THORNBURGH v. ABBOTT

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ORAL ARGUMENT OF WILLIAM C. BRYSON ON BEHALF OF THE PETITIONERS

Chief Justice William H. Rehnquist: We'll hear argument now in No. 87-1344, Richard A. Thornburgh v. Jack Abbott.

Mr. Bryson, you may proceed whenever you're ready.

Mr. Bryson: Mr. Chief Justice, and may it please the Court:

The issue in this case is what standard should be applied by courts in confronting the censorship of publications sent into federal prisons for inmates.

The question is whether the reasonableness standard should be used, which is the standard that this Court has articulated on a number of occasions with respect to prisoners' rights in cases during the last 15 years, or the heightened scrutiny standard of the decision in Procunler against Martinez.

The reasonableness standard is perhaps best articulated as a standard in which the action of the prison officials is to be upheld if it is reasonably related to a valid penological concern, as long as there is not substantial evidence that the reaction, the action, the regulation or whatnot, is an exaggerated response by the prison officials.

The heightened scrutiny standard from Procunler is that the regulation must actually further an important governmental interest and go no farther than is necessary or essential to do that.

Now, the regulations in this case that are at issue are regulations which were first promulgated in 1979.

They have precursors that go back many years, but the particular regulations that are at issue are the 1979 regulations as modified by 1980 and 1985 policy statements of the Bureau of Prisons.

This adds some complication to the case because most of the publications that are at issue in the case that the Plaintiffs protest their exclusion were excluded in 1977 and 1978, before the actual promulgation of the new policy and before the promulgation of the policy statement that deals with sexually oriented publications.

But the basic gist of the regulation is pretty much the same.

It has been changed in some particulars.

It has been made tighter as far as procedural protections go.

But the basic components of the policy are still the same as they were in 1977 and, indeed, back in 1973 when this case was first filed.

And the--

Unidentified Justice: Is there any doubt about this being still a live controversy?

Mr. Bryson: --Well, Your Honor, it's not a... there's no doubt about its being a live controversy.

What may not be live in this regard are... and the Court of Appeals acknowledged this... are the challenges to the rejection of these 46 publications that are at issue in the case.

These 46 publications all are publications that were rejected in 1977 and 1978.

These publications, there was testimony at trial to show, might very well have been admitted under the new policy, but in any event, the Court of Appeals sent this case back to the district court for an assessment, among other things, of whether there's any further controversy with respect to those publications.

What isn't in doubt is that there's a continuing dispute about the validity of the standard that should be applied in this case; that is to say, whether Procunler, the standard or the reasonableness standard should apply.

Unidentified Justice: A dispute between people who are still incarcerated--

Mr. Bryson: Some of whom are still incarcerated, yes.

Now, the point of the original plaintiffs go back to 1973.

Some of these people are still incarcerated, and in any event, it's a class action and was certified at such at some point.

Now, the regulation that's at issue in this case... and I'd like to spend a little more time on the facts perhaps than I normally would because they are somewhat intricate... but the regulation that's at issue says that a 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.

The regulation then goes on to say that the warden may not reject a publication solely because its content is religious, philosophical, political, social or sexual.

The regulation then contains a series of examples of specific, dealing with specific areas, directing when the warden can exclude particular types of materials such as materials that are in code, materials that depict escape plans, materials that depict, encourage or describe methods of escape and may lead to the use of physical violence or group disruption.

Unidentified Justice: --Mr. Bryson, what does the word "sexual" in the regulation really mean?

How far does it carry us, because some of those that were rejected are certainly sexually explicit magazines, are they not?

Mr. Bryson: Some of them certainly are sexually explicit magazines, and here, Your honor, is a perfect example of why I think the materials that are, the specific materials that are in dispute in this case would probably be handled quite differently from the way they were back in 1977 and 1978 when they were rejected.

The materials that are dealt with under the sexual... sexual materials provision of the regulation are sexually explicit materials, but the wardens are advised by the policy statement of 1980 that heterosexual materials normally will not be excluded, even if they are sexually explicit materials.

Now, there are exceptions to to this which include sadomasochistic materials, bestiality and child pornography, but by and large, heterosexual materials, even if sexually explicit, will be admitted.

And this is the program statement that is found in the appendix to the Court of Appeals' opinion.

Again, there were materials that were kept out in 1977 and '78 which the Plaintiffs protested, but those materials, at least with respect to sexually explicit heterosexual materials, probably would now come in.

The district court upheld the regulations facially and as applied.

The court found after a ten-day trial in which evidence was taken from both the Plaintiffs' experts and from the defense experts, including a number of wardens and regional directors and the Director of the Bureau of Prisons... the district court found that violence in federal prisons is a major problem and that it is caused in major part by ethnic gangs and homosexual activities.

