Transcript

IN THE SUPREME COURT OF THE UNITED STATES

ROBERT SHAW, ET AL., Petitioners v. KEVIN MURPHY

No. 99-1613

January 16, 2001

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:58 a.m.

APPEARANCES: DAVID L. OHLER, ESQ., Special Assistant Attorney General, Helena, Montana; on behalf of the Petitioners.

PATRICIA A. MILLETT, ESQ., Assistant to the Solicitor General, Department of Justice, Washington, D.C.; on behalf of the United States, as amicus curiae, supporting the Petitioners.

JEFFREY T. RENZ, ESQ., Missoula, Montana; on behalf of the Respondent.

PROCEEDINGS

(10:58 a.m.)

CHIEF JUSTICE REHNQUIST: We'll hear argument next in Number 99-1613, Robert Shaw v. Kevin Murphy.

Mr. Ohler.

ORAL ARGUMENT OF DAVID L. OHLER ON BEHALF OF THE PETITIONERS

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

This case presents the question of whether an inmate has a freestanding right to provide legal assistance to another inmate which entitles correspondence from that inmate to special protection under the First Amendment.

With respect to the facts of this case, the question may be phrased --

QUESTION: There's some discussion in the briefs about the penalties that were imposed on the prisoner by virtue of his writing the letter that he wrote. I guess those are not at issue here?

MR. OHLER: I don't believe they are, Your Honor. In fact, I believe the respondent in his brief at page 10 indicated that Mr. Murphy did not seek expungement of the disciplinary action that was taken against him.

We believe, and with respect to the facts of this case, the question may be whether an inmate can evade censorship of communication and discipline for insolent language contained in a letter to another inmate which also contains legal advice.

If an inmate does not have a free --

QUESTION: Can we take it as a given that this was insolent language, because, you know, I'm somewhat dubious whether this was insolent language, but that's a given in this case?

MR. OHLER: We believe it's a given. We don't believe that Mr. Murphy contested whether or not there was sufficient evidence to find that he was insolent, and in fact --

QUESTION: He had the opportunity to contest that? He could --

MR. OHLER: He did, Your Honor, and as I indicated to the question from Justice O'Connor, he has not sought expungement of that disciplinary infraction.

If an inmate does not have a freestanding right to receive legal assistance, as this Court stated in Lewis v. Casey, then the corollary must be true, an inmate does not have a freestanding right to render legal assistance.

It is petitioners' position that legal advice is entitled to no greater protection than speech in general in a prison context.

QUESTION: Mr. Ohler, may I ask if -- at least I understood that the position of the United States is not the same as the one that you are telling us about, nothing else being at issue but the insolence and the other charge. I thought that the position of the United States was that this should be remanded for consideration of those factors of that part of the case in light of Turner v. Safley. Is that wrong?

MR. OHLER: That is the position of the United States, and that is a position that we disagree with. It's our position that once the cloak of special protection is removed from the legal advice, the legal advice privilege as we termed it in the brief, the question is whether or not legal advice under the Turner analysis, or whether or not the prison's disciplinary policy under the Turner analysis is reasonably related to a legitimate penalogical interest, and we believe it is.

Once that determination has been made, that the policy is valid and, in fact, the respondent has conceded that, he's not contested the facial validity of that policy, but once the validity of that policy under Turner is determined, then the only question, we believe, is whether or not Mr. Murphy in fact violated the policy and, as I mentioned to Justice Scalia's question, he has not raised that question, and that's a due process question that was not raised below.

In Turner itself the court did not distinguish between legal communications and other types of communication between inmates, and there is no logical reason why legal communication should be entitled to any different standard of review than other types of speech, including political speech.

QUESTION: Well, suppose you have a prison where, in a disciplinary proceeding, not a criminal charge but a disciplinary proceeding, one inmate, as the custom, often represents another. Do you think then the so-called inmate law clerk would have a privilege to communicate with the inmate that he's representing?

It's maybe a little hard for you to answer, because we have to assume a lot of regulations and stuff that are not in play, but just to flat out say that there's never this right is somewhat -- goes somewhat far, I think.

MR. OHLER: Well, in this case, and this case is an example, perhaps, of the hypothetical you pose, but Mr. Murphy had the opportunity in this case to communicate to the Inmate Tracy. He could have provided the legal advice that was contained in the letter, don't plead guilty, have your attorney get a hold of me, I've got some information. Inmate Murphy went beyond that and --

QUESTION: No, but my question is, does he have a right to send the communication? You say there's no right at all, we don't have to get into insolence or interpretation of the letter, there's just simply no right, but I'm suggesting that in some instances there might be.

