Skip navigation

PLN US Supreme Court Amicus Brief in Banks v. Beard. Pennsylvania control unit ban on publications case, 2006

Download original document:
Brief thumbnail
This text is machine-read, and may contain errors. Check the original document to verify accuracy.
No. 04-1739

~upreme QCourt

of tbe Wniteb ~tateg





Reporters Committee for
Freedom of the Press
1101 Wilson Blvd., Suite 1100
Arlington, VA 22209


Counsel ofRecord

Rosen, Bien & Asaro, LLP
155 Montgomery Street
Eighth Floor
San Francisco, CA 94104
Phone: (415) 433-6830

Sonnenschein Nath & Rosenthal LLP
1221 Avenue of the Americas
New York, NY 10020
February 16,2006

Counsel for Amici Curiae











A. The First Amendment Right of Access to
Newspapers and Magazines in Prison Is Not
Inconsistent With the Legitimate Purposes of
Prison Administration


B. The Pennsylvania Prison Regulations Disrupt the
Essential Function of the Print Media and Amount
to an Attempt to Restructure the Modes of First
Amendment Discourse



C. The Pennsylvania Prison Regulations
Impermissibly Discriminate Against NonReligious, Non-Legal Newspapers
and Magazines




A. Valid, Rational Connection Between the Prison
Regulation and the Stated Government Interest.. 22



Application of the Turner Standard
Pennits Courts to Examine the
Evidentiary Record


The Logical Connection Between the
Regulation and the Government's
Stated Goal of Behavior Modification
Is, At Best, Extremely Attenuated


B. Availability of Alternative Means to Exercise
the Constitutionally Protected Right..


C. Effect of Accommodation


D. Availability of Reasonable Alternatives






App 1


Adderly v. Florida,
385 U.S. 39 (1966)


Allen v. Coughlin,
64 F.3d 77 (2d Cir. 1995)


Amatel v. Reno,
156 F.3d 192 (D.C. Cir. 1998)
Arkansas Educational Television Comm 'n v. Forbes,
523 U.S. 666 (1998)
Arkansas Writers' Project, Inc. v. Ragland,
481 U.S. 221 (1987)

21,22 \

8, 16


Ashcroft v. Free Speech Coalition,
535 U.S. 234 (2002)


Associated Press v. United States,
326 U.S. 1 (1945)


Banks v. Beard,
399 F.3d 134 (3d Cir. 2005)


Beerheide v. Suthers,
286 F.3d 1179 (10th Cir. 2002)


Bell v. Wolfish,
441 U.S. 520 (1979)


Bradley v. Hall,
64 F.3d 1276 (9th Cir. 1995)



Cornelius v. NAACP Legal Defense and
Educational Fund, Inc.,
473 U.S. 788 (1985)


Crofton v. Roe,
170 F.3d 957 (9th Cir. 1999)


Davis v. Norris,
249 F.3d 800 (8th Cir. 2001)


DeHartv. Horn,
227 F.3d 47 (3d Cir. 2000)


Delker v. McCullough,
103 Fed. Appx. 694 (3d Cir. 2004)


FCC v. Beach Communications, Inc.,
508 U.S. 307 (1993)


Grosjean v. American Press Co., Inc.,
297 U.S. 233 (1936)


Houchins v. KQED,
438 U.S. 1 (1978)

,.. 3

International Society for Krishna
Consciousness, Inc. v. Lee,
505 U.S. 672 (1992)


Jacklovich v. Simmons,
392 F.3d 420 (lOth Cir 2004)


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




Johnson v. United States,
544 U.S. 295 (2005)


Jones v. North Carolina Prisoners' Labor Union,
433 U.S. 119 (1977)


Kimberlin v. Us. Dep't ofJustice,
318 F.3d 228 (D.C.Cir. 2003)

6, 29

Kleindienst v. Mandel,
408 U.S. 753 (1972)


Lamb's Chapel v. Center Moriches Union
Free School Dist.,
508 U.S. 384 (1993)


Legal Services Corp. v. Velazquez,
531 U.S. 533 (2001)


Madrid v. Gomez,
889 F. Supp. 1146 (N.D. Cal. 1995)



Martin v. City ofStruthers,
319 U.S. 141 (1943)


McConnell v. Federal Election Comm 'n,
540 U.S. 93 (2003)


McKune v. Lile,
536 U.S. 24 (2002)


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

18, 24

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


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


Perry Education Association v. Perry
Local Educators' Ass'n,
460 U.S. 37 (1983)

9, 10


238 F.3d 1145 (9th Cir. 2001)

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

6, 22


Rosenberger v. Rector and Visitors of
the University of Virginia,
515 U.S. 819 (1995)
Shaw v. Murphy,
532 U.S. 223 (2001)

16, 17


Shoats v. Horn,
·213 F.3d 140 (3d Cir. 2000)
Thornburgh v. Abbott,
490 U.S. 401 (1989)



Turner Broadcasting System v. FCC,
512 U.S. 622 (1994)
Turner v. Safley,
482 U.S. 78 (1987)

13, 23


United States v. Booker,
543 U.S. 220 (2005)



United States v. Kokinda,
497 U.S. 720(1990)

9, 10, 11

United States v. Playboy Entertainment Group, Inc.,
529 U.S. 803 (2000)


Dannie M. Martin & Peter Y. Sussman,
Committing Journalism - The Prison Writings of
Red Hog (1995)


Dannie Martin, Doing Time with Disease,
S.P. Chronicle, June 12, 1994


Bob Minzesheimer, The Written Word Unshackled,
USA Today, April 20, 2004


Chase Riveland, U.S. Dep't of Justice,
Supermax Prisons: Overview and General
Considerations (1999)


Seth Rosenfeld, State's Top Prison Too Cruel, Judge
. Says, S.P. Examiner, Jan. 11, 1995


Vincent Schiraldi, Prison Bureaucrats Hide Abuses
by Banning the Press, S.F. Examiner, Feb. 5,


William Yardley, Inmate Can Keep Money Earned
from a PEN Literary Award N.Y. Times, April
17, 2004



Amici curiae, publishers, reporters, librarians,
retailers, and other disseminators of books, newspapers and
magazines, carry on the strong historic tradition recognizing
the importance of an informed citizenry· and thus provide
communicative works, both serious and entertaining, which
for more than 200 years have been protected by the First
Amendment. Amici file this brief because the Pennsylvania
Department of Corrections' blanket policy banning access
for an indefinite period to virtually any and all newspapers,
magazines and photographs, irrespective of content, by Level
2 inmates is an unconstitutional infringement on the rights of
those prisoners.
The extreme broad-brush policy
impermissibly stifles the constitutionally protected free flow
of information and communication in the prison context.
The right to open access to the media, including sources for
discussions of current national and worldwide news and
events, is a fundamental right safeguarded by the First
Amendment. The policy imposed by Pennsylvania violates
the prisoners' ability to exercise this basic right and also
unnecessarily interferes with the public interest in bringing
to light possible abuse or inhumane conditions in prisons.
Access to media reports of, and discussion of issues
related to, current news and events is critical. Prisoners
should not be denied the right to full information concerning
the United States and countries around the world,
particularly against the backdrop of recent geopolitical
events. Nor· should prisoners be prohibited from reading
short stories, reports about what is happening in sports and
other areas of general interest, or lighter materials. The
ability to access information by reading newspapers and
1 No counsel for any party authored any part of this brief. No persons or
entities other than the amici curiae made any monetary contribution to
the preparation or submission of this brief. Pursuant to Supreme Court
Rule 37.3, copies ofletters of consent to the filing of this brief have been
filed with this Court.