Many assaults, the district court found... and there are a lot of assaults in federal prison, both on other inmates and on prison guards... many of the assault... assaults are precipitated, the district court found, or manifested by homosexual activity.

These publications--

Unidentified Justice: Mr. Bryson, when you say the district court upheld the regulations, it upheld the prior regulations or the current regulations?

Mr. Bryson: --It upheld the current regulations, Your Honor, the 1979 regulations.

Unidentified Justice: They were already in effect by the time the district court--

Mr. Bryson: That's right.

The trial was in 1981--

Unidentified Justice: --Okay.

Mr. Bryson: --and the district court's decision was 1984.

So the '79 regulations were in effect at that time.

They are the regulations which the facial challenge to which is at issue in this case.

Unidentified Justice: Mr. Bryson, were the changes in the current regulations major changes from the precursors?

Mr. Bryson: Well, Your Honor, the basic principle, the principle that matters that are detrimental to the good order, security and discipline of the, of the prison, that was not changed.

So the core idea of the whole regulations was the same as it has been since 1975.

But what was changed was these particular applications, these directions to the wardens was... Those were added in 1979.

In addition, the more liberal policy with respect to sexually explicit materials was instituted in 1980, and perhaps particularly important for the purpose of procedural objections that are raised here, a number of changes were made in the regulations to provide, for example, a more extensive review process for the inmates.

The inmates, under new regulations, can see the materials prior to taking an appeal from the, from the rejection by the warden in most cases, and the... there is an effort made to attain more uniformity in the prison system by virtue of an appeal system which was much more rudimentary back in the '70s.

So there were procedural changes.

But the basic core provision is essentially the same.

Unidentified Justice: May I ask you, are the materials that are excluded primarily pictorial or written materials?

Mr. Bryson: They're... they fall into both categories, Your Honor.

The pictorial--

Unidentified Justice: Because if, if you are trying to prevent somebody, prevent somebody from reading the material, he could read it to prepare his appeal from not being able to read it?

Mr. Bryson: --Well, there is a provision that says he can, he can read it in cases where there is not deemed to be some great harm from his reading it.

The problem is not, Your Honor, in the individual reading the materials in most cases.

The problem is in the material getting into the prison.

That is, in most instances the warden doesn't worry about Individual No. 1 reading particular, particular materials.

The danger is in their becoming passed around within the prison.

So there are, there is a class of cases, it's not all the cases, but some cases in which there is deemed to be no great harm to having the individual read the materials in preparing his appeal but in which we want to take the position that the material should not come in for free distribution in the prison.

Unidentified Justice: Are there, are there some examples you could mention of materials which have been banned and the government says that justifiably banned under these regulations?

Mr. Bryson: Oh, certainly.

For example, to take perhaps the best example, publications advocating prison unions.

Prison unions are, are, frankly, anathema to the prison system.

It's completely contrary to the efforts of the prison system to obtain discipline and good order within the prison system, and we keep out publications that advocate unionism among the, among the prisoners.

We also keep out some homosexually explicit materials because of the concern, and it's a two-told concern, that there will be targeting of particular individuals as being homosexuals who would then be subjects of assault, and also because, frankly, it tends to, as several of the witnesses stated at trial, it tends to suggest that the institution condones this form of behavior and therefore results in more of that form of behavior which is inimical to the operation of the prison in an orderly way.

So those two classes, for example--

Unidentified Justice: You're not keeping out Penthouse, then, or things like that.

Mr. Bryson: --No.

Sexually, sexually explicit heterosexual materials are, the provision states, normally admitted.

Now, there may be exceptions if, for example, some sexually explicit heterosexual material wanders over into the area of child pornography, bestiality or sadomasochistic materials.

But generally speaking, that's true, you don't... we don't keep out heterosexual materials.

Now, the district court found that publications can present a security threat, and particular publications of the sort that were at issue in this case can present a security threat.

There's suggestion in the Respondents' brief, and it has been their position all along, that this is not a realistic concern, that there's no indication that any assaults have occurred as a direct result of the admission of publications, and therefore, any reaction on the part of the prison officials to the admission of publications is an exaggerated response, it is not tailored.

Unidentified Justice: Well, Mr. Bryson, I suppose personal correspondence can also pose security threats sometimes.

Mr. Bryson: It can, and we do regulate personal correspondence.

Certain types of items, obviously, escape plans, to take the most conspicuous example, would be excluded.

Unidentified Justice: In fact, that might be more of a risk than this type of publication.

Mr. Bryson: It would depend on what it was.

Certainly, if it was an escape plan, you bet, we would keep it out, just as we would a publication that published, for example, the, the plans to Marion Penitentiary.

We would keep that out, I'm confident.

Unidentified Justice: What standard do you think applies to review of personal correspondence?

Mr. Bryson: I think as a general matter the Martinez standard applies, the Procunier against Martinez standard applies.

