unrelated to this ap-

peal. 404 F. Supp. 2d at 801 (ordering retrial on penalty because of

Brady violations). The Third Circuit dismissed the parties’ appeals for

2. a. The BOP operates under policies that are pro-

mulgated in Program Statements applicable to BOP

institutions. Individual institutions within the federal

prison system are permitted to issue institution-specific

policies in Institution Supplements. Gov’t C.A. Br. 3.

Following reintroduction of the federal death penalty

and activation of the SCU, “it became necessary to de-

vise new, and alter existing, policies to address the

unique needs of the SCU.” C.A. Supp. App. 10.

Program Statement 1480.05, adopted in September

2000, addresses news media contacts and directs each

institution to develop its own Institution Supplement.

C.A. App. 139-149. Pursuant to that directive, on April

16, 2001, USP-Terre Haute issued Institution Supple-

ment THA-1480.05A (and THA-1480.05B, which is iden-

tical, except for the date and signature). Pet. App. 103a-

1lla. THA-1480.05A provides that, among other things,

“Lajn inmate may initiate an interview with the news

media by regular correspondence or through inmate

correspondence procedures” and that news media repre-

sentatives “may initiate an interview with a particular

inmate through correspondence.” Jd. at 103a-104a.

For SCU inmates, THA-1480.05A provides that “[t]o

maintain safety, security and the good order of the SCU,

in-person interviews (including video-recorded inter-

views) will not be permitted.” Pet. App. 105a. Like all

inmates at USP-Terre Haute, SCU inmates retain ac-

cess to the media through “the General and Special Mail

Procedures, as well as monitored or unmenitored phone

calls.” Id. at 106a, 107a. An SCU inmate who wishes to

lack of a final order. 564 F.3d 628 (2009). The government has until

April 2010 to state its intentions with respect to resentencing. See

96-CR-239 Docket entry No. 1256 (M.D. Pa. Aug. 27, 2009). In the

meantime, petitioner remains housed on death row in the SCU.

contact a media representative by phone must place that

person on his approved social telephone list for moni-

tored, unscheduled calls, and the media representative

must complete a “Conditions for Media Telephone Con-

tact” form. Jd. at 106a. That form requires the media

representative to agree to certain conditions, including:

1. TELEPHONE CONVERSATIONS WITH AN SCU

INMATE MAY NOT BE RECORDED OR BROAD-

CAST.

2. You are prohibited from asking or discussing with

the above-named SCU inmate any information

regarding other federal or state inmates. If the

above-named SCU inmate provides you with any

information regarding other federal or state in-

mates, you are prohibited from publishing such

information. Comments made by one inmate con-

cerning another could violate the privacy inter-

ests of the other inmate, and might cause a reac-

tion that could threaten the safety, security, or

good order of the institution.

Id. at 110a-111a. SCU inmates can also request unmoni-

tored telephone interviews. Jd. at 106a-107a.

As respondent Harley G. Lappin, former Warden at

USP-Terre Haute (Warden Lappin), explained, the new

policy was intended to balance the interests of the SCU

inmates and the journalists, with the interests of BOP in

security and good order and the rights of all inmates.

C.A. Supp. App. 11. One concern underlying the prohi-

bition on face-to-face interviews and publication of re-

cordings of interviews was that inmates would gain

“special status” through media exposure. Jbid. As War-

den Lappin explained, inmates must all be of equal sta-

tus at the prison because an inmate with greater status

can become a “jail celebrit[y],” who is “an authority fig-

ure to other inmates” and can “compete with staff mem-

bers for influence over the inmate population.” /bid.

In addition, prison officials were concerned that pub-

lication of statements about other inmates would in-

fringe on privacy rights. Pet. App. 110a-llla. “{IJna

correctional setting, real or imagined slights, insults or

provocations can cause inmate on inmate violence that

can have dire consequences for inmates, staff members,

and the public safety.” C.A. Supp. App. 12. Warden

Lappin believed that prohibiting the publication of state-

ments about other inmates was the least restrictive

means of addressing that concern; the regulation “did

not affect the content of the interview,” only “the end

result.” Jbid. If a journalist wanted to include informa-

tion obtained about another inmate, he could request an

interview with that inmate. /bid.

b. In March 2000, “60 Minutes” aired a face-to-face

interview with Timothy McVeigh, another inmate

housed in the SCU. Pet. App. 33a. More than a year

later, on April 12, 2001, then-Attorney General John

Ashcroft held a press conference to discuss logistics and

policies surrounding McVeijrth’s scheduled execution, the

first federal execution since 1963. See id. at 85a-102a.

