Petition for Writ of Certiorari — Amatel v. Reno

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Supreme Court, U.S.

Je ee eS Ge

9 8145 2 mar 1 11999

No. OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1998

JOSEPH AMATEL, et al.,

Petitioners,

JANET RENO, Attorney General of the United States, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the D.C. Circuit

PETITION FOR A WRIT OF CERTIORARI

BURTON JOSEPH JOHN B. MorrIs, JR.*

JOSEPH, LICHTENSTEIN & JODIE L. KELLEY

LEVINSON JENNER & BLOCK

134 North Lasalle Street 601 Thirteenth Street, N.W.

Suite 1208 Twelfth Floor

Chicago, IL 60602 Washington, D.C. 20005

(312) 346-9270 (202) 639-6000

Of Counsel Attorneys for Petitioners

* Counsel of Record

ae ee

QUESTIONS PRESENTED

1. Whether the court below erred by altering the carefully

balanced, multi-factored test, established by this Court in

Turner v. Safley, 482 U.S. 78 (1987), that applies to challenges

to prison regulations that impact fundamental constitutional

rights; expressly reducing the test to rational basis review in

conflict with at least four other circuits?

2. Whether the court below erred in upholding under 7urner,

without any evidentiary support, a federal statute that flatly

bans receipt by federal prisoners of a disfavored category of

protected speech, despite the complete absence of any

indication that such a flat ban was requested or needed by the

prison officials entrusted with the security and rehabilitation of

federal prisoners?

RULE 14.1(b) AND RULE 29.6 STATEMENTS

Pursuant to Rule 14.1(b) of the Rules of this Court,

petitioners state that the list of parties in the court of appeals

whose judgment is sought to be reviewed is as follows:

Joseph Amatel

Lee Alphonso Moore

Daniel J. Levitan

Playboy Enterprises, Inc.

General Media Communications, Inc.

Periodical and Book Association of America

Janet Reno, in her official capacity

Kathleen Hawk, in her official capacity

J.D. Lamer, in his official capacity

Joel H. Knowles, in his official capacity

Stephen DeWalt, in his official capacity

Pursuant to Rule 29.6 of the Rules of this Court,

petitioners state as follows:

None of the named petitioners has any corporate parent,

subsidiary or affiliate which is publicly held. (For this purpose,

members of trade associations have not been considered

affiliates of such trade associations).

ill

TABLE OF CONTENTS

QUESTIONS PRESENTED ......-----+eeeeeeereees i

RULE 14.1(b) AND RULE 29.6 STATEMENTS ....... il

OPINIONS BELOW .........--- eee cee e rere reece l

WETRERIS TIEN iin icicle eee shed secsaeveureveeecas l

STATUTORY PROVISIONS INVOLVED .........--. I

STATEMENT OF THE CASE ......----0- e+ eee eee: 2

REASONS FOR GRANTING THE PETITION ........ 13

I. THE MAJORITY’S INTERPRETATION

OF THE FIRST PRONG OF THE TURNER

TEST CONFLICTS WITH THAT OF AT

LEAST FOUR OTHER CIRCUITS, AND

WITH THIS COURT’S DECISIONS IN

TURNER AND THORNBURGH ......---+++++>: 13

{l. THE MAJORITY’S INTERPRETATION

OF THE REMAINING TURNER FACTORS

CONFLICTS WITH THAT OF OTHER

CIRCUITS, AND WITH THIS COURT’S

DECISIONS IN TURNER AND THORNBURGH ... 20

IOI ok ces doce cves ee ete son antbaeee ets 27

TABLE OF AUTHORITIES

CASES page

Ali v. Dixon, 912 F.2d 86 (4th Cir. 1990) .......... 22

Frazier v. Dubois, 922 F.2d 560

po Es oe SR ee prerne g rene re Mame ar Tp 22

Giano v. Senkowski, 54 F.3d 1050

CR PER wc kkowwacend eh itlewee ee 23

Hause v. Vaught, 993 F.2d 1079 (4th Cir. 1993) .... 23

Mann v. Reynolds, 46 F.3d 1055

Ls RED be G kine hoo aS pacha eee da kews 19

Muhammad y. Pitcher, 35 F.3d 1081

COPS Ses BEE eke 20 bs cats Ka eka wei nod Ss 19

Nordlinger v. Hahn, 505 U.S. 1 (1992) ........... 15

O'Lone v. Estate of Shabazz, 482 U.S. 342 (1987) .... 3

Reed v. Faulkner, 842 F.2d 960 (7th Cir. 1988) ..... 17

Shimer v. Washington, 100 F.3d 506

CFE CE See S55 an Coe eee 16, 22, 23

Swift v. Lewis, 901 F.2d 730 (9th Cir. 1990) .... 18, 23

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

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

Walker v. Sumner, 917 F.2d 382

COUR GA TE ooo ba treet ee dieaiss 17, 18, 23

Ward v. Walsh, | F.3d 873 (9th Cir. 1993)......... 22

STATUTES AND REGULATIONS

er Oe ee

ORC Re os en ae 4

Te ae 6

SC Re is os 5

Omnibus Consolidated Appropriations Act,

Pub. L. No. 104-208, § 614, 110 Stat. 3009

CRE, Fee SOHN a a RE deo eee ake bates 5

—————

TABLE OF AUTHORITIES-Continued

LEGISLATIVE MATERIAL page

142 Cong. Rec. H8254 (daily ed. July 24, 1996)......... 5

MISCELLANEOUS

Quick Facts and Statistics, http:\\www.bop.gov

SOE CE, Fo, OOD ck een oS CES ee ee Rates) 24

PETITION FOR A WRIT OF CERTIORARI

Petitioners Joseph Amatel, Daniel J. Levitan, Playboy

Enterprises, Inc., General Media Communications, Inc. and

Periodical and Book Association of America respectfully

petition for a writ of certiorari to review a judgment of the

United States Court of Appeals for the District of Columbia

Circuit.

OPINIONS BELOW

The decision of the court of appeals (Pet. App. 1a-49a) is

reported at 156 F.3d 192. The opinion of the district court (id.

at 50a-62a) is reported at 975 F. Supp. 365. The order of the

court of appeals denying rehearing and suggestion for rehearing

en banc (id. at 63a-64a) is not reported._

JURISDICTION

The court of appeals entered its judgment on September

15, 1998, and denied a timely filed petition for rehearing and

suggestion for rehearing en banc on December 11, 1998. This

Court has jurisdiction under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

The Ensign Amendment, section 614 of the Omnibus

Consolidated Appropriations Act of 1997, Pub. L. No. 104-

208, 110 Stat. 3009, § 614 is reproduced in the Pet. App. at

65a; the Bureau of Prison’s implementing regulations, codified

at 28 C.F.R. §§ 540.70-540.72 are reproduced in the Pet. App.

at 66a-70a; relevant portions of the Bureau of Prison’s Program

Statement as revised to implement section 614, PS 5266.07, are

reproduced in the Pet. App. at 71a-75a.

STATEMENT OF THE CASE

Introduction. This case involves a conflict among the

circuits on the application of the Turner test -- the four prong

test established by this Court by which prisoners’ constitutional

claims are to be assessed. Although the majority below

purported to apply the test in evaluating a Congressional ban on

the dissemination of an entire category of protected speech

within federal prisons, the majority altered the test established

by this Court, expressly reducing the Turner inquiry to mere

rational basis review. The majority’s decision reducing the

Turner test to the level of scrutiny that is applied to statutes

affecting economic rights conflicts with this Court’s decisions

in Turner and Thornburgh, and with the decisions of at least

four courts of appeals.

Moreover, the majority’s reduction of the carefully crafted

Turner test to rational basis review nullifies constitutional

rights in the prison context. Even a regulation that targets a

prisoner’s exercise of his religious beliefs because of distaste

or animus toward the religion would be upheld under the

majority’s formulation of Turner, as long as the government

could articulate, post hoc, a rationale that “might have” formed

the basis for the regulation. The majority’s interpretation thus

eviscerates the “delicate balance” between constitutional rights

and effective prison administration this Court struck in Turner

and Thornburgh.

The Regulation of Federal Prisons Before the Ensign

Amendment. Over a decade ago, this Court established the

test that courts are to apply in assessing constitutional claims

brought by prisoners. The Court made clear that prisoners

retain their constitutional rights, including their First

Amendment rights, although those rights are necessarily

tempered to give prison authorities discretion to address the

Sealed tan . 7 ee:

special needs of the prison environment. See Turner v. Safley,

482 U.S. 78, 84 (1987) (“[p]rison walls do not form a barrier

separating prison inmates from the protections of the

Constitution”); O'Lone v. Estate of Shabazz, 482 U.S. 342, 348

(1987) (prisoners “clearly retain protections afforded by the

First Amendment”). To balance these competing interests, this

Court adopted a unique “standard of review for prisoners’

constitutional claims that is responsive both to the policy of

judicial restraint . . . and [to] the need to protect constitutional

rights.” Turner, 482 U.S. at 85 (internal quotations omitted)

(alteration in original). That test directs courts to consider

whether: (1) the challenged restriction is rationally related to a

legitimate penological objective and operates in a neutral

manner to further that objective; (2) alternative means of

exercising the right remain open; (3) the accommodation of the

constitutional right will have an adverse impact on other

prisoners, staff, and resources; and (4) there are any ready

alternatives that allow prisoners to exercise their rights at de

minimis cost to the institution. Jd. at 89-91.

Prior to passage of the Ensign Amendment, federal prison

wardens regulated the prison environment pursuant to

regulations promulgated by the Bureau of Prisons (“BOP”), the

agency charged with responsibility for operating the federal

prison system. These regulations granted wardens broad

discretion to exclude expressive (and other) material from

individual prisons if that material was deemed to be

“detrimental to the security, good order, or discipline of the

institution or if [the material] might facilitate criminal activity.”

28 C.F.R. § 540.71(b). Although these regulations contained

a list of material that might satisfy that standard, the regulations

expressly forbade the rejection of a publication “solely because

its content is religious, philosophical, social or sexual, or

because its content is unpopular or repugnant.” Jd. Under

these regulations, the warden or his designee was charged with

reviewing publications sent into the prisons, and with applying

his unique expertise to make individual determinations about

the possible impact of the material. This Court reviewed and

upheld this regulatory scheme in Thornburgh v. Abbott, 490

U.S. 401 (1989), finding that it appropriately struck the

“delicate balance” between providing wardens with sufficient

discretion to maintain order and security and respecting the

constitutional rights of prisoners and those who wish to

communicate with them. /d. at 407."

The Ensign Amendment and its Operation. The Ensign

Amendment,’ enacted as a rider to the Omnibus Consolidated

Appropriations Act of 1997, fundamentally altered the

regulatory regime upheld in Thornburgh. The Act targets a

category of speech that is fully protected by the First

Amendment and bans such speech from being distributed

within federal prisons. Neither the Ensign Amendment nor its

regulations are designed to ensure that non-protected obscene

material -- which the Bureau of Prisons can unquestionably

exclude from its facilities -- does not enter the prison

environmeni. Instead, it is uncontested that the Ensign

Amendment’s blanket ban encompasses material that is

otherwise fully constitutionally protected.

‘Although the Thornburgh Court found that the regulation was facially

valid, it recognized that it may be unconstitutional in application. Thus, in

the wake of Thornburgh, prisoners remained free to challenge the

application of those rules on the ground that an individual exclusion was not

reasonably related to the interest asserted by the government. Indeed, in

Thornburgh itself, the court remanded to the district court for review of the

individual exclusions challenged). See, Thornburgh, 490 U.S. at 419.

>The statute was named after its principal sponsor, Representative John

Ensign.

Specifically, the Act prohibits the Federal Bureau of

Prisons from distributing or otherwise making available to

prisoners “any commercially published information or

material” that is “sexually explicit” or “features nudity” in

whatever form (magazine or book), from whatever sender

(commercial publisher, bookstore, private individual). Pub. L.

No. 104-208, § 614, 110 Stat. 3009 (Sept. 30, 1996).

Regulations enacted by the Bureau of Prisons to implement the

Act define a publication which “features” nudity as a

“publication [that] contains depictions of nudity or sexually

explicit conduct on a routine or regular basis or promotes itself

based upon such depictions in the case of individual one-time

issues.” 28 C.F.R. § 540.72(b). “Nudity” is defined as “a

pictorial depiction where genitalia or female breasts are

exposed.”

Before enacting this broad-based ban, Congress held no

hearings. It issued no committee reports, and there was no

discussion of the statute in any Conference Report. No

statutory findings support the Ensign Amendment. Nor is there

any evidence in the record indicating that Congress passed the

Ensign Amendment in response to any real or perceived threat

in federal prisons. In fact, although the government later

asserted that the interest underlying the ban was rehabilitation,

what limited legislative history there is suggests that Congress’

purpose was to deprive prisoners of access to all publications

containing nudity and sexually explicit material because those

who had committed crimes did not deserve to have access to

such material. See 142 Cong. Rec. H8254, H8261-62 (daily ed.

July 24, 1996).

The Bureau of Prisons played no role in the Ensign

Amendment’s formulation or passage. The ban was not passed

in response to a request from the BOP. No prison official

testified in support of the Ensign Amendment. Nor is there any

evidence in the record that prison officials believed such a ban

was necessary or desirable, or that the BOP’s existing

regulations did not adequately serve the government’s

penological interests. Indeed, the statute strips prison officials

of the discretion they have historically exercised to determine

whether a particular publication would have a detrimental

impact in their facility. Publications which, in the judgment of

prison officials, do not pose a threat to rehabilitation, and

which for decades routinely have been allowed into federal

prisons, are now banned. Even if a warden expressly

determines that a publication containing nudity or sexually

explicit material would not negatively affect the prison at all,

under the Ensign Amendment that material is banned. The

BOP regulations implementing the Ensign Amendment require

the immediate return to the publisher or sender of any

commercial publication based so/ely on its sexual content. 28

C.F.R. § 540.72.

Proceedings Below. In 1997, pursuant to the Ensign

Amendment, Joseph Amatel, Daniel J. Levitan and Lee

Alphonso Moore -- each of whom was incarcerated in the

federal prison system -- were denied receipt of magazines to

which they subscribed.’ Each filed separate suits, alleging that

the Ensign Amendment violates the First Amendment. Their

claims were consolidated with those brought by a publishing

trade organization and publishers whose magazines had been

rejected based on the Ensign Amendment’s ban.

Plaintiffs moved the district court for an order

preliminarily enjoining enforcement of the Ensign Amendment,

*Petitioner Amatel has since been released from the federal prison

system and is in the custody of the state prison system of New Jersey. Lee

Alphonso Moore does not join in this petition for a writ of certiorari.

Petitioner Levitan continues to be incarcerated in the federal prison system.

and filed discovery requests designed to elicit evidence that the

purpose of the Ensign Amendment was not “legitimate” and

“neutral,” and that the flat ban was, in any event, an

“exaggerated response” to any legitimate interesc the

government might assert. The government opposed plaintiffs’

motion for a preliminary injunction, arguing that the Ensign

Amendment furthered the government’s generalized interest in

rehabilitation.* The government did not argue -- and has never

argued -- that the governmental interest underlying the Ensign

Amendment is security or discipline or good order. The

government did not, and has not, suggested that prisoners’

receipt of the material banned by the Ensign Amendment leads

directly or indirectly to violence against other prisoners or

against prison personnel. Indeed the government has never

suggested that the material banned by the Ensign Amendment

makes it more difficult to control the prison environment in any

way. Nor did the government ever suggest that existing

regulations were insufficient to address any security problem

with prisoner behavior should it occur, regardless of the

material to which the behavior was linked.

The district court granted plaintiff's motion for a

preliminary injunction and sua sponte converted the injunction

to a permanent injunction. Applying the test set forth by this

Court in Turner v. Safley, 482 U.S. 78, 84 (1987), and refined

in Thornburgh, the district court held that the Ensign

Amendment failed to satisfy the first factor of that test --

“whether the governmental objective underlying the regulations

at issue is legitimate and neutral, and [whether] the regulations

‘The government did not specify any particularized rehabilitatitive

concern. Instead, it simply asserted that “(t]he Ensign Amendment . . . is

rationally related to the legitimate and neutral penological objective of

rehabilitation.” Memorandum in Support of Motion to Dismiss, Civ. A. No.

96-2774, at 6 (D.D.C. filed May 21, 1997).

are rationally related to that objective.” Thornburgh, 490 U.S.

at 414. Although the court accepted the government’s asserted

interest in rehabilitation as legitimate, the court concluded that

the statute was neither neutral nor rationally related to that

interest. Because the statute’s “distinctions on the basis of

content were not drawn solely with a view to the implications

for rehabilitation,” the court found that the Ensign Amendment

violates the first Turner prong. Pet. App. 59a. Contrasting the

statute to the regulations upheld in Thornburgh, the court held:

The Ensign Amendment on its face does exactly what the

[ Thornburgh] regulations did not do: it restricts materials

based solely on sexual content. Nothing in the statute or

its history indicates any finding by Congress, or even

belief on its part, that prohibition of sexually explicit

materials or those featuring nudity would have further[ed]

rehabilitative goals in a manner that prohibition of other

materials would not.