Our position in this case is that, as a class, the, the cases involving personal correspondence have a more compelling argument to be made for them that they should be admitted into the prisons than publication because--

Unidentified Justice: Isn't it difficult to break this, the standard down according to the type of correspondence, and you, you run into some real problems?

What about letters from the VA or the IRS or--

Mr. Bryson: --There's no, there's no doubt that--

Unidentified Justice: --book clubs?

I mean, I think, I think you're asking the Court to apply a rather confusing breakdown of standard.

Mr. Bryson: --Well, it certainly is... the proliferation of standards is a real problem, and I don't, I don't underestimate the difficulties that that presents, both for the courts and also for the administrators.

We have the Procunler decision, and that decision sets forth a standard that is applicable to direct personal correspondence between individuals on the outside and individuals on the inside.

Our, our point in this--

Unidentified Justice: Well, what's the real difficulty of applying that standard to these publications as a practical matter?

Mr. Bryson: --I guess the biggest difficulty, Your honor, is more in the misapplication, I think, of that standard than in its application, and this case is a perfect example of its misapplication.

The mischief is in the requirement that the regulation go "no farther than necessary", and that has been interpreted, and indeed.

I think it's fair to say that it has initially intended, in all likelihood, as a least restrictive alternative type rule; that is to say, if there's some way that this particular regulation could be narrowed, then it constitutionally must be so narrowed.

That least restrictive alternative, as the Court noted in the Turner case, that approach to prison... the regulation of activities within a prison, tends to put the wardens in a position that they can be second-guessed by the court at every turn.

That's the mischief, I think.

It the, the standard in Procunler is not a, it's a somewhat amorphous standard, frankly.

It is a standard which is subject, I think, to interpretation as a kind of enhanced reasonableness test.

The mischief as I say, is in this least restrictive alternative aspect of the test.

If you were to say that is not the way Procunier should be read, to have a least restrictive alternative requirement... and that is decidedly not the way the Court of Appeals read it in this case... but if this Court were to say that is not the way Procunler was... is to be read, then I think the standard of that case could be squared with the standard that this Court adopted in Turner for reasonableness.

We would advocate a reasonableness test across the board.

We have Procunler on the, on the books with respect to direct, personal correspondence?

Unidentified Justice: Even for personal correspondence?

Mr. Bryson: I think that reasonableness, particularly the kind of reasonableness and analysis that this Court spelled out in Turner, makes great sense for any form of publication.

In Turner this Court made quite clear that reasonableness does not mean complete, abject deference to the warden no matter what.

It means that you have to show some valid connection with a legitimate penological interest and that there are not easy alternatives which could solve the same problem.

There are a number of, of features to the reasonableness test that this type of case the Court laid out in Turner which we would believe should be applied across the board.

But, as I say, to the extent that Procunler is read as being inconsistent with Turner and it is certainly possible to read it that way, and indeed, that's the way the Court of Appeals read it, we submit that Procunler should not be extended to this class of cases, which is not as compelling a class of cases as the direct personal correspondence.

And the reason--

Unidentified Justice: And you might add that that was the way it was written, too; I mean, in addition to saying that it's possible to read it that way.

Mr. Bryson: --Oh, yes, no question.

They expressly did not... the Court expressly did not reach the class of cases such as this one.

The Court was dealing and expressly with the limited class of cases involving direct personal correspondence.

Now, the Court of Appeals, as I say, struck down this, these regulations on their face and, in the course of doing so, imposed an extraordinarily exacting standard on the prison officials.

For example, the Court said with respect to the provision that states that materials that instruct in criminal activity will be excluded, the Court said that that wasn't sufficient.

The Court explained that there was no requirement, no requirement in the regulations that the warden find a probability that the publication will result in a breach of security.

Now, that's asking an awful lot, to say that instruct... materials that instruct in criminal activity cannot be excluded from a prison because there is no likelihood, no probability that the publication will result in a breach of security or order.

Now, there are various other provisions in the... various other statements in the Court of Appeals' opinion in which essentially the same approach is taken, which is to say you have to establish a likelihood that something will actually happen as a result of the admission of these materials.

We think the district court got it right when the district court said at page 32A of the petition appendix, that wardens should not be required to show a likely, immediate or substantial threat of a breach of security or order.

That, as the district court explained, would require the admission of publications that could exacerbate tensions and lead indirectly to disorder.

Now--

Unidentified Justice: Mr. Bryson, of all the things you mention, the one that troubles me most is your statement that you keep out publications that advocate unionism.

Do you keep out publications that advocate better food--

Mr. Bryson: --No.

Unidentified Justice: --in prisons?

Mr. Bryson: Not no, It depends on, it would depend on the... it would depend, of course, on, on, on what... how that was put.

I mean, if the advocacy for better food was to say go on a food strike until we get better foods, yes, we would probably keep it out.

The point of union publications--

Unidentified Justice: Well, you didn't say that about the unionism exclusion.