The press conference dealt primarily with the death-

penalty procedures for McVeigh, and secondarily with

the ban on face-to-face interviews. In discussing “media

outlets” that had requested interviews with McVeigh,

Attorney General Ashcroft stated that “[als an Ameri-

can who cares about our culture, I want to restrict a

mass murderer’s access to the public podium. * * * I

do not want anyone to be able to purchase access to the

podium of America with the blood of 168 innocent vic-

tims. Media access to special confinement unit inmates

will be limited t» each inmate’s ordinary allotment of

telephone time,” which can be used “in any way they

choose.” Jd. at 9¢2. When later asked by a reporter

whether his “decision today” (apparently referring to

the announced plan to allow victim and media witnesses

to attend McVeigh’s execution) might also “encourag([e]

copycat crimes by the sensationalizing of these cata-

strophic events through extensive media coverage,” At-

torney General Ashcroft responded that he was “con-

cerned about * * * a culture of violence,” and about

“irresponsible glamorization of a culture of violence, and

that concern has shaped our approach to these issues

profoundly.” Jd. at 97a.

3. On April 24, 2001, petitioner filed this pro se Biv-

ens ection, seeking damages and injunctive relief against

several federal officials in their individual and official

capacities and alleging that they violated his First

Amendment and equal protection rights by implement-

ing and enforcing a policy that prohibits him from hav-

ing face-to-face interviews with the media and from talk-

ing to the media about other inmates. The district court

screened the complaint under 28 U.S.C. 1915A(b)(1) and

dismissed it for failure to state a claim. Pet. App. 71la-

79a.

The court of appeals reversed and remanded (Pet.

App. 68a-70a), concluding that “[a]t th[e] early pleading

stage,” the district court should have taken petitioner’s

allegations as true and concluded that they stated a

claim, id. at 69a.

Petitioner filed an amended complaint on January 2,

2003, alleging, inter alia, that THA-1480.05A violated

his First Amendment and equal protection rights.” On

February 23, 2006, the district court granted summary

judgment in favor of respondents. Pet. App. 49a-62a.

The court explained that “inmates do not have a right to

face-to-face interviews so long as other avenues of com-

munication are open to them, and regulations denying

face-to-face interviews are applied in a neutral, equal

manner without regard to content.” Jd. at 54a (citing

Pellv. Procunier, 417 U.S. 817, 827-828 (1974)). Apply-

ing the four Turner factors, see Turner v. Safley, 482

U.S. 78 (1987), the court concluded that petitioner had

not met his burden of showing that the policy was not

reasonably related to legitimate penological interests.

Pet. App. 55a, 58a-62a.

4. After appointing counsel to brief and argue the

appeal on petitioner’s behalf, a panel of the court of ap-

peals reversed and remanded, concluding that petitioner

“raised a genuine issue of fact as to whether [respon-

dents’| proffered justification for the policy banning

face-to-face interviews is pretextual.” Pet. App. 32a.

On petitioner’s First Amendment claim, the panel

read Turner’s first prong to require that “the penolog-

ical 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 restric-

tion.” Pet. App. 40a. According to the panel, petitioner

had submitted evidence supporting his claim that the

security justification for the policy was a pretext for

“outrage over [Timothy] McVeigh’s message and a de-

* In March 2004, petitioner moved to dismiss his case, citing his im-

minent execution cate of June 8, 2004, and the court dismissed the case

without prejudice. Gov't C.A. Br. 7. The Third Circuit later stayed his

execution, petitioner moved to vacate the judgment, and the district

court reinstated the media-access claims. /bid.

sire to prevent other death row inmates from expressing

their views about themselves or their fates and thereby

influencing ‘our culture.’” Jd. at 41a. In other words,

the court believed that petitioner’s evidence tended to

show that Warden Lappin may have been “lying about

the rationale” for the policy in his sworn declaration.

Id. at 41a-48a, 45a. Turning to the other Turner factors,

the panel concluded that the alleged “ban on discussing

other inmates with the media,” “cast doubt on whether

the media policy leaves open sufficient alternate routes

of access to the media.” /d. at 48a.

On petitioner’s equal protection claim—that the pol-

icy treated death row inmates at the SCU differently

from other inmates—the panel was persuaded that a

question of fact existed on whether such inmates were

treated differently “because they are disproportionately

likely to become jailhouse celebrities or inflame tensions

with other inmates,” or because they are “dispropor-

tionately likely to promote a ‘glamorization of violence.”