magazines is essential to the education and advancement of
all persons-including, in particular, those who presently are
in prison but may return to society.
The statements of interests of the individual amici
curiae are set forth in the Appendix.
This case is about the free speech rights of prisoners
and their media correspondents. Pennsylvania imposes a set
of prison regulations that impermissibly curtails the First
Amendment rights of newspaper and magazine publishers
and writers to transmit ideas and information. Unless a
publication is deemed by prison officials to be religious or
legal in nature, publishers have no way of· sending
newspapers and magazines to individuals housed in Level 2
of Pennsylvania's Long Term Segregation Unit ("LTSU").
Banks v. Beard, 399 F.3d 134, 137 (3d Cir. 2005). Whether
a publication falls into one of these categories is left to the
standardless discretion of prison officials. As the exceptions
have been applied, the free speech rights of some religious
publishers have been infringed, see Jt App 179 (Level 2
inmates not permitted to receive the Christian Science
Monitor, a weekly newspaper published by the First Church
of Christ, Scientist), as have the rights of legal news
publishers, see Jt App 49 (Level 2 inmates not permitted to
receive Graterfriends, a monthly publication containing
news on legal and other developments affecting prisoners).
A prisoner may be kept at Level 2 indefinitely. Jt
App 131 (the duration of a prisoner's classification at Level
2 is a minimum of 90 days and has in some cases lasted
months and even years). Prison officials encourage inmates
entering L TSU to cancel all newspaper and magazine
subscriptions. Jt App 158. If the prisoner does not cancel
the subscription, the publications are kept in a property box
for him; after the box capacity is filled, the publications are
destroyed or otherwise disposed of. Jt App 159.

This case strikes at the heart of the First
Amendment's protection of the exchange of information and
enlightened participation of all citizens in a democratic
government. Although the direct effect of the challenged
prison regulation is to block the flow of information into the
prison, its impact extends beyond prison walls. It treads
heavily on the rights of the print media and interferes with
the media's central function as "a mighty catalyst in
awakening public interest in governmental affairs, exposing
corruption among public officers and employees and
generally informing the citizenry of public events and
occurrences." Houchins v. KQED, 438 U.S. 1, 17 (1978)
(Stewart, J., concurring). The media's ability to fulfill its
function as the so-called Fourth Estate depends on its access
to the darkest comers of the nation, "acting as the 'eyes and
ears' of the public," and, at times, as its voice. Id. at 8
(opinion of Burger, C,J., announcing judgment of the Court).
Where the venue is under the exclusive control of the
government, as with prisons, several principles deserve
consideration. It is true that the Constitution's guarantees of
free speech and press do not grant the media a freestanding
See Pel! v.
right to enter governmental institutions.
Procunier, 417 U.S. 817,834 (1974). Its access can, and has
been, tightly circumscribed. See, e.g., id. (prisons may deny
journalists access to face-to-face interviews with specific
prisoners); KQED, 438 U.S. 1 (jail can prohibit use of sound
and image recording devices and can restrict media tours).
But the media's interest in access to prisons is not limited to
direct investigative reporting. Printed publications convey
information as well as provide a forum for discussion and
response. An inmate who has access to newspapers and
magazines might, for example, read a news article discussing
matters he is personally familiar with-perhaps prison
conditions-and respond to the editor by offering relevant
information or a unique perspective. Only his receipt of the

news publication enables this important mechanism of
exchange to occur. The media entities' and prisoners'
speech rights are, in this manner, "inextricably meshed."
Procunier v. Martinez, 416 U.S. 396,409 (1974).
Here, the constriction on media access is too tight for
the Constitution to tolerate. Pennsylvania's policies destroy
the mechanism of expressive exchange between print media
entities and the affected class of prisoners. Its attempt to
amputate a segment of the prison population from the outside
world harms the rest of society, and is precisely the type of
government action that the First Amendment was designed
to restrain. Under the circumstances created by the nearabsolute ban on newspapers and magazines, the competing
interest of allowing the government broad discretion in the
administrative duties of running a prison cannot trump the
weighty concerns of the press and the public in fostering the
healthy exchange of ideas.
Aside from personal letters, news clippings related to
the inmate or his family, and a narrowly drawn category of
religious and legal materials, the only written materials
available to Level 2 inmates are "leisure books" from the
prison library. Banks, 399 F.3d at 137; Jt App 48. As a
result, inmates effectively are cut off from news of current
events and other developments in the outside world. See id.
(inmates are shut in single occupancy cells for twenty-three
hours a day with no radio or television and permitted only
one visit per month with immediate family members).
Prison policies provide for a behavioral' review where,
subject to the discretionary decision of prison officials, an
inmate can be promoted to a less restricted status. Banks,
399 F.3d at 141; Jt App 26. Due to the subjective nature of
the review, there is no reasonable assurance that even
exemplary behavior in Level 2 status will earn a relaxation
of the restrictions. Accord Chase Riveland, U.S. Dep't of
Justice, Supermax Prisons: Overview and General
Considerations 8-9 (1999) ("[A]dministrative segregation of

an inmate.. .is an approved remedy [in some institutions]
without application of objective criteria or verified
misconduct. ... Following periodic reviews, segregation of
such inmates may then be continued, despite exemplary
behavior in segregation....").
Publishers, editors, and writers have little effective
means of communicating with these inmates.
personal letters to individual prisoners are not a realistic
option for print media since ideas and information expressed
through printed publications lose fundamental characteristics
if redirected through individual letters. Personal letters to
prisoners cannot contain the same breadth of information,
juxtaposition of different opinions, or graphics and
photographs, or capture the common experience enjoyed by
those who read the same article in a publication.
Corresponding this way is practically impossible for
publishers and writers given the fundamental purpose of the
printed publication to facilitate widespread dissemination of
information at minimal cost. Although an inmate can initiate
correspondence with the editor of a particular publication by
sending a personal letter, the Level 2 policies deny the
inmate access to the materials most likely to cause him to
correspond in the first instance-the publications
themselves. In this way, the prison's ban on general
publications disrupts the basic discursive function of
informative or opinion pieces, which catalyze idea exchange
by presenting views likely to generate responsive expression.
First Amendment rules applicable to non-public fora
govern the Court's review of the Pennsylvania policy. In the
prison context, these rules are set forth in a multifactor test
that requires federal courts to balance cautiously the
legitimate needs of prison administration and "the need to
protect constitutional rights." Turner v. Safley, 482 U.S. 78,
85 (1987) (alteration omitted). The manifold nature of the
Turner test recognizes the tension between these competing
goals. At risk on one hand is judicial disruption of the