Is it... is it only the manner in which it's proposed that, that induces you to keep it out?

What if you just say, you know, you should try to persuade prison authorities to allow unions?

would you keep that out?

Mr. Bryson: --Well, I, I don't know, frankly, whether something that was put in that, in that way would be excluded because it would be so much, so much, so much closer to simply informational material rather than advocacy, but in cases in which what is being urged... and this is uniformly the case with these materials... what is being urged is actual unionization itself; that is to say, unionize, engage in collective action against the prison officials, those materials we keep out.

And that's what we're dealing with when we deal with prison union materials.

It is, I think, even if Martinez is good law with respect to correspondence itself, when it's applied outside that setting, outside the setting that it defined itself as, as the appropriate setting, then you run into, in addition to the problems that I've discussed, you run into the line of cases from this Court dealing with non-public forums.

And those cases make quite clear that a prison is the ultimate non-public forums and the rule that applies in non-public forum cases is, again, the reasonableness test, essentially, exactly the test that the Court has adopted for the rights of prisoners themselves.

And we are urging that that rule be applied to the rights of those who are seeking to send materials into the prison, a non-public forum.

And that test is perhaps best put in the Perry Education Association case when the Court said that regulation must be reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view.

Now, this is a case in which the regulations in and of themselves made quite clear that suppression is not done simply because of disagreement with the speaker's views.

Suppression is, is tied to the effects.

Unidentified Justice: Well, I'm not sure that's right.

In the prison union context you simply disagree with the views of those advocating prisoner' unions.

Maybe it's a reasonable disagreement, but it's surely a viewpoint-based exclusion,--

Mr. Bryson: Your Honor, the reason we exclude in that class of cases, as in every other class of cases, is not because we disagree with the views but because we are concerned about the effects, and the effects of publications that say unionize are that, typically, they will produce or can be expected to produce, intransigence and resistance on the part of prisoners.

That is bad news for the prison when prison officials try to run an orderly shop and the prisoners are being urged to and in fact engage in collective action.

Unidentified Justice: --Yes, but I think if you would... in answer to Justice Scalia's question, you would exclude a publication... I understand most of them are not this kind, but which merely contained an article saying we think in the long run prisons would be run better if wardens would understand that unions could form a useful, perform a useful function or something like that.

Mr. Bryson: I have never seen an article come through that was of that nature, and I'm not sure that it would be excluded.

The warden would have to make a decision as to whether that would be likely to result in the collective action that is the real concern--

Unidentified Justice: I see.

Mr. Bryson: --the disruptive, group disruption.

If the warden did not rationally, could not rationally draw that conclusion, then the material would come in.

But again, it's... the focus is on the likelihood of group disruption, not on disagreement with the views.

It may be that the warden would disagree with the views, but that is not the purpose of the regulation.

That's not the justification for the regulation.

Again, on the non-public forum issue, the Respondents argue that this, the Court's cases on non-public forum don't apply because, for several reasons: first, they say, because the mails are at issue here, not the prisons, the mails are the forum.

Well, that really don't do as an answer because the place where the materials are circulated, the place where the materials are sent, is the prison.

In Jones against North Carolina Prisoners' Union, the Court clearly said that the prisons were a non-public forum in response to an argument that the mails were being used to send in bulk materials.

So the mails as a forum is just another way of trying to say that the prison is in part a public forum, which it is decidedly not.

Second, they argue that these materials... these, these regulations are not content-neutral.

Well, they are neutral with respect to the question of the opposition or... opposition to the speaker's viewpoint.

Now, that is the way in which neutrality is central in the, in the non-public forum cases such as Perry.

Unidentified Justice: May I ask one other question?

I'm just a little confused about the difference between Procunier and this case.

The fact that the prison is obviously a non-public forum, what... what did that have to do with the analysis in the Procunier case?

Mr. Bryson: It wasn't raised in the Procunier--

Unidentified Justice: But it was just as non-public for people who are writing letters, or people who are writing letters enclosing magazines.

Mr. Bryson: --That's true.

The non-public forum argument was not made in Procunier.

The argument that was made in Procunier by the state--

Unidentified Justice: I don't know how it advances the problem.

That's really what I'm saying.

Mr. Bryson: --Well, I don't... it's, it's, it's hard to say.

I mean, the, the, the non-public forum cases really developed after Procunier, and I think that the Court might view Procunier, or counsel arguing that case might view it quite differently now than they did at the time when they did not really have that line of cases other than Adderley against Florida, which was really a very early case along that line.

And finally, the, the Respondents say that well, this case is not really a closed, non-public forum case because reading is not harmful.

Well, that begs the question.

Reading may not be harmful, but what we're concerned with are the consequences of the reading, which can be very harmful indeed.

Thank you.

Unidentified Justice: Thank you, Mr. Bryson.

Mr. Ney, we'll hear now from you.