Pet. App. 43a-44a. The panel left the issue of qualified

immunity to the district court on remand. /d. at 46a.°

5. The court of appeals granted rehearing en banc,

vacated the panel decision, and affirmed the judgment

of the district court. Pet. App. 1a-30a.

a. The en banc court recognized that this Court had

already upheld a system-wide BOP policy prohibiting

face-to-face interviews by the media, Pet. App. 4a (citing

Saxbe v. Washington Post Co., 417 U.S. 848 (1974)), and

rejected petitioner’s argument that BOP could not en-

force that rule against some prisoners but not others,

* The panel also held that the district court erred in denying peti-

tioner’s motions for a continuance and for counsel, and in granting sum-

mary judgment for respondents John Ashcroft and Kathleen Hawk-

Sawyer. Pet. App. 45a-48a.

id. at 4a-5a. The court explained that the rule was

based on security needs, and the need for security dif-

fers at different institutions. bid. A case in point, the

en banc court observed, was the policy upheld in Wash-

ington Post itself, which allowed media interviews at

minimum-security institutions but not medium- or maxi-

mum-security institutions. Jd. at 5a. The court con-

cluded that BOP was not required to permit access to all

prisoners simply because it allowed access to some, nor

was it required to use the least restrictive alternative.

Id. at 5a, 6a-7a. Turner requires only that a prison

choose a rule “reasonably related to legitimate security

interests,” a condition the court found satisfied here.

Id. at 6a-7a.

The court rejected petitioner’s claim that the current

policy was prompted by criticism of Timothy McVeigh’s

interview with “60 Minutes,” and that Attorney General

Ashcroft was motivated by a desire to silence death-row

inmates. Pet. App. 8a-9a. The court explained that a

“blanket ban,” as opposed to a case-by-case approach,

was “neutral” as to content. 7d. at 7a. And the court

found it unclear “why one bad motive would spoil a rule

that is adequately supported by good reasons.” Jd. at

10a. After all, the court observed, this 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.” bid.

The en banc court also found “nothing unconstitu-

tional” about Attorney General Ashcroft’s views: “[o]p-

posing a ‘culture of violence’ is an ordinary, and desir-

able, goal for a criminal prosecutor.” Pet. App. lla. In-

deed, the court explained, the desire to prevent people

from becoming “celebrities by committing crimes,” was

found to be a legitimate basis for curtailing press access

in Washington Post, “not a constitutionally infirm one.”

Ibid. The court concluded that where, as here, prisoners

have access to the press through written correspondence

and telephone calls, prohibiting face-to-face interviews

does not unduly infringe on prisoners’ constitutional

rights. Id. at 13a-14a.

As for the prohibition on publishing information

about other inmates, the court found it rational to think

(as prison officials did) that “(tJelling tales about fellow

inmates may make them angry (if the tales are defama-

tory) or may make yet other inmates envious (if the tales

are flattering). In either event, disorder may follow.”

Pet. App. 14a. The court concluded that, because other

avenues of expression (including the courts) were avail-

able, concerns that misconduct would be concealed were

misplaced and outweighed by the legitimate governmen-

tal interest. Jd. at 14a-15a.

Because it agreed that THA-1480.05A was valid, the

court did not decide whether a Bivens action was a

proper vehicle for challenging an administrative rule, or

whether qualified immunity should attach. Pet. App. 3a-

4a.

b. The pane! judges dissented. Pet. App. 15a-23a,

23a-50a. Judge Rovner, joined by Judge Bauer, argued

that the original panel opinion reached only “the lim-

ited—indeed, even pedestrian—conclusion that a trier of

fact must resolve” whether the “jailhouse-celebrity con-

cern” put forward by the Warden was “legitimate” or a

“convenient explanation to justify a policy designed to

control the speech content of a particular subset of pris-

oners.” Jd. at 16a. The dissent was concerned about the

lack of alternative means to specifically discuss other

inmates, believing that “[u)]nder the current policies an

inmate could be disciplined for informing the media

* * * that another inmate is being abused by a guard.”

Id. at 20a. They found it “irrational” to treat death row

inmates differently “based solely on their particular sen-

tence,” 7d. at 22a, and saw no impediment to deposing

former Attorney General Ashcroft “who, after all, chose

to speak publicly about the rationale behind the media

ban,” 7d. at 23a.

Judge Wood wrote separately to highlight her “own

concerns with the majority’s opinion”—namely, that

“the record does not support certain key assumptions

made”; that further development of the record should

have been permitted; and that the rule adopted by the

majority “permit[s] wholesale censorship in prisons”

“[t]o the extent that [it] has swept away the need to

show adequate alternative avenues for communication.”

Pet. App. 23a-24a, 29a.

ARGUMENT

Petitioner contends (Pet. 11-29) that the ban on face-

to-face interviews with the media violates prisoners’

First Amendment and equal protection rights because

the policy is a permanent ban that only applies to death

row inmates housed at the SCU and, because all of those

inmates are male, the policy discriminates on the basis

of gender and sentence, and because the “true” motiva-

tion for the ban was to silence death-row inmates. The

court of appeals’ decision is correct and does not conflict

with any decision of this Court. Petitioner’s claimed

conflict with other courts of appeals is overstated and

would not result in a different outcome here. Further

review is not warranted.