"inordinately difficult undertaking that is modem prison
administration." Thornburgh v. Abbott, 490 U.S. 401, 407
(1989) (quotation marks omitted). On the other hand are the
vulnerable interests of prisoners, who, though they must give
up liberties "inconsistent with proper incarceration,"
nonetheless do not relinquish their constitutional rights at the
prison gates, Overton v. Bazzetta, 539 U.S. 126, 131 (2003),
as well as the interests of the media and the public.
The various concerns at stake require that the Turner
test be applied with an eye towards the competing principles
and the ultimate inquiry:. Is the challenged restriction on
constitutional rights "reasonably related to legitimate
penological interests" or is it an "exaggerated response" to
prison concerns? Turner, 482 U.S. at 89, 91. It stands to
reason that the broad focus of the test should not permit its
application as either judicial bludgeon or rubber stamp. As
testimony to the "express flexibility of the Turner
reasonableness standard," Thornburgh, 490 U.S. at 414,
lower court decisions have come down both ways on a
variety of different prison regulations. Compare, e.g.,
Kimberlin v. Us. Dep't of Justice, 318 F.3d 228 (D.C. Cir.
2003) (upholding prison ban on electric and electronic
musical instruments) with Prison Legal News v. Cook, 238
F.3d 1145 (9th Cir. 2001) (striking down restriction on
subscription non-profit organization mail) and Allen v.
Coughlin, 64 F.3d 77 (2d Cir. 1995) (reversing summary
judgment in favor of prison officials who confiscated
newspaper clippings). This case presents the opportunity to
reaffirm the careful balance Justice O'Connor struck in her
opinion for the Court in Turner. If the Court is to remain
true to its promise that the Turner standard "is not toothless,"
Thornburgh, 490 U.S. at 414, it must affirm the decision of
the Court of Appeals for the Third Circuit. Prison policies
like Pennsylvania's cannot be permitted to suppress the
ability of print media to facilitate "the widest possible
dissemination of information from diverse and antagonistic

sources... [, a task] essential to the welfare of the public."
Associated Press v. United States, 326 U.S. 1,20 (1945).
Where a state action impinges on the expressive
rights of citizens, as here, analysis of its lawfulness is guided
by basic First Amendment precepts. At the foundation of the
Constitution's protection of the right to speech is the belief
that free and vigorous exchange of opinions and information
is what enables our democracy to thrive. Accord United
States v. Playboy Entm't Group, Inc., 529 U.S. 803, 817
(2000) ("It is through speech that our convictions and beliefs
are influenced, expressed, and tested."). Although some
ideas, in and of themselves, might not contribute to the
betterment of society, it is their role in the process of
experimentation, adaptation, and expression that the First
Amendment protects. See id. ("The line between speech
unconditionally guaranteed and speech which may
legitimately be regulated, suppressed, or punished is finely
drawn. Error in marking that line exacts an extraordinary
cost." (alteration omitted)); Ashcroft v. Free Speech
Coalition, 535 U.S. 234, 253 (2002) ("The right to think is
the beginning of freedom, and speech must be protected
from the government because speech is the beginning of
thought."). Watchful guardianship of these core principles is
"essential if vigorous enlightenment was ever to triumph
over slothful ignorance." Martin v: City of Struthers, 319
U.S. 141, 143 (1943).
Thus, in general, courts must uphold the rule that "the
First Amendment bars the government from dictating what
we see or read or speak or hear." Free Speech Coalition,
535 U.S. at 245. When government action threatens the role
of the print media in facilitating idea exchange, the right to
speech and expression must be more jealously guarded. See

Martin, 319 U.S. at 143 n.3 ("The only security of all is in a
free press."). Naturally, these are guiding principles, not
absolute rules. As many decades of this Court's precedent
and the practicalities of government instruct, the· contours of
the First Amendment must fit the context and nature of the
state action that impairs the freedom of speech. When the
government owns and controls the venue in which it seeks to
regulate speech, First Amendment doctrine imposes a
tripartite framework, which looks first, as a threshold matter,
at the purpose of the forum. International Soc y for Krishna
Consciousness, Inc. v. Lee, 505 U.S. 672, 678 (1992)
(hereafter "ISKCON') (A long line of speech rights cases
"reflect, either implicitly or explicitly, a 'forum based'
approach for assessing restrictions that the government seeks
to place on the use of its property."). The three types of fora,
in descending order of the First Amendment's vigilance, are:
the traditional public forum; the designated public forum;
and the non-public forum, which encompasses "all
remaining public property." See id. at 678-79.
There is no question here that a state prison is not a
public forum, and its rules therefore are not subject to strict
scrutiny under the First Amendment. See, e.g., Adderly v.
Florida, 385 U.S. 39 (1966) (restriction of First Amendment
activities on jailhouse curtilage subject to reasonableness
review). But "nonpublic forum status does not mean that the
government can restrict speech in whatever way it likes."
Arkansas Educ. Television Corrzm 'n v. Forbes, 523 U.S. 666,
682 (1998) (quotation marks omitted). State action imposing
"a restriction on speech in a nonpublic forum is 'reasonable'
when it is 'consistent with the government's legitimate
interest in preserving the property for the use to which it is
lawfully dedicated.'" ISKCON, 505 U.S. at 688 (O'Connor,
1., concurring in the judgment) (quoting Perry Education
Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 50-51
(1983); quotation marks, alterations, and ellipsis omitted).
Government regulations may "limit[] a nonpublic forum to

activities compatible with the intended purpose of the
property," but ultimately the "touchstone for evaluating these
[regulations] is whether they are reasonable in light of the
purpose which the forum at issue serves" and are viewpoint
neutral. Perry, 460 U.S. at 49; see also Cornelius v. NAACP
Legal De! & Educ. Fund, Inc., 473 U.S. 788, 806 (1985).
Turner v. Safley reaffirmed these principles and set
forth guidelines for their application in the prison context.
See 482 U.S. at 89-91 (outlining four factors relevant to
determining whether a prison regulation is "reasonably
related to legitimate penological interests" and "operate[s] in
a neutral fashion"). Turner and subsequent cases made clear
that prison free speech cases are subject to the same
"reasonableness" inquiry applied to non-public forum cases
The prison-specific Turner line of cases
coevolved with the development of general forum based
First Amendment doctrine. In the 1980s, as the focus on the
"nature of the relevant forum" became established as the
primary threshold inquiry for all government speech
regulation, the prison context became determinative of the
applicable standard of review. See, e.g., United States v.
Kokinda, 497 U.S. 720, 726 (1990) (explaining that in 1983,
Perry "announced a tripartite framework for determining
how First Amendment interests are to be analyzed with
respect to Government property," which had been in
development since a decade prior).
Thornburgh v. Abbott, 490 U.S. 401 (1989), aligned
prison speech cases with the rest of "forum based" doctrine.
It resolved any lingering ambiguity that the identity of the
holder of the right, rather than the nature of the forum, could
dictate the application of a fatal, or near-fatal, strict scrutiny
approach. 490 U.S. at 409-14 & n.9 ("[O]ur rejection of the
regulation at issue [in Procunier v. Martinez, 416 U.S. 396
(1974),] resulted not from a least restrictive means
requirement, but from our recognition that the regulated
activity centrally at issue in that case-outgoing personal

correspondence from prisoners-did not, by its very nature,
pose a serious threat to prison order and security."). What
these two decades of decisions teach is that, notwithstanding
Petitioner's arguments to the contrary, prisons are not sui
generis for First Amendment purposes. They are instead a
type of non-public forum subject to the same basic
constitutional principles and constraints as other non-public
fora, such as airports, see ISKCON, 505 U.S. 672, and public
school mail systems, see Perry, 460 U.S. 37.
The First Amendment Right of Access to
. Newspapers and Magazines in Prison Is Not
Inconsistent With the Legitimate Purposes of
Prison Administration
A broad-based restriction of speech on a non-public
forum must be supported by at least "some explanation as to
why [the restricted] speech is inconsistent with the intended
use of the forum." ISKCON, 505 U.S. at 691-92 (O'Connor,
J., concurring in the judgment); cf Shaw v. Murphy, 532
U.S. 223, 229 (2001) COIn the First Amendment
context, ... some rights are simply inconsistent with the status
of a prisoner or 'with the legitimate penological objectives of
the corrections system. "').
Without some sort of
justification, the government regulation is likely to be
unreasonable in relation to the legitimate needs of the forum,
or in Turner's terms, an "exaggerated response" to
administrative concerns. Turner, 482 U.S. at 90. Although
the nature of the forum plays an important role in
determining compatibility, some liberties that fall within the
First Amendment's ambit are consistently more easily
curtailed than others. Associational rights involving inperson, physical interaction tend to pose the greatest security
risks and administrative costs in many different contexts.
See, e.g., Overton, 539 U.S. 126 (prison visitation);
ISKCON, 505 U.S. 672 (in-person solicitation inside airport);
Kokinda, 497 U.S. 720 (solicitation and demonstration on
post office premises). Regulations limiting freedom of