ORAL ARGUMENT OF STEVEN NEY ON BEHALF OF THE RESPONDENTS

Mr. Ney: Mr. Chief Justice, and may it please the Court:

I'm here today representing the press.

This is a case involving the free speech rights of outsiders, and only incidentally a prisoner case.

I represent publishers whose publications and books were excluded from federal prisons.

I'm going to make three basic points.

First point is that using a reasonableness type test, the, the Bureau of Prisons has engaged in unjustified censorship of otherwise protected material.

In other words, the standard that they are defending in this Court is essentially one of reasonableness compared to their correspondence policy, and it... it is the implementation of that policy that has led to unjustified censorship.

My second point is that Martinez must control the decision in this case.

Both of those cases involved the content-based censorship of individually mailed written materials from outsiders, and to that extent, those two cases are synonymous.

Unidentified Justice: But from a particular group of outsiders.

Mr. Ney: Yes, you're right, and what--

Unidentified Justice: What was the group?

Mr. Ney: --In Martinez?

Unidentified Justice: Yes.

Mr. Ney: Yes, those were correspondents, and this Court in that case discussed--

Unidentified Justice: Particular kinds of correspondent, or what?

Mr. Ney: --The... as I understand the rule that the Court adopted in Martinez, it applies to the general public as this Court described it in Turner, the general public writing to prisoners.

The Court certainly discussed the importance of a familial relationship, but the rule established in that case applied to all correspondence sent to prisoners.

Unidentified Justice: Is, isn't it fair to say, though, that in Martinez we were dealing with correspondence that was intended for and sent to individual prisoners, but the material here is designed to appeal to prisoners as a group, and that therefore there is a much greater danger that there would be group disruptive conduct?

Mr. Ney: Well, the materials that are sent here are sent, in some cases, by publishers who are focusing on a prison-oriented audience.

In other cases they are publications of general circulation.

Unidentified Justice: But in both cases that you put, the publication is intended for an audience of more than one, and that was not true in Martinez.

Mr. Ney: The... as I understand the rule--

Unidentified Justice: And the government is concerned here with group disruption.

Mr. Ney: --In each instance here we have a subscription, a request from the inmate to the publisher seeking a nexus, seeking an act of communication, seeking to establish a link, and the publisher is responding in an individualized way saying yes, I accept your request, I'm sending the publication.

Unidentified Justice: But it's... the material is designed to appeal to a group.

Mr. Ney: I think it depends on the type of material that we're talking about.

It covers a variety.

Some of the material that has been censored in this case, for example, the WIN Magazine, was an article that criticized prison industries, and it was censored from Leavenworth Prison.

Unidentified Justice: Well, Mr. Ney, do, do any of the people you represent write individual messages to prisoners as opposed to send them something that they all... so that they send the same thing to other prisoners?

Mr. Ney: I'm not sure I follow the question.

Unidentified Justice: Well, I, I thought it was the same question Justice Kennedy asked you.

When a, a subscription comes in to one of your clients, a publisher--

Mr. Ney: Yes.

Unidentified Justice: --does he send an individualized publication for that person only, or does he send a magazine or publication that is designed to be sent not just to that person but to others?

Mr. Ney: Yes, certainly it's the latter.

Unidentified Justice: Oh.

Mr. Ney: The result of the Bureau's policy is that a magazine like The Labyrinth, which criticized medical care at Leavenworth and in other federal prisons, was rejected.

They stated that it could cause problems with... the philosophy might guide inmates into situations that would cause them problems with the medical staff, that the article was slanted.

The article said that prisoners had been murdered by neglect.

The... later on in depositions in this case, the officials acknowledged that this publication was not a threat to security and that they would let it in, although the government never took the legal position in this case, as they seem to be saying today, that those publications could come in.

It was only as a result of the, the, the bringing of this lawsuit that that unjustified censorship came to light.

The, the... another magazine that was kept out was The Call magazine, criticized the control unit at the Marion prison.

Unidentified Justice: Well, well, is the government going to tell us in closing, if it has time, that that's just an instance where the policy was misapplied and it concedes error, and that's the end of the case?

Mr. Ney: I don't know what they'll say.

Unidentified Justice: Well, but I mean, if it does--

Mr. Ney: Yes.

Unidentified Justice: --we still have the question of what the standard ought to be.

Mr. Ney: I think you're right, and--

Unidentified Justice: Mere, mere, merely because a standard is misapplied, it doesn't mean the standard is invalid, does it?

Mr. Ney: --No, I think what our point is, is that the... this general framework established by the Bureau of Prisons is virtually identical to the one that this Court condemned in the Martinez case.

It allowed the warden virtually untrammeled discretion to keep out whatever he felt was inflammatory material.

And this Court said that notwithstanding that belief, that narrowly drawn guidelines were necessary, and that's the same position that he would take in this case.