Pet. App. 59a. Thus, the court concluded, the statute “is

facially violative of the First Amendment,” because it “violates

the ‘neutrality’ prong,” of the Turner test. Jd. at 60a.°

‘The government also moved the court for a protective order, arguing

that discovery “would add nothing to the Court’s consideration of the

pending motions.” Defendants’ Motion for Protective Order Civ. A. No.

96-2774, at 4-5 (D.D.C. filed June 13, 1997). Although the plaintiffs

agreed with the district court that the statute was so irrational that it

necessarily failed the first Turner prong, they made clear that if any inquiry

into the relationship between the ban and the asserted governmental interest

was required, they would need the opportunity to develop a factual record.

“What we don’t want to have happen,” counsel noted on the record, “is to

litigate this case .. . without a factual record, get to the Court of Appeals,

and have the Court of Appeals reverse and leave us without an opportunity

to [develop the record] later.” Transcript of Motions Hearing, Civ. A. No.

96-2774, at 39:19-20, 23-24 (D.D.C. June 25, 1997). The district court

found that it did not need evidence to determine that the Ensign

A divided panel of the D.C. Circuit reversed. Citing a case

involving property tax regulation subjected to rational basis

scrutiny, the majority first concluded that the first prong of the

Turner test requires the same sort of rational basis inquiry. The

majority concluded that the first Turner requirement met this

level of scrutiny because rehabilitation -- broadly defined to

include the “inculcation of democratic values,” Pet. App. 13a,

and “character-moulding,” id. at 14a -- is a legitimate and

neutral penological interest. In addition, the majority held that

a total ban on distribution of all sexually oriented publications

to all prisoners is reasonably related to the government’s

interest in rehabilitation. According to the majority, Congress

could rationally have seen a connection between all

publications that are sexually explicit or feature nudity and

rehabilitation of prisoners because “Congress might well

perceive pornography as tending generally to thwart the

character growth of its consumers.” Jd. The majority found it

irrelevant that there was no evidence presented that Congress

found a connection between the speech banned and the later

asserted goal of rehabilitation. Likewise, the majority found it

irrelevant that there was no evidence in the record that this

asserted connection has any basis in fact. Indeed, the majority

expressly acknowledged that “[t]here is, of course, no ‘record

evidence’ . . . to support this belief,” id. at 15a and that the

academic authority suggesting that there is no causal link

between sexually oriented material and recidivism is “at least

as substantial, and quite possibly more so,” id. at 17a, than the

scholarship supporting such a causal connection. Nonetheless,

the majority held that Turner does not require any evidence at

Amendment was facially invalid, and therefore granted the government’s

motion for a protective order, precluding plaintiffs from obtaining discovery

or developing a factual record.

all, but instead permits incursions on First Amendment rights

so long as Congress could have made a “commonsensical

intuitive judgment }.”” Jd. at 15a.

The majority then turned to the final three Turner factors

which, collectively, are designed to allow plaintiffs to

demonstrate that the challenged regulation is an exaggerated

response to the government’s interest. The majority

acknowledged that plaintiffs had been prevented from

obtaining discovery and had not been afforded an opportunity

to demonstrate that, even if there may be some relationship

between some prisoners’ receipt of adult material and their

rehabilitation, the categorical ban on all prisoners receipt of any

sexually oriented publication featuring nudity was grossly

overbroad and was thus an exaggerated response to even the

asserted governmental interest. Nonetheless, the majority

found as a matter of “common sense” that the three remaining

Turner factors were satisfied. Jd. at 20a.

The second 7urner factor requires courts to ask “whether

there are alternative means of exercising the right that remain

open to prison inmates.” 7urner, 482 U.S. at 90. The majority

conceded that the Ensign Amendment imposes a flat ban on the

receipt of all material covered by the Amendment as

implemented by the regulations. Pet. App. 3a n.1 (noting that

in this context, “the refusal to fund functions the same as an

outright ban”). The majority attempted, however, to dismiss

the significance of that fact by commenting that “unless there

is some minimum entitlement to smut in prison, the origins of

which must be obscure, this factor can hardly be fatal.” Pet.

App. 19a-20a.

The third factor directs courts to consider any adverse

impact “‘on guards and other inmates, and on the allocation of

prison resources” caused by exercise of the right in question.

ee OTe er

Turner, 482 U.S. at 90. The majority concluded that this factor

was satisfied on a basis never asserted by any party, including

the government. “[{I]f Congress may reasonably conclude that

pornography increases the risk of prison rape,” the majority

asserted, “the adverse impact is substantial. Accommodating

the right poses a threat to the safety of guards and other

inmates.” Pet. App. 19a.°

Finally, the majority held that the fourth 7urner factor was

satisfied because there were no “obvious, easy alternatives. . .

that fully accommodate[] the prisoner's rights at de minimis

cost to valid penological interests.” Turner, 482 U.S. at 90-91.

Although the Court in Thornburgh had upheld the publication-

by-publication review conducted under the pre-Ensign BOP

regulations, the majority rejected plaintiffs’ argument that

simply amending these regulations to authorize wardens to

exclude publications that pose a threat to rehabilitation

constitutes an “obvious, easy alternative.” In the view of the

majority, this option is arbitrary and burdensome. Pet. App.

46a.

The dissent sharply criticized the majority’s interpretation

of the Turner test:

To read Safley -- as the majority appears to -- as permitting

unblinking deference to any ‘plausible’ legislative

judgment about the ‘rehabilitative’ benefits of denying a

prisoner’s most fundamental constitutional right, i.¢., her

freedom to read, renders any and all prisoners’

There was absolutely no evidence in the record that suggested that the

presence of adult material in prisons leads to an increase in prison rape.

Moreover, as discussed supra, the pre-existing BOP regulations already

allowed wardens to exclude any publication -- including sexually explicit

material -- deemed detrimental to the security, good order, or discipline of

the institution.

constitutional rights a nullity. I had thought it went

without saying that courts do not rely on the mere

assertion of a regulation’s drafters that the regulation is

reasonable; to do so would amount to an abdication of our

judicial role.

Pet. App. 29a (Wald, J. dissenting).

Noting that she might “have been able to go along -- as the

majority does here -- with deferring to Congress had the

government seen fit to proffer evidence that links a ban on the

prohibited publications to rehabilitation or if the connection

between that ban and rehabilitation was so self-evident that no

further evidence was necessary,” the dissent stated that because

“neither event has occurred” she could not agree with the

majority’s conclusion that the Ensign Amendment satisfies the

first Turner prong. /d. at 36a. In so doing, she stressed the

“amorphous and ill-defined” quality of the government’s

asserted rehabilitation interest. /d. at 39a-43a.

The dissent would also have found that the statute failed

the remaining Jurner prongs. As to the second factor, the

dissent argued that “it cannot be viewed so broadly as to

eliminate any reason for analysis (or as unhelpfully as the

majority’s sardonic reference to an ‘entitlement to smut’).” /d.

at 45a. The third prong could not be satisfied, she stated,

because “there is no evidence by which to judge whether

permitting certain inmates to view publications that are

sexually explicit or that feature nudity will have an adverse

effect on the rehabilitation of other inmates.” Jd. at 46a. And

finally, the dissent concluded that the fourth factor could easily

be satisfied by reverting to the publication-by-publication

review conducted under the pre-Ensign BOP regulations. The

Ocoee Goatees GAIL Si AG ARTS Anette cc: NA = Sete

Supreme Court’s approval of that policy in Thornburgh, she

stated, eliminates any concern that this option would be

burdensome or arbitrary. /d. at 46a.

REASONS FOR GRANTING THE PETITION

The Court should accept this case to resolve a conflict

among the circuits about the proper interpretation of the Turner

test. Although this case involves sexually-oriented speech, the

question presented by this case does not depend on the nature

of the material banned. Instead, this case presents the purely

legal question of the proper scope and application of the test

which applies to all challenges to prison regulations affecting

constitutional rights. As set out below, the majority altered the

carefully crafted Turner test by expressly reducing it to mere

rational basis review. The majority’s interpretation of the

Turner test is thus inconsistent with Turner and with

Thornburgh, and conflicts with the interpretation of the Turner

test adopted by at least four other circuits. Plenary review is

appropriate to resolve the conflict and provide certainty in this

important area of the law.

I. THE MAJORITY’S INTERPRETATION OF THE

FIRST PRONG OF THE TURNER’ TEST

CONFLICTS WITH THAT OF AT LEAST FOUR

OTHER CIRCUITS, AND WITH THIS COURT'S

DECISIONS IN TURNER AND THORNBURGH.

The first prong of the Turner test requires reviewing courts

to determine whether “the governmental objective underlying

the regulations at issue is legitimate and neutral, and [whether]

the regulations are rationally related to that objective.”

Thornburgh, 490 U.S. at 414; see also Turner, 482 U.S. at 89-

90. Although Congress had before it no evidence of any

problem with rehabilitation that could be linked to allowing

material containing nudity into prisons, and although the court

below had before it no evidence demonstrating such a link, the

majority below accepted the government’s post hoc assertion

that rehabilitation was the governmental purpose underlying the

Ensign Amendment’s ban. The majority also determined as a

matter of “common sense” that the relationship between the

sweeping ban and the government’s amorphous interest in

rehabilitation was rationally related. In doing so, the majority

expressly reduced the first Turner prong to mere rational basis

in review, in conflict with the interpretation of that prong

reached by at least four other circuits.

Despite the lack of legislative findings to support its

assertion, the government alleged that the Ensign Amendment

was passed to further some undefined rehabilitative purpose.

The majority accepted the government’s assertion of the

purpose of the statute without question, and noted that

rehabilitation is a legitimate governmental interest. Pet. App.

8a-9a. The majority also essentially dismissed the requirement

that the governmental interest be “neutral.” Although the

Ensign Amendment plainly requires the exclusion of material

based solely on content, the majority nonetheless found that it

met Turner's “rather thin neutrality requirement,” because the

government had asserted -- without evidentiary support -- that

its purpose was unrelated to the suppression of expression. /d.

at 10a-1 1a.’

"In Thornburgh, the Court reviewed regulations which referenced

material based on content, but expressly prohibited the exclusion of material

solely based on content. Because the regulations made reference to content,

the Court found the neutrality question to be “closer” than in prior cases.

Thornburgh, 490 U.S. at 415. The majority below made no effort to

reconcile its effective dismissal of the neutrality requirement with the

Thornburgh Court’s careful scrutiny of the pre-Ensign Amendment

regulations.

de ea AS Te ARE. Oe ee ETAT PONS

The majority then turned to “whether there is a ‘valid

rational connection’ between the interest and the regulations.”

Pet. App. 14a. Despite the fact that the government had

introduced no evidence to demonstrate any link between the

material banned -- including material containing mere nudity --

and an increase in recidivism, and despite the fact that plaintiffs

had been prohibited from discovering and introducing evidence

that would show the contrary, the majority found that a “valid”

connection had been demonstrated. Jd. at 18a-19a.

_ The majority was able to reach this conclusion only

because it equated the first Turner prong with a rational basis

inquiry. The majority opined that “[p]}rison jurisprudence is not

well enough developed to indicate precisely how demanding

the requirement of rational means-end connection i” Pet.

App. 14a. The majority concluded, however, that “as far as the

means-end fit is concerned, Safley’s standard is, if not identical,

something very similar” to the rational basis standard applied

in Nordlinger v. Hahn, 505 U.S. 1, 11 (1992). Pet. App. 14a.

A rational relationship existed between the Ensign

Amendment’s total ban on prisoners’ receipt of adult material

and rehabilitation, the majority concluded, because “the

government could rationally have seen a connection between

pornography and rehabilitative values,” and Congress “might

well” have perceived “pornography as tending generally to

thwart the character growth of its consumers.” Jd. at 15a-16a

(emphasis added). The fact that the record was utterly devoid

of evidence that supported such a connection -- whether

scientific or based on the practical experience of wardens --

was deemed irrelevant. “The question for us,” the majority

concluded, “is not whether the regulation in fact advances the

government interest, only whether the legislature might

reasonably have thought that it would.” Jd. at 14a.

The majority’s interpretation and application of the first

prong of Turner conflicts with at least four other circuits that

have required the government to demonstrate both that the

interest asserted is, in fact, the interest underlying the

challenged regulation and that a reasonable relationship exists

between that interest and the regulation at issue. The Seventh

Circuit, for example, has squarely rejected the argument that,

under Turner, a reviewing court may simply accept any

rationale posited by the government as long as that might be the

rationale underlying the ban, as well as the argument that the

government need not introduce evidence that demonstrates a

link between the government’s asserted interest and the

challenged action. instead, the Seventh Circuit has stated that,

in reviewing a challenge under Turner, “we need information.

... The prison administration ‘cannot avoid court scrutiny by

reflexive, rote assertions.”” Shimer v. Washington, 100 F.3d

506, 509-10 (7th Cir. 1996).

In Shimer, an inmate challenged a regulation that

prohibited prison guards from writing directly to the parole

board; Shimer alleged that this policy violated the First

Amendment because he had asked guards to write letters

supportive of his request for parole and, he claimed, but for the

challenged policy they would have done so and he would have

been released. The prison administration defended its policy

on the ground that it protected guards from retaliation for

negative evaluations, and that it guarded against bribery and

intimidation of guards. Jd. at 510. Although these were

plausible state interests, the court rejected them because the

state had introduced no evidence of an actual connection

between the interest asserted and the ban, and “[e]vidence to

suggest this connection should be at the heart of the Turner

analysis.” Jd.

The Seventh Circuit applied this same analysis in a case

involving religious rights. In Reed v. Faulkner, 842 F.2d 960

(7th Cir. 1988), an inmate challenged a prison grooming

regulation on that ground that it prevented him from wearing

dreadlocks, in violation of his religious beliefs. The

government defended the regulation on the ground that

allowing an exception to grooming rules for African-American

inmates could lead to resentment and resulting violence.

Although this was not an implausible assertion, the court

rejected the government’s interest because it was

unsubstantiated. “[T]o suppose that the wearing of dreadlocks

[as an expression of religious belief] would lead to racial

violence is, on this record, the piling of conjecture upon

conjecture. The potential infringement of the free-speech

clause of the First Amendment is too plain to warrant

comment.” Jd. at 963-64.

The Ninth Circuit has interpreted Turner in the same

manner as has the Seventh. Walker v. Sumner, 917 F.2d 382

(9th Cir. 1990), for example, involved the forced seizure of

blood samples from inmates. When the plaintiff refused to

allow prison nurses to draw his blood without his consent,

prison guards threatened to subdue him with the use of tazer

guns. Walker sued, asserting that the involuntary withdrawal

of his blood following the threatened use of force violated the

Fourth and Eighth amendments. The government defended on

the ground that the blood test was needed to ascertain whether

a given inmate had AIDS, and that a mandatory AIDS test

“clearly has a logical connection to legitimate governmental

interests” because it “‘bears a logical connection to the health,

safety and welfare of all of the inmates in. . . custody” and to

the “interests of public health generally.” Jd. at 387.

The court found “{s]uch conclusory assertions . . . wholly

insufficient to sustain the government’s burden... .” /d. In

doing so, the court rejected the notion that under 7urner the

government need only put forth a plausible rationale for a

regulation that affects constitutional rights. Instead, the court

made clear that government officials “cannot rely on general or

conclusory assertions to support their policies. Rather, they

must first identify the specific penological interest 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 interest. An

evidentiary showing is required as to each point.” Id. at 386

(emphasis added); see also Swift v. Lewis, 901 F.2d 730, 731-

32 (9th Cir. 1990) (reversing the district court’s grant of

summary judgment against a challenge that a grooming policy

precluded Sikh prisoners from wearing their hair long because,

although the asserted governmental interests were all

legitimate, the government had “failed to provide any evidence

that the interests they have asserted are the actual bases for

their grooming policy’).

The interpretation of the first Turner prong adopted by the

Seventh and Ninth Circuits is in direct conflict with the

majority’s “rational basis” approach. Each of these courts has

rejected the analysis adopted by the majority below, and

instead concluded that, under Turner, courts cannot uphold a

regulation that infringes on prisoners’ fundamental rights by

simply asserting, post hoc, a legitimate rationale which may, or

may not, underly the regulation. Instead, these courts have

squarely held that Turner requires the government to

demonstrate that the government is acting in response to a real

problem, and that the “solution” bears a rational relationship to

the problem identified.

The Sixth and Tenth Circuits have reached the same

conclusion as the Seventh and Ninth Circuits, and have rejected

the argument that the first Zurner prong is satisfied if the

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government simply posits a rational connection between an

asserted interest and the challenged regulations. See, e.g.,

Muhammad vy. Pitcher, 35 F.3d 1081, 1085 (6th Cir. 1994)

(invalidating prison regulation because “there is no evidence in

the record supporting Defendants’ factual claim” that

regulation was reasonably related to an interest in conserving

resources); Mann v. Reynolds, 46 F.3d 1055, 1061 (10th Cir.

