Thornburgh v. Abbott/Concurrence Stevens

by John Paul Stevens

Justice STEVENS, with whom Justice BRENNAN and Justice MARSHALL join, concurring in part and dissenting in part.

An article in Labyrinth, a magazine published by the Committee for Prisoner Humanity & Justice, began as follows:

"In January 1975, William Lowe, a black prisoner at the

United States Penitentiary at Terre Haute, Indiana died of asthma. . . . In August 1975, Joseph (Yusef) Jones, Jr., a black prisoner at the U.S. Penitentiary, Terre Haute, IN. died of asthma.

". . . The prison infirmary at that time had only one respirator[,] known to be inoperative in January 1975 when William Lowe died. It was still broken in August 1975 when Joseph Jones needed it.

"On the day of his death Jones was suffering an acute asthma attack; he was gasping for breath in the stale, hot, humid air in the cell. He requested medical aid of the guards. After several hours of unheeded pleading, accompanied by complaints to the guards from fellow prisoners in the cell block, Jones became frantic. Each breath was painful; each breath brought him closer to suffocation. Finally, guards called the PA (physician's assistant) . . ., who brought with him the broken respirator. Finding the equipment unusable, the PA gave Jones an injection of the tranquilizer, thorazine, to calm him. Treatment with a tranquilizer was unquestionably contraindicated by Jones' medical condition. Twenty minutes later, Jones was dead.

* * * * *

"Conclusion: Jones, who was convicted of bank robbery and sentenced to 10 years in prison, was in fact, sentenced to death and was murdered by neglect." ^[1]

The incident described above eventually came to the attention of this Court, which allowed Jones' mother to pursue her civil rights action against prison officials. Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980). Clearly the Labyrinth article's report of inadequate medical treatment of federal prisoners raised "a matter that is both newsworthy and of great public importance." Pell v. Procunier, 417 U.S. 817, 830, n. 7, 94 S.Ct. 2800, 2808, n. 7, 41 L.Ed.2d 495 (1974). As the Court concedes, ante, at 407, both publishers and recipients of such criticism ordinarily enjoy the fullest First Amendment protections. ^[2] See Pell, supra, at 822, 94 S.Ct., at 2804; Martin v. Struthers, 319 U.S. 141, 146-147, 63 S.Ct. 862, 865, 87 L.Ed. 1313 (1943).

Yet Labyrinth's efforts to disseminate the article to its subscribers at Marion Federal Penitentiary met Government resistance. Marion officials, acting within Federal Bureau of Prisons (Bureau) regulations, ^[3] returned the magazine on the ground that "the article entitled 'Medical Murder' would be detrimental to the good order and discipline of this institution. . . . [T]his type of philosophy could guide inmates in this institution into situations which could cause themselves and other inmates problems with the Medical Staff." J.L. 12. Two years after publication a Marion official testified that he believed the article had posed no threat. App. 104. Nonetheless, the District Court below found the suppression of this and 45 other publications "reasonable," and thus sustained the rejections wholesale. App. to Pet. for Cert. 28a-34a, 47a. This Court holds today that such carte blanche deference was improper and remands for case-by-case review. I agree with this aspect of the Court's decision. I cannot agree, however, with either its holding that another finding of "reasonableness" will justify censorship or its premature approval of the Bureau's regulations. These latter determinations upset precedent in a headlong rush to strip inmates of all but a vestige of free communication with the world beyond the prison gate. ^[4]