Unidentified Justice: Mr. Ney, is it... is it an essential part of your position that a person in prison retains not only the right to receive letters from individuals who are writing him, but also the right of access to the mass media?

Isn't that essentially what you're arguing?

Mr. Ney: No, this is... we are arguing this case principally as a First Amendment case of the outsiders, the freedom of the press, the press' right to have at least the equal access to a willing listener that a member of the general public would have.

Unidentified Justice: What about, what about the electronic media?

Suppose you, you have a prisoner who has enough money to buy a television set; he's willing to invest his own money for a television set.

There are no prison problems with the set; it doesn't disrupt the activities in the prison.

Does he have a right to have television in prison?

Mr. Ney: As I understand the Bureau of Prisons' policies is that they do allow prisons and they do not regulate the media.

I don't... I'm--

Unidentified Justice: Let me ask--

Mr. Ney: --I don't think the Court has to answer that or reach that question today.

Unidentified Justice: --No, but you do.

[Laughter]

Mr. Ney: Well, I think it's a difficult question, and I think this Court has recognized that the different forms of media are governed by different principles.

Unidentified Justice: Well, when, when they are more disruptive but I'm positing that you can prove that a television set is not... in other words, it seems to me that part of... there's a lot of inconvenience in being on prison, and the inconvenience does not consist exclusively of having your, your mobility restrained.

There, there are just some things that that traditionally you don't have in prison, and one of them, it seems to me, is a television set.

I'm not sure that one of them isn't Time magazine or general, general access to whatever publications you want to subscribe to.

Can, can you distinguish the, the, the print and the electronic media that way?

Mr. Ney: Well, I think this Court's decisions indicate that the... that from the outsider's perspective, that a... that a publisher has a right to reach an audience, to engage in that kind of act of communication.

Unidentified Justice: I'm sure an individual writer does.

We've, we've said that in Procunier.

Mr. Ney: Yes.

And what is the distinction, from our perspective, between the... a member of the general public, anyone can write, anyone in this Court could write to any prisoner in the United States, and we're saying that same right should exist for a publisher.

Unidentified Justice: I think the distinction is what have the traditions of our society been as to the inconveniences that prison entails.

One of them has not been that your family, friends, people who want to write to you individually, can't do so, but one of them may be that you can't have television sets and you can't necessarily subscribe to Time magazine.

Mr. Ney: Well, I think one the things to look at is how has the Martinez rule worked in the past 14 years, and it's our position that it has worked well in the correspondence area.

There have been no great outcries that it has led to the introduction of inflammatory material.

Unidentified Justice: What publications do you suppose could be prohibited under the Martinez standard?

Mr. Ney: We would, as we said in our brief, we could... certainly publications that would instruct in how to escape from prison or how to pick a lock, how to make bombs or weapons.

We have no objection to censorship of those kinds of materials, and the Martinez standard would certainly allow that exclusion.

I think it's ironic that the... and it shows up the lack of an appropriate distinction, an unworkable distinction between publications and correspondence, the fact that you could send in, a lot of the materials that were censored in this case could be transmitted by letter under the Bureau of Prisons' own policies that, and the... if we adopt the Solicitor's suggestion that there be a different standard, then if I summarize an article in a letter, I could get it into the prison, or if I even copy an editorial, of if I enclose a news clipping, then my letter could get in but the news clipping would be kept out.

I think it's an unworkable distinction and one that this Court should not adopt.

Unidentified Justice: In your view, could a magazine advocating the organization of a prisoners' union be distributed under the Procunier standard?

Mr. Ney: Well, I think that's what this Court said in the Jones case, that the bulk mailings could be kept out but that individual mailings--

Unidentified Justice: No, no, say a... I'm talking about bulk mailings now.

Mr. Ney: --Yes, okay.

Unidentified Justice: I'm not talking about the problem of a friend sending a copy of an article or a copy of a magazine.

Would the publisher of a magazine advocating the formation of a prisoners' union have a right under the Procunier standard to have that publication distributed within the prison, in your view?

Mr. Ney: Well, this case does not involve distribution.

We see that as a separate question.

Unidentified Justice: Well, do, do you have a right to make a bulk mailing to the prison of that magazine?

Mr. Ney: No, I... but that's not this case.

This is a case involving individual subscriptions, as I see it, individual acts of communication.

Unidentified Justice: But you said when you started that you represented publishers.

You weren't representing the inmates.

You were talking about the point of view of the publishers, and I'm asking you if you represent a magazine that advocates the formation of a prisoners' union and you contend that the Procunier standard applies, would you have a constitutional right to have, to send that magazine to inmates?

Mr. Ney: Not on a bulk basis, no.

I think the Jones case would dispose of that.

Unidentified Justice: So are there... can you give me an example of a magazine in which a different standard would produce a different result?