1995) (invalidating restrictions on contact visits with attorneys

because “defendants were unable to provide any evidence the

restrictions on contact were reasonably related to prison

security”). Thus, the intepretation of the first Turner prong

reached by four other circuits is in direct conflict with the result

reached by the majority below.

The reason these courts of appeals have not interpreted the

first prong of the Turner test as mere rational basis review is

plain. The version of the Turner test adopted by the majority

below would effectively allow the government to categorically

ban any type of speech -- including political or religious speech

-- as long as it is able to posit any conceivable penological

interest with respect to any prisoner. Under the test employed

by the majority, for example, a regulation banning all works by

Malcolm X or Karl Marx would be upheld if the government

simply hypothesizes, after the fact, that certain prisoners may

become violent upon reading such material, even if the

government introduces no evidence that its hypothesis is well-

founded or that its purported goal is furthered by such a

restriction.

Moreover, under the majority’s test prisoner plaintiffs have

no right to present facts that tend to disprove the government's

assertions. As the dissent below recognized, the majority’s

unprecedented interpretation of the first Turner prong “as

permitting unblinking deference to any ‘plausible’ legislative

judgment about the ‘rehabilitative’ benefits of denying a

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prisoner’s most fundamental constitutional right . . . renders

any and all prisoners’ constitutional nghts a nullity.” Pet. App.

29a-30a (Wald, J., dissenting ). The majority’s interpretation

of the first Turner prong thus conflicts not only with the

interpretation of that prong reached by at least four other courts

of appeals, it conflicts with this Court’s express statement that

the P urner test “is not toothless.” Thornburgh, 490 U.S. at

414.

Il. THE MAJORITY’S INTERPRETATION OF THE

REMAINING TURNER FACTORS CONFLICTS

WITH THAT OF OTHER CIRCUITS, AND WITH

THIS COURT’S DECISIONS IN TURNER AND

THORNBURGH.

The majority’s decision also eviscerates the remaining

prongs of the Turner test, expressly reducing the carefully

crafted, four-pronged Turner inquiry to rational basis review.

*This Court’s decision in Turner itself makes clear that the test is not

a tere rational basis test. In Turner, this Court struck down a BOP

regulation restricting prisoner marriages even though the government

presented evidence demonstrating that prison officials could reasonably

have believed, and in fact did believe, that the restriction served the

objectives of security and rehabilitation. Prison officials testified in Turner

that the regulation served security concerns because prisoner marriages

would result in “love triangles” that might lead to violent confrontations

between inmates, and that it served rehabilitation concerns because women

prisoners needed to develop skills of self-reliance that would be undercut

by marriage. Turner, 482 U.S. at 98-99. The Court nonetheless struck

down the restriction because “/o/n this record . . . the almost complete ban

on the decision to marry is not reasonably related to legitimate penological

objectives.” /d. at 99 (emphasis added). As the dissent below recognized,

the Turner Court’s repeated qualification of its conclusion “starkly suggests

that while a reasonable relationship might possibly have been demonstrated

between the marriage restriction and the interests asserted, the prison had

failed to present sufficient evidence to establish that relationship.” Pet.

App. 34a-35a (Wald, J., dissenting).

The remaining three prongs of Turner require reviewing courts

to scrutinize the regulation at issue to determine whether it is

an exaggerated response to the legitimate governmental interest

the regulation purports to advance. This inquiry tests, in part,

the degree of “fit” between the government’s interest and the

action it has taken. Although this is plainly not a least

restrictive alternative test, it does require a reasonably close

nexus between the government’s interest and the infringement

of prisoners’ constitutional rights. Thus, even if a regulation

does bear a relationship to a legitimate, neutral government

interest, that regulation is nonetheless unconstitutional if it

sweeps too broadly. The question of whether the challenged

regulation is a reasonable response to the governmental interest

is answered by reference to the remaining Turner factors,

which ask whether alternative means of exercising the asserted

right remain open to prison inmates; what impact the

accommodation of the constitutional right will have on other

prisoners, staff, and resources; and whether there are any ready

alternatives that would allow the prisoner to exercise his rights

at a minimal cost to the institution. Turner at 89-91.

The majority, however, expressly found that the question

of whether there is, in fact, a reasonable fit between the flat ban

on receipt of all sexually oriented material to all prisoners and

an interest in rehabilitation is irrelevant under Turner. “The

question is not,” the majority concluded, “whether curtailment

of pictorial smut will advance the prisons’ rehabilitative

project, but whether Congress could reasonably have believed

that it would do so.” Pet. App. 23a. Thus, the majority held

that even if the flat ban on access to sexual material was an

exaggerated response to the government's rehabilitative

concerns, the regulation must be upheld as long as Congress

could reasonably have believed that it was an appropriate

response.’ In doing so, the majority expressly reduced not just

the first prong of Turner but the entire Turner test to mere

rational basis review."”

The majority’s interpretation of the remaining three Turner

inquiries eviscerates this Court’s carefully balanced test, and is

in irreconcilable conflict with that of other circuits which have

concluded that Turner requires the government to produce

evidence that demonstrates that the scope of the intrusion onto

constitutional rights is reasonably necessary to further the

governmental interest asserted. See, e.g. Shimer v. Washington,

100 F.3d at 510 (remanding to develop the record on whether

a prohibition against staff recommendations of prisoners to a

review board was reasonably related to government's asserted

concerns in security and corruption prevention); Ward vy.

Walsh, 1 F.3d 873, 879 (9th Cir. 1993) (remanding for

factfinding under the additional Turner prongs to assess

whether the government’s refusal to provide kosher diets was

sufficiently related to the asserted interest in efficiency);

Frazier v. Dubois, 922 F.2d 560, 563 (10th Cir. 1990)

(remanding for factfinding on alleged retaliatory prisoner

transfer); Ali v. Dixon, 912 F.2d 86, 91 (4th Cir. 1990)

(remanding for factual development of administrative impact

of adding prisoner's religious name to institutional records). As

*Nor did the majority weigh the strength of the right at issue -- here the

fundamental First Amendment night to receive expressive material -- against

the strength of the asserted interest -- here an amorphous and undefined

interest in rehabilitation.

‘Even the government was unwilling to argue that the entire Turner

test was synonymous with rational basis review. See Reply Brief, No. 97-

5293 at 7-8 (D.C. Cir. filed April 2, 1998) (arguing that plaintiffs “stat{e]

incorrectly that we claim the overall standard under Thornburgh is rational

basis... . The overall standard in Thornburgh, taking into account all four

factors, is “reasonable relationship,” but the first factor alone . . . calls for

rational-basis-style review”).

i a

these courts have recognized, the final three Turner prongs

require courts to answer a factual question relating to the

degree of fit between the regulation and the government

interest."

Because the majority determined that the entire Ensign

Amendment should be subjected to mere rational basis review,

it did not make the factual inquiry these courts have concluded

Turner requires. Indeed, the majority made no factual inquiry

at all into whether the complete ban on ail prisoners’ receipt of

all expressive material that features nudity is an exaggerated

response to the government's purported interest in

rehabilitation. Other than generalized statements describing the

majority’s view that pornography may thwart character growth

generally,'* the majority made no attempt to link the receipt of

adult material and the possible recidivism of the prisoners in

the federal prison system, nor did the majority address the fact

that the vast majority of prisoners affected by the Ensign

Amendment’s ban are incarcerated for crimes, such as drug

"Courts have not been uniform, however, in their interpretation of the

precise degree of fit required, or on the question of whether it is the

government or the prisoner-plaintiff that bears the burden of proof on this

issue. Compare Shimer v. Washington, 100 F.3d at 509-10; Walker v.

Sumner, 917 F.2d at 385; Swift v. Lewis, 901 F.2d 730, 731-32 (9th Cir.

1990) with Giano v. Senkowski, 54 F.3d 1050, 1054 (2d Cir. 1995); Hause

v. Vaught, 993 F.2d 1079, 1082 (4th Cir. 1993).

The majority concluded that “Congress might well perceive

pornography as tending generally to thwart the character growth of its

consumers,” and that precluding prisoners from reading material they enjoy

might teach them to “defer(] gratification . . . [and] join[] eros to agape.”

Pet. App. 14a. The majority acknowledged that it had no reason to

conclude that the Ensign Amendment would have this impact, noting that

“(t]he supposition that exclusion of pornography from prisons will have

much of an impact in this direction may be optimistic.” /d.

offenses, that bear no possible relationship to adult material."

Thus, although it cannot seriously be argued that the

rehabilitation of drug offenders, armed robbers, or arsonists

would be deterred by their access to magazines containing mere

nudity, the majority made no serious attempt to address

whether the Ensign Amendment “sweeps . . . more broadly than

is necessary.” Turner, 482 U.S. at 80."

The majority’s reduction of the last three Turner prongs to

whether Congress might have thought that there was a

reasonable fit between banning all sexually oriented materiai

and rehabilitation, and its corresponding refusal to remand to

allow plaintiffs to develop a factual record that would

demonstrate that the ban sweeps too broadly thus conflicts with

the approach adopted by other circuits, and with the Court’s

opinions in Turner and Thornburgh. In Turner, the Court

analyzed a restriction on marriage that was purportedly

designed to further security and rehabilitation interests. In

particular, the government asserted that prison marriages might

implicate “love triangles” that would lead to violent

confrontations. With respect to rehabilitation, prison officials

"Statistics published by the BOP indicate that only 2.6% of the prison

population has been convicted of “violent offenses.” See Quick Facts and

Statistics, found at http:\\www.bop.gov (visited Oct. 29, 1998). Violent

sexual offenses -- such as rape -- are not reported separately.

“Nor did the majority address the fact that no official from the BOP

had ever suggested that a ban on prisoners’ access to sexual material was

necessary or even useful for the rehabilitation of any prisoner or class of

prisoners. Although prison wardens could easily alter their regulations to

allow the exclusion of specific material that they deemed harmful to the

rehabilitation of a given prisoner or a class of prisoners, such as violent sex

offenders, this fact went undiscussed. Nor did the majority address the fact

that wardens historically have not, in their professional judgment, felt the

need to exclude such material, but have instead routinely allowed into

prisons the very material banned by the Ensign Amendment.

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testified that many female prisoners were overly dependent and

that this was connected to the crimes they committed. In the

view of the testifying prison superintendent, these women

prisoners needed to learn skills of self-reliance and the ban on

marriage between prisoners furthered that goal.

The Court did not find that the purported interest was

illegitimate, or that there was no plausible connection between

the interests asserted and the challenged regulation.

Nonetheless, the regulation was struck down because the

government had not demonstrated that there was a sufficiently

close nexus between the regulation and the government’s

interests. The regulation “represents an exaggerated response

to [the asserted] security objectives,” the Court found, because

the warden could impose a ban on only those marriages that

present a threat to the security or order of the institution.

Turner, 482 U.S. at 97-98. The Court also found that “on this

record,” the marriage restriction was not “reasonably related to

the articulated rehabilitation goal.” Jd. Although officials had

testified that certain marriages negatively impacted prisoners’

rehabilitation, “{t]he proffered justification . . . does not explain

the adoption of a rule banning” all marriages. Id. at 98-99.

Because “the rule sweeps much more broadly than can be

explained by petitioners’ penological objectives,” the Court

struck down the regulation. Jd.

In Thornburgh, the Court upheld a regulation that affected

prisoners’ speech because the restriction was sufficiently

tailored to the governmental interest in security. In sharp

contrast to the Ensign Amendment, Thornburgh did not involve

a flat ban on an entire category of speech, but instead required

wardens to make case-by-case determinations about a given

publications’ potential impact on security and good order. The

Court was “comforted by the individualized nature of the

determinations required by the regulation,” which helped

ensure that only those publications posing a realistic threat to

security were excluded. Thornburgh, 490 U.S. at 416.

Moreover, the regulations did not allow the warden to delegate

the power to reject publications, and prohibited the

establishment of an “excluded list” of publications, safeguards

the Court approvingly noted prevent “needless exclusions.” Jd.

at 417.'° Critically, the Court also remanded to the district

court for “an examination of the validity of the regulations as

applied to any of the 46 publications introduced at trial as to

which there remains a live controversy.” /d. at 419. That the

Turner test requires courts to make a judgment about the actual

fit between the regulation and the governmental interest is

clear.

The test adopted by the majority, however, precludes

reviewing courts from making the very inquiry Turner and

Thornburgh demand. Because the majority concluded that the

relevant question is not whether the prison regulation “will

advance” the governmental interest, “but whether Congress

could reasonably have believed that it would do so,” the

majority’s formulation of the Turner test would require courts

to blindly uphold any regulation that might plausibly have any

connection to the asserted governmental interest. Turner does

not allow, much less require, such a result.

'S In laying out the relevant legal test, the Court discussed the degree

of fit required, noting that where “the nature of the asserted governmental

interest is such as to require a lesser degree of case-by-case discretion, a

closer fit between the regulation and the purpose it serves may safely be

required.” Thornburgh, 490 U.S. at 412.

a Sa am eae

CONCLUSION

For the reasons stated above, the petition for writ of

certiorari should be granted.

Respectfully submitted,

BURTON JOSEPH JOHN B. MORRIS, JR.*

JOSEPH, LICHTENSTEIN & JopIE L. KELLEY

LEVINSON JENNER & BLOCK

134 North Lasalle Street 601 Thirteenth Street, NW

Suite 1208 Twelfth Floor

Chicago, IL 60602 Washington, D.C. 20005

(312) 346-9270 (202) 639-6000

Of Counsel Attorneys for Petitioners

* Counsel of Record

APPENDICES

Table of Contents

APPENDIX A: Page

Opinion, Amatel v. Reno, No. 97-5293, Court of

Appeals for the District of Columbia Circuit

CES UE. By LIP) 5s CER AV ES Deneueiveets la-49a

APPENDIX B:

Opinion and Order, Amatel v. Reno, No. 97-5293,

District Court for the District of Columbia Circuit

SE I, BA AUIS 04 vader chee a be uKL SO 50a-62a

APPENDIX C:

Order, Amatel v. Hawk, No. 97-5293, Court of

Appeals for the District of Columbia Circuit

CE TE Tis TSO Bea oo Fie UL eee 63a-64a

APPENDIX D: ~

Section 614 of the Omnibus Consolidated

Appropriations Act of 1997 (Pub. L. No. 104-208) . 65a

APPENDIX E:

Regulatory Provisions Involved ............ 66a-70a

APPENDIX F:

DoJ, Federal Bureau of Prisons, Program

Statement No. 5266.07 -- Incoming Publications

SE I Ee EPO bee creo ies Cdk ees ones 7la-75a

APPENDIX A

Joseph AMATEL, et al., Appellees

Janet RENO, Attorney General of the United States,

et al., Appellants

Nos. 97-5293, 97-5294, 97-5295.

United States Court of Appeals,

District of Columbia Circuit.

Argued May 8, 1998.

Decided Sept. 15, 1998.

Inmates and publishers brought suit, claiming that statute

prohibiting Federal Bureau of Prisons (BOP) from using

federal funds to "distribute or make available" to prisoners

"commercially published information or material" known to

be “sexually explicit or featuring nudity" violated First

Amendment. The United States District Court for the District

of Columbia, Sporkin, J., 975 F.Supp. 365, held that statute

violated First Amendment. Appeal was taken. The Court of

Appeals, Stephen F. Williams, Circuit Judge, held that: (1)

rehabilitation of prisoners was legitimate and neutral goal

supporting statute; (2) Congress could have rationally seen

connection between rehabilitative goals and effect of

distributing pornographic materials; (3) statute and

regulations were reasonable, for First Amendment purposes;

and (4) case would be remanded for consideration of whether

statute was unconstitutionally vague.

Reversed and remanded.

Wald, Circuit Judge, dissented and filed opinion.

Edward Himmelfarb, Attorney, U.S. Department of Justice,

argued the cause for appellants. With him on the briefs were

Frank W. Hunger, Assistant Attorney General, Wilma A.

Lewis, U.S. Attorney, and Barbara L. Herwig, Assistant

Director, U.S. Department of Justice.

Jodie L. Kelley argued the cause for appellees. With her on

the brief were Ann M. Kappler, Marjorie Rifkin and Margaret

Winter.

Bruce A. Taylor was on the brief for amici curiae National

Coalition for the Protection of Children & Families, et al.

Before: WALD, WILLIAMS and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge WILLIAMS.

Dissenting opinion filed by Circuit Judge WALD.

STEPHEN F. WILLIAMS, Circuit Judge:

A group of prisoners and publishers challenges the

constitutionality of a statutory ban on the use of Bureau of

Prisons funds to distribute sexually explicit material to

prisoners. The statute is not enforced directly; instead, the

Bureau has promulgated regulations defining the terms of the

proscription and significantly narrowing its scope. The

district court, analyzing the statute, ruled that it was facially

invalid as a violation of the First Amendment and enjoined its

enforcement. Finding that scrutiny should be directed to the

substance of the regulations instead, and disagreeing with the

district court's evaluation, we reverse and remand.