association are perhaps the most frequently and easily
sustained. Accord Overton, 539 U.S. at 131 ("[F]reedom of
association is among the rights least compatible with
The problems accompanying physical
association are sometimes so "obvious that its regulation
may 'ring of common sense. ,,, ISKCON, 505 U.S. at 690
(O'Connor, 1., concurring in the judgment) (quoting
Kokinda, 497 U.S. at 734). Other First Amendment rights,
by contrast, are more compatible with the purpose of the
government property, and are more robust in the face of
extensive regulation.
Cf Kokinda, 497 U.S. at 739
(Kennedy, 1., concurring in the judgment) ("[I]n-person
solicitation deserves different treatment from alternative
forms of solicitation and expression.").
The opposite results reached in the International
Society for Krishna Consciousness decisions (collectively,
"ISKCON'), 505 U.S. 672 and 505 U.S. 830, illustrate the
constitutional difference between regulating rights requiring
physical interaction and regulating free speech rights
exercised through printed materials. ISKCON concerned a
challenge to restrictions limiting solicitation and distribution
of leaflets in New York area airports. 505 U.S. 672; 505
U.S. 830. The solicitation ban was a legitimate response to
the airport's need to avoid disrupting the flow of traffic and
prevent the risk of duress, and its inability to monitor
problems arising from solicitation. 505 U.S. at 683-85. By
contrast, the prohibition of leafleting could not withstand
First Amendment scrutiny even though it was supported by
many of the same justifications. 505 U.S. at 831. Justice
O'Connor, authoring the concurring opinion and stating the
narrowest grounds for the holding as to the leafleting ban,
explained that it could not stand because it "effect[ed] an
absolute prohibition and [was] not supported by any
independent justification outside of the problems caused by
the accompanying solicitation." Id. at 691. The availability
of "alternative channels" for distributing leaflets-the

sidewalks outside the airport terminals-was not enough to
protect the First Amendment rights of leafletters from the
"total ban" imposed inside the terminal buildings. Id. at 692.
The appropriate focus was on the area impacted by the
agency regulation-the inside of the airport-where the
restriction was so sweeping in scope that it could not be
explained as a reasonable measure designed to "preserve the
property for the several uses to which it has been put." Id.
First Amendment concerns in the prison context are
no different. Limitations on in-person associational rights
require little work to justify because the "very object of
imprisonment is confinement." Overton, 539 U.S. at 131;
see also Pel!, 417 U.S. 817. In-person association in the
prison context also poses serious safety and security risks,
which unquestionably are an area of concern primary to the
government's legitimate purpose of running a prison. See
Overton, 539 U.S. at 133-34. Just as the burden on visitation
rights in Overton is analogous to the prohibition on airport
solicitation, so is the near-"absolute ban" on published
materials in this case analogous to the rule against
distributing printed leaflets in the airport terminal in
ISKCON. In several ways, the speech rights of newspaper
and magazine publishers suffer even more severe oppression
here than those of the leafletters in ISKCON. Publishers
attempting to send subscription periodicals to Level 2
prisoners are prevented from engaging in a desired, indeed
contracted-for, expressive exchange. In ISKCON, however,
the speakers' activity was likely to be unwanted by most
potential listeners. Even with the ban in place in ISKCON, a
traveler so desiring could always seek out leaflet distributors
outside the terminal building. But in the Pennsylvania prison
system, the publisher's access to the subscriber is cut off
completely and indefinitely.2 Because nothing in this case
2 Indefinite detention is more than merely theoretical. Pennsylvania
prisoners have actually been held in segregation for over 30 years. See,


explains why the First Amendment right to send newspapers
and magazines to prisoners is incompatible with the central
purposes of running a prison, just as with the ISKCON
leafletters, application of the Turner reasonableness inquiry
should yield the same result.
The Pennsylvania Prison Regulations Disrupt the
Essential Function of the Print Media and
Amount to an Attempt to Restructure the Modes
of First Amendment Discourse
The special role of the press as catalyst and facilitator
of expressive exchange is a well-recognized and driving
force of First Amendment law. See, e.g., Grosjean v.
American Press Co., Inc., 297 US. 233, 250 (1936) (The
Constitution must "preserve an untrammeled press as a vital
source of public information. The newspapers, magazines,
and other journals of the country...have shed and continued
to shed[] more light on the public and business affairs of the
nation than any other instrumentality of publicity...."). Its
unique position "as one of the great interpreters between the
government and the people," id., necessitates the rule that'
"laws that single out the press, or certain elements thereof,
for special treatment pose a particular danger of abuse by the
State, and so are always. subject to at least some degree of
heightened First Amendment scrutiny." Turner Broad.
System, Inc. v. Fed. Communications Comm 'n, 512 US.
622, 640-41 (1994) (quotation marks omitted); Grosjean,
297 US. at 250 ("[S]ince informed public opinion is the
most potent of all restraints upon misgovernment, the
suppression or abridgement of the. publicity afforded by a
free press cannot be regarded otherwise than with grave
e.g., Delker v. McCullough, 103 Fed. Appx. 694, 2004 WL 1552608 (3d
Cir. 2004) (unpublished) (inmate had been held in administrative
segregation since 1973); see also !)hoats v. Horn, 213 F.3d 140 (3d Cir.
2000) (inmate held in segregation for 8 years). The Pennsylvania prison
policy thus raises the specter of a lifetime publication ban.


Any attempt by the government, whether overt or
not, to "determin[e] what future course the creation of ideas
and the expression of views must follow" should be treated
with suspicion. See McConnell v. Fed. Election Comm 'n,
540 U.S. 93, 305(2003) (Kennedy, 1., concurring in the
judgment in part and dissenting in part).
When the
government imposes a special burden on the media, as
Pennsylvania has here, the constitutional concerns multiply.
Not only do such regulations stifle expressive acts, they pose
a special danger to the First Amendment because they
jeopardize certain forms of expressive exchange. Where the
government tries to "foreclose new and creative partnerships
for speech," such as by preventing one segment of the prison
population from engaging in productive discourse, its action
"is consistent with neither the traditions nor principles of our
Free Speech guarantee." !d.; cf Legal Services Corp. v.
Velazquez, 531 U.S. 533, 544 (2001) (striking down
restriction that had the effect of "distort[ing] the legal system
by altering the traditional role of the attorneys in much the
same way broadcast systems or student publication networks
were changed" by unconstitutional restrictions).
The ability of prisoners to communicate outside
prison walls is essential to the media's role in exposing
important public controversies. History contains countless
examples of the media's involvement in bringing to light,
,and eventually to justice, instances of prison abuse and
inhumane conditions. See, e.g., Dannie M. Martin & Peter
y. Sussman, Committing Journalism - The Prison Writings
ofRed Hog (W.W. Norton & Co. 1995) (news stories about
Kevin Sherbondy, sentenced to 15 years for "possession" of
a firearm he owned for decorative purposes brought
significant attention to the case and resulted in the Ninth
Circuit overturning his sentence); Dannie Martin, Doing
Time with Disease, S.F. Chronicle, June: 12, 1994, at 4
(calling attention to feces-contaminated drinking water at
Terminal Island Federal Prison); Seth Rosenfeld, State's Top

