# Petition for Writ of Certiorari — Amatel v. Reno

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1999
- **Citation:** 527 U.S. 1035

## Text

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,
v.

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

i
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?

il
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

iV
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

—————

Vv

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.

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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:

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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

4

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.

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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

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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.

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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).

8

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

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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.

10

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

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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.

12

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

13

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

i4

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

15

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.

16

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.

17

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

18

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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19

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

ee OL GE Te ee ME ETT

20

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).

21

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

22

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

23

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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25

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

26

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

27
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

la

APPENDIX A

Joseph AMATEL, et al., Appellees
v.
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.

2a

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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3a

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.

4a

"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

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5a

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.

6a

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.

7a

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).

8a

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

9a

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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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

Se

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.").

EE
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1406%3A1. Public record. Not legal advice.