* This Court first addressed the First Amendment in the prison context in Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974). Prior lower court treatments had varied: some courts had maintained "a hands-off posture," while others had required "demonstration of a 'compelling state interest' to justify censorship of prisoner mail." Id., at 406, 94 S.Ct., at 1808. With characteristic wisdom Justice Powell, in his opinion for the Court, rejected both extremes. The difficulties of prison administration, he perceived, make the strict scrutiny that the First Amendment demands in other contexts inappropriate. ^[5] See, e.g., First National Bank of Boston v. Bellotti, 435 U.S. 765, 786, 98 S.Ct. 1407, 1421, 55 L.Ed.2d 707 (1978); Elrod v. Burns, 427 U.S. 347, 362, 96 S.Ct. 2673, 2684, 49 L.Ed.2d 547 (1976) (opinion of BRENNAN, J.); Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S.Ct. 1827, 1829, 23 L.Ed.2d 430 (1969) (per curiam ). Focusing not on the rights of prisoners, but on the "inextricably meshed" rights of nonprisoners "who have a particularized interest in communicating with them," he wrote that an "undemanding standard of review" could not be squared with the fact "that the First Amendment liberties of free citizens are implicated in censorship of prisoner mail." Martinez, supra, 416 U.S., at 408, 409, 94 S.Ct., at 1808, 1809. Thus he chose an "intermediate" means of evaluating speech restrictions, 416 U.S., at 407, 94 S.Ct., at 1808, allowing censorship if it "further[ed] an important or substantial governmental interest unrelated to the suppression of expression," and "the limitation of First Amendment freedoms [was] no greater than [was] necessary or essential," id., at 413, 94 S.Ct., at 1811. "Prison officials may not censor inmate correspondence simply to eliminate unflattering or unwelcome opinions or factually inaccurate statements," Justice Powell stressed. Ibid. Censorship might be permitted, however, to ensure "the preservation of internal order and discipline, the maintenance of institutional security against escape or unauthorized entry, and the rehabilitation of the prisoners." Id., at 412, 94 S.Ct., at 1811 (footnote omitted). Prison administrators did not have "to show with certainty that adverse consequences would flow from the failure to censor a particular letter," but "any regulation or practice that restricts inmate correspondence must be generally necessary to protect one or more of the legitimate governmental interests identified above." Id., at 414, 94 S.Ct., at 1811-1812. ^[6]

In the 15 years since Martinez was decided, lower courts routinely have applied its standard to review limitations not only on correspondence between inmates and private citizens, but also on communications-such as the newsletters, magazines, and books at issue-between inmates and publishers. ^[7] Carefully examining free speech rights and countervailing governmental interests, these courts approved some restrictions and invalidated others. ^[8] This Court thus correctly recognizes that Martinez's standard of review does not deprive prison officials of the discretion necessary to perform their difficult tasks. Ante, at 409. Inexplicably, it then partially overrules Martinez by limiting its scope to outgoing mail; letters and publications sent to prisoners now are subject only to review for "reasonableness." Ante, at 413-414.

This peculiar bifurcation of the constitutional standard governing communications between inmates and outsiders is unjustified. The decision in Martinez was based on a distinction between prisoners' constitutional rights and the protection the First Amendment affords those who are not prisoners-not between nonprisoners who are senders and those who are receivers. As Justice Powell explained:

"Whatever the status of a prisoner's claim to uncensored correspondence with an outsider, it is plain that the latter's interest is grounded in the First Amendment's guarantee of freedom of speech. And this does not depend on whether the nonprisoner correspondent is the author or intended recipient of a particular letter, for the addressee as well as the sender of direct personal correspondence derives from the First and Fourteenth Amendments a protection against unjustified governmental interference with the intended communication. . . . The wife of a prison inmate who is not permitted to read all that her husband wanted to say to her has suffered an abridgment of her interest in communicating with him as plain as that which results from censorship of her letter to him." 416 U.S., at 408-409, 94 S.Ct., at 1809 (citations omitted).

The Court today abandons Martinez's fundamental premise. In my opinion its suggestion that three later opinions applying reasonableness standards warrant this departure, see ante, at 410, n. 9, is disingenuous. Those cases did involve communications between inmates and outsiders; however, as I shall demonstrate, their legal and factual foundations differed critically from those in Martinez or in this case.

In Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974), inmates and reporters challenged regulations prohibiting face-to-face media interviews with specific prisoners. Id., at 819, 94 S.Ct., at 2802. The infringement on prisoners' rights, the Court held, was reasonable because prisoners could write letters to the media-a means of communication less disruptive than the physical entry of reporters into the prison. Id., at 824, 94 S.Ct., at 2805. The reporters' assertion of a special right of access could not prevail, the Court explained, because the First Amendment does not give the media greater access to public events or institutions-including prisons-than it gives ordinary citizens. ^[9] Id., at 835, 94 S.Ct., at 2810. Pell in no way diluted the basic distinction articulated in Martinez.