Prison Too Cruel, Judge Says, S.F. Examiner, Jan. 11, 1995,
at Al (public outcry after media reports of inmate being
boiled alive led to class-action litigation and, ultimately, a
court ruling finding conditions at Pelican Bay prison
unconstitutional); Vincent Schiraldi, Prison Bureaucrats
Hide Abuses by Banning the Press, S.F. Examiner, Feb. 5,
1996, at A13 (prison administrators imposed a ban on media
interviews with prisoners partly in reaction to bad publicity
generated by "60 Minutes" expose on prisoner abuse
incident); see also Madrid v. Gomez, 889 F. Supp. 1146,
1280 (N.D. Cal. 1995) ("dry words on paper can not
adequately capture the senseless suffering and sometimes
wretched misery that defendants' unconstitutional practices
[at Pelican Bay] leave in their wake."); Bob Minzesheimer,
The Written Word Unshackled, USA Today, April 20, 2004,
at 4D (strong public reaction to cancellation of prison
rehabilitation writing program and denial of royalty fees and
prize money to prisoners led to reinstatement of program and
prize money); William Yardley, Inmate Can Keep Money
Earnedfrom a PEN Literary Award, N.Y. Times, April 17,
2004, at Bl (rehabilitation program was reinstated, according
to state Attorney General, because communicating with the
public gives "prisoners the right and opportunity to express
themselves and to rehabilitate in the best sense of the word").
The proper functioning of the media depends not
only on prisoners' ability to transmit information outside the
prison, but also on their ability to receive news from the
outside. At times, a newspaper writer or editor may be able
to confirm whether an incident was an isolated event or
widespread prison condition only through disseminating
information to prisoners and collecting their responses. Any
government interference in this process, let alone
Pennsylvania's attempt to entirely quash it with respect to
the Level 2 prisoners, threatens an essential means of
holding a powerful government institution accountable.



Discriminate Against
NonReligious, Non-Legal Newspapers and Magazines
The First Amendment requires prison regulations to
be viewpoint neutral. Thornburgh, 490 U.S. at 417; see also
Arkansas Educ. Television Comm 'n, 523 U.S. at 682 ("To be
consistent with the First Amendment, the exclusion of a
speaker from a nonpublic forum must not be based on the
speaker's viewpoint.. .."). Viewpoint discrimination occurs
not just when one particular point of view is suppressed, but
also when "an entire class of viewpoints" is disfavored.
Rosenberger v. Rector and Visitors of the University of
Virginia, 515 U.S. 819, 831 (1995). The Constitution does
not tolerate regulations that burden those wishing to exercise
their First Amendment rights on the grounds that their point
of view is religious. See Lamb's Chapel v. Center Moriches
Union Free School Dist., 508 U.S. 384, 393-94 (1993); see
also Rosenberger, 515 U.S. at 831 (public university could
not treat disfavorably "student journalistic efforts with
religious editorial viewpoints.")
But just as the state cannot disfavor publications
featuring a religious "standpoint from which a variety of
subjects may be discussed and considered," Rosenberger,
515 U.S. at 831, neither can it discriminate against the nonreligious viewpoint expressed through newspapers and
The Pennsylvania prison policies are not
viewpoint neutral because they do exactly that.
collection of religious viewpoints discriminated against in
Rosenberger is the flip side of the coin to the set of nonreligious viewpoints prohibited here, and no principled
distinction can be drawn between the restriction at issue in
Rosenberger and the policies at issue here. Accord Arkansas
Writer's Project, Inc. v. Ragland, 481 U.S. 221, 230-31
(1987) (holding unconstitutional a tax on publications that
exempted religious
acknowledging that the distinction between content and

viewpoint-based discrimination is not always clear). Even
more antithetical to the First Amendment is the fact that
Pennsylvania's policies grant prison officials the discretion
to determine whether a publication is religious. As this
Court has cautioned: "The first danger to liberty lies in
granting the State the power to examine publications to
determine whether or not they are based on some ultimate
idea and, if so, for the State to classify them." Rosenberger,
505 U.S. at 835. This warning is particularly apt here, where
no safeguards exist to prevent the state from exercising its
discretion to permit the materials of one religion while
prohibiting the materials of another.
Also suspect is the application of the policy to legal
materials. News of important legal developments and court
decisions are often contained in a wide array of publications,
the vast majority of which are prohibited under the
Pennsylvania policy. Cf Jt App 49. This Court's decisions
related to criminal procedure, civil liberties, and federal
habeas law, for example, are often reported by national print
media. Decisions such as United States v. Booker, 543 U.S.
220 (2005) (criminal sentencing), Johnson v. United States,
544 U.S. 295 (2005) (time limitation of federal habeas
statute), or the result of this case, could directly affect
inmates in segregated housing. Only through access to
general publications can these prisoners receive necessary
information about changes in their legal rights and therefore
exercise their right to access courts.
In Turner v. Safley, this Court reaffirmed the duty of
"federal courts ... to protect constitutional rights" in the face
of "a prison regulation or practice [that] offends a
fundamental constitutional guarantee." 482 U.S. at 84
(quoting Martinez, 416 U.S. at 405-06 (1974)). Turner
decisively rejected the notion that fundamental rights

enjoyed by free citizens vanish upon incarceration. See id. at
94-95 (rejecting prison officials' argument that the
constitutional right to marriage does not apply "in...a prison
Subsequent decisions likewise acknowledged
courts' obligation to examine prison regulations alleged to
infringe on constitutional rights. See, e.g., Overton v.
Bazzetta, 539 U.S. 126, 137 (2003) (Stevens, J., concurring)
("Our decision today is faithful to the principle that 'federal
courts must take cognizance of the valid constitutional
claims of prison inmates. ", (quoting Turner, 482 U.S. at
84)). Recognizing, however, the risk that courts engaged in
constitutional review might too easily displace the reasoned
judgment of prison administrators, the Court explained that
the proper inquiry was whether the challenged prison
regulation was "reasonably related to legitimate penological
interests." Turner, 482 U.S. at 89.
To strike the right balance between the competing
interests of oversight and deference, Turner laid out four
factors. that help inform courts whether a challenged
restriction passes constitutional muster or whether it is an
"'exaggerated response' to prison concerns." !d. at 89-91.
By requiring careful consideration of multiple factors,
Turner declined to abdicate the duty of judicial review to
prison administrators. Cf 0 'Lone v. Shabazz, 482 U.S. 342,
348 (1987) ("[C]onvicted prisoners do not forfeit all
constitutional protections by reason of their conviction and
confinement in prison."). It instead sets forth a flexible
framework that allocates deference where it is dueevaluation of legitimate penological interests such as
"deterrence of crime, rehabilitation of prisoners, and
institutional security," id.-but contemplates court
intervention when prison restrictions work an unreasonable
deprivation of constitutional rights. See, e.g., Turner, 482
U.S. at 95-100 (invalidating prison marriage rule). In
formulation and application, it is clear that Turner's
reasonableness standard is neither "toothless" formalism nor