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Before 1996, federal regulations authorized prison wardens

to reject a publication "only if it [was] determined detrimental

to the security, good order, or discipline of the institution or if

it might facilitate criminal activity." 28 C.F.R. § 540.71(b).

Sexually explicit material fell into this category if it "by its

nature or content pose[d] a threat to the security, good order,

or discipline of the institution, or facilitate[d] criminal

activity." 28 C.F.R. § 540.71(b)(7). Under this standard,

explicit heterosexual material was ordinarily admitted. See

Thornburgh vy. Abbott, 490 U.S. 401, 405 n. 6, 109 S.Ct.

1874, 104 L.Ed.2d 459 (1989).

In 1996 Congress passed the Ensign Amendment, which

bars the use of Bureau of Prisons funds to pay for the

distribution of commercial material that "is sexually explicit

or features nudity." ' | See Omnibus Consolidated

Appropriations Act of 1997, Pub. L. No. 104-208 § 614. '

Regulations later adopted by the Bureau assign rather narrow

meanings to these terms: "nudity" means "a pictorial

depiction where genitalia or female breasts are exposed";

'By its terms, the statute therefore does not prohibit prisoners from

obtaining such material at their own expense. Neither party has suggested

that this is a realistic possibility, or discussed the rules governing gifts by

visitors. Accordingly, our analysis will treat the spending restriction as a

ban on distribution. Where the government absolutely monopolizes the

means of speech or controls a bottleneck, as we are assuming vis-a-vis the

prison distribution system, a refusal to fund functions the same as an

outright ban.

2Identical language appears in § 614 of Pub. L. No. 105-119,

governing the fiscal year ending September 30, 1998, so no issue of

mootness is currently posed.

"features" means that "the publication contains depictions of

nudity or sexually explicit conduct on a routine or regular

basis or promotes itself based upon such depictions in the

case of individual onetime issues." Even material that

otherwise would be said to "feature nudity" is excepted if it

contains “nudity illustrative of medical, educational, or

anthropological content." "Sexually explicit" means "a

pictorial depiction of actual or simulated sexual acts

including sexual intercourse, oral sex, or masturbation." 28

C.F.R. § 540.72(b). Under these regulations, then, there is no

restriction whatever on non-pictorial sexually explicit

material.

In 1997, three inmates, each denied receipt of either Playboy

or Penthouse, filed separate suits alleging that the Ensign

Amendment violated the First Amendment. Their suits were

consolidated, along with similar suits filed by the publishers

of those magazines and a publishing trade organization; the

consolidated plaintiffs moved for injunctive relief. The

district court, purporting to apply the test set out in Turner v.

Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987),

found the Ensign Amendment facially invalid-- implicitly

granting plaintiffs' motion for summary judgment (which, in

fact, they never made)--and permanently enjoined its

enforcement. 975 F.Supp. 365, 370 (D.D.C.1997).

x* * *

Both sides agree that Safley sets out the appropriate

framework for reviewing government regulation of prisons. °

*The claims of the publisher plaintiffs might seem to call for a

different analysis, as they of course are not prisoners. Thornburgh makes

clear, however, that Safley’s reasonableness standard governs "regulations

that affect{ ] rights of prisoners and outsiders." 490 U.S. at 410 n. 9, 109

Cara RMI Hal AOR OTE Phe EE

ede heer

But before beginning that analysis, we must note that our first

difference with the district court is as to the proper object of

judicial scrutiny.

Plaintiffs ask for relief against both the Ensign Amendment

and its implementing regulations. The district court seemed

to assume that the statute itself has been and will be applied

to these plaintiffs; accordingly, it directed its analysis

primarily towards the statute. Id. at 368-70. But there is no

suggestion that any warden does or will apply the statute

directly; so far as appears, all enforcement is mediated

through the regulations.

Insofar as plaintiffs attack the proscriptions of the statute not

embodied in the regulations, they effectively pursue a pre-

enforcement challenge. Even in the First Amendment

context, such a challenge presents a justiciable controversy

only if the probability of enforcement is "real and

substantial." Salvation Army v. Dep't of Comm. Affairs, 919

F.2d 183, 192 (3d Cir.1990); see also Steffel v. Thompson,

415 U.S. 452, 460, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974). In

the statutory borderland beyond the implementing regulations

(i.e., the statute's apparent ban on some non-pictorial

material, its vaguer language, and its lack of any exception

for medical or educational material), the prospect of

enforcement appears completely insubstantial. It is as if the

government had waived certain provisions of the law. And

with such a waiver, as Salvation Army explicitly holds, there

is no standing to challenge the waived provisions. See 919

F.2d at 192-93 ("[T]he district court should decline to provide

an advisory opinion regarding the constitutionality of these

S.Ct. 1874.

provisions."). See also Forsyth County, Georgia v.

Nationalist Movement, 505 U.S. 123, 131, 112 S.Ct. 2395,

120 L.Ed.2d 101 (1992) (evaluation of facial challenge to

statute must take into account construction by enforcing

body). We therefore limit our focus to the substantive

prohibitions of the regulations. ‘

*“ * *

Cases analyzing constitutional claims by those within

governmental institutions such as prisons, public schools, the

military, or the government workplace often open with the

axiom that the boundaries of those institutions do not separate

inhabitants from their constitutional rights. See, e.g., Safley,

482 US. at 84, 107 S.Ct. 2254 ("Prison walls do not form a

barrier separating prison inmates from the protections of the

Constitution."); Connick v. Myers, 461 U.S. 138, 142, 103

S.Ct. 1684, 75 L.Ed.2d 708 (1983) ( "[I]}t has been settled that

a State cannot condition public employment on a basis that

infringes the employee's constitutionally protected interest in

freedom of expression."); Tinker v. Des Moines Independent

Community School Dist., 393 U.S. 503, 506, 89 S.Ct. 733, 21

L.Ed.2d 731 (1969) ("It can hardly be argued that either

students or teachers shed their constitutional rights to

freedom of speech or expression at the schoolhouse gate.");

General Media Communications, Inc. v. Cohen, ("GMC")

131 F.3d 273, 276 (2d Cir. 1997) ( "The Constitution does

‘Our dissenting colleague relies on two recent decisions invalidating

provisions that are more similar to the statute than to the regulatory

intepretation established in this case. Mauro v. Arpaio, 147 F.3d 1137 (9th

Cir. 1998); Waterman v. Verniero, 12 F.Supp.2d 378 (D.N.J. 1998). See

Dissent at 203-204 n.1. Because we see the only ripe case before us as

confined to the regulations, our case is plainly distinguishable.

not, of course, stop at the gates of a military base."). This

observation is invariably followed by the complementary

principle that by their nature such environments must allow

regulation more intrusive than what may lawfully apply to the

general public. See Safley, 482 U.S. at 84-85, 107 S.Ct.

2254; Connick, 461 U.S. at 143, 103 S.Ct. 1684; Tinker, 393

U.S. at 507, 89 S.Ct. 733; GMC, 131 F.3d at 276. In these

environments, the government is permitted to balance

constitutional rights against institutional efficiency in ways it

may not ordinarily do. ° See, e.g., Waters v. Churchill, 511

U.S. 661, 675, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994)

(describing governmental power to restrict speech in the

name of efficiency); Safley, 482 U.S. at 88, 107 S.Ct. 2254

(noting balancing between First Amendment rights and

governmental interests).

‘This distinction is often phrased in terms of differential standards of

review applicable to the government when it acts in roles other than

sovereign. See, e.g., Waters v. Churchill, 511 U.S. 661, 671, 114 S.Ct.

1878, 128 L.Ed.2d 686 (1994). But it may be more apt to conceive of it as

a distinction between government regulation of public discourse generally,

and government regulation of speech within governmental institutions. See

generally Robert Post, Constitutional Domains 199-268 (1995).

For the prison context, Safley directs courts to uphold a

regulation, even one circumscribing constitutionally

protected interests, so long as it "is reasonably related to

legitimate penological interests." 482 U.S. at 89, 107 S.Ct.

2254. We are to assess the overall reasonableness of such

restr.ctions with attention to four factors: first, whether the

restriction bears a "valid, rational connection" to the

"legitimate governmental interest put forward to justify it,"

such that the "asserted goal is [not] so remote as to render the

policy arbitrary or irrational," id. at 89-90, 107 S.Ct. 2254;

second, whether inmates retain alternative means of

exercising the circumscribed night, id. at 90, 107 S.Ct. 2254;

third, the costs that accommodating the right imposes on

other inmates, guards, and prison resources generally, id.;

and fourth, whether there are alternatives to the regulation

that "fully accommodate[ | the prisoner's rights at de minimis

cost to valid penological interests," id. at 90-91, 107 S.Ct.

2254. Although the factors are intended as guides to a single

reasonableness standard, see id. at 89, 107 S.Ct. 2254; see

also Thornburgh, 490 U.S. at 414, 109 S.Ct. 1874 ("The

Court in [Safley] identified several factors that are relevant

to, and that serve to channel, the reasonableness inquiry."),

the first factor looms especially large. Its rationality inquiry

tends to encompass the remaining factors, and some of its

criteria are apparently necessary conditions. Nothing can

save a regulation that promotes an illegitimate or non-neutral

goal. See Safley, 482 U.S. at 90, 107 S.Ct. 2254.

In this case, both proponents in congressional debate, and

the government in its briefs here, assert as the goal an interest

in the rehabilitation of prisoners. See, e.g., 142 Cong. Rec.

H8261 (daily ed. July 24, 1996) ("Congress should not be

fueling the sexual appetites of offenders, especially those

who have been convicted of despicable sex offenses against

EN eT OEE

women and children. Magazines that portray and exploit sex

acts have no place in the rehabilitative environment of

prisons, nor should we pay Bureau of Prison{s] staff to

distribute them.") (statement of Rep. Ensign); id. at H8262

("The infamous serial killer Ted Bundy . . . stated before his

death his belief that pornographic materials directly

contributed to his violent crimes. While a number of factors

determine whether a prisoner will become a law- abiding

citizen upon release from prison, cutting prisoners off from

their sexually explicit magazines will certainly do no harm.")

(statement of Rep. Ensign). The next question is whether

rehabilitation is a legitimate and "neutral" government

interest within the meaning of Sa/ley.

The legitimacy of the rehabilitative purpose appears

indisputable. Indeed, the Supreme Court has often

characterized rehabilitation as one of the primary goals of

penal institutions. See, e.g., O'Lone v. Estate of Shabazz, 482

U.S. 342, 348, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987)

(describing rehabilitation as "valid penological objective[ }");

Procunier v. Martinez, 416 U.S. 396, 413, 94 S.Ct. 1800, 40

L.Ed.2d 224 (1974) (identifying "substantial government

interests of security, order, and rehabilitation"). At least

since the mid-19th century, it is hard to imagine a prison

system that did not seek to reduce the likelihood that

prisoners would again transgress society's norms. The

inventors of the prison in New York and Pennsylvania

framed its goals in these terms:

The penitentiary, free of corruptions and dedicated to the

proper training of the inmate, would inculcate the discipline

that negligent parents, evil companions, taverns, houses of

prostitution, theaters, and gambling halls had destroyed.

Just as the criminal's environment had led him into crime,

the institutional environment would lead him out of it.

David J. Rothman, The Invention of the Asylum: Social

10a

Order and Disorder in the New Republic 82-83 (rev.

ed.1990).

In turning to “neutrality,” the district court looked at the

statute itself, not the goal, and found it non-neutral. "[T]he

Ensign Amendment is a content- based statute with a sole

focus on the sexual nature of the publications it seeks to

prohibit." 975 F.Supp. at 368. The conclusion is correct--the

Ensign Amendment is formulated in terms of content. But

we do not understand that characteristic to run afoul of

Safley's neutrality requirement. Despite the apparent

similarity in terms, "neutrality" in the Safley sense is quite

different from the familiar First Amendment notion of

"content- neutrality." The Court most recently explained in

Thornburgh that "neutral" here means no more than that "the

regulation or practice in question must further an important or

substantial governmental interest unrelated to the suppression

of expression." 490 U.S. at 415, 109 S.Ct. 1874 (quoting

Martinez). There the Court found neutrality simply because

in application of the regulations the prison administrators

were to "draw distinctions between publications solely on the

basis of their potential implications for prison security." /d.

It pointed out that the regulations struck down in Martinez, in

contrast, barred writings that "unduly complain{ed]" or

"magnif [ied] grievances," or expressed "inflammatory"

views, thus inviting the prison authorities " 'to apply their

own personal prejudices and opinions as standards for

prisoner mail censorship.'" 490 U.S. at 416 n. 14, 109 S.Ct.

1874 (quoting Martinez); see also Martinez, 416 U.S. at 415,

94 S.Ct. 1800 (striking down regulations because no

legitimate interest at all was offered as justification). Thus

the Martinez regulations were "decidedly not ‘neutral’ in the

relevant sense." Thornburgh, 490 U.S. at 416 n. 14, 109

S.Ct. 1874.

lla

The rehabilitative interest offered by the government here

meets this rather thin neutrality requirement. The Court

cannot have meant to insist upon neutrality in its classic First

Amendment sense, as embodied, for example, in the dictum

of Gertz v. Robert Welch, Inc., 418 U.S. 323, 339, 94 S.Ct.

2997, 41 L.Ed.2d 789 (1974), that "[uJnder the First

Amendment, there is no such thing as a false idea." In its role

as an operator of prisons, the government surely does not

lapse from the required neutrality if it bans "how-to" manuals

on fraud and embezzlement ("Fraud for Dummies"). The

idea that committing such crimes is not proper may not be

"false" in the Gertz sense, but in the prison context the

government may oppose it rather absolutely. This authority

cannot be explained away on the theory that such a ban could

withstand even the strictest scrutiny and that its validity

therefore tells us nothing of the "neutrality" requirement; as

voiced by the Court, the "neutrality" requirement is an

absolute prerequisite. Accordingly, we think the Court's

actual application of the requirement, with its focus on the

existence of some legitimate goal and on assuring that rules

are in fact not framed so as to advance illegitimate or

unvetted goals, must control our understanding of its

meaning.

That government power to inculcate values conflicts with

the libertarian premises of the First Amendment is clear, but

such power is well established. Even outside special

governmental institutions, the state has some authority to

become a player in the marketplace of ideas. It may

commission advertising urging children to stay in school or

off drugs; it can sponsor anti-violence campaigns. See

Regan v. Taxation with Representation, 461 U.S. 540, 548-

49, 103 S.Ct. 1997, 76 L.Ed.2d 129 (1983); see generally

Rust v. Sullivan, 500 U.S. 173, 193, 111 S.Ct. 1759, 114

L.Ed.2d 233 (1991) ("The Government can, without violating

12a

the Constitution, selectively fund a program to encourage

certain activities it believes to be in the public interest,

without at the same time funding an alternate program which

seeks to deal with the problem in another way.").

And within its own institutions, government's power to

pursue its legitimate goals is elevated: within reasonable

limits, it may attach sanctions to or exclude speech that

threatens its goals--even if those goals include promotion of

particular values. That is the general lesson of cases such as

Waters, 511 U.S. 661, 114 S.Ct. 1878, 128 L.Ed.2d 686

(upholding dismissal of employee for speech that might have

caused disruption); Bethel School Dist. No. 403 v. Fraser,

478 U.S. 675, 685, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986)

(upholding suspension of student who used indecent language

in assembly speech); and Greer v. Spock, 424 U.S. 828, 96

S.Ct. 1211, 47 L.Ed.2d 505 (1976) (upholding exclusion

from military base of civilians who wished to distribute

political literature).

Of course this does not mean by a long shot that every

government institution can pursue any value. Our century

has seen more than enough of governments trying to act as

engineers of human souls. But inculcation of values cannot

be characterized as a suppression of expression in every

context. The Supreme Court has in fact taken the position

that democratic society depends on inculcation of democratic

values. See, e.g., Ambach vy. Norwick, 441 U.S. 68, 76-77, 99

S.Ct. 1589, 60 L.Ed.2d 49 (1979) (stating that public schools

are important "in the preparation of individuals for

participation as citizens, and in the preservation of the values

on which our society rests"); Brown v. Board of Education,

347 U.S. 483, 493, 74 S.Ct. 686, 98 L.Ed. 873, (1954)

("[Public education] is a principal instrument in awakening

the child to cultural values, in preparing him for later

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13a

professional training, and in helping him to adjust normally

to his environment."). The generality of Safley’'s

reasonableness test, and common sense as well, suggest that

the flexibility open to the political branches must be at its

apogee in institutions for the care and custody of those who

have already transgressed society's norms. If "promoting

respect for authority and traditional values" among

schoolchildren is a legitimate interest of government and not

inherently a form of speech suppression, see Board of

Education, Island Trees Union Free School Dist. No. 26 v.

Pico, 457 U.S. 853, 864, 102 S.Ct. 2799, 73 L.Ed.2d 435

(1982) (plurality opinion), surely the same is true of

promoting such a goal among criminals.

Prisoners of course differ from the other examples of

individuals entangled with the government in that they have

no recourse to a private sphere. For them, there is no outside.