MR. OHLER: With respect to inmate-to-inmate communications it's our position, no, that there is no right for inmate-to-inmate communications.

QUESTION: Even when one inmate's representing another in, say, a grievance proceeding, or, pardon me, a disciplinary proceeding?

MR. OHLER: Not with respect to communication under the Turner opinion, Your Honor.

QUESTION: Well, if -- are you answering your question limited simply to sending letters, or are you saying that one inmate can be assigned to defend another, and the prison may preclude all communication between them of any sort whatsoever? Are you saying that?

MR. OHLER: No, Your Honor, we're not saying that.

QUESTION: Okay.

MR. OHLER: No.

QUESTION: So you're limiting it simply to written -- your answer to Justice Kennedy is limited simply to written statements?

MR. OHLER: Correct.

QUESTION: And you take the position, then, that if an inmate were, by the prison, assigned to provide legal assistance to another prisoner, that no written communication could be sent from the one providing the assistance to the other prisoner?

MR. OHLER: Under Turner, I believe Turner can be read that way. Under the facts of this case, the only thing that the prison was punishing was the insolent language contained in the communication, and the prison in this case did permit that communication to occur between Inmate Murphy, who is a law clerk, and Inmate Tracy.

QUESTION: What possible interest would the prison have in prohibiting -- assuming you allowed an inmate to provide legal services to another, which sometimes I understand happens, what interest of the prison is there in making sure that it is never done in written form, which the prison can then read?

MR. OHLER: With respect to an inmate law clerk program, as occurred here --

QUESTION: Yes.

MR. OHLER: -- we permitted, the prison permitted communications between --

QUESTION: But you just told me that you would not allow any written communication, even though a law clerk assignment had been made.

MR. OHLER: I'm sorry, I may have -- I misspoke or misunderstood. I was simply saying that Turner seemed to imply that with respect to inmate-to-inmate correspondence, that communications could be prohibited by a prison and, in Turner, in fact, the regulation at issue, which was at the Lorenz Correctional Facility in Missouri, as practiced at that particular prison, precluded legal communications, and --

QUESTION: Well, you don't have to go that far in this case, nor do we.

I mean, really, all you're asserting in this case is that normal prison regulations, including those against displaying insolence towards the prison guards, do not become suspended when there are communications involving legal representation. Isn't that as far as we would have to go in order to give you all that you're interested in here?

MR. OHLER: That is correct, Justice Scalia.

QUESTION: Well, I'm slightly mixed up, because I thought, suppose that Inmate A wants to represent Inmate B, but he isn't. I thought you were saying that's this case, and there's no special right to be a lawyer. You don't have a constitutional right to get to be a lawyer, any more than you get to be an architect, right?

MR. OHLER: Correct.

QUESTION: But there's a different situation. A is representing B. In that case, B, not A, has a right to legal representation, which may involve sending letters. Is that right?

MR. OHLER: If we're going to term the communication that occurred here as representation --

QUESTION: This has nothing to do with that, I thought. Am I not right that A is not representing B in this case, he'd just like to?

MR. OHLER: That's correct, yes.

QUESTION: All right. So if we're writing an opinion, I guess, shouldn't I be careful, drawing on your personal view, not some case but your view as a lawyer, to make certain that we don't say, we don't talk about the situation where B, who is the person who needs a lawyer, he may well have a right to get communications from his lawyer that is different from the ordinary right just to speak. Am I right?

MR. OHLER: Yes, Your Honor.

QUESTION: Okay. Now, what about the case where we have an association of people who help to provide lawyers to inmates?

I'm obviously thinking of NAACP v. Button, for example, and maybe that association of lawyers, or people who want to give lawyers to inmates, has a few inmates in it. Might they have a special right?

MR. OHLER: Your Honor, with respect to --

QUESTION: Do you want to say we don't have to get into that here?

MR. OHLER: I don't think we have to get into that. I think the NAACP cases and the In re Primus line of cases dealt with access to courts.

In fact, I think this Court used that language in the Primus case, dealt with access to courts by free citizens, and providing free citizens with the tools to gain a foothold into the court and to advance their civil rights, and there is a large amount of jurisprudence from this Court relative to the right of access as it applies to inmates, and we believe that that jurisprudence controls, relative to the right of access by inmates in a prison setting.