strict scrutiny, but a deferential inquiry somewhere between
these poles. Thornburgh, 490 U.S. at 414.
Because the Turner inquiry integrates all relevant
considerations, it applies regardless of whether the rights
asserted belong to inmates or free persons. See, e.g., id. at
413-14. Constitutional challenges to prison restrictions that
curb the liberty of free citizens whose interests are
intertwined with those of inmates have come before this
Court with some regularity. E.g., Overton, 539 U.S. 126
(restriction on prison visitation); Thornburgh, 490 U.S. 401
(regulation of incoming publications); Pell, 417 U.S. 817
(restriction on media interviews of prisoners). In its review
of these cases, the Court has declined to draw a doctrinal line
based on the identity of the party asserting the right. E.g.,
Thornburgh, 490 U.S. at 410 n.9. Were an intrusive standard
of scrutiny to apply whenever non-prisoners' rights are
implicated, prison officials would rapidly lose the ability to
"deal with the difficult and delicate problems of prison
management" free from excessive court interference. Id. at
408. Proper application of the Turner analysis, on the other
hand, enables courts to give the outsiders' interests their due
weight while maintaining appropriate judicial deference. Cf
Overton, 539 U.S. at 133 (considering in its reasonableness
analysis the interests of children whose visitation was limited
by prison rules). As Turner offers the unitary standard of
review of restrictions "[i]n the prison context, when the
government's power is at its apex," Johnson v. California,
543 U.S. 499, 125 S.Ct. 1141, 1150 (2005), remaining
faithful to its guiding principles requires considered
examination of all concerns captured by the four factors.
The lopsided formulation urged by Petitioner and its
amici upsets this thoughtful balance. Petitioner's argument
transforms Turner into carte blanche to subjugate the core
constitutional rights of prisoners and non-prisoners alike in
the name of creating sufficiently harsh conditions of
confinement. Playing by these rules, prisons could freely

"exten[d] and withdraw[J" fundamental rights with no more
difficulty than they could grant or deny gym privileges and
commissary access. Brief for the United States as Amicus
Curiae 11. The approach it advocates defines the remaining
three factors as a tautological restatement of the first inquiry,
reducing the analysis to an empty formality irreconcilable
with Turner itself. Application of the Turner test in this
manner champions form over substance, and derogates the
duty of federal courts to guard against restrictions that
unreasonably invade constitutional boundaries in the name of
prison administration. The Court should reject this thinly
cloaked invitation to erect a de facto "barrier separating
prison inmates from the protections of the Constitution."
Turner, 482 U.S. at 84.
It is well established that the First Amendment
protects the right to disseminate as well as "receive
information and ideas." Kleindienst v. Mandel, 408 U.S.
753, 762 (1972). The right survives incarceration and
extends to both prisoners and "free citizens ... reaching out to
those on the 'inside. '" Thornburgh, 490 U.S. at 407. And
"there is no question that publishers who wish to
communicate with those who, through subscription,
willingly seek their point of view have a legitimate First
Amendment interest in access to prisoners." !d. at 408.
The Pennsylvania prison policy banning newspapers
and magazines in Level 2 of the Long Term Segregation
Unit prevents publishers and inmates from exercising their
First Amendment rights to send and receive publications.
Because the regulations "impinge[] on inmates'
constitutional rights," the Third Circuit correctly applied the
analysis set forth in Turner to determine the validity of the

prison policy. Banks, 399 F.3d at 139. Under Turner, a
"regulation is valid if it is reasonably related to legitimate
penological interests."
Turner, 482 U.S. at 89.
Consideration of four factors is relevant to the determination.
First, the court "must determine whether the governmental
objective underlying the regulations at issue"is legitimate and
neutral, and that the regulations are rationally related to that
objective." Thornburgh, 490 U.S. at 414. "A second
factor. .. is whether there are alternative means of exercising
the right that remain open to prison inmates." Turner, 482
U.S. at 89.
"A third consideration is the impact
accommodation of the asserted constitutional right will have
on guards and other inmates, and on the allocation of prison
resources generally." Id. at 90. Fourth, "the existence of
obvious, easy. alternatives may be evidence that the
regulation is not reasonable, but is an 'exaggerated response'
to prison concerns." Id.
Neither this Court nor lower federal courts applying
the four Turner factors have understood these to be four
distinct litmus tests. Rather, courts consistently have taken
care to consider each of the factors in relation to one another
prior to making the ultimate evaluation of the fit between the
prison policy and the penological goal. E.g., Jacklovich v.
Simmons, 392 F.3d 420, 427 (10th Cir. 2004) (holding in
error the district court's failure to consider all but the first
factor); DeHart v. Horn, 227 F.3d 47, 59 (3d Cir. 2000)
("Turner does not call for placing each factor in one of two
columns and tallying a numerical result. The objective is to
determine whether the regulation is reasonable given the
prison administrators' penological concerns and the inmate's
interest· in engaging in the constitutionally protected
activity."); Amatel v. Reno, 156 F.3d 192, 191-201 (D.C. Cir.
1998) (weighing all four factors before determining that
statute satisfied reasonable relation test); Bradley v. Hall, 64
F.3d 1276 (9th Cir. 1995).


It is sometimes said that the first factor of the Turner
test, whether there is a logical connection between the
regulation and a legitimate penological interest, dominates
the inquiry. E.g., Amatel, 156 F.3d at 196 ("The first factor
looms especially large."). As this Court has explained, the
heightened importance attributed to the logical connection
factor does not mean that the remaining factors should be
ignored in all cases, but arises from the necessary
invalidation of any regulation that does not satisfy its
standard. Shaw v. Murphy, 532 U.S. 223, 229 (2001) ("If the
connection between the regulation and the asserted goal is
'arbitrary or irrational,' then the regulation fails, irrespective
of whether the other factors tilt in its favor."). In other
words, nothing can save a regulation that bears no "logical
connection" to a legitimate goal. See, e.g., Prison Legal
News, 238 F.3d at 1149-51 (invalidating restriction on
subscription non-profit organization mail, "core protected
speech," after considering first factor).
The inverse,
however, is not true. The challenged regulation's survival of
the first factor still requires reasoned consideration of the
remaining factors. Thus, the purported dominance of the
"logical connection" factor refers to the cases where its
application is fatal to the regulation. In all remaining cases,
Turner requires "a judgment by the court regarding the
reasonableness of the defendant's conduct under all of the
circumstances reflected in the record." DeHart, 227 F.3d at
Valid, Rational Connection Between the Prison
Regulation and the Stated Government Interest
Application of the Turner Standard Permits
Courts to Examine the Evidentiary Record
The first factor presents a twofold inquiry: is "the
governmental objective underlying the regulations at issue []
legitimate and neutral, and [are] the regulations [] rationally
related to that objective"? Thornburgh, 490 U.S. at 414.
Among legitimate prison interests, "protecting prison


security[ is] a purpose this Court has said is 'central to all
other corrections goals.'" Thornburgh, 490 U.S. at 415
(quoting Pel!, 417 U.S. at 823); Bel! v. Wolfish, 441 U.S.
520, 547 (1979). Any regulation whose dominant purpose is
to advance prison security would naturally be entitled to
considerable deference. These concerns do not, however,
command that courts give a free pass to prison officials who
utter the right magic words. Courts remain charged with the
task of detecting when a restrictive measure is the kind of
"exaggerated response" this Court has long warned of, lest
constitutional abuses simply be recast through the talismanic
invocation of "security" and "order."
Despite Petitioner's contentions to the contrary,
Turner's rational relation factor has always entailed more
than the bare minimum level of judicial review. Cf Turner
Broad. Sys., 512 U.S. at 641 ("Where a law is subjected to a
colorable First Amendment challenge, the rule of rationality
which will sustain legislation against other constitutional
challenges typically does not have the same controlling
force."). Courts applying Turner limit their consideration to
penological goals actually advanced by prison officials.
Compare Shaw, 532 U.S. at 229 (a rational connection must
exist between regulation and the "governmental interest put
forward to justify it") with FCC v. Beach Communications,
Inc., 508 U.S. 307 (1993) (rational basis review of
Congressional action asks only whether there exists "any
reasonably conceivable state of facts that could provide a
rational basis," and the inquiry stops as soon as the court is
able to imagine '''plausible reasons' for Congress' action").
Under the Turner framework, courts may not invent or
substitute their own penological goals and rationale. Cf
Davis v. Norris, 249 F.3d 800 (8th Cir. 2001) (remanding for
lack of evidence from the government); Crofton v. Roe, 170
F.3d 957, 960-61 (9th Cir. 1999). Courts must base their
evaluation on the evidentiary record and the application of
"common sense." Turner, 482 U.S. 97-98.