Judges plainly must bear in mind the total occupation of

prisoners’ lives by the state. But prisoners find themselves in

the maw of the state not because they have been drawn there

by the promise of government wages, nor because a statute

imposes a universal requirement of education, but because

they have broken the law. Moreover, even government

workers have suffered a similar eclipse of the private sphere;

the government's ability to fire them for speech that threatens

workplace disruption is not limited to speech within the

workplace. See, e.g., Pickering v. Board of Education, 391

U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968) (analyzing

letter to the editor). See generally Note, The Costs of

Agencies: Waters v. Churchill and the First Amendment in

the Administrative State, 106 Yale L.J. 1233, 1239-40 (1997)

(discussing scope of governmental authority). Accordingly,

we conclude that rehabilitation, and such character- moulding

as may be implicit therein, constitute legitimate and neutral

goals as those are understood in Safley.

14a

We thus tum to whether there is a "valid rational

connection" between the interest and the regulations. Prison

jurisprudence is not well enough developed to indicate

precisely how demanding the requirement of rational means-

end connection is. But the similarity between Safley's

phrasing and the language of rational basis review suggests to

us that, as far as the means-end fit is concerned, Safley's

standard is, if not identical, something very similar.

Compare, e.g., Nordlinger v. Hahn, 505 U.S. 1, 11, 112 S.Ct.

2326, 120 L.Ed.2d 1 (1992) ("[T]he relationship of the

classification to its goal is not so attenuated as to render the

distinction arbitrary or irrational.") with Safley, 482 U.S. at

89-90, 107 S.Ct. 2254 ("[T]he logical connection between the

regulation and the asserted goal is so remote as to render the

policy arbitrary or irrational.").

The legislative judgment is that pornography adversely

affects rehabilitation. It does not matter whether we agree

with the legislature, only whether we find its judgment

rational. The question for us is not whether the regulation in

fact advances the government interest, only whether the

legislature might reasonably have thought that it would. See,

e.g., Nordlinger, 505 U.S. at 11, 112 S.Ct. 2326.

We think that the government could rationally have seen a

connection between pornography and rehabilitative values.

Congress might well perceive pornography as tending

generally to thwart the character growth of its consumers.

One current exposition of this view sees pornography as

treating women purely as objects of male sexual gratification.

See, e.g., Catharine A. MacKinnon, Only Words 108-10;

MacKinnon, "Francis Biddle's Sister: Pornography, Civil

Rights, and Speech,” in Feminism Unmodified 163, 174

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15a

(1987); Martha C. Nussbaum, "Objectification," 25 Phil. &

Pub. Affairs 249, 283-86 (1995); Cass Sunstein, The Partial

Constitution 257-90 (1993). But this viewpoint shares at

least a core with ideas that have a lineage of a few centuries,

perhaps millennia, stressing the desirability of deferring

gratification, of sublimation of sexual impulses, of

channeling sexual expression into long-term relationships of

caring and affection, of joining eros to agape. The

supposition that exclusion of pornography from prisons will

have much of an impact in this direction may be optimistic,

but it is not irrational.

There is, of course, no "record evidence," and certainly no

sophisticated multiple regression analyses or other social

science data, to support this belief--a fact our dissenting

colleague finds fatal. See Dissent at 207-08. We do not

think, however, that common sense must be the mere

handmaiden of social science data or expert testimonials in

evaluating congressional judgments. Quite the opposite:

scientific studies can have a corrective effect by establishing

an apparently implausible connection or refuting an

apparently obvious one, but, subject to such corrections,

conformity to commonsensical intuitive judgments is a

standard element of both reasonableness and rationality.

Compare D.N. McCloskey, The Rhetoric of Economics 44

(1985) ( "Not all regression analyses are more persuasive

than all moral arguments; not all controlled experiments are

more persuasive than all introspections. People should not

discriminate against propositions on the basis of

epistemological origin. There are some subjective, soft,

vague propositions that are more persuasive than some

objective, hard, precise propositions."). Nor do we think

Safley requires more. In that case, the Court scoured the

record for evidence of a rational link between the asserted

security interests and the marriage ban because common

l6a

sense does not suggest any. See Safley, 482 U.S. at 97-100,

107 S.Ct. 2254. Here, the regulations restrict prison

consumption of publications that implicitly elevate the value

of the viewer's immediate sexual gratification over the values

of respect and consideration for others. Common sense tells

us that prisoners are more likely to develop the now-missing

self-control and respect for others if prevented from poring

over pictures that are themselves degrading and disrespectful.

Nor can we find irrationality in a congressional fear that

pornography may set back rehabilitation in the narrower

sense, more directly related to recidivist activity. The briefs,

particularly that of the amicus curiae, call our attention to

studies purporting either to document or to demolish the

causal link between pornography and sex crimes.° Without

attempting a comprehensive summary, we note a few. One

concludes that exposing "already angered men" (probably not

especially rare in prison) to nonviolent pornography can lead

to short-term increases in their aggressiveness. Edward

Donnerstein, et al., The Question of Pornography 40-48

(1987). Another finds that "pornography provides ideational

support for rape....". Larry Baron & Murray A. Straus, Four

Theories of Rape in American Society 185 (1989). Baron &

Straus's primary evidence for this claim is an observed

correlation between the circulation rates of sex magazines

and reported rape rates. While they are hesitant to defend a

°Congress did not cite these materials, an omission of no importance.

See Jones v. United States, 463 U.S. 354, 365 n. 13, 103 S.Ct. 3043, 77

L.Ed.2d 694 (1983). Our concern is not why Congress believed that

pornography affected rehabilitation, but whether it would have been rational

so to believe. Cf Turner Broadcasting System, Inc. v. FCC, 520 U.S. 180,

117 S.Ct. 1174, 1197, 137 L.Ed.2d 369 (1997) ("Congress is not obligated,

when enacting its statutes, to make a record of the type that an

administrative agency or court does to accommodate judicial review.").

LP bate the AS ar OCG ahve ys MR RSE:

17a

"cause-effect" link between pomography and rape, they do

see the correlation as explained by "the presence of a

hypermasculine or macho culture pattern." Jd. at 186. This

cultural pattern, Baron and Straus hypothesize, causes both

higher incidence of rape and higher consumption of

pornography. Of course, it seems quite likely that a culture

and its manifestations have a mutually reinforcing

relationship, so that a prohibition of pornography is a

reasonable element of a struggle against machismo and its il]

effects.

Finally, there is a significant body of research showing that

long-term exposure to pornography, particularly pornography

containing scenes of "aggressive sexuality," can make its

(male) audience more aggressive, more tolerant of violence

against women, and more susceptible to myths about rape,

such as the notion that women can enjoy being raped. See

Neil Malamuth, "Aggression against Women: Cultural and

Individual Causes," in Malamuth & Donnerstein, 19, 32-39:

see also Mike Allen et al., "Exposure to Pornography and

Acceptance of Rape Myths," 45 J. Communication 5 (1995)

("Although the experimental studies demonstrate that violent

pornography has more effect [inducing rape myth acceptance]

than nonviolent pornography, nonviolent pornography still

demonstrates an effect.") See also Richard A. Posner, Sex

and Reason, 366-71 (1992) (noting inconclusiveness of social

science findings on net effects of pornography on incidence

of rape; pormography may tend to increase rape by its

ideological and aphrodisiac effects, but may tend to decrease

it by enhancing a substitute (masturbation), the balance of

these effects being unknown).

The point of this is not to suggest that a causal link has been

shown. The array of academic authority on the other side is

at least as substantial, and quite possibly more so. But even

18a

undertaking to weigh the competing scholarship would

misconceive the judicial role. Dealing with legislative

judgments about rehabilitation, the Supreme Court has said

that "[w]hen Congress undertakes to act in areas fraught with

medical and scientific uncertainties, legislative options must

be especially broad and courts should be cautious not to

rewrite legislation, even assuming, arguendo, that judges

with more direct exposure to the problem might make wiser

choices." Marshall v. United States, 414 U.S. 417, 427, 94

S.Ct. 700, 38 L.Ed.2d 618 (1974) (emphasis in original); see

also Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072,

2081 n. 3, 138 L.Ed.2d 501 (1997). And in upholding a

statute barring provision of sexually explicit material to

minors, the Court noted that "while these studies all agree

that a causal link [between exposure to explicit material and

impaired ethical and moral development] has not been

demonstrated, they are equally agreed that a causal link has

not been disproved either." Ginsberg v. New York, 390 U.S.

629, 642, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968) (internal

quotation omitted); see also American Booksellers Ass'n v.

Hudnut, 771 F.2d 323, 329 n. 3 (7th Cir. 1985). The same

uncertainty prevails here, and suffices to place the legislative

judgment within the realm of reason under the standards

applicable to the political branches' management of prisons.

The evidence is simply not conclusive on the efficacy of a

ban on pornography in promoting prisoners’ rehabilitation.

For judges seeking only a reasonable connection between

legislative goals and actions, scientific indeterminacy is

determinative.

The remaining Safley factors further substantiate the overall

reasonableness of the regulations. The second involves the

19a

prisoners' alternative means of exercising the right at stake.

Of course if the "right" at stake is defined in terms of the

materials excluded by the ban, any regulation will come up

short. The Court accordingly observed in Thornburgh that

the relevant right "must be viewed sensibly and expansively,"

490 U.S. at 417, 109 S.Ct. 1874, though it stated no method

for actually carrying out the definitional process. In

Thornburgh, where the regulation barred all "sexually

explicit material which by its nature or content poses a threat

to the security, good order, or discipline of the institution, or

facilitates criminal activity," id. at 405 n. 5, 109 S.Ct. 1874,

the Court found the second factor "clearly satisfied" because

"the regulations [there at issue] permit a broad range of

publications to be sent, received, and read," id. at 418, 109

S.Ct. 1874. In so doing, it made no inquiry into the scope of

sexually explicit material not covered by the ban. Thus,

unless there is some minimum entitlement to smut in prison,

the origins of which must be obscure, this factor can hardly

be fatal.’

The third Safley factor concerns the adverse impact "on

guards and other inmates, and on the allocation of prison

resources" of accommodating the right claimed. 482 U.S. at

90, 107 S.Ct. 2254. It thus seems in part a restatement of the

deferential balancing called for under the first factor: if

Congress may reasonably conclude that pornography

increases the risk of prison rape, then the adverse impact is

substantial. Accommodating the right poses a threat to the

safety of guards and other inmates. The issue of the

allocation of prison resources we take up below; we think the

third and fourth factors are strongly interrelated.

"Even if there were such a bizarre entitlement, the regulations would

still satisfy this factor, as they leave the inmate free to enjoy all written

forms of smut not barred by the regulations upheld in Thornburgh.

20a

The fourth Safley factor poses the question whether there are

alternatives that can accommodate that right "at de minimis

costs to valid penological interests."_Safley, 482 U.S. at 91,

107 S.Ct. 2254. This is not, the Court emphasized, a" ‘least

restrictive alternative’ test." Jd. at 90, 107 S.Ct. 2254. The

most obvious alternative is a detailed prisoner-by-prisoner

(and presumably publication-by-publication) sifting to

determine whether a particular publication will harm the

rehabilitation of a particular prisoner. The costs of this

approach seem far from de minimis. Apart from the purely

administrative burden of such a process, the exercise of such

broad discretion seems highly conducive to just the sort of

conflicting decisions that give bite to vagueness concerns.

And the reality is that prisoners are likely to pass

pornographic materials about, so that prisoner-by-prisoner

determinations may run aground on the "ripple effect" that

the Court mentioned in Safley, 482 U.S. at 90, 107 S.Ct.

2254. Even if pornography could be directed only to those

not likely to be adversely affected, it could find its way to

others, interfering with their rehabilitation and increasing

threats to safety.

Of course the flip side of avoiding the costs and hazards of a

grant of broad discretion to wardens is the possibility of

preventing delivery of materials that, either generally or for a

specific set of (effectively segregated) prisoners, pose little or

no threat of the harm Congress sought to diminish. Outside

prison walls this concern is addressed by the overbreadth

doctrine. Here it seems to us captured in part by the demand

for a rational relation between the regulation and the goal,

and by consideration of alternatives under the fourth "factor."

Thus, the objections to a more flexible standard--such as one

that would vest discretion in wardens to prevent delivery of

materials in any case where in his judgment it would impair a

specific prisoner's rehabilitation--go a long way to rebut the

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claim.

The dissent, nonetheless, seems to regard only such a case-

by-case approach as constitutional, and makes much of

various hypothetical situations in which the categorical ban

could unneccessarily exclude certain publications. See

Dissent at 210-213. To the extent that these hypotheticals

assume direct enforcement of the Ensign Amendment, the

likelihood of such enforcement is, as we have noted, quite

remote and not before us in this case. Further, the actions of

the Bureau of Prisons also suggest that the likelihood of this

sort of exclusion under the actual regulatory scheme is

remote. The Bureau's Program Statement, for example,

listing examples of permissible publications, cites National

Geographic; Our Bodfies], Our Selves; Sports Illustrated

(Swimsuit Edition); and the Victoria's Secret Catalog. P.S.

5266.07, at 7. We find it all but impossible to believe that the

Swimsuit Edition and Victoria's Secret pass muster while

Michelangelo's David or concentration camp pictures fail;

nor has there been any suggestion that any prison official has

attempted to implement such a bizarre interpretation. As

there is no allegation that women in segregated women's

prisons are demanding Playboy, neither the possibility of

such demand nor the Bureau's possible response assists

plaintiffs in their overbreadth claim. *

Leaving aside these possible fringe applications of the

"To the extent that the Dissent's insistence on individualized

determinations turns on a view that general rules with any impact on First

Amendment values must correspond to the underlying reason in every

application, see, e.g , Dissent at 203 (suggesting that government must show

that "any pictorial display of nudity or sexual activity communicates

messages that are harmful to the rehabilitation of al/ prisoners") (emphasis

in original), it asserts a burden that few general rules could satisfy.

22a

regulation, we again note that the regulation by its terms only

restricts pictures; a prisoner may read anything he pleases.

The dissent's appeal to the value of ideas, pointing by way of

example to the vistas opened for Malcolm X by his prison

reading, see Dissent at 210-211, thus makes little sense here.

Congress could, we think, reasonably be skeptical of the

proposition that study of the pictures in Penthouse would

help a prisoner become "an intelligent customer in the

marketplace of ideas." If anything, the ban could strengthen

the impact of literature by removing the distraction of

pictures that in almost every case would be pornographic.

In any event, even under conventional overbreadth doctrine

outside of prison, overbreadth claims by those on the margins

of pornography have fared poorly. See, e.g., Young v.

American Mini Theatres, Inc., 427 U.S. 50, 61, 96 S.Ct.

2440, 49 L.Ed.2d 310 (1976) ("Since there is surely a less

vital interest in the uninhibited exhibition of material that is

on the borderline between pornography and artistic

expression than in the free dissemination of ideas of social

and political significance . . . we think this is an inappropriate

case in which to adjudicate the hypothetical claims of persons

not before the Court.") And regardless of the type of speech

at issue, narrow or improbable excesses of a statute are not a

ground for invalidation before application shows their reality:

[W]here a statute regulates expressive conduct, the scope of

the statute does not render it unconstitutional unless its

overbreadth is not only "real, but substantial as well, judged

in relation to the statute's plainly legitumate sweep." Even

where a statute at its margins infringes on protected

expression, "facial invalidation is inappropriate if the

‘remainder of the statute . . . covers a whole range of easily

identifiable and constitutionally proscribable. . . conduct

Osborne v. Ohio, 495 U.S. 103, 112, 110 S.Ct. 1691, 109

23a

L.Ed.2d 98 (1990) (citations omitted) (ellipses in original).

Accordingly, such problems of application can be left to the

time when, if ever, they arise.

We find that the statute and regulation satisfy Safley's

demand for reasonableness, scoring adequately on all four

factors.

Plaintiffs argue that if we are unpersuaded by the district

court's analysis we should remand the case to allow them to

introduce evidence supporting their position. But that

suggestion misconceives the legal issue under Safley. The

question is not whether curtailment of pictorial smut will

advance the prisons’ rehabilitative project, but whether

Congress could reasonably have believed that it would do so.

The studies cited above, coupled with Congress's implicit

appeal to ethical norms against the undue stimulation of

carnal appetites, indicate the reasonableness of such a belief.

If the Bureau of Prisons applies the regulations in a manner

that would violate the Safley priciples, of course, that would

be another case. Accordingly, the district court should have

granted the defendants’ motion to dismiss plaintiffs’

complaint insofar as that complaint rested upon Safley.

* * *

Besides the overbreadth issue, which we have already

addressed in the Safley context, plaintiffs have raised two

additional theories--excessive vagueness and a claim that the

regulations’ distinction between pictorial and verbal works is

content-based. In fact, the distinction between pictorial and

verbal works seems more directed to form than to content,

and in any event we have seen that Safley's neutrality

24a

requirement both displaces conventional First Amendment

strictures on content-based limits and is satisfied by these

regulations. Although Safley may well function as an all

encompassing free speech test for the circulation of reading

materials in prison, supplanting otherwise applicable First

Amendment doctrine, it may be that plaintiffs' vagueness

claim has independent force. If it did, of course, the role of

the Bureau of Prisons, as manager rather than as law enforcer,

might well play an important role in resolution of the claim.