QUESTION: Would it have been the same offense, in your view, if the -- was it Murphy, had sent the letter not to Tracy but to Tracy's assigned counsel?

MR. OHLER: That would be another matter and, in fact, that correspondence could have occurred, and the difference between that situation and the situation that's presented in this case is the correspondence that is going outside the prison, and so it's -- the confrontational aspect of Inmate Murphy's letter is not the same, because it's being sent outside the prison.

QUESTION: Suppose it were sent to an investigative reporter?

MR. OHLER: That would have been fine. Once again, we don't have that confrontational aspect that occurred when this correspondence remained within the prison.

QUESTION: Well, in both of Justice Ginsburg's hypotheticals, I assume the prison authorities would read the letter first, or am I wrong about that? It's a hypothetical, but I assume -- that's your regulation. Don't you read everything that goes out?

MR. OHLER: No. Our policy permits outgoing correspondence to go out, and is only --

QUESTION: Whether or not it's read. It's not read?

MR. OHLER: It's only read if there's a reasonable probability to believe that it contains certain types of information that would be detrimental to the prison, so in most cases outgoing correspondence is not read.

QUESTION: What is the confrontation that you're talking about? I may not understand what you mean.

MR. OHLER: Well --

QUESTION: You spoke about confrontational aspect. What do you mean by that?

MR. OHLER: The language contained in the letter was disparaging about Correctional Officer Galle.

QUESTION: Yes.

MR. OHLER: And it was a challenge to the authority of Correctional Officer Galle in particular, but correctional staff in general, and it's that --

QUESTION: Well, it was a challenge to his exercise, or as the letter claimed, his abuse of authority.

MR. OHLER: Correct, and there were also other comments in there concerning his sexual orientation which this Court I believe in Thornburgh recognized as a security concern in the prison context.

QUESTION: Right. What's the confrontation? Are you talking about the confrontation between the person who writes the letter and the prison censor who reads it?

MR. OHLER: No. I think the confrontational aspect of that, and the challenge to authority, goes between Inmate Murphy and Officer Galle.

QUESTION: Well, Officer Galle never saw the letter, could not have been, I take it, expected to see the letter. The only person who could be expected to see the letter, other than the recipient, was the prison censor.

MR. OHLER: The problem is, we don't know what happens to the letter once it gets -- assuming that the letter was transmitted to Inmate Tracy, that letter could have been --

QUESTION: Yes, but you're talking about the confrontational aspect of the letter.

QUESTION: I thought you meant that it encourages the recipient to become confrontational with the guards.

MR. OHLER: It does that also, Your Honor.

QUESTION: It does that also?

MR. OHLER: Yes.

QUESTION: Oh. But that's not what you meant by its confrontational aspect. Then I share Justice Souter's perplexity. I don't understand who he's confronting.

I mean, I can understand how it's not good for prison discipline to allow prisoners to incite one another against the guards. If that's what you're talking about, it makes sense, but how one letter from one prisoner to another prisoner confronts the prison guards, that's beyond me.

MR. OHLER: And that's one aspect of it, and that is a concern, is that in fact this particular inmate that the letter was sent to had just recently assaulted a correctional officer. This letter would tend to incite Inmate Tracy.

The other concern is what this Court termed a ripple effect when --

QUESTION: More so than if his lawyer had told him, his lawyer said, I got this letter from a fellow inmate, what do you think of it, or if an investigative reporter asked him? Would it be less -- would that be less of a problem?

MR. OHLER: There are -- there still are concerns there, Justice --

QUESTION: You have no control over the lawyers, I take it.

MR. OHLER: That's correct.

QUESTION: You do have control over the prisoners.

MR. OHLER: That's correct.

QUESTION: More or less.

MR. OHLER: Yes, Your Honor.

Mr. Chief Justice, I'd like to reserve my remaining time.

QUESTION: Very well, Mr. Ohler.

MR. OHLER: Thank you.

QUESTION: Ms. Millett, we'll hear from you.

ORAL ARGUMENT OF PATRICIA MILLETT ON BEHALF OF THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE PETITIONERS

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

The court of appeals' categorical protection of inmate legal advice from rules that reasonably regulate all other prison correspondence is inconsistent both with this Court's precedents and with realities of prison management. In our view prisoners -- and in this Court's view, prisoners have a right of access to the courts to press their own grievances and claims, but this Court has never recognized a freestanding First Amendment right on the part of other inmates to get involved in each others' litigation efforts. That is particularly true when the litigating inmate is already represented by an attorney.