1. Ina pair of decisions issued in 1974, Pell v. Pro-

cunier, 417 U.S. 817, and Saxbe v. Washington Post Co.,

417 U.S. 843, this Court held that prison policies barring

prisoners from face-to-face interviews with the media

were consistent with the First Amendment. In Pell, the

Court held that “[{sJo long as reasonable and effective

means of communication remain open and no discrimina-

tion in terms of content is involved,” prisoners have no

constitutional right to communicate with the media in

person. 417 U.S. at 826; id. at 835-836 (Powell, J., dis-

senting) (“agree{ing] with the majority” that inmates do

not “have a personal constitutional right to demand in-

terviews with willing reporters”).

In both cases, this Court explicitly endorsed the

“jailhouse-celebrity” rationale. In Pell, the Court ex-

plained that allowing face-to-face interviews “had re-

sulted in press attention being concentrated on a rela-

tively small number of inmates who, as a result, became

virtual ‘public figures’ within the prison society and

gained a disproportionate degree of notoriety and influ-

ence among their fellow inmates. Because of this notori-

ety and influence, these inmates often became the

source of severe disciplinary problems.” Pell, 417 U.S.

at 831-832. In Washington Post, the Court stated: “As

a result those inmates who are conspicuously publicized

because of their repeated contacts with the press tend to

become the source of substantial disciplinary problems

that can engulf a large portion of the population at a

prison.” 417 U.S. at 848-849.

And, in both cases, the Court relied on the availabil-

ity of alternative means of communicating with the gen-

eral public, and with the press. See Pell, 417 U.S. at

823-824 (noting other means for “communication with

persons outside the prison, including representatives of

the news media”); Washington Post, 417 U.S. at 847-848

(noting other avenues of press access to the prison); see

also Turner v. Safley, 482 U.S. 78, 88 (1987) (observing

that Pell focused on whether “prisoners had other

means of communicating with members of the general

public”). Those alternatives included direct communica-

tion with the press by written correspondence, and lim-

ited visitation by designated categories of family and

friends (who could, in turn, communicate with the press

on the inmate’s behalf). See Pell, 417 U.S. at 824-825;

Washington Post, 417 U.S. at 846-847.

The same “jailhouse celebrity” concerns approved of

in Pell and Washington Post prompted the policy at is-

sue in this case. See C.A. Supp. App. 11. And the same

alternative means of communicating with the general

public and the press exist. See Pet. App. 105a-106a.

Indeed, at Terre Haute, death-row inmates have access

to monitored and unmonitored telephone calls with the

media, a form of communication that was unavailable to

the prisoners in the two earlier decisions.

Nothing has changed in this Court’s prison jurispru-

dence in the past 35 years to put those holdings in doubt.

To the contrary, this Court has repeatedly reaffirmed

the decision and reasoning in Pell. See, e.g., Overton v.

Bazzetta, 539 U.S. 126, 132 (2003) (relying on analysis in

Pell, which was “cited with approval in Turner”);

Thornburgh v. Abbott, 490 U.S. 401, 409, 415 (1989) (cit-

ing Pell with approval); Turner, 482 U.S. at 86, 88, 90

(same). If anything, the subsequent cases have estab-

lished a level of judicial deference to prison policies that

is greater than the deference shown in Pell and Wash-

ington Post.

2. Nonetheless, petitioner faults the en banc court

for applying this Court’s controlling precedent in Pell

and Washington Post, rather than the four-factor test

announced in Turner. Pet. 23-24. Petitioner does not

ask this Court to overrule its earlier cases, nor does he

suggest that the policies at issue in Pell and Washington

Post—permanent rules barring face-to-face interviews

—would fail under the Turner standard. Instead, peti-

tioner seeks to distinguish THA-1480.05A from the poli-

cies upheld in those cases. Pet. 23-29. None of the sup-

posed distinctions withstands scrutiny or warrants fur-

ther review.

First, petitioner asserts (Pet. 13, 23-28) that the SCU

policy applies only to a “sub-class of prisoners”—a sub-

class defined by gender and sentence.

As an initial matter, petitioner’s claim that the media

policy is invalid because it involves the “differential

treatment” of men and women (Pet. 26; see Pet. 13, 25,

27) was never raised below at any stage of this litigation,

and thus is not properly before the Court. See Taylor v.