Accordingly, as the district court has not addressed these

vagueness issues, we remand the case for it to do so. In the

meantime, we lift the permanent injunction that it has

imposed on enforcement of the regulations.

So ordered.

Wald, Circuit Judge, dissenting:

The prohibition to all federal prisoners of publications

"featuring nudity" or depicting "sexually explicit" activities

indisputably raises First Amendment concerns. See, e.g.,

Reno v. American Civil Liberties Union, 521 U.S. 844, ----,

117 S.Ct. 2329, 2346, 138 L.Ed.2d 874 (1997) ("In

evaluating the free speech rights of adults, we have made it

perfectly clear that sexual expression which is indecent but

not obscene is protected by the First Amendment.") (internal

quotation omitted); Martin v. Struthers, 319 U.S. 141, 143,

63 S.Ct. 862, 87 L.Ed. 1313 (1943) (noting that the right of

freedom of speech "necessarily protects the right to receive

[publications]"). Indeed, if the First Amendment, at its core,

is designed to promote the free exchange of ideas, the debate

in this case goes to the very heart of its protections. The

government argues that the reason all publications featuring

nudity or sexually explicit material, whether or not they are

pornographic or obscene, should be withheld from all federal

25a

prisoners is that any pictorial display of nudity or sexual

activity communicates messages that are harmful to the

rehabilitation of a// prisoners. Relying on what it claims to

be the inherent reasonableness of a legislative judgment that

such materials are always inimical to rehabilitation, the

government throughout this case has steadfastly resisted

creating any kind of record to support such a wide-reaching

incursion on the constitutional rights of incarcerated

individuals. Today, the majority unquestioningly endorses

the government's approach. Because I believe this result sets

an unwise and arbitrary precedent that runs contrary to prior

case law, I respectfully dissent.°

*I find it very significant that two of our sister courts have recently

reached results opposite from that set forth by the majority today. In Mauro

v. Arpaio, 147 F.3d 1137 (9th Cir. 1998), the Ninth Circuit invalidated a

county prison system's ban on the possession of all materials containing

“any graphic representation of frontal nudity." Although the county claimed

that its interests in safety, the rehabilitation of inmates, and the reduction of

sexual harassment of guards supported such a ban, the court held that the

county had not "carried its burden to show that such a far reaching

prohibition is ‘reasonably related’ to legitimate penological interests"; in

particular, it had “offer[ed] no proof or reasoned explanation" for the ban.

Id. 147 F.3d at 1142-44. And in Waterman v. Verniero, 12 F.Supp.2d 378

(D.N.J. 1998), a district court invalidated a state statute prohibiting inmates

in a specialized facility for sex offenders from possessing or obtaining

“sexually oriented materials" (defined as any description or depiction of

“sexual activity or associated anatomical area"; see Waterman v. Verniero,

12 F.Supp.2d at 368 (D.N.J. 1998) (preliminary injunction)). Despite the

state's claim that such materials would disrupt the rehabilitation of sex

offenders at the institution, the court held that the state legislature that

enacied the ban was motivated by public outrage over pedophiliac crimes

rather than rehabilitative interests. Waterman, 12 F.Supp.2d at 381-82.

Moreover, the court noted, the literature on the effects of such publications

was too unsettled to support a finding that a rational relationship existed

between the ban and rehabilitative interests. Jd. In both cases, the courts

found the broad scope of the ban, in particular its application to publications

featuring nudity, to be unjustifiable in light of any evidence advanced by

the government to support it.

26a

It appears to need restating once again that prisoners do not

lose all their constitutional rights when the prison door clangs

behind them. While the prison gate may serve to isolate

those inside from the outside world, it does not, as the

Supreme Court has taken pains to emphasize, "form a barrier

separating prison inmates from the protections of the

Constitution." Turner v. Safley, 482 U.S. 78, 84, 107 S.Ct.

2254, 96 L.Ed.2d 64 {1987). Although the majority pays lip

service to this canon, it ignores an important corollary:

Whatever sentiments we might hold regarding prisoners for

the crimes they have committed, these sentiments must not

infect our determination of the prisoners’ constitutional rights.

Indeed, the Supreme Court has recently reaffirmed, albeit in a

different context, that " 'a bare ... desire to harm a politically

unpopular group cannot constitute a legitimate governmental

interest.' " Romer v. Evans, 517 U.S. 620, 634, 116 S.Ct.

1620, 134 L.Ed.2d 855 (1996) (quoting Department of

Agriculture v. Moreno, 413 U.S. 528, 534, 93 S.Ct. 2821, 37

L.Ed.2d 782 (1973)) (invalidating state constitutional

amendment prohibiting official action designed to protect

homosexual persons from discrimination). So long as

prisoners retain constitutional rights, including First

Amendment rights, see O'Lone v. Estate of Shabazz, 482 U.S.

342, 348, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987) ("Inmates

- clearly retain protections afforded by the First Amendment

."), our duty is to ensure that these rigbts are not

impermissibly curtailed.'®

'°As our Chief Judge has previously noted:

the special place of prisoners in our society makes them more

dependent on judicial protection than perhaps any other group. Few

minorities are so "discrete and insular," so little able to defend their

interests through participation in the political process, so vulnerable

to oppression by an unsympathetic majority. Federal courts have a

special responsibility to ensure that the members of such defenseless

RTE ENS EE

27a

It is equally true, however, that the unique and difficult task

of running a prison will often necessitate some incursion on

inmates' constitutional rights. A prisoner's desire to leave the

prison once a week to attend religious services, for example,

or his desire to correspond with other inmates may conflict

with the prison's need to maintain institutional security. In

these instances, courts must give a large measure of deference

to the prison administrators who are actively involved in the

daily operations of the institution. Courts are not in the best

position to judge when or in what manner certain institutional

interests may require some action on the part of prison

officials to respond to the "complex and _ intractable"

problems of prison administration. Procunier v. Martinez,

416 U.S. 396, 405, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974),

overruled in part by Thornburgh v. Abbott, 490 U.S. 401, 109

S.Ct. 1874, 104 L.Ed.2d 459 (1989). Most of these

problems, as the Supreme Court reminds us, "require

expertise, comprehensive planning, and the commitment of

resources, all of which are peculiarly within the province of

the legislative and executive branches of government." Jd.

As the majority has duly noted, the Court's standard in

Safley recognizes the need to forge a balance between the

competing interests of prison administration and prisoners’

constitutional rights. As I read this standard, it embraces two

principles. First, fundamental rights of prisoners must give

way to governmental concerns more readily than the

fundamental rights of nonprisoners. In adopting a test "less

restrictive than that ordinarily applied to alleged

infringements of fundamental constitutional rights," O'Lone,

groups are not deprived of their constitutional rights.

Doe v. District of Columbia, 701 F.2d 948, 960 n. 14 (D.C.Cir.1983)

(separate statement of Edwards, J.).

28a

482 U.S. at 349, 107 S.Ct. 2400, the Court intended to ensure

that "courts afford appropriate deference to prison officials,"

id. To require that prison regulations infringing upon

fundamental rights undergo strict scrutiny, as they would

outside the prison context, would place an inordinately high

obstacle in the way of prison administrators’ attempts to run

their institution safely and efficiently. Second, and

significantly, the Court did not intend Safley ‘s lesser standard

of review to negate prisoners’ constitutional rights altogether,

as the majority seems to suggest. The Court did not say, for

example, that prison regulations are valid if there is any

conceivable basis for their existence, as rational basis review

is typically formulated. See, e.g., United States R.R.

Retirement Bd. v. Fritz, 449 U.S. 166, 179, 101 S.Ct. 453, 66

L.Ed.2d 368 (1980) (noting that where, under rational basis

review, "there are plausible reasons for Congress' action, our

inquiry is at an end"). Rather, the task for courts is to

determine, while giving appropriate deference to the

judgment of prison officials, whether a challenged regulation

is, in fact, reasonable or whether it is an "exaggerated

response" to the “legitimate governmental interest put

forward to justify it." Safley, 482 U.S. at 89-90, 107 S.Ct.

2254 (emphasis added); see also LAURENCE H. TRIBE,

AMERICAN CONSTITUTIONAL LAW 1445 n.21 (2d ed. 1988)

("Any limit placed on the Court's imagination vis-a-vis

legislative purpose must be recognized as a tightened form of

scrutiny."). A governmental institution is permitted

"regulation more intrusive than what may lawfully apply to

the general public," Majority Opinion ("Maj.Op.") at 196, not

simply because of its status but rather because of the

identifiable, and unique, needs of that institution. And

although the need for flexibility is perhaps at its highest in the

prison environment, the need for limits on that flexibility is

also paramount: Unlike government employees, students, or

other participants in governmental institutions, prisoners have

29a

no choice about whether to be subject to the power of the

state.

To read Safley--as the majority appears to--as permitting

unblinking deference to any "plausible" legislative judgment

about the "rehabilitative" benefits of denying a prisoner's

most fundamental constitutional right, i.e., her freedom to

read, renders any and all prisoners’ constitutional rights a

nullity. I had thought it went without saying that courts do

not rely on the mere assertion of a regulation's drafters that

the regulation is reasonable; to do so would amount to an

abdication of our judicial role. See, e.g., Salaam v. Lockhart,

905 F.2d 1168, 1171 (8th Cir.1990) ("We would misconstrue

[Thornburgh, O'Lone, and Safley ] if we deferred not only to

the choices between reasonable policies made by prison

officials but to their justifications for the policies as well.");

Campbell v. Miller, 787 F.2d 217, 227 n.17 (7th Cir. 1986)

("[D]eference to the administrative expertise and

discretionary authority of correctional officials must be

schooled, not absolute."). Nor can the judicial role be

diminished to the disappearing point solely because the

original decisionmaking body in this case is Congress itself

rather than the Bureau of Prisons ("BOP"). Cf Sable

Communications of California, Inc. v. FCC, 492 U.S. 115,

129, 109 S.Ct. 2829, 106 L.Ed.2d 93 (1989) ("To the extent

that the federai parties suggest that we should defer to

Congress’ conclusion about an issue of constitutional law, our

answer is that while we do not ignore it, it is our task in the

end to decide whether Congress has violated the Constitution.

This is particularly true where the Legislature has concluded

that its product does not violate the First Amendment."). ''

"Of course, because the majority concludes that the BOP's regulations,

and not the Ensign Amendment, are controlling in this case, the majority's

focus on Congress's conclusions may be misguided. See, e.g., Maj. Op. at

30a

The Safley standard reconciles prisoners’ constitutional rights

with institutional needs and defers to prison administrators as

the most appropriate articulators of those needs; so long as

Congress acts with those same needs in mind, it is entitled to

the same deference. But were we simply to defer to

Congress's assertion that the Ensign Amendment ("the

Amendment") was reasonably related to the interest asserted,

there would be no need for judicial review at all, for no

statute infringing on inmates’ constitutional nghts would fail

to satisfy this test. The Court has reminded us that the Safley

standard "is not toothless," Thornburgh, 490 U.S. at 414, 109

S.Ct. 1874 (internal quotation omitted); more precisely, it is

not a license for lawmakers, any more than prison wardens, to

shortchange the constitutional nghts that the Supreme Court

has insisted prisoners continue to possess. Only if our

assessment is not a cursory one can we give adequate weight

to both concerns that underlie the Safley standard. See, e.g.,

Salaam, 905 F.2d at 1171 n. 6 ("Reasonableness in this

context refers not only to the relation between the goals of a

regulation and its means, but also to the balance struck

between the needs of the prison administrators and the

constitutional rights of prisoners.").

It is crucial, therefore, to ensure that although the strictness

of our review is lessened, it is not eliminated altogether. Our

task, ultimately, is to assess the fit between the interest

proffered and the remedy adopted-- whether the regulation

under consideration is a reasonable means of addressing the

legitimate penological interest put forward by the

government. In Safley itself, for example, although the

prison's asserted interests in security and rehabilitation were

199 ("It does not matter whether we agree with the legislature, only whether

we find its judgment rational."). But see note 4, infra.

ST en eee Se Romar UC O a cm none Sree pe

3la

sufficient to justify some restriction on the right to marry, the

Court held that the particular restriction adopted was too

broad to be upheld. See Safley, 482 U.S. at 97-98, 107 S.Ct.

2254 ("No doubt legitimate security concerns may require

placing reasonable restrictions upon an inmate's right to

marry, and may justify requiring approval of the

superintendent. The Missouri regulation, however, represents

an exaggerated response to such security objectives."); id. at

98, 107 S.Ct. 2254 ("[I]n requiring refusal of permission

absent a finding of a compelling reason to allow the marriage,

the rule sweeps much more broadly than can be explained by

petitioners’ penological objectives."). In Thornburgh, by

contrast, the pre-Amendment version of the restrictions under

consideration here were found to represent a reasonable

response to institutional concerns because the "individualized

nature" of the determinations ensured that the policy would

not result in "needless exclusions." Thornburgh, 490 U.S. at

416-17, 109 S.Ct. 1874; see also id. (noting that even a

publication that met one of the criteria for exclusion would be

rejected "only if it is determined to meet that standard under

the conditions prevailing at the institution at the time"). These

cases illustrate that the standard of review established by

Safley sets some limits on the means the government may use

to further penological interests. Although these limits are

flexible, they are by no means as vaporous as the majority

rules them to be.

I agree that rehabilitation is, conceptually, a legitimate

governmental interest, even if no one is sure how to achieve it

and the Federal Sentencing Guidelines have abandoned it as

an attainable goal. Compare Pell v. Procunier, 417 U.S. 817,

823, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974) ("[S]ince most

offenders will eventually return to society, another paramount

objective of the corrections system is the rehabilitation of

those committed to its custody.") and Dawson v. Scurr, 986

SS a se IN a as i aa

a I ea A i) a ema

32a

F.2d 257, 260 (8th Cir. 1993) (noting that rehabilitation is a

"legitimate objective") with Kerr v. Puckett, 138 F.3d 321,

324 (7th Cir. 1998) ("Congress abandoned ‘rehabilitation’ as a

justification of imprisonment when it enacted the Sentencing

Reform Act of 1984.") and S. Rep. No. 98-225 (1983), at 38,

reprinted in 1984 U.S.C.C.A.N. 3182, 3221 ("[A]lmost

everyone involved in the criminal justice system now doubts

that rehabilitation can be induced reliably in a prison setting,

and it is now quite certain that no one can really detect

whether or when a prisoner is rehabilitated."). Where the

majority and I part company is on the ultimate question: Has

any "valid, rational connection" between the extremely broad

ban on publications featuring nudity or explicit sexual

activity and rehabilitation been shown in this case? And

while I certainly do not discount the possibility that a ban

more narrowly targeted on certain kinds of violent

pornography or even on certain types of prisoners might

satisfy this requirement, I cannot conclude, on the present

record, that these regulations implementing the Amendment

pass muster."

"The majority characterizes Amatel's attack on the Amendment itself

as a “pre-enforcement challenge" that is invalid because, in promulgating

implementing regulations, the government has “waived certain provisions

of the law." Maj. Op. at 195, citing Salvation Army v. Department of

Community Affairs, 919 F.2d 183, 192 (3d Cir.1990). In contrast to

Salvation Army, however, we have no "express assurance" that the BOP

will not enforce the breadth of the Amendment, cf Salvation Army, 919

F.2d at 192; indeed, the regulations state simply that "publications

containing nudity illustrative of medical, educational, or anthropological

content may be excluded" from the definition of "features," see 28 C.F.R.

§ 540.72(b)(3) (1997) (emphasis added). Moreover, at oral argument,

counsel for the BOP acknowledged that under the current regulations,

wardens retain considerable discretion as to whether a publication "features"

nudity. See Tr. of Oral Arg. at 6. The government's "waiver" of certain

portions of the Amendment thus cannot be so blithely assumed and may in

fact be an impermissible narrowing of the Amendment's mandate. See, e.g.,

eR CN eT TR EN ee ee er ee es

EO EE EE IS an ea aT eee eee

33a

I believe that the determination of whether a regulation (or

Statute) is reasonably related to a legitimate penological

interest must depend, in all but the most obvious cases, on the

evidentiary support for that nexus in the record before the

court. Of course I recognize too that the question of what or

how much evidence is necessary may depend on what logic

or everyday experience show us to be the connection between

the disputed means and the rehabilitative end. If the

Amendment prohibited the distribution of publications

containing escape plans, the connection between the ban and

the penological interest in institutional security would be

obvious, and we could uphold such a prohibition based on

little or no demonstrated evidence. Where, as here, however,

the connection (between nudity and rehabilitation) is far

murkier, courts (and I would include legislators as well) far

removed from the day-to-day operations of a prison are much

less able to answer the question accurately on their own;

indeed, the very reason that Safley prescribes a great measure

of deference to prison administrators is that they are in the

best position to provide answers involving means and ends in

prison administration. See, e.g., Kennedy v. Los Angeles

Police Dep't, 901 F.2d 702, 713 (9th Cir. 1989) ("The

principle that courts must provide wide latitude to prison

policies needed to maintain institutional order and security

necessarily presupposes that the administrators have crafted

those policies with careful deliberation.") (citation omitted).