In Lewis v. Casey, this Court held that while inmates must be allowed to bring suits challenging their own convictions and conditions of confinement, impairment of any other litigating capacity, and that would include serving as a legal advisor, is simply going to be incidental and perfectly constitutional consequences of conviction and incarceration.

QUESTION: Ms. Millett, will you clarify for us what the United States would remand? What would be open to the court below to consider, assuming we accept your first position that there is no right of, to represent -- one inmate to another to represent each other? There's no attorney-client relationship that stems from any constitutional guarantee. Let's say we accept that. What would you remand on?

MS. MILLETT: The remand would be on an as-applied challenge to this particular communication. It would not be a request, as the Ninth Circuit found here, for categorical protection of all inmate communications of legal advice. The question would be whether application of the insolence regulation to this particular communication, looking at its particular content, would be consistent with the First Amendment under a --

QUESTION: But am I wrong, or was the petitioner wrong in suggesting that that had not been raised?

MS. MILLETT: Well, our understanding is that what was not raised is whether or not this communication fell within the definition of insolence or violation of a due process, or interference with a due process hearing under the terms of the regulations, and that's not what we're saying should be remanded. What we're saying should be remanded is whether there's an as-applied constitutional challenge to application of those regulations to this communication.

QUESTION: Which would be based on that same thing. I mean, what would an as-applied challenge be based on unless it is the fact that in fact this regulation wasn't violated?

MS. MILLETT: No, you could have -- prisons could have a regulation. For example, they could decide that insolence could includes any, for example, criticism of a guard, so that -- and those might well pass facial constitutionality under a Turner v. Safley analysis, but you could still find that a comment to a guard that, you know, that's a bad hair cut, would fall within the meaning of insolence, and so would fall within the regulation, but would not survive a Turner v. Safley as-applied analysis because it would not be a security --

QUESTION: Are you suggesting that there are two levels of application of Turner, that even if a regulation on its face, so to speak, is valid under Turner, it could be invalid as applied?

MS. MILLETT: Absolutely, and I think that's what -- for example, in Thornburgh v. Abbott this Court upheld regulations as applied to the public generally -- I'm sorry, not as applied, facially, the application of a prison regulation limiting the types of publications and magazines that could come into a prison, but remanded for as-applied review of whether publication by publication the prison's decision to keep a particular publication out violated the First Amendment, and that's all that we think the remand here would need to encompass. But the important thing to keep in mind, and the main problem with the Ninth Circuit --

QUESTION: Did he raise that question below?

MS. MILLETT: That's our understanding of the complaint, and it's based in part on the magistrate judge's analysis which is in the petition appendix, where they talk about the failure of the State to come forward at that stage with information showing why this particular communication was a threat to security.

QUESTION: Well, I take it --

QUESTION: So in your view there is --

QUESTION: -- that is going to whether the regulation was violated, whether this particular communication was, indeed, insolence towards the guard. Isn't that perfectly explicable as raising the issue of whether the regulation was violated?

MS. MILLETT: Well, we understood that argument in the complaint, that analysis by the magistrate judge and respondent's, including respondent's arguments here about whether, you know, how this particular communication does or does not challenge security interests as an as-applied challenge, but we're not here because we have a strong interest on that. If we've misunderstood the record, and there is no as-applied challenge in the case, then there would be no basis for a remand.

QUESTION: Is another way of saying what you're trying -- maybe I don't quite get it, that even though he doesn't have a First Amendment right to act as a lawyer and practice law in the prison context, he had a First Amendment right to write this particular letter?

MS. MILLETT: Yes. Well, our position is that there's no special First Amendment status accorded to this communication because it was legal advice.

QUESTION: Right, but just under ordinary First Amendment review --

MS. MILLETT: Exactly. Exactly. That -- the crux of our point is that Turner v. Safley is a sufficient test to review all prison regulations, and --

QUESTION: In your view there's a First Amendment right for prisoners to communicate with each other? I mean, does -- that has to be the beginning point, based on my understanding of your argument.

MS. MILLETT: Well, our position is that inmates could always claim that and then the burden would be on the prison to show in the circumstances that there is or is not.

For most of the time there's a lot of prisoner communication that goes on that does not affect prison security.