Freeland & Kronz, 503 U.S. 638, 645-646 (1992) (Court

ordinarily will not consider issues neither raised nor

resolved by the court of appeals.); Patrick v. Burget, 486

U.S. 94, 99 n.5 (1988) (Court “usually will decline to con-

sider questions presented in a petition for certiorari that

have not been considered by the lower court.”). In any

case, THA-1480.05A says nothing about gender; the pol-

icy barring face-to-face media interviews simply applies

to Terre Haute SCU inmates sentenced to death, i.e.,

the male death-row inmates currently in the BOP. An

Institution Supplement, by definition, is limited to a par-

ticular institution. If a media-access policy were to

cover the two female death-sentenced inmates in the

federal system, it would have to be issued by the warden

at the Federal Medical Center in Carswell, Texas, where

they are housed. Petitioner’s reasoning presumably

would make any regulation issued by the SCU regarding

death row inmates invalid unless an identical regulation

had issued at Carswell. That cannot be the law.‘

Petitioner’s claim that the policy is invalid because it

applies only to death-row inmates housed at the SCU is

equally without merit. By the time this Court decided

Washington Post, the BOP had revised its policy to per-

mit inmate interviews in minimum-security prisons, 2.€.,

treating a “sub-class” of prisoners differently than those

at higher-security prisons. 417 U.S. at 844 & n.2. The

Court expressed no concern with that distinction—and

for good reason. The “principal reason for limiting

press contacts is the maintenance of security,” Pet. App.

4a, and there are different security needs at different

institutions. Jd. at 5a (“It is easier to justify limiting

press contacts at the few places holding the most incor-

rigible prisoners (USP Florence and the SCU at Terre

Haute) than at all medium- and maximum-security pris-

ons.”); cf. Turner, 482 U.S. at 95 n.* (This Court’s prece-

dents “make clear * * * [that] the Constitution ‘does

not mandate a “lowest common denominator” security

standard, whereby a practice permitted at one penal

institution must be permitted at all institutions,’” partic-

ularly when “different security concerns” are present.)

(citation omitted). As the en banc court of appeals held,

the BOP need not choose between the nationwide (or

near-nationwide) ban upheld in Washington Post, and

no limitation at all. See Pet. App. 5a.

Second, petitioner describes the prohibition on face-

to-face interviews with the media as a “permanent ban,”

* Indeed, under petitioner’s reasoning, any policy established for an

institution housing only men is potentially invalid. Respondents are

informed that, as of September 9, 2009, 93.3% of the federal prison

population was male. The remaining 6.7% who were female are housed

separately.

7? 6

and suggests that this “permanent ban” “squarely pres-

ents” a question left unresolved in Beard v. Banks, 548

U.S. 521, 586 (2006), and Bazzetta, 589 U.S. at 134. Pet.

13, 18, 23, 27-29. But petitioner concedes that numerous

“permanent” bans have been upheld by this Court. See

Pet. 27 (citing five decisions and conceding that “the

Court has upheld ‘permanent’ restrictions that apply

equally and neutrally to an entire prison population”).

He argues only that such “permanent” bans cannot be

applied to a “sub-class” of prisoners. /bid. That is in-

correct.

As discussed above, the Court in Washington Post

already upheld a “permanent” ban on exactly this sort of

media contact that applied only to a sub-class of prison-

ers. But, more fundamentally, the skepticism expressed

in Bazzetta and reiterated in Banks is not implicated

here. In Bazzetta, this Court observed that if a ban on

“all visitation” for certain inmates was treated as “per-

manent,” it might “reach a different conclusion in a chal-

lenge to a particular application of the regulation.” 539

US. at 134. In Banks, the Court quoted that language

and upheld a prison policy denying “newspapers, maga-

zines, and photographs” to the “worst of the worst” in-

mates, where there was no alternative means of exercis-

ing that right. 548 U.S. at 524, 530.

Petitioner challenges the validity of a policy prohibit-

ing all death row inmates at SCU from participating in

face-to-face interviews with the media. That is not a

permanent ban on all visitation, nor does it foreclose

other avenues of expression. Inmates at SCU, like peti-

tioner, are prohibited from engaging in one specific type

of contact, an in-person interview, with one specific type

of visitor, the media. They are free to contact the press

through written correspondence or authorized telephone

calls, and to communicate with the general public

through face-to-face visits with family and friends. That

this more limited ban is “permanent” might be relevant

to the Turner analysis, but it does not warrant a differ-

ent inquiry or a different outcome here.

Third, petitioner claims (Pet. 24-25) that the policies

at issue in Pell and Washington Post did not restrict an

inmate’s ability to communicate with the media through

written correspondence, whereas petitioner could not

discuss other inmates with the media. Petitioner does

not dispute that there are other means for him to com-

municate with the general public and the press; he ar-

gues only that there are no reasonable means for him to

communicate information about other inmates to the

press. That argument lacks merit.