Mr. Ney: The... I think part of the importance of the standard chosen by the Court is the signal that it will send to prison officials, that it... this is a standard that ten Circuit Courts of Appeals have used.

Unidentified Justice: Well, I understand that two standards will send different signals.

Can you give me an example of a magazine that would succeed under one standard and fall under the other?

Mr. Ney: Well, I think that the question perhaps should be put to the Solicitor.

We have been trying to get a, a statement from them as to what of the 46 publications they would allow in, and we have never been able to get it.

So I don't know what the difference would be.

We think if--

Unidentified Justice: You think all these publications should come in even under the reasonableness standard.

Mr. Ney: --That's right.

We think that if that's the standard the Court adopts and it's remanded for fact findings, as the Solicitor has agreed should be done, that we would prevail under... under either standard.

Unidentified Justice: So this is kind of a symbolic case is what it is.

Mr. Ney: Well, I think symbols... I don't think it is totally symbolic, but I think symbols are very significant because I think it would be an invitation to prison administrators to engage in much more censorship than they are presently doing, and I think that will lead to... let's, let... right now they censor, according to their brief, 170C publications in the past year.

That may lead to thousands of more being kept out under this vague standard, and will lead to more litigation in this, in lower courts and in this Court.

The Solicitor has made the point that the interest of the correspondent is less than the interest of the publisher, and what we think the First Amendment protects is the act of communication.

As this Court said in the Martinez case, it takes a listener and a speaker in order to have an act of communication, and this Court acknowledged that in the Virginia Board of Pharmacy case.

It's a constitutionally protected relationship that the First Amendment protects.

We are not seeking any special access as this Court denied in the Peli case or in the KOED case.

We are seeking equal access for the press to the prisons, just as this Court acknowledged in the Richmond Newspaper's case, that the press would have equal access.

We would also indicate that the... believe that the test set up in Martinez is not an insurmountable one.

Several Circuit Courts of Appeals have upheld prison regulations when they have been challenged.

It does not require the compilation of a dossier on the eve of a riot or predicting with certainty.

It allows a degree of latitude for a prison official.

And of course, it does allow a prior restraint, which is exceptional but recognizes the uniqueness of that forum.

I think it's also important to point out that there really is no danger in this case that's any greater than the dangers that were posed in the Martinez case.

The government has talked about prison violence.

There certainly is prison violence but they have never linked any particular publication to any particular act of violence.

The... publication after publication that was rejected, we showed them to prison officials in depositions and at trial, and they acknowledged that they were not dangerous to security.

How can these publications that they kept out be considered dangerous when they now say that they can let them in?

I would also take issue with the Solicitor General's statement that the policies... that the reason these admissions have been made resulted because of the change in policy.

In fact, the general policy which allowed... allows a warden wide discretion, and his staff, is the same as it was in 1979.

Unidentified Justice: May I ask you another question just about the general framework of the case that I just don't quite understand?

You're... I can understand the interest of the prisoners in getting access to as much different kinds of material as they can, but you made the particular point that you're representing publishers, and I just wonder what kind of a market do the publishers have in the prisons?

Most of these people can't afford to subscribe to publications, can they?

Are these publishers that are distributed for, you know, for... like the Washington Post or something like that, you've got to pay a substantial amount of money for?

Mr. Ney: It varies--

Unidentified Justice: What kind of publications are we really talking about?

Mr. Ney: --It varies widely.

Some of them are prison--

Unidentified Justice: It's certainly not a very big market, is it?

Financially?

Mr. Ney: --It's not a big market, and some of the publishers do distribute their publications for free, although on a subscription basis, to prisoners.

There also are the... there are different categories of publications.

Some are political, some are of a hetero-or homosexual nature, and it depends.

Many publishers do request subscriptions and do request payment.

Some offer discounts.

It varies.

Unidentified Justice: But these heterosexual publications, those are things, I suppose, the prisoners subscribe for, aren't they?

Mr. Ney: Yes.

Unidentified Justice: But these other publications are, are... well, I just... I just don't quite know what they are, I guess.

Mr. Ney: We've given excerpts of some of them in the joint lodging which is available to the Court.

Many of them... the ones that seem to have stimulated most of the censorship are the ones that are geared towards prison conditions and that are critical of the prison, critical of the prison administrators.

As one warden explained in his deposition, he said, well, the people in the mailroom have to read something, so it seems they either lock at the political magazines or they look at the sexual magazines, and I think it really depends on the whims of the particular institution and the persons there.

We've also challenged the all-or-nothing rule in this case which allows the prison official to exclude the entire magazine, even if only a single paragraph or single page is objectionable and we believe that that would fail afoul either of the reasonableness test or the Martinez test.

The prison officials acknowledged that they had no security basis for throwing out the entire magazine and that there would not be a... any security risk posed by deleting the offending portion of the publication and allowing the rest to be given to the prisoner.