QUESTION: But that's a very substantial holding.

QUESTION: Yes.

QUESTION: You're asking us to have a foundational proposition that there's a First Amendment right for prisoners to communicate.

QUESTION: We've never held that.

MS. MILLETT: The -- I think the premise of the recognition that you read would be reviewed under Turner v. Safley, and I think a regulation that said, prisoners shall never, under all circumstances shall never speak to another inmate, no inmate shall ever speak to another inmate, would have to be reviewed under Turner v. Safley, and the Government would have to come in and show why any communication at all between inmates is a threat to security.

QUESTION: There's another point, too, that if the prison regulations do permit communication, there is still -- there arguably could be a First Amendment right to say certain things in those communications without -- in other words, they say, we'll let you write letters, but we're going to tell you exactly what you can say. That's a rather strange view. Well, anyway --

MS. MILLETT: I'm sorry if I misunderstood your question. Our only position is that there certainly may be circumstances, in fact, in which it would be appropriate for a prison to say, there shall be no communications at all between inmates, either curfew times, or lockdown situations, or high security --

QUESTION: Well, I thought this involved such a situation. The person to whom respondent wanted to communicate was in a maximum security section.

MS. MILLETT: He was.

QUESTION: And I had understood the prison did not permit communication from prisoners in other parts of the prison with lesser restrictions to prisoners in the maximum security. Am I wrong?

MS. MILLETT: Our understanding is that he was allowed to write a letter to this inmate, so there was not a complete ban on communication between people, inmates in respondent's category and this high risk, or this maximum security unit. There was not a complete ban on communications. It was just the content of this letter.

Clearly, any communication that is written between prisoners must be consistent with valid penalogical limitations on those, and those would include that communications not be insolent or incite one inmate against another, inmate against another or against guards or prison staff.

The important thing, we think, to keep in mind with respect to the Ninth Circuit's rule is that the Turner v. Safley test is sufficient for purposes of analyzing any First Amendment claims to speech or other rights invoked by prisoners and that beyond that, prison correspondence involving legal advice does not have any special exemption from those rules, should not be analyzed under any separate standard and, in fact, can present the exact same dangers that routine correspondence does.

They can -- according special status, as the Ninth Circuit has done, to inmate correspondence could allow that type of correspondence to become a ready vehicle for secretly coded communications and other illicit communications. Jailhouse lawyers are frequently a menace to prison discipline, and they could be allowed through special treatment to set up an order or a hierarchy that would compete with the prison order system.

In addition, the circulation among inmates of potentially volatile allegations and accusations can, in the judgment of prison officials, exacerbate the already extremely tense relations between prison officials and inmates and that, much like in Jones v. North Carolina Prisoners Labor Union, where this Court held that prisoner communications, prisoner assertions of First Amendment speech and association rights that are focused on encouraging an increase in adversarial relations between prison and staff can be regulated and restricted consistent with legitimate penalogical objectives.

And finally, it's important to keep in mind that there are ample alternative channels for inmates to communicate information bearing on a case. They can communicate with attorneys, Government officials, courts and other members of the public. They may bring their own grievances or lawsuits. The appropriate analysis, we think, is Turner v. Safley and, beyond that, the -- to the extent someone is concerned about information getting into courts. Thank you.

QUESTION: Thank you, Ms. Millett.

Mr. Renz, we'll hear from you.

ORAL ARGUMENT OF JEFFREY T. RENZ ON BEHALF OF THE RESPONDENT

MR. RENZ: Thank you, Mr. Chief Justice, and may it please the Court:

It appears to me that the State prison here is proposing a change in the Turner rule which the Turner opinion does not accommodate. As I understand the State's position, so long as their rules are neutrally drawn, and so long as the rules on their face satisfy Turner, then they are free to apply them in any manner in which they deem fit. I don't think that Turner says that. I don't think that Turner nor Abbott contemplate that.

This is an as-applied case, it was an as-applied case, and it always has been an as-applied case, with the single exception that Mr. Murphy challenged the rules on their face as vague, and the vagueness issue, the facial vagueness issue is not before this Court. This case is strictly about punishment of content of speech.

I think there are several issues here that are not in dispute. First, this is speech that, if uttered outside the prison, is without question protected by the First Amendment. Second, this communication was permitted within the prison. That is, Mr. Murphy was permitted under the prison's regulations to write to Mr. Tracy. And third, if these two things are true, as they are, then Turner and Abbott provide the analytical framework for this case.