Petitioner fundamentally misunderstands the nature

of the inquiry under the second prong of T’urner, which

asks “whether * * * alternative means of exercising

the right * * * remain open to prison inmates.” 482

U.S. at 90. Abbott, 490 U.S. at 417, makes clear that

““the right’ in question must be viewed sensibly and ex-

pansively.” Thus, the right in question here is the right

to communicate with the general public. See Pell, 417

U.S. at 823 (examining the regulation “in the light of the

alternative means of communication permitted under

the regulations with persons outside the prison”); see

Abbott, 490 U.S. at 417-418 (Court “held in Turner that

it was sufficient if other means of expression (not neces-

sarily other means of communicating with inmates in

other prisons) remained available, and in O’Lone [v. Es-

tate of Shabazz, 482 U.S. 342 (1987)] if prisoners were

permitted to participate in other Muslim religious cere-

monies.”) (citations omitted). Like the prisoners in

Washington Post and Pell, petitioner retains that right.

Petitioner and amici also misunderstand the scope of

THA-1480.05A and, in particular, Attachment A, which

prohibits the media from “asking or discussing * * *

any information regarding other federal or state in-

mates,” and from “publishing such information.” Pet.

App. 110a.° That prohibition is directed solely at the

media, and petitioner has no standing to challenge it.

See id. at 73a. Moreover, as Warden Lappin explained,

the regulation does “not affect the content of the inter-

view,” only the “end result.” C.A. Supp. App. 12. “If the

news media representative wished to include informa-

tion about another inmate in his or her article, an inter-

view with that inmate could be requested.” Jbid.

Thus, the court of appeals correctly rejected peti-

tioner’s proposed distinctions and applied this Court’s

controlling precedents in Pell and Washington Post to

uphold the challenged regulation. That decision does

not conflict with any other court of appeals’ decision and

this Court’s review is not warranted.

3. a. Petitioner next contends (Pet. 11-23) that fur-

ther review is needed because the en banc decision mis-

applied the first T’urner factor by accepting an allegedly

post-hoc security justification for the policy, instead of

the “admit[ted]” goal of suppressing speech, Pet. 16, as

spelled out in a press conference by then-Attorney Gen-

eral Ashcroft. That contention is mistaken.°®

® To the extent petitioner’s challenge rests on letters written by the

Warden before THA-1480.06A was announced, those claims are case-

and fact-specific and do not warrant further review.

® Petitioner does not suggest any nefarious motive underlying the

restriction precluding the media from publishing information about

other inmates. Pet. App. 110a-11.. As stated in Attachment A to

THA-1480.05A, that restriction was issued to “maintain the safety,

security and good order of the SCU,” to protect “the privacy interests

The first Turner factor asks whether there is a

valid, rational connection’ between the prison regula-

tion and the legitimate governmental interest put for-

ward to justify it.” 482 U.S. at 89 (citation omitted). In

considering whether the penological goal “put forward”

by prison officials is rationally connected to the policy,

the court must ensure that the goal is “legitimate and

neutral.” Jd. at 90. In this context, a goal is “neutral”

as long as it “further[s] an important or substantial gov-

ernmental interest unrelated to the suppression of ex-

pression.” Abbott, 490 U.S. at 415 (quoting Procunier v.

Martinez, 416 U.S. 396, 413 (1974)).

Petitioner argues that even though 7'urner and its

progeny made clear that courts must “accord substantial

deference to the professional judgment of prison admin-

istrators,” Pet. 16 (quoting Bazzetta, 539 U.S. at 132),

those cases “did not consider whether such deference

must be given to non-contemporaneous explanations

offered only in litigation declarations authored by law-

yers long after the fact,” ibid.’ But this is not a case of

post-hoc justifications offered by government lawyers in

the course of litigation.

see

of the other inmate[s],” and to prevent “a reaction that could threaten

the safety, security, or good order of the institution.” bid; see C.A.

Supp. App. 12 (“real or imagined slights, insults or provocations can

cause inmate on inmate violence that can have dire consequences for

inmates, staff members, and the public safety”).

" See also O’Lone v. Estate of Shabazz, 482 U.S. 342, 353 (1987) (“We

take this opportunity to reaffirm our refusal, even where claims are

made under the First Amendment, to ‘substitute our judgmenton.. .

difficult and sensitive matters of institutional administration,’ for the

determinations of those charged with the formidable task of running a

prison.”) (citation omitted). This deference is particularly appropriate

when a challenged policy governs the most violent and dangerous pris-

oners. Lewis v. Casey, 518 U.S. 343, 361 (1996).

The security of our nation’s prisons is indisputably a

legitimate and content-neutral goal. And, contrary to

petitioner’s suggestions, that rationale was contempora-

neously “put forward,” Turner, 482 U.S. at 89, to justify

THA-1480.05A. The Institution Supplement itself,

which petitioner ignores, explains that the ban on in-

person interviews was enacted “[t]o maintain safety,

security and the good order of the SCU.” See Pet. App.

105a. Elaborating on that reason, Warden Lappin ex-

plained in a sworn declaration that prison officials were

concerned that inmates would gain “special status”

through media exposure, and that this threatened prison

security because an inmate with greater status can be-

come a “jail celebrit{y]” who is an “authority figure to

other inmates” and can “compete with staff members for

influence over the inmate population.” C.A. Supp. App.