Public Citizen v. FTC, 869 F.2d 1541, 1557 (D.C.Cir. 1989) ("While

agencies may safely be assumed to have discretion to create exceptions at

the margins of a regulatory field, they are not thereby empowered to weigh

the costs and benefits of regulation at every tum; agencies surely do not

have inherent authority to secondguess Congress' calculations."); Alabama

Power Co. v. Costle, 636 F.2d 323, 358 (D.C.Cir. 1979) ( "Categorical

exemptions from the clear commands of a regulatory statute, though

sometimes permitted, are not favored.").

SEE CL TERE SOUL ARENT OF) ck Gk TE Oe

34a

We would normally be expected to give a healthy dose of

deference to the judgment of prison officials as to their

experience and apprehensions in support of a regulation, but

where, as in these regulations, these same officials were, so

far as we can tell, never consulted on the Amendment's merits

and under its terms are not allowed to exercise any judgment

about what kinds of nudity or sexually explicit material are

allowed inside the prison walls, I do not believe Safley

permits us simply to assume the existence of evidence

showing a connection between the regulation and a

rehabilitative goal, as we might under rational-basis review

and as the majority has in fact done here.

Safley itself provides a useful example of how too Spartan a

record can doom a regulation. The Court's rejection of the

marriage restriction at issue in that case clearly turned on the

quality of the evidence before the Court; four times the Court

concluded that the regulation was not reasonably related to

penological interests based "on this record." See Safley, 482

U.S. at 97, 107 S.Ct. 2254 ("We conclude that on this record,

the Missouri prison regulation, as written, is not reasonably

related to these penological interests."); id. at 98, 107 S.Ct.

2254 ("Nor, on this record, is the marriage restriction

reasonably related to the articulated rehabilitation goal."); id.

at 99, 107 S.Ct. 2254 ("Moreover, although not necessary to

the disposition of this case, we note that on this record the

rehabilitative objective asserted to support the regulation

itself is suspect."); id. ("On this record, however, the almost

complete ban on the decision to marry is not reasonably

related to legitimate penological objectives.") (emphases

added). This repeated qualification of the Court's negative

conclusion about the validity of the regulation starkly

suggests that while a reasonable relationship might possibly

have been demonstrated between the marriage restriction and

the interests asserted, the prison had failed to present

nce tN a a i a a

CE ee eran Mee ee ee Ree eT ee ee eee eT Te

35a

sufficient evidence to establish that relationship.

The majority's apparent conclusion that the government

bears no responsibility for compiling evidence to support the

breadth of its ban--in other words, that the courts may simply

hypothesize a rational connection--runs counter to the

wisdom of several other circuit courts. See, e.g., Shimer v.

Washington, 100 F.3d 506, 509 (7th Cir. 1996) (prison

administration "must proffer some evidence to support its

restriction of ... constitutional rights" under Safley standard);

Mann v. Reynolds, 46 F.3d 1055, 1061 (10th Cir. 1995)

(invalidating restrictions on contact visits with attorneys,

noting that "defendants were unable to provide any evidence

the restrictions on contact were reasonably related to prison

security"); Muhammad vy. Pitcher, 35 F.3d 1081, 1085 (6th

Cir. 1994) (invalidating prison mail regulation because

"there is no evidence in the record supporting Defendants’

factual claim" that policy was reasonably related to interest in

conserving resources); Walker vy. Sumner, 917 F.2d 382, 386

| (9th Cir. 1990) ("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. An evidentiary showing is required as to each

point."); Waterman, 12 F.Supp.2d at 373 ("To establish that a

legitimate penological interest supports a Statute, a state must

provide evidence that the interest it proffered is the actual

basis for the statute."); Powell y. Riveland, 991 F.Supp.

1249, 1254 (W.D. Wash. 1997) (upholding restriction on

sexually explicit incoming mail where "(p]rior to

implementing the policy, research was done on the effects of

sexually explicit material and the policy/regulation was

written to target those harn. ful materials"). In sum, it is clear,

MT PS Eo Sao Se een oe a co yeh oni aan amma

36a

as Judge Posner has suggested, that the Safley analysis cannot

be met simply on the basis of "pure conjecture." Reed v.

Faulkner, 842 F.2d 960, 963 (7th Cir.1988); see also id.

("[T]o suppose that the wearing of dreadlocks [as an

expression of religious belief] would lead to racial violence

is, on this record, the piling of conjecture upon conjecture.

The potential infringement of the free-speech clause of the

First Amendment is too plain to warrant comment."). Sa/fley

certainly does not stand for the proposition that Congress or

prison officials may "set constitutional standards by fiat."

Whitney v. Brown, 882 F.2d 1068, 1074 (6th Cir. 1989).

I might, therefore, have been able to go along--as the

majority does here--with deferring to Congress had the

government seen fit to proffer evidence that links a ban on

the prohibited publications to rehabilitation or if the

connection between that ban and rehabilitation was so self-

evident that no further evidence was necessary to demonstrate

its reasonableness. But neither event has occurred, and the

majority's once-over-lightly of the scientific literature that

does exist certainly does not accomplish the task, as the

majority itself admits. See Maj. Op. at 200 ("The point of

this is not to suggest that a causal link has been shown. The

array of academic authority on the other side is at least as

substantial, and quite possibly more so."). At best, it can be

said that a few studies have shown a causative relationship

between violent pornography and short-term increases in

aggression--perhaps a helpful finding with regard to the

security interests of prison authorities but next to useless in

determining the effect on any long-term interest in

rehabilitation.’ In all other respects, the relationship between

Of course, the evidence to support a prison regulation need not be in

the form of scholarly studies; affidavits from prison officials could also

suffice as the basis for analysis. See, e.g., Safley, 482 U.S. at 98, 107 S.Ct.

ee eS ee ee eT Te Te oT Te er

CN eee Lone eee eT ar ae men ee ome

37a

pornography and criminal activity is merely correlative,'4 and

there is no evidence that simply viewing nonpornographic

nudity or depictions of sexual activities (as opposed to

pornography) has any effect at all.'* See, e.g, EDWARD

DONNERSTEIN, DANIEL LINZ & STEVEN PENROD, THE

QUESTION OF PORNOGRAPHY 177 (1987) (stating conclusion

of Attorney General's Commission on Pornography that "in

general, the scientific evidence shows no causal relationship

between exposure to [nonviolent and nondegrading sexual]

depictions and acts of sexual violence" and noting that the

authors’ "view of the scientific literature ... is in agreement

with this conclusion"); id. at 40-48 (citing studies finding

that exposing already angered men to nonviolent

pornography can cause a short-term increase in their

aggressive tendencies); Ernest D. Giglio, Pornography in

| Denmark: A Public Policy Model for the United States? in 8

2254 (testimony of prison officials that they had experienced no problems

with the marriages of male inmates relied on as evidence that ban was

overbroad); Harper v. Wallingford, 877 F.2d 728, 733 (9th Cir.1989)

(finding prison regulation banning receipt of material espousing consensual

sexual relationships between male adults and juvenile males to be

reasonably related to rehabilitation based on affidavit from prison

psychiatrist).

‘Correlation cannot be sufficient to satisfy Safley 's requirement of a

“valid, rational connection." Even if it could be shown, for example, that

the majority of those who commit violent crimes are also avid Bible

readers, this finding would not constitute a basis for prohibiting all

prisoners from reading the Bible.

“By pornography, I mean "a depiction (as in writing or painting) of

licentiousness or lewdness: a portrayal of erotic behavior designed to cause

sexual excitement." WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY

1767 (1976). There is, of course, much material that features nudity or

depicts sexual activity that would not qualify as pornography under any

definition, including many highly regarded works of art.

A i i i a aa ea oa tranmeeeed

ee ee eC

38a

COMPARATIVE SOCIAL RESEARCH 281, 285 (Richard F.

Tomasson ed., 1985) ("[A] positive causal relationship

between pornography and sex crimes has not been

documented by criminologists and psychologists."); Berl

Kutchinsky, Obscenity and Pornography: Behavioral

Aspects, in ENCYCLOPEDIA OF CRIME AND JUSTICE 1077,

1083 (Sanford Kadish ed., 1983) (noting that the authoritative

studies on the link between pornography and crime have

concluded that there is apparently no causative relationship

between nonviolent pornography and sex crimes). Indeed, it

is unclear even in the studies finding a positive connection

between violent pornography and aggressive behavior

whether the aggression is due to the violent content of the

material or its sexual content. See, e.g., LARRY BARON &

MuRRAY A. STRAUS, FOUR THEORIES OF RAPE IN AMERICAN

SOCIETY 8 (1989) ( "It seems reasonable to conclude ... that it

is the violent content rather than the sexual content that

facilitates aggression."); RICHARD A. POSNER, SEX AND

REASON 368 (1992) ("[T]he effects [of violent pornography]

may be due to the violence per se rather than to the erotic

component."). Thus, while it is entirely possible that a

narrower publication ban than that accomplished by the

Amendment could be supported by the available literature,

cf., e.g., Dawson, 986 F.2d at 262 (upholding regulation

limiting time, place, and conditions under which certain

inmates could view materials), neither the government nor

the majority has laid the barest foundation for the far-

reaching ban promulgated. The majority's level of comfort in

relying on any statement of any legislator as to what he thinks

will encourage rehabilitation as the sole basis for taking away

a First Amendment right is very surprising to me, especially

since its holding today goes far beyond what any court has

previously condoned in depriving prisoners of constitutional

rights on the mere assertion of a legislator that he supposes

rehabilitation to be so advanced.

39a

In this respect, I believe that it needs to be stressed that the

assertion of "rehabilitation" as the reason for impinging on

prisoners' First Amendment rights _ is particularly

disconcerting in its potential for abuse. Unlike its interest in

institutional security, the contours of the government's

interest in rehabilitation are quite amorphous and ill-defined.

At the most basic level, the goal of rehabilitation might be

Stated as returning the prisoner to society in a state so that he

will henceforth behave in a law- abiding manner, but no one,

not even Congress, is so immodest as to claim secure

knowledge of how this goal is to be achieved in individual

cases, let alone in the aggregate; most often, rehabilitation

efforts involve therapy, drug and alcohol counseling, basic

education, or job training, but even in these positive attempts,

the results are far from reassuring. Against that backdrop, it

is extremely difficult, if not impossible, to ascertain precisely

if or how a particular publication may work to frustrate the

rehabilitative goals of prisoners. To start with, there is no

consensus on whether in order to transform a law violator

into a good citizen, he must be "remolded" attitudinally and

instilled with desirable values or whether it is sufficient that

he be convinced that further criminal activity would be

counterproductive in his own case, whatever his vision of

society or the world. Rehabilitation may also be viewed--in

the majority's parlance--as an effort to direct the "character

growth" of prisoners by limiting the reading materials to

which he has access. See Maj. Op. at 198-199. But,

whatever the rehabilitative vision, it should not be possible to

proceed on some vague assertion of an interest in

"rehabilitation" without the need to define the term or to

show a connection between the proscribed activity and the

chosen definition; to do so runs an overwhelming risk of

overregulation and invasion of the innermost recesses of the

human mind and spirit. Indeed, undertaking the Herculean

task of "character-molding" is inherently problematic in its

40a

First Amendment implications, for it presumably involves

casting emerging prisoners in society's own image. This, of

course, is the antithesis of First Amendment freedoms;

indeed, "[t]otalitarian ideologies we profess to hate have

styled as ‘rehabilitation’ the process of molding the

unorthodox mind to the shape of prevailing dogma." Sobeil

v. Reed, 327 F. Supp. 1294, 1305 (S.D.N.Y. 1971); cf, e.g.,

Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S.

503, 511, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) (noting "this

Nation's repudiation of the principle that a State might so

conduct its schools as to foster a homogeneous people")

(internal quotation omitted). Under this theory, lawmakers

who believe that books on Russian history may lead to

disrespect for the United States may ban those books for

prisoners; lawmakers who hold pro-life views may prevent

prisoners from reading publications describing Roe v. Wade;

and lawmakers who hold an antiquated view of the role

women should play in society may ban the distribution in

prisons of publications with feminist themes. Each of these

actions could logically be taken in the name of rehabilitation,

broadly defined, and each, without doubt, would contribute to

a continual evisceration of the First Amendment rights of

prisoners. Cf, e.g., Stanley v. Georgia, 394 U.S. 557, 565-

66, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969) ("Our whole

constitutional heritage rebels at the thought of giving

government the power to control men's minds.... [I]t cannot

constitutionally premise legislation on the desirability of

controlling a person's private thoughts."); McCabe v. Arave,

827 F.2d 634, 638 (9th Cir.1987) ("Given the strength of

First Amendment protection for freedom of belief, prison

authorities have no legitimate penological interest in

excluding religious books from the prison library merely

because they contain racist views.") (citation omitted);

American Booksellers Ass'n, Inc. v. Hudnut, 771 F.2d 323,

330 (7th Cir.1985), affd mem., 475 U.S. 1001, 106 S.Ct.

4la

1172, 89 L.Ed.2d 291 (1986) ("If the fact that speech plays a

role in a process of conditioning were enough to permit

governmental regulation, that would be the end of freedom of

speech."). These examples may sound extreme--they are--but

the majority's rationale easily encompasses them in its

umbrella-like authorization for restricting prisoners’ reading

material on the basis of a minimum plausibility test for tying

the censorship to some vague rehabilitation concept.

Even if the goal of rehabilitation is a more modest one--to

convince the prisoner his own best interest lies in avoiding

future crime--it is hard to see how that goal is furthered by

returning him unequipped to be an intelligent customer in the

marketplace of ideas. And while serious questions may well

be raised about the value of some of the publications banned

under the Amendment, there is much that falls under this

broad ban that speaks intelligently to mankind, including

prisoners: Michelangelo's David, for example, or grim

photographs of naked bodies piled in the pits of Germany's

concentration camps.'* There is even a potential for such

depictions of nudity to strike a life-changing chord with some

"The majority suggests that the application of the regulations to

prohibit artistic depictions of nudity or to documentary photographs of

wartime atrocities would be "bizarre." See Maj. Op. at 201-202. But, in

fact, even the regulations do not provide for any exceptions to the nudity

ban based on a publication's artistic or political content. See 28 C.F.R. §

540.72(b)(3) (providing possible exception only for nudity "illustrative of

medical, educational, or anthropological content"). And although the

Victoria's Secret catalog and the Sports Illustrated Swimsuit Edition are

listed by the BOP as permissible publications, the basis for their exclusion

from the ban is left to conjecture. Cf. id. § 540.72(b)(2) (defining "nudity"

as "a pictorial depiction where ... female breasts are exposed"). As for the

notion that explicit descriptions of sexual activities and nudity are still

permitted (an illustrated version of Henry Miller's Tropic of Cancer is

banned but a nonillustrated version is not), this only underscores the

arbitrariness of the rehabilitative nexus.

42a

prisoners, a change that should not be prevented from coming

to fruition. Malcolm X wrote of his prison experience:

I have often reflected upon the new vistas that reading

opened to me. I knew right there in prison that reading had

changed forever the course of my life. As I see it today, the

ability to read awoke inside me some long dormant craving

to be mentally alive.... My homemade education gave me,

with every book that I read, a little bit more sensitivity to

the deafness, dumbness, and blindness that was afflicting

the black race in America.

ALEX HALEY & MALCOLM X, THE AUTOBIOGRAPHY OF

MALCOLM X 180 (1965)."”

If rehabilitation is to be deemed a legitimate penological

interest, the term must be given some shape, at least when it

collides with fundamental liberties. Of course, as the

majority notes, the Constitution has nothing to say about

what messages the government may choose to communicate

as a speaker. See, e.g., Rust v. Sullivan, 500 U.S. 173, 193,

111 S.Ct. 1759, 114 L.Ed.2d 233 (1991) ("The Government

can, without violating the Constitution, selectively fund a

program to encourage certain activities it believes to be in the

public interest, without at the same time funding an alternate

program which seeks to deal with the problem in another

way."). Congress or the BOP may make whatever

recreational reading it wishes available in the prison libraries

without offending the Constitution; they may even provide

each prisoner with a tract on the harms of pornography in the

hope that some readers will take its lessons to heart. But it is

quite a different matter for prisons to deny all access to

certain publications in the name of rehabilitation, particularly

"Of course, lawmakers who believe that Malcolm X inspires

separatism and racial consciousness may, under the "remolding" theory of

rehabilitation, prohibit prisoners from reading his writings as well.

43a

in such a broad and overreaching manner as this one. If

prisoners are to retain any First Amendment rights, the mere

assertion of "rehabilitation" as the interest to be served by a

particular regulation cannot serve to extinguish those rights

altogether.