We think that's a clear example of an overbroad policy that does not show sufficient respect for the First Amendment rights of the outsiders.

Unidentified Justice: Does that all-or-nothing rule work on a, on a magazine by magazine base... what I mean, is it just a particular issue that will be excluded, or once, once you get or the list, is the whole, is the publication banned entirely?

Mr. Ney: The Bureau of Prisons, when this litigation began, had an excluded list.

Unidentified Justice: I see.

Mr. Ney: And they eliminated it partly as a result of this litigation.

The all-or-nothing rule works--

Unidentified Justice: So now it would be just one particular issue of a magazine would be excluded.

Mr. Ney: --Right, or a book.

Unidentified Justice: Yes.

Mr. Ney: If there's one page objectionable, the entire book is kept out.

And other prison systems around the country have used an item-by-item censorship without any great problems.

I think it's, it's important to recognize that the broad standard that the Bureau has adopted allowing this wide discretion really allows for the exercise of unprofessional judgments, personal judgments, personal distaste by the prison officials, and that's what the record in this case shows.

And we feel that's where the standard could make a difference, Justice Stevens.

I think it will give a signal that the same protection that is given to correspondence must be given to books and publications coming into prisons.

We think that the standard adopted by the D.C. Circuit is a... is consistent with Martinez.

The, the Circuit Court said that the prison official would have to make a reasoned determination that material encourages conduct which would constitute or otherwise was likely to produce a breach of security.

That's not much different than the standard even used in the Jones case in this Court for non-prison related where the question was did it possess a likelihood of disruption to prison security, order or stability.

If there are no further questions, thank you.

Unidentified Justice: Thank you, Mr. Ney.

Mr. Bryson, you have four minutes remaining.

REBUTTAL ARGUMENT OF WILLIAM C. BRYSON ON BEHALF OF PETITIONERS

Mr. Bryson: Thank you.

Very briefly, there are some publications that we think would be disposed of differently under the two standards, at least, again, the standard that the Court of Appeals applied, purportedly applying the Procunier standard.

One of them the Court of Appeals made quite clear it would keep out was the The Call magazine, which the Plaintiffs nave made a great deal of in their brief.

This was a magazine In which... which was kept out of Marion Penitentiary because it was deemed to be too inflammatory, basically, and to be a magazine which would be likely to cause disruption within the penitentiary.

Marion, as you may know is the maximum, maximum security institution.

The people who are incarcerated in Marion are people who have failed to adjust to other institutions.

It is an extremely dangerous place, and the prospects of difficulties in Marion [inaudible].

Unidentified Justice: Mr. Bryson, I suppose you would contend that Call ought to be kept out under... even under the Procunier standard?

Mr. Bryson: Your Honor, we would say that, we might well.

But what, what we're looking at is the standard the Court of Appeals applied, purporting to apply Procunier, and the Court of Appeals said with respect to Call that it was insufficient to keep that magazine out simply because it was inflammatory in tone because it contained no exhortation for group activity.

And let me read you a selection from the article that was the result, that was the reason that Call was kept out, and I think this makes the case very well for why the exhortation only rule that the Court of Appeals applied just won't work.

The magazine said beatings by racist guards are a regular occurrence at Marion, but officials have not been able to crush prisoner resistance or halt the spread of revolutionary ideas.

Besides the lawsuit, Marlon inmates have staged strikes and fasts and have continued to struggle against their oppression.

Well, that doesn't contain exhortation, technically, but any reader, particularly some of the readers who are perhaps a little more excitable than others and who are looking for opportunities to express grievances towards the prison officials, will read that, I submit, as a form of implicit exhortation, to continue to do these very things that are described.

Similarly, the magazines such as homosexual explicit materials which the Court of Appeals said we could not keep out on the basis of the explanations that we gave, would be materials that we would want to keep out and would expect to keep out under a reasonableness test.

With respect to The Labyrinth, which was the publication that the Plaintiffs rely a lot on, that is, the publication that had the article on medical murder in the prison system, the rejection, the reason for the rejection in that case explains a lot about the way the BOP engages in this policy, which is the reason it was kept out was because, as testimony at trial showed, Leavenworth, which is the place from which it was kept out, was very tense at the time.

It would probably not have been excluded under normal times, the testimony was, but a number of prisoners at the time were upset over the rumors of these so-called murders, and there was, as the warden testified, some real tension among the prisoners over the issue.

It was a very sensitive issue at the time, particularly because it involved an inmate who had been there at Leavenworth.

This was a, if you will, a time, place and manner exclusion.

It was an exclusion by the warden because In his discretion at that time that particular article would have been potentially very disruptive.

That's the kind of discretion that the BOP attempts to protect and the kind of discretion that we think would be at risk if a standard like the Court of Appeals standard were adopted.

Thank you.

Chief Justice William H. Rehnquist: Thank you, Mr. Bryson.

The case is submitted.