11. This Court has relied on “justifications” set forth “in

[a summary judgment] motion” and accompanying affi-

davit of a prison official as “evidence.” See Banks, 548

U.S. at 530. And these are the same reasons “put for-

ward” by prison officials, and accepted by this Court, in

Pell and Washington Post. See p. 12, supra.

Petitioner next contends that the en banc court erred

in failing to credit his allegation that Warden Lappin

was lying, and that the true motivation underlying the

policy was then-Attorney General Ashcroft’s “personal

view{s]” and his cesire “to restrict a mass murderer’s

access to the public podium” and “to prevent the ‘irre-

sponsible glamorization of a culture of violence.’” Pet.

2-3 (quoting Pet. App. 90a); see also Pet. 7. That argu-

ment is equally misplaced.

Turner's first factor does not provide for considera-

tion of the subjective motivation of a particular prison

official or law enforcement officer. Turner speaks of the

goal or interest “put forward” by prison officials; it does

not suggest that courts may question the sincerity of an

admittedly legitimate and neutral penological goal. In-

deed, when this Court rejected the Turner test for race-

based prison policies, it expressed a concern that the

analysis under Turner might allow segregation “if

prison officials simply asserted that it was necessary to

prison management.” Johnson v. California, 543 U.S.

499, 514 (2005) (emphasis added); see id. at 513, 514

(Turner is not designed to “ferret out invidious uses of

race”; application of Turner standard “would make rank

discrimination too easy to defend”); see also Waterman

v. Farmer, 183 F.3d 208, 214 (8d Cir. 1999) (assuming

that the legislative goal behind the statute was rehabili-

tation and rejecting the district court’s contrary as-

sumption, which had been based on the lack of legisla-

tive history and the state corrections department’s op-

position to the statute).

Eschewing inquiries into subjective motivation is

consistent with rational basis review in the equal protec-

tion context. See FCC v. Beach Commce’ns, Inc., 508

U.S. 307, 315 (1993) (“[BJecause we never require a

legislature to articulate its reasons for enacting a stat-

ute, it is entirely irrelevant for constitutional purposes

whether the conceived reason for the challenged distinc-

tion actually motivated the legislature.”). And courts

have often equated Turner’s first factor with a rational

basis standard. See, e.g., Amatel v. Reno, 156 F.3d 192,

199 (D.C. Cir. 1998), cert. denied, 527 U.S. 1035 (1999);

Waterman, 183 F.3d at 215; Mauro v. Arpaio, 188 F.3d

1054, 1060 (9th Cir. 1999) (en banc), cert. denied, 529

U.S. 1018 (2000). Far from permitting courts to order

discovery into a former Attorney General's subjective

motivation, the first factor of Turner and its rational-

basis principles require courts to accept the goal “put

forward” by prison officials, and to consider the rational-

ity of the connection between the policy and that goal.

A contrary approach would significantly undermine

the intent of T’'urner—to give prison officials the ability

to operate and manage prisons without undue judicial

interference. As even the panel recognized below, pris-

oners are resourceful litigators who have little trouble

alleging evidence of malfeasance, Pet. App. 45a, and

when subjective motivation becomes an issue, it will be

difficult to weed out baseless claims before trial. See

Crawford-El v. Britton, 523 U.S. 574, 584-585 (1998)

(“Because an official’s state of mind is ‘easy to allege and

hard to disprove,’ insubstantial claims that turn on im-

proper intent may be less amenable to summary disposi-

tion than other types of claims against government offi-

cials.”).

Respondents are, of course, sensitive to the possibil-

ity that in an unusual case a prison official might misrep-

resent the penological goal behind the challenged policy

during litigation. But that issue is readily dealt with

under Turner, which objectively looks at whether the

connection between the policy and the penological goal

put forward by prison officials is rational and whether

the policy represents an exaggerated response to the

problem. 482 U.S. at 89-91. A penological goal falsely

put forward to cover up the true, improper motivation

for a policy is unlikely to have a rational connection to

the policy or to be a reasonable response to the problem.

For example, in Turner itself the Court held that com-

mon sense suggested there was no rational relationship

between the prohibition of marriages and the purported

security rationale of preventing “love triangles,” and

that the prohibition was an exaggerated response to

security concerns that could have been addressed with

a more limited restriction. Jd. at 98; see also Board of

Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 366 n.4

(2001) (explaining that policies have been struck down

within the rational basis framework when the “pur-

ported justifications” did not make “sense in light” of

the treatment of “similarly situated” groups). The first

and fourth factors of Turner are designed to uncover

many, if not all, of those questionable cases. This is not

one of them.

b. Petitioner also argues (Pet. 12, 18-20) that the

court of appeals’ decision conflicts with other circuits,

which hold that the legitimacy of prison regulations

“must be measured by reasons that were put forth at the

time the policy was adopted.” In asserting a conflict

between the en banc court here and other courts of ap-

peals, petitioner relies on language in those cases but

overstates their holdings. And this case presents an

unsuitable vehicle to address any purported conflict be-

cause the outcome would remain the same.