Inmates in Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977), had maintained that First Amendment associational rights protected their efforts to form a union. The Court concluded that the administrators' grounds for preventing union organizing within the prison-an activity occurring largely among inmates-ere reasonable. Id., at 129, 97 S.Ct., at 2539. It also approved the officials' refusal to deliver bulk packets of union literature to specific inmates for distribution to others. Applying Equal Protection Clause as well as First Amendment standards, the Court held that the restriction was reasonable because it was limited in scope and because the union retained "other avenues of outside informational flow. . . ." Id., at 131, 97 S.Ct., at 2540; see id., at 133, 136, 97 S.Ct., at 2541, 2543.

In the third case, Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), the Court upheld a regulation that allowed only publishers, bookstores, and book clubs to mail hardbound books to pretrial detainees. Hardbacks might serve as containers for contraband, jail administrators argued. Since the risk of improper use by publishers and similar sources was low, the jail delivered books from them but not from other outsiders. Id., at 549, 99 S.Ct., at 1879. The Court found this explanation acceptable and held that the rule did not violate the detainees' First Amendment rights. Id., at 550, 99 S.Ct., at 1880. Although the Court did not expressly address the rights of nonprisoners, the fact that softcover publications were delivered without restriction, see id., at 552, 99 S.Ct., at 1881, minimized the abridgment of outsiders' rights. The approval in Wolfish of greater protection for publishers than for individual citizens reinforces Martinez's view that the First Amendment rights of nonprisoners must be carefully weighed and undermines the Court's approach today.

Most recently, Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), confirmed the vitality of Martinez for evaluating encroachments on the First Amendment rights of nonprisoners. The Court relied on the three interim "prisoners' rights" cases to establish a reasonableness standard for reviewing inmate-to-inmate correspondence. Id., at 89, 107 S.Ct., at 2261. But in its unanimous invalidation of a restriction on inmate marriages, the Court acknowledged that "because the regulation may entail a 'consequential restriction on the [constitutional] rights of those who are not prisoners,' " Martinez might posit the correct level of review. 482 U.S., at 97, 107 S.Ct., at 2266 (quoting Martinez, 416 U.S., at 409, 94 S.Ct., at 1809). It did not "reach this question, however, because even under the reasonable relationship test, the marriage regulation does not withstand scrutiny." ^[10] 482 U.S., at 97, 107 S.Ct., at 2266.

The Turner opinion cited and quoted from Martinez more than 20 times; not once did it disapprove Martinez's holding, its standard, or its recognition of a special interest in protecting the First Amendment rights of those who are not prisoners. Notwithstanding, today the Court abandons the premise on which Martinez was grounded. This casual discarding of " 'the secure foundation' " of considered precedent ill serves the orderly development of the law. See Runyon v. McCrary, 427 U.S. 160, 190-191, 96 S.Ct. 2586, 2604, 49 L.Ed.2d 415 (1976) (STEVENS, J., concurring) (quoting B. Cardozo, The Nature of the Judicial Process 149 (1921)).

In lieu of Martinez's rationale, which properly takes into consideration the effects that prison regulations have on the First Amendment rights of nonprisoners, the Court applies a manipulable "reasonableness" standard to a set of regulations that too easily may be interpreted to authorize arbitrary rejections of literature addressed to inmates. As I pointed out in my partial dissent in Turner, an

"open-ended 'reasonableness' standard makes it much too easy to uphold restrictions on prisoners' First Amendment rights on the basis of administrative concerns and speculation about possible security risks rather than on the basis of evidence that the restrictions are needed to further an important governmental interest." 482 U.S., at 101, n. 1, 107 S.Ct., at 2268, n. 1.