Although the burden of proof lies with the prisoner,
Overton, 539 U.S. at 132, nothing about the burden
allocation prohibits courts from "look[ing] closely at the
facts of a particular case and the specific regulations and
interests of the prison system" for evidence of a rational
relationship. Beerheide v. Suthers, 286 F.3d 1179, 1185
(10th Cir. 2002). Where the nexus between a regulation and
the government goal seems weak, the government's lack of
"specific facts or explanation to support its argument,"
Crofton v. Roe, 170 F.3d at 960, might well suggest an
attenuated relationship or exaggerated response. Accord
O'Lone, 482 U.S. at 359 (Brennan, 1., dissenting) (observing
that "prison officials are in control of the evidence"). The
Third Circuit engaged in no more searching an inquiry in this
case than was proper under Turner to test the nature of the fit
between the regulation and the stated goal. See Banks, 399
F.3d at 141-42 & n.1 0 (observing that the lack of evidence in
the record "reinforces the conclusion" that there is no logical
connection between Pennsylvania's regulation and its
asserted purpose). Its analysis of the evidence was not, as
Petitioner suggests, a requirement that the state produce
empirical proof of the efficacy of its methods. Pet. Brief 23.
The Logical Connection Between the Regulation
and the Government's Stated Goal of Behavior
Modification Is, At Best, Extremely Attenuated
Pennsylvania prison officials assert three penological
goals advanced by the LTSU Level 2 publication ban, of
which behavior modification is the "primary, most important
purpose.,,3 It App 27. According to the prison rationale,
depriving Level 2 inmates of their First Amendment rights
3 The other two justifications were that "the less material Level 2
prisoners have in their cells, the easier it is for correctional officers to
detect concealed contraband and provide security" and "newspapers and
magazines can be rolled up and used as blow guns or spears, can fuel cell
fires, or can be used as crude tools to catapult feces at the guards."
Banks, 399 F.3d at 138.


would "create an incentive to comply with prison rules and
thereby be removed to Level 1 and eventually to the general
population." Banks, 399 F.3d at 138. The prospect oflosing
access to newspapers and magazines would also affect the
Level 1 and other inmates by discouraging them from
misbehavior. ld. According to Petitioner's theory, the loss
of newspaper and magazine rights would either scare or
oppress inmates into compliance and result in greater order
and institutional security. See Pet. Brief 24-25. In essence,
the penological objective of the challenged regulations is to
impose upon Level 2 inmates a quantum of harshness
beyond the severity of less restrictive segregation levels.
Certainly, the establishment of a system of incentives
is a legitimate "tool of prison administration." McKune v.
Life, 536 U.S. 24, 39 (2002) (plurality opinion). This Court
has explained this principle in the First Amendment context:
. "Withdrawing visitation privileges is a proper and even
necessary management technique to induce compliance with
the rules of inmate behavior, especially for high-security
prisoners who have few other privileges to lose." Overton,
539 U.S. at 134. In Overton, the Michigan Department of
Corrections promulgated regulations limiting the number and
manner of visits a prisoner could receive, completely
proscribing visits from most minors, in response to increased
substance abuse problems in the prison. Observing that
"freedom of association is among the rights least compatible
with incarceration," and acknowledging that "[d]rug
smuggling and drug use in prison are intractable problems,"
. the Court applied the Turner factors and upheld the
restriction as a reasonable exercise of administrative
judgment. ld. at 131-36. OvertolJ, made clear that the prison
administrative prerogative is at its apex when regulations
govern the. physical association of inmates. The strong
relationship between the prison's interest in preventing drug
smuggling made it easy for all nine Justices to vote in favor
of upholding the regulation.

The challenged Pennsylvania regulation, however,
does not concern inmate association and lacks any real
connection to the stated prison objectives. Although the
policy purports to serve a rehabilitative purpose, it prevents
prisoners from receiving publications from. rehabilitative
organizations such as Alcoholics Anonymous, Stop Prisoner
Rape, and so on, and exacerbates pervasive illiteracy in
The blunt design of the regulation belies
Petitioner's claimed rehabilitative purpose. The behavior
modification rationale advanced by the state officials in this
case reaches dramatically farther than any regulations upheld
by this Court to date. Unlike the limit on in-person visitation
in Overton or the tightly circumscribed category of
prohibited publications in Thornburgh, the liberties that the
LTSU policies curtail lack any nexus to disCiplinary
problems in Pennsylvania prisons. Instead, the restricted
First Amendment rights appear to be chosen for limitation
largely because their exercise would be highly valued.
Moreover, because prison officials have framed their
purpose in such a way that the greater the constitutional
deprivation, the more likely it is to bring about the desired
effect, common sense requires a healthy dose of skepticism.
See Brief for the Becket Fund for Religious Liberty as
Amicus Curiae 9-11. When privileges that do not implicate
constitutionally protected rights are available for "extension
and withdrawal," the prison administrators' choice to limit
inmates' First Amendment rights makes the logical
connection between the restriction and any legitimate
penological goal seem dubious at best, and likely to be an
"exaggerated response" to perceived prison needs.
Availability of Alternative Means to Exercise the
Constitutionally Protected Right
The second factor concerns the existence of
"alternative means of exercising the right that remain open to
prison inmates." Turner, 482 U.S. at 90; cf ISKCON, 505
U.S. at 692 (O'Connor, 1, concurring in the judgment)

(regulations that "leave open ample alternative channels of
communication" are more likely to be constitutional).
Consideration of this factor should be paramount here, where
the logical connection between the regulation and the
legitimate penological goal is tenuous. Indeed, the Court has
anticipated and cautioned against the conditions imposed by
the Pennsylvania Department of Corrections.
Thornburgh, 490 U.S. at 417 n.15 (remarking that a "broadly
restrictive rule against admission of incoming publications"
might well "run afoul of the second Turner factor").
The correct unit of analysis for the second Turner
factor is the group whom the regulation affects-Level 2
inmates. Cf. ISKCON, 505 U.S. at 692. Because of the
indefinite duration of LTSU Level 2 tenure and lack of
objective criteria for advancement to Levell, there is no
assurance that a Level 2 inmate will ever advance to a less
restricted classification. Contrary to Petitioner's arguments,
it is therefore inappropriate to inquire whether adequate
alternatives exist for all prisoners generally. Focusing on
Level 2 inmates, prison policies completely restrict the
ability to receive communication from non-religious and
non-legal publishers and writers. Aside from the limited
amount of personal and legal correspondence that is still
permitted, LTSU Level 2 inmates face a total deprivation of
communication with the secular outside world. As Judge
(now Justice) Alito acknowledged in his dissent from the
Third Circuit opinion, "[t]his is the most troubling ofthe four
factors." Banks, 399 F.3d at 149.
Petitioner's pinched application of the second Turner
factor would approve virtually any limitation on expression,
as long as some means remained for prisoners to "receive
information and communications from the outside world."
Pet. Brief 29-30. Such an approach misinterprets and vastly
expands this Court's decisions. In Overton, for example,
visitation rights were only proscribed for one group of
prospective visitors, minors who were not the children,