QUESTION: Well, I thought the Ninth Circuit articulated at least some freestanding First Amendment right of a fellow prisoner to offer legal advice to another prisoner. At least there's language to that effect in its opinion.

MR. RENZ: I think that the language in the Ninth Circuit's opinion --

QUESTION: Do you defend that as a proposition here?

MR. RENZ: Well, I would contend, Your Honor, that the Ninth Circuit was being somewhat circular when they said that the prison's emphasis is at a low edge, ebb when the language is legal advice.

QUESTION: No, but --

QUESTION: Well, do you contend -- excuse me. Do you contend that the prisoner has a freestanding First Amendment right to offer legal advice to another prisoner?

MR. RENZ: No. No, we do not contend that.

QUESTION: But that's the only --

QUESTION: The question presented.

QUESTION: That's the question that was presented. Justice O'Connor put the question to you. That's the question in the blue brief. That's the end of the case.

MR. RENZ: That's not the end of the case, Your Honor. I'm the respondent, and this Court may affirm the judgment of the Ninth Circuit on any grounds that appear in the record.

QUESTION: Well, but I mean, this is the question that we're interested in.

MR. RENZ: Yes, but this in my view is a straightforward Turner application.

QUESTION: Well, but do you have an answer? Are you saying that you agree that the question presented, does the First Amendment of the United States Constitution grant a State prison inmate an independent right to assist another State prison inmate, do you agree that that is not a correct statement of the law?

MR. RENZ: I would agree with that, yes, but what we have here is, we have a communication permitted by the prison that contained information and contained legal advice, and Mr. Murphy was punished for what he said. He was punished for what he said and the prison has never, ever stated why that punishment advanced the interests it articulates. It has never shown the connection between its articulated interests and the punishment of Mr. Murphy, and that is exactly what Turner and Abbott require. That has never happened here.

QUESTION: Mr. Renz, would you clarify -- what we were told before was that you had waived all of that, that you were not contesting the disciplinary action that was taken against him. I think that's what we were told was your position.

MR. RENZ: I'm not sure --

QUESTION: We were told that you were not contesting the disciplinary action that was taken.

MR. RENZ: If the question is whether we are seeking relief to purge the discipline, that's right.

QUESTION: Well then, what sort of relief are you seeking?

MR. RENZ: We're seeking declaratory relief, Your Honor, that says the prison may not do this without demonstrating some sort of connection between its interests and what it has done. Remember, it has punished Mr. Murphy.

QUESTION: But you said you're not challenging the punishment. That's what's so odd about this. The reference -- Murphy does not seek expungement of his record, the record, I take it, being the record of his discipline.

MR. RENZ: That's correct, Your Honor.

QUESTION: Well, if you're not challenging that, then I don't understand what interest you have in an abstract statement of what the law should be in another case.

MR. RENZ: Well, Mr. Murphy continues to be imprisoned. He continues to give legal advice for the prisoners. He's seeking, and sought in this lawsuit prospective relief.

QUESTION: But that's -- I think what's bothering us is, we understand that there very well may properly be requests for declaratory relief of a general sort, but what you're seeking here apparently isn't declaratory relief as a general sort. It's a declaration that an as-applied challenge, this challenge, this communication, this instance only, is valid because there's a First Amendment violation, and yet with respect to this specific instance you're not asking for any relief. It doesn't seem to fit into any of our recognized categories of litigable issues.

MR. RENZ: I think I understand the question. Mr. Murphy wants to continue giving legal advice without the fear of sanctions, and a declaration that the prison may not do this without demonstrating some connection between its punishment and the interests it articulates --

QUESTION: Okay, but is -- I'm sorry. I was going to say, as a general proposition, you've already got that in Turner and Safley, and you either want something specific to this case, though without any relief in this particular case, or you want something broader, and when you state what the broader relief is that you might want, it seems to be about the same level of generality as Turner and Safley itself, so we're stuck as to what we can do for you --

MR. RENZ: I see.

QUESTION: -- even if we accept your position.

MR. RENZ: The -- let me catch up. The -- Mr. Murphy wrote this letter. He said these words. He wants to continue to be able to say these words without fear of sanction. Saying to the prison that you may not punish these words without showing us more means that he is armed with something in the future when the prison comes to him and says --

QUESTION: Well, Mr. Renz, you say he wants to continue to say these words, but I take it you don't mean exactly these words. I mean, he's