To be sure, courts must give prison administrators some berth to combat the "Herculean obstacles" blocking their efforts to maintain security and prevent escapes or other criminal conduct, see Martinez, 416 U.S., at 404, 94 S.Ct., at 1807 and I do not object to those regulations clearly targeted at such interests. ^[11] Nevertheless, I agree with the Court of Appeals that provisions allowing prison officials to reject a publication if they find its contents are "detrimental" to "security, good order, or discipline" or "might facilitate criminal activity" are impermissibly ambiguous. See Abbott v. Meese, 263 U.S.App.D.C. 186, 193, 824 F.2d 1166, 1173 (1987). The term "detrimental" invites so many interpretations that it scarcely checks administrators' actions. Similarly, "might facilitate"-in contrast with "encourage" or "advocate"-so attenuates the causal connection between expression and proscribed conduct that the warden has virtually free rein to censor incoming publications.

Despite this vagueness, the Court accepts petitioners' assertion that they need "broad discretion" to prevent internal disorder, and thus holds that all the regulations are facially valid. See ante, at 416. This premature leap of faith creates a presumption that rejections pursuant to these regulations are "reasonable"-a presumption that makes likely far less judicial protection of publishers' rights than I believe the First Amendment requires. As was Justice BLACKMUN in Block v. Rutherford, 468 U.S. 576, 593, 104 S.Ct. 3227, 3236, 82 L.Ed.2d 438 (1984) (concurring in judgment), I am concerned that the Court today too readily "substitute[s] the rhetoric of judicial deference for meaningful scrutiny of constitutional claims in the prison setting." Cf. O'Lone v. Estate of Shabazz, 482 U.S. 342, 358, 107 S.Ct. 2400, 2409, 96 L.Ed.2d 282 (1987) (BRENNAN, J., dissenting); Jones, 433 U.S., at 142-143, 97 S.Ct., at 2546 (MARSHALL, J., dissenting).

The feeble protection provided by a "reasonableness" standard applied within the framework of these regulations is apparent in this record. ^[12] Like the Labyrinth issue, many of the 46 rejected publications criticized prison conditions or otherwise presented viewpoints that prison administrators likely would not welcome. ^[13] Testimony by one mail clerk ^[14] and the rote explanations for decisions ^[15] suggest that rejections were based on personal prejudices or categorical assumptions rather than individual assessments of risk. Cf. Martinez, 416 U.S., at 415, 94 S.Ct., at 1812. These circumstances belie the Court's interpretation of these regulations as "content-neutral" and its assertion that rejection decisions are made individually. See ante, at 414-417. Some of the rejected publications may represent the sole medium for conveying and receiving a particular unconventional message; thus it is irrelevant that the regulations permit many other publications to be delivered to prisoners. See ante, at 417-418. No evidence supports the Court's assumption that, unlike personal letters, these publications will circulate within the prison and cause ripples of disruption. ^[16] See ante, at 412, 418. Nor is th re any evidence that an incoming publication ever caused a disciplinary or security problem; indeed, some of the rejected publications were delivered to inmates in other prisons without incident. See App. 60, 99, 116-117. In sum, the record convinces me that under either the Martinez standard or the more deferential "reasonableness" standard these regulations are an impermissibly exaggerated response to security concerns. Cf. Turner, 482 U.S., at 89-90, 107 S.Ct., at 2261-2262.

If a prison official deems part of a publication's content even just one page of a book-to present an intolerable security risk, the Bureau's regulations authorize the official to return the entire issue to the publisher. See 28 CFR § 540.71(e) (1988). In their challenge to this all-or-nothing rule, respondents argue that First Amendment interests easily could be accommodated if administrators omitted the objectionable material and forwarded the rest of the publication to the inmate. The District Court, however, found that "defendants' fears" that "such censorship would create more discontent than the current practice" were "reasonably founded." App. to Pet. for Cert. 34a. To the contrary, the Court of Appeals applied the Martinez standard and held that "rejection of the balance is not 'generally necessary' to protect the legitimate governmental interest involved in the portion properly rejected." 263 U.S.App.D.C., at 193-194, 824 F.2d, at 1173-1174.

In this Court petitioners argue that on remand the Court of Appeals should conduct "a detailed analysis of the evidence in this case" to determine if the all-or-nothing rule is "reasonable." Brief for Petitioners 31. "The validity of that policy," they continue, "will depend, among other things, on the security and administrative justifications for that policy, the availability of alternative courses of action, and the costs and risks associated with employing those alternatives." Ibid. It is remarkable that after 16 years of litigation petitioners have failed to develop an argument that tells us anything about the assumed security or administrative justification for this rule. Even more remarkable is the Court's conclusion that since it does not apply the Martinez standard, it need not examine the appropriateness of the District Court's finding that the rule was reasonable. See ante, at 419. A review of the record reveals that the Court thus defers to "findings" of a security threat that even prison officials admitted to be nonexistent.

There is no evidence that delivery of only part of a publication would endanger prison security. ^[17] Rather, the primary justification advanced for the all-or-nothing rule was administrative convenience. See App. 41, 68. The Bureau has objected that a contrary rule "would mean defacing the material and laboriously going over each article in each publication. . . ." 44 Fed.Reg. 38258 (1979). But general speculation that some administrative burden might ensue should not be sufficient to justify a meat-ax abridgment of the First Amendment rights of either a free citizen or a prison inmate. It is difficult even to imagine such a burden in this instance: if, as the regulations' text seems to require, prison officials actually read an article before rejecting it, the incremental burden associated with clipping out the offending matter could not be of constitutional significance. The Bureau's administrative convenience justification thus is insufficient as a matter of law under either the Martinez standard or a "reasonableness" standard. The District Court's contradictory finding simply highlights the likelihood that an attitude of broad judicial deference, coupled with a "reasonableness" standard, will provide inadequate protection for the rights at stake. ^[18]

For these reasons, I would affirm the judgment of the Court of Appeals.

Notes

1. Medical Murder, 4 Labyrinth 5 (Apr. 1977) (emphasis in original), reprinted in Joint Lodging 18 (J.L.).
2. This Court has recognized:
3. In part, the regulations state that the "Bureau of Prisons permits an inmate to subscribe to or to receive publications without prior approval. . . ." 28 CFR § 540.70(a) (1988). "The Warden may reject a publication only if it is determined detrimental to the security, good order, or discipline of the institution or if it might facilitate criminal activity." § 540.71(b).
4. See Procunier v. Martinez, 416 U.S. 396, 422, 94 S.Ct. 1800, 1815, 40 L.Ed.2d 224 (1974) (MARSHALL, J., concurring) ("A prisoner does not shed . . . basic First Amendment rights at the prison gate"). See also Turner v. Safley, 482 U.S. 78, 84, 107 S.Ct. 2254, 2259, 96 L.Ed.2d 64 (1987); Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495 (1974); Coffin v. Reichard, 143 F.2d 443, 445 (CA6 1944) (per curiam ).
5. "Suffice it to say that the problems of prisons in America are complex and intractable, and, more to the point, they are not readily susceptible of resolution by decree. Most 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. For all of those reasons, courts are ill equipped to deal with the increasingly urgent problems of prison administration and reform." Martinez, 416 U.S., at 404-405.
6. It is obvious that Martinez calls for less than strict scrutiny, and the Court today correctly rejects petitioners' argument to the contrary. Compare ante, at 409-411 with Brief for Petitioners 18-22; Reply Brief for Petitioners 1-10.
7. See, e.g., Lawson v. Dugger, 840 F.2d 781 (CA11 1987), reh'g denied, 840 F.2d 779 (1988) (per curiam ), cert. pending, No. 87-1994; Valiant-Bey v. Morris, 829 F.2d 1441 (CA8 1987); Murphy v. Missouri Dept. of Corrections, 814 F.2d 1252 (CA8 1987); Pepperling v. Crist, 678 F.2d 787 (CA9 1982); Trapnell v. Riggsby, 622 F.2d 290 (CA7 1980); Brooks v. Seiter, 779 F.2d 1177 (CA6 1985); Guajardo v. Estelle, 580 F.2d 748 (CA5 1978); Aikens v. Jenkins, 534 F.2d 751 (CA7 1976); Morgan v. LaVallee, 526 F.2d 221 (CA2 1975).
8. See, e.g., Espinoza v. Wilson, 814 F.2d 1093 (CA6 1987); Travis v. Norris, 805 F.2d 806 (CA8 1986); Meadows v. Hopkins, 713 F.2d 206, 211 (CA6 1983); Vodicka v. Phelps, 624 F.2d 569 (CA5 1980); Carpenter v. South Dakota, 536 F.2d 759 (CA8 1976), cert. denied, 431 U.S. 931, 97 S.Ct. 2636, 53 L.Ed.2d 246 (1977).
9. The Court drew support for this proposition from Branzburg v. Hayes, 408 U.S. 665, 684, 92 S.Ct. 2646, 2658, 33 L.Ed.2d 626 (1972). That case, like comparable cases decided after Pell, arose outside the prison context. E.g., Herbert v. Lando, 441 U.S. 153, 165, 99 S.Ct. 1635, 1643, 60 L.Ed.2d 115 (1979); Zurcher v. Stanford Daily, 436 U.S. 547, 565-567, 98 S.Ct. 1970, 1981-1982, 56 L.Ed.2d 525 (1978).
10. Petitioners thus are quite wrong when they contend that Turner mandated that First Amendment challenges to prison regulations always be reviewed only for reasonableness. See Brief for Petitioners 18.
11. It is undisputed that a warden may exclude an incoming publication if:
12. Cf. Turner, 482 U.S., at 100, 107 S.Ct., at 2267 (STEVENS, J., concurring in part and dissenting in part) ("How a court describes its standard of review when a prison regulation infringes fundamental constitutional rights often has far less consequence for the inmates than the actual showing that the court demands of the State in order to uphold the regulation").
13. While publications like Labyrinth reported on prison conditions and legal matters, other rejected publications discussed or depicted sexual activity, martial arts, and electronics, and advocated homosexual rights, neo-Nazism, and left-wing politics. See App. 113-132. See generally J.L.; Respondents' Lodging.
14. Asked in a deposition to describe her method for reviewing publications, the clerk replied:
15. Statements of reasons for returning different publications were identical even in their misspelling. See J.L. 5, 46, 47, 48 ("[T]his publication is used in part to glorify problem inmates and prison unions which could cause problems to inmates and staff in the security and orderly running of this institution. This publication also propagets [sic ] an adversary attitude by inmates toward staff"); cf. id., at 40 ("[T]his type of material on institutions has a tendency to develop an adversary attitude by inmates toward staff, which can cause an unhealthy environment in this institution").
16. The Court makes this assumption on the basis of a statement by petitioners at oral argument. See ante, at 413 (quoting Tr. of Oral Arg. 10). But each publication at issue was addressed to a single inmate, making this case more analogous to the personal correspondence in Martinez than to the bulk mailings in Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977). The prison regulations in Martinez raised the specter of disruptive dissemination as a justification for censorship, 416 U.S., at 399, n. 3, 94 S.Ct., at 1804, n. 3; the Court nevertheless found those regulations unconstitutional.
17. I quote, in its entirety, the discussion of the record that preceded the District Court's finding that the all-or-nothing rule was reasonable:
18. Thus I must disagree with petitioners' staunch insistence that the reasonableness standard is not "toothless." See Brief for Petitioners 27. As I suggested in Turner:

"[I]f the standard can be satisfied by nothing more than a 'logical connection' between the regulation and any legitimate penological concern perceived by a cautious warden, it is virtually meaningless. Application of the standard would seem to permit disregard for inmates' constitutional rights whenever the imagination of the warden produces a plausible security concern and a deferential trial court is able to discern a logical connection between that concern and the challenged regulation. Indeed, there is a logical connection between prison discipline and the use of bullwhips on prisoners; and security is logically furthered by a total ban on inmate communication, not only with other inmates but also with outsiders who conceivably might be interested in arranging an attack within the prison or an escape from it." 482 U.S., at 100-101, 107 S.Ct., at 2267-2268 (concurring in part and dissenting in part) (citation omitted) (emphasis in original).