grandchildren, or siblings of the prisoner. The prisoner and
prohibited minors could still communicate with one another
through letters and telephone calls. Overton, 539 U.S. at
135; see also Pell, 417 U.S. at 824-25 (media representatives
who could. not conduct in-person interviews could still
communicate directly with prisoners by letter or telephone);
Jones v. North Carolina Prisoners'Labor Union, 433 U.S.
119 (1977) (union was prohibited from mass distribution
within prison but could still send materials through
individual mail); see also ISKCON, 505 U.S. 672 (solicitors
could disseminate their messages through distributing
The Pennsylvania restriction is categorically
different from the ones upheld in Overton, Pell, and Jones.
The policy here completely closes the avenue of
communication between the prisoner and the "publishers
who wish to communicate with those who, through
subscription, willingly seek their point of view [and who]
have a legitimate First Amendment interest in access to
prisoners." Thornburgh, 490 U.S. at 408. It is much more
akin to the "absolute ban" on leaflet distribution struck down
in ISKCON. 505 U.S. at 831. The second factor weighs
heavily in favor of invalidating the restrictions.
Effect of Accommodation
The third relevant factor for consideration is the
"impact accommodation of the asserted constitutional right
will have on guards and other inmates, and on the allocation
of prison resources generally." Turner, 482 U.S. at 90.
After considering the proffered alternatives, the Third Circuit
properly determined that accommodation of the First
Amendment right in this case would not have a deleterious
"ripple effect" on the rest of the prison population and staff.
Banks, 399 F.3d at 146-48.
Evidence in the record supported the Third Circuit's
determination that any impact on prison resources of
accommodating these prisoner's First Amendment
entitlements would be low, taking into account Turner's

admonishment that "[i]n the necessarily closed environment
of the correctional institution, few changes will have no
ramifications on the liberty of others or on the use of the
prison's limited resources for preserving institutional order."
Turner, 482 U.S. at 90. The number of inmates to whom the
accommodation would apply was only approximately forty,
or 0.1% of the prison population. Jt App 127. Prison
regulations already permitted Level 2 inmates to go to the
mini-law library, Jt App 157, which would minimize the
additional burden of the accommodation suggested by the
Third Circuit. Banks, 399 F.3d at 147 (suggesting as a
possible accommodation that "individual prisoners could be
escorted to the secure mini-law library to read a periodical of
their choosing"). The Third Circuit correctly determined that
accommodations proposed by Banks were reasonable and
not excessively burdensome to prison administrators.
Availability of Reasonable Alternatives
Finally, "the existence of obvious, easy alternatives
[to accomplish prison goals] may be evidence that the
regulation is not reasonable, but is an 'exaggerated response'
to prison concerns." Turner, 482 U.S. at 90. The primary
asserted prison concern in this case is to create conditions of
confinement unpleasant enough to deter non-LTSU Level 2
inmates from misbehaving and encourage Level 2 inmates to
behave in the hopes of being promoted to a different level of
housing. Pet. Brief 5. Aside from the high value inmates are
likely to place on the exercise of their First Amendment right
to newspapers and magazines, cf Kimberlin, 318 F.3d at 240
(Tatel, 1., concurring and dissenting) ("regulations that
deprive prisoners of their constitutional rights will always be
rationally related to the goal of making prison more
miserable"), Petitioner demonstrated no specific interest in
depriving inmates of publications.
The alternatives considered by the Third Circuit
appropriately focused on the state's broad asserted goal of
creating a more severe state of confinement than LTSU

Levell. The record shows that Level 1 inmates are allowed
to spend five dollars per week on commissary compared to
no commissary privileges for Level 2 inmates; Level 1
inmates are permitted two immediate family visits per month
rather than one, and one phone call a month rather than
emergency calls only; Level 2 inmates are also allowed GED
or Special Ed in-cell study program, are compensated for
work, and can get additional privileges authorized at the
discretion of prison officials. Jt App 32-33, 48, 102. Where,
as here, the penological objective can be fulfilled through
measures that do not burden constitutional rights, the
infringing regulation is likely to be an exaggerated response.
The Third Circuit correctly concluded that these differences
between Levels 1 and 2 suffice to satisfy prison goals.
The judgment of the Court of Appeals should be
Respectfully submitted,


Counsel ofRecord

Reporters Committee for
Freedom of the Press

Rosen, Bien & Asaro, LLP


Sonnenschein Nath &
Rosenthal LLP
February 16,2006

Counsel for Amici Curiae



Prison Legal News ("PLN") is a' non-profit,
charitable corporation that publishes a nationally distributed
monthly journal of the same name. Since 1990, Prison
Legal News has reported on news, court decisions, and other
developments relating to the civil and human rights of
prisoners, crime victims, and correctional staff in the United
States and abroad. PLN has the most comprehensive
coverage of detention facility litigation of any publication.
In addition to reporting on the rights of prisoners, PLN also
reports on the rights of crime victims, prison and jail
employees, and prison and jail visitors. Nearly every issue
of PLN covers court decisions and information on the rights
of prisoners in segregated control units.
PLN has
approximately 4,600 subscribers in all fifty states and
Approximately sixty-five percent of PLN
subscribers are state and federal prisoners, including
prisoners in the custody of the Pennsylvania Department of
Corrections, including its control units, and prisoners in:
control units nationwide.
The Reporters Committee for Freedom of the Press is
a voluntary, unincorporated association of reporters and
editors that works to defend the First Amendment rights and
freedom of information interest of the news media. The
Reporters Committee has provided representation, guidance
and research in First Amendment and Freedom of
Information Act litigation since 1970.
The Freedom To Read Foundation is a not-for-profit
organization established in 1969 by the American Library
Association to promote and defend First Amendment rights,
to foster libraries as institutions that fulfill the promise of the
First Amendment for every citizen, to support the right of
App 1

libraries to include in their collections and make available to
the public any work they may legally acquire, and to
establish legal precedent for the freedom to read of all
The Association of American Publishers, Inc.
("AAP") is the national trade association of the u.s. book
publishing industry. AAP's members include most of the
major commercial book publishers in the United States, as
well as smaller and non-profit publishers, university presses,
and scholarly societies. AAP members publish hardcover
and paperback books in every field, educational materials for
the elementary, secondary, postsecondary, and professional
markets, computer software, and electronic products and
services. The Association represents an industry whose very
existence depends upon the free exercise of rights guaranteed
by the First Amendment.
The American Booksellers Foundation for Free
Expression ("ABFFE") was organized in 1990. The purpose
of ABFFE is to inform and educate booksellers, other
members of the book industry, and the public about the
dangers of censorship and to promote and protect the free
expression of ideas, particularly freedom in the choice of
reading materials.
The Publishers Marketing Association ("PMA") is a
nonprofit trade association representing more than 4,200
publisher members across the United States and Canada.
PMA members include independent, non-profit and
university press who publish a variety of literary works,
including fiction and non-fiction books on all topics. The
works of its members contribute to the public debate on
cultural, social and political issues. The right to open access
to the media, including sources for discussion of current
national and worldwide news and events, is of paramount
concern to PMA's members. PMA believes that this case
will potentially burden the First Amendment rights of ~ts

members and bears directly on the ability of its members to
disseminate and receive ideas and information.