Because the Amendment and the regulations eliminate the

discretion of prison wardens to make individual

determinations about how particular publications will affect

particular prisoners in particular prison settings, even

rehabilitatively, I believe it was incumbent upon the

government to point to some evidence demonstrating a

connection between all publications that are sexually explicit

or that feature nudity and a tendency to engage in criminal or

disruptive behavior, keeping in mind that our task is to

determine whether such a connection is reasonably likely to

exist, not whether one might be conceivable. Cf, e.g.,

Mauro, 147 F.3d at 1142-44 (considering whether all

materials depicting nudity are "reasonably likely" to cause

violence or to be used to harass guards). Neither the

government nor the majority has pointed to any such

evidence.

Indeed, the proposition that all material that is sexually

explicit or that features nudity will have a detrimental effect

on rehabilitation is belied by the prior actions of the prison

officials under the pre-Amendment policy. At that time,

prison officials were authorized to prohibit sexually explicit

materials that they believed would negatively affect the

discipline or "good order" of the institution. Significantly,

the prison officials--to whose expertise the Supreme Court

has repeated deferred on matters stich as this--did not choose

to prohibit all material that is sexually explicit or that features

nudity. Rather, they evaluated the publications individually

to determine which ones, in their expert opinions, posed a

44a

potential threat and which did not; indeed, as the majority

notes, “explicit heterosexual material" was _ ordinarily

admitted. See Thornburgh, 490 U.S. at 405 n.6, 109 S.Ct.

1874 (quoting Program Statement 5266.5(b)(2)). It was this

"individualized nature" of the determinations that led the

Thornburgh Court to conclude that the regulations at issue in

that case were rationally related to security interests, the

nature of which, like rehabilitation, can change over time."®

See Thornburgh, 490 U.S. at 417, 109 S.Ct. 1874 ("We agree

that it is rational for the Bureau to exclude materials that ...

are determined by the warden to create an intolerable risk of

disorder under the conditions of a particular prison at a

particular time.").

'"t¢ should be noted in this respect that a seemingly innocuous

publication may be quite detrimental to a prisoner's rehabilitation,

depending on the circumstances. See, e.g., Waterman, 12 F.Supp.2d at 367-_

68, 368-69 (citing concerns of prison officials that pictures of children from

the Sears catalog should not be seen by pedophile prisoners).

The need for individualistic determinations when behavior

modification is at stake was also a concern in Washington v. Harper, 494

U.S. 210, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990), in which the Court

upheld a prison policy that permitted the involuntary administration of

antipsychotic drugs to inmates, given that the policy was not unnecessarily

broad and supported by a wealth of evidence:

Its exclusive application is to inmates who are mentally ill and who,

as a result of their illness, are gravely disabled or represent a significant

danger to themselves or others. The drugs may be administered for no

purpose other than treatment, and only under the direction of a licensed

psychiatrist. There is considerable debate over the potential side effects of

antipsychotic medications, but there is little dispute in the psychiatric

profession that proper use of the drugs is one of the most effective means

of treating and controlling a mental illness likely to cause violent behavior.

Id. at 226, 110 S.Ct. 1028.

45a

Because I believe that, on this record, there is no basis for

concluding that there is a rational connection between the

interest asserted by the government--rehabilitation--and the

restriction chosen to further that interest--a ban on the

delivery to all federal prisoners of all publications that are

sexually explicit or that feature nudity, I would affirm the

decision of the district court. As the majority considers the

remaining Safley factors, however, I will also offer a few

thoughts.

The second Safley factor considers whether there are

"alternative means of exercising the right that remain open to

prison inmates." Safley, 482 U.S. at 90, 107 S.Ct. 2254.

Although this right must be viewed "sensibly and

expansively," Thornbyrgh, 490 U.S. at 417, 109 S.Ct. 1874,

it cannot be viewed so broadly as to eliminate any reason for

analysis (or as unhelpfully as the majority's sardonic

reference to an "entitlement to smut"). The Thornburgh

Court, for example, noted that although the regulation under

consideration in that case permitted the warden to make

individualized determinations as to each publication, an

exercise of discretion that might appear to produce

inconsistent results, "greater consistency might be attainable

only at the cost of a more broadly restrictive rule against

admission of incoming publications," which "might itself run

afoul of the second [Safley] factor." Jd. at 417 n. 15, 109

S.Ct. 1874. Because the Amendment eliminates a wide

variety of publications that feature nudity for artistic or other

reasons, prisoners do not have sufficient means of exercising

their right to receive many constitutionally protected

materials. Cf, e.g., Mauro, 147 F.3d at 1144 ("[I]n direct

contradiction of the Supreme Court's cautionary language in

Thornburgh, Maricopa County has enacted a regulation that

sweeps too broadly, indiscriminately eliminating large

categories of materials without individualized

46a

consideration.").

The third factor considers "the impact accommodation of

the asserted constitutional right will have on guards and other

inmates." Safley, 482 U.S. at 90, 107 S.Ct. 2254. Where the

institutional interest asserted for a publication ban is security,

accommodation of the inmate's First Amendment rights may

indeed cause the "ripple effect" of which the Safley Court

warned, see id.; a breach of security with respect to one

prisoner is likely to result in other breaches in the prison. In

this case, however, there is no evidence by which to judge

whether permitting certain inmates to view publications that

are sexually explicit or that feature nudity will have an

adverse effect on the rehabilitation of other inmates.

Rehabilitation is a gradual process, and it is entirely possible

that any momentary lapses caused by the inadvertent receipt

of an inappropriate publication may be reversed with

additional rehabilitative efforts. This is not true of security

breaches: Once an inmate has received information on how

to escape from the prison, he cannot be made to forget it. It

thus cannot be concluded, on this record, that accommodation

of Amatel's First Amendment right will have a significant

effect on the rehabilitation of other inmates.

Finally, the fourth factor considers whether there are

“obvious, easy alternatives" that "fully accommodate[ | the

prisoner's rights at de minimis cost to valid penological

interests"; if so, this may be evidence that the regulation is

an “exaggerated response" to prison concerns, /d. at 90-91,

107 S.Ct. 2254. One such alternative comes immediately to

mind: the preAmendment policy, under which wardens had

discretion to examine each incoming publication and

determine whether institutional interests favored its

prohibition. |The Court's approval of this policy in

Thornburgh eliminates any concerns the majority might have

47a

that such a policy would be deemed arbitrary or particularly

burdensome; indeed, since prison officials under the current

policy must examine each publication to determine whether it

is sexually explicit or features nudity, the prior policy

arguably represents no additional administrative burden.

Moreover, other aspects of the Amendment suggest that it is

indeed an "exaggerated response" to rehabilitative concerns.

The Amendment does not allow the warden to take into

account whether a prisoner is in a high- or low- security

institution, whether a prisoner is male or female, what kinds

of crimes the prisoner has committed,'® the nature of the

"For example, the government has provided no evidence on why a

ban on nudity is necessary to rehabilitate those convicted of nonsexual

and/or nonviolent crimes. I can think of no reason why an embezzler, a tax

evader, or a person held in contempt for refusing to testify will be

rehabilitated if prevented from looking at publications that "feature" nudity.

(The statements of the only two Members of Congress who offered floor

comments on the Amendment suggest that their concern was with sex

offenders. See 142 Cong. Rec. H8262 (daily ed. July 24, 1996) ("[I]f we

do not adopt my amendment, we are sending the message that it is OK to

provide sexually explicit magazines and books to the very prisoners who

have committed violent acts against women.") (statement of Rep. Ensign);

id. ("Far too often, those individuals convicted of crimes have the

opportunity, while in prison, to use materials that glamorize the very acts

for which they were convicted.") (statement of Rep. Christensen).)

Moreover, the Amendment's ban may also extend to those inmates who

have not yet been convicted but rather are imprisoned while awaiting trial.

The government has not suggested any reason for it to take a rehabilitative

interest in these individuals, nor do I think it can legitimately do so. See,

e.g., McGinnis v. Royster, 410 U.S. 263, 273, 93 S.Ct. 1055, 35 L.Ed.2d

282 (1973) ("[I]}t would hardly be appropriate for the State to undertake in

the pretrial detention period programs to rehabilitate a man still clothed with

a presumption of innocence.").

48a

prisoner's sentence,” how long the prisoner has been

incarcerated and how long he or she has left to serve, whether

the prisoner is receiving rehabilitative treatment,”' or even

whether a prisoner is in a prison environment that provides an

opportunity to share the material with anyone else

(particularly with other prisoners convicted of sex crimes). In

these respects, the Amendment "sweeps much more broadly

than can be explained by [the government's] penological

objectives." Safley, 482 U.S. at 98, 107 S.Ct. 2254

(invalidating ban on all prisoner marriages by noting that

prison officials had experienced no problems with marriages

by male inmates or with inmate civilian marriages; the

prison's rehabilitative concern "appear[ed] from the record to

have been centered almost exclusively on female inmates

marrying other inmates or exfelons," id. at 99, 107 S.Ct.

2254, and thus did not account for the ban on other inmate

marriages).

The majority's decision to remand this case for further

consideration of Amatel's vagueness challenge leaves a

scintilla of hope that this ill-conceived statute will ultimately

fail. Because I cannot agree with the majority's Safley

analysis, however, or with its decision to lift the district

court's injunction in the interim, I respectfully dissent.

*°The government would seem to have less rehabilitative interest in,

for example, prisoners who have been sentenced to life in prison without

parole or to death.

*'In some prisons, material featuring adult nudity is an effective part

of a rehabilitative program. See, e.g, Waterman, 12 F.Supp.2d at 370-71

(citing evidence that adult pornography may be helpful in turning

pedophiles away from child pornography).

49a

CONCLUSION

Justice Holmes once remarked that hard cases make bad law.

See Northern Sec. Co. v. United States, 193 U.S. 197, 400, 24

S.Ct. 436, 48 L.Ed. 679 (1904) (Holmes, J., dissenting).

Claims of prisoners to read magazines like Playboy or

Penthouse may not be the ideal vehicles for the articulation of

First Amendment rights. But, as Dostoyevsky observed, "the

degree of civilization in a society is revealed by entering its

prisons." F. DOSTOYEVSKY, THE HOUSE OF THE DEAD 76 (C,

Garnett trans., 1957). Today's ruling that prisoners may be

stripped of rights to view publications of their choice on the

mere assertion of legislators or regulators--far removed from

the prison scene and without supporting evidence of any

kind--that those publications will hinder their "rehabilitation"

goes well beyond prior precedent and the case law in other

circuits. It is a most troubling precedent.

50a

APPENDIX B

Joseph AMATEL, et al., Plaintiffs,

Vv.

Janet RENO, et al., Defendants.

Civil Action Nos. 96-2774(SS), 96-2790(SS),

97-00475(SS).

United States District Court,

District of Columbia.

Aug. 12, 1997.

Inmates and publishers brought suit, claiming that statute

prohibiting Federal Bureau of Prisons (BOP) from using

federal funds to "distribute or make available" to prisoners

"commercially published information or material" known to

be "sexually explicit or featur[ing] nudity" violated First

Amendment. On plaintiffs’ motion for preliminary/

permanent injunction to prevent enforcement of statute, the

District Court, Sporkin, J., held that statute violated First

Amendment.

Permanent injunction granted.

Joseph Amatel, Pro Se, Marjorie Lynn Rifkin, Margaret

Winter, Nat'l. Prison Project of the ACLU Foundation,

Washington, DC, for Joseph Amatel.

Lee Alphonso Moore, Pro Se, Marjorie Lynn Rifkin,

Margaret Winter, Nat'l. Prison Project of the ACLU

Foundation, Ann Mary Kappler, Jenner & Block, for Lee

Alphonso Moore.

S5la

Daniel J. Levitan, Pro Se.

Vincent Morgan Garvey, David Otto Buchholz, U.S. Dept.

of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

SPORKIN, District Judge.

These consolidated cases involve First Amendment

challenges to Section 614 of the Omnibus Appropriations Act

of 1997, Pub.L. No. 104-208, § 614, 110 Stat. 3009 (Sept. 30,

1996), which prohibits the Federal Bureau of Prisons

("BOP") from using federal funds to "distribute or make

available" to prisoners "commercially published information

or material" known to be "sexually explicit or featur[ing]

nudity." This provision, which was introduced by

Representative John Ensign, has come to be known as the

"Ensign Amendment."

Plaintiffs Joseph Amatel, Lee Alphonso Moore, and Daniel

J. Levitan ("prisoner Plaintiffs") are incarcerated in federal

prisons. Since enactment of the Ensign Amendment, BOP

staff have rejected several publications addressed to prisoner

Plaintiffs. Plaintiffs Playboy Enterprises, Inc., General

Media Communications and Periodical and Book Association

of America, Inc. ("publisher Plaintiffs") publish or represent

publishers of periodicals and other publications containing

material that would be banned by the Ensign. Amendment and

its new implementing regulation. The publisher Plaintiffs

have been notified that from now on their publications will

not be delivered to inmates, and their publications will be

routinely rejected by the BOP.

This matter is now before the Court on the Plaintiffs' motion

52a

for a preliminary/permanent injunction ‘to prevent

enforcement of the Ensign Amendment, and Defendant's

opposition thereto. The Court heard oral argument in this

matter on June 25, 1997. For the reasons stated below, the

Court finds that the Ensign Amendment, on its face, violates

the First Amendment. Accordingly, the Court grants

Plaintiffs' motion for permanent injunctive relief.

FACTUAL BACKGROUND

Federal prison authorities have long monitored and

controlled the distribution of publications inside prison walls.

Distribution of publications in federal prisons is controlled

pursuant to regulations originally issued by the BOP in 1979

("1979 regulations"). 28 C.F.R. § 540.71. The 1979

regulations give wardens the authority to keep prisoners from

receiving publications only if the wardens determine that the

material is "detrimental to the security, good order, or

discipline of the institution or if [the publication] might

facilitate criminal activity." 28 C.F.R. § 540.71(b). The

regulations also specifically forbid the rejection of "a

publication solely because its content is_ religious,

philosophical, political, social or sexual, or because its

content is unpopular or repugnant.” /d.

The policy does not permit wardens to create a list of

prohibited publications. Rather, each individual issue has to

‘Although Plaintiffs seek permanent injunctive relief in their

complaint, their written motion only seeks a preliminary injunction. At the

hearing on this matter, the parties agreed that on the record before it, if the

Court found the statute facially unconstitutional, it could grant permanent

injunctive relief.

53a

be reviewed by a warden prior to rejection. 28 C.F.R. §

540.71(c). While sexually explicit material can be rejected at

a wardens discretion, the Program Statement expressly notes

that sexually explicit heterosexual material will "ordinarily be

admitted."* The Supreme Court upheld the constitutionality .

of the 1979 regulations in Thornburgh v. Abbott, 490 U.S.

>The Program Statement to the 1979 regulations stated that:

(a) A Warden may determine that sexually explicit material of the

following types is to be excluded, as potentially detrimental to the

security, good order, or discipline of the institution, or facilitating

criminal activity:

(1) Homosexual (of the same sex as the institution population)

(2) Sado-masochistic

(3) Bestiality

(4) Involving children.

(b) The following points should be emphasized:

(1) It ‘s the local Warden's decision (except for the child-

mode’ .aterials which are prohibited by law)--a sexually explicit

homosexual publication for example may be admitted if it is

determined not to pose a threat at the local institution;

(2) Explicit heterosexual material will ordinarily be admitted;

(3) Sexually explicit material does notnclude material of a

news or information type--publications covering the activities of

gay rights organizations or gay religious groups, for example,

should be admitted;

(4) Literary publications should not be excluded, solely

because of homosexual themes or references, if they are not

sexually explicit, and

(5) Sexually explicit material may nonetheless be admitted if

it has scholarly value, or general social or literary value.

publications. This means the Warden shall review the individual

publication prior to the rejection of that publication. Rejection of

several issues of a subscription publication is not sufficient reason

to reject the subscription publication in its entirety.

Program Statement No. 5266.07, reprinted in Abbott v. Meese, 824 F.2d

1166, 1177 (D.C.Cir.1987), vac'd and remanded sub nom., Thornburgh v.

Abbott, 490 U.S. 401, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989).

54a

401, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989).

On September 30, 1996, President Clinton signed into law

the Omnibus Budget Act of Fiscal Year 1997, P.L. 104-208,

110 Stat. 3009. Section 614 of the Act, known as the Ensign

Amendment, states in its entirety:

None of the funds made available in this Act to the

Federal Bureau of Prisons may be used to distribute or

make available any commercially published information

or material to a prisoner when it is made known to the

Federal official having authority to obligate or expend

such funds that such information or material is sexually

explicit or features nudity.

Pub.L. No. 104-208, § 614, 110 Stat. 3009 (Sept. 30, 1996).

The Ensign Amendment was enacted as an attachment to a

comprehensive budgetary bill. No hearings were held by

Congress in enacting the Ensign Amendments and no

committee report was issued. No discussion of the statute

appears in any Conference Report. The only statements made

on the floor of the House regarding the Amendment reflect a

desire

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