In Salahuddin v. Goord, 467 F.3d 263, 275 (2d Cir.

2006) (cited at Pet. 18-19), the court stated that prison

officials need only satisfy the “limited burden” of “iden-

tifying” the penological goal. The actual holding there

was that the reasons for the policy had to be in the re-

cord to satisfy the government’s summary judgment

burden, id. at 277 (“Post hoc justifications with no re-

cord support will not suffice.”)—not that the court may

question what those reasons really are. Here, the secu-

rity justification for the Institution Supplement was in

the record. See p. 20, supra.

In Abu-Jamal v. Price, 154 F.3d 128, 134, 187 (3d

Cir. 1998) (cited at Pet. 19), the plaintiff raised an as-

applied challenge asserting that prison officials were

enforcing a rule against him “because of the content” of

his writing, and that the rule was not being enforced

against other similarly situated inmates engaged in the

same activity. The prison officials offered only the vagu-

est of justifications for their rule. /d. at 134 (rule “justi-

fied by ‘multifarious purposes and the impossibility of

accommodating the practice of a profession or business

in a penal setting’ ”) (citation omitted). And one of the

justifications—compensation—was plainly irrelevant to

the case. /bid. (“under the Department’s own regula-

tions, compensation is irrelevant in these circumstanc-

es”). Likewise, in Quinn v. Niz, 983 F.2d 115, 118 (8th

Cir. 1993) (cited at Pet. 20), the challenge was as-applied

and the prison officials’ assertion that they had required

the plaintiff-prisoners to have their hair cut out of con-

cern for gang-related hair was implausible on its face,

since they received the memorandum warning about

gang hair after they had ordered the haircuts. Here,

petitioner challenges a rule that is applied equally to all

death row inmates at the SCU, and prison officials of-

fered a contemporaneous and facially valid justification

for that rule.

Finally, Walker v. Sumner, 917 F.2d 382, 385-386

(9th Cir. 1990) (cited at Pet. 20), required “evidence”

supporting the interest “put forward” by prison officials.

There, “[t]he only attempted justification” was a “bare

and unsupported assertion in their motion”; there was

no evidence “either in the form of deposition testimony

or affidavits to justify their policy.” 7d. at 386-387 (em-

phasis added). In contrast, here the interest was codi-

fied in the policy itself and supported by the declaration

of Warden Lappin—“evidence” by any standard.®

** * * *

In the end, contrary to petitioner’s and amici’s con-

cerns, nothing about this policy prevents death row in-

mates, like petitioner, from speaking to the press about

“the administration of the death penalty” or “the proper

treatment of prisoners,” or deprives the general public

of “access to accurate information about the conditions

inside prisons.” See, e.g., Pet. 21-22; National Lawyers

Guild Amicus Br. 3. Petitioner does not (and could not)

claim that the policy was motivated by a desire to con-

ceal prison conditions or details concerning administra-

tion of the death penalty. Cf. Pell, 417 U.S. at 830 (not-

ing that the regulation was “not part of an attempt by

the State to conceal the conditions in its prisons or to

frustrate the press’ investigation and reporting of those

conditions”); Washington Post, 417 U.S. at 848 (examin-

ing the alternative means of communication and finding

it “[t]hus * * * clear that [the policy was] not part of

any attempt by the [BOP] to conceal from the public

the conditions prevailing in federal prisons”). THA-

1480.05A simply prohibits death row inmates at the SCU

* Moreover, Walker has been substantially narrowed by the Ninth

Circuit. See Frost v. Symington, 197 F.3d 348, 355 (1999) (en banc de-

cision in Mauro v. Avpaio, supra, “appears to have implicitly called

[Walker's] underpinnings into question”); zbzd. (explaining that Mauro

“ruled that as a matter of law the prison’s purported motivations were

legitimate”). Frost reconciled Mauro and Walker by limiting Walker

to cases involving the rationality of the policy, as opposed to the goal

itself—that is, to cases in which the inmate produces evidence tending

to refute a common-sense relationship between the goal and the policy.

It is doubtful that the snippet of Walker that petitioner quotes is still

good law in the Ninth Circuit.

from speaking to the press in person about such mat-

ters. A far more expansive prohibition was counte-

nanced by this Court more than thirty years ago in

Washington Post and in Pell, and nothing about the

present case warrants this Court to revisit those deci-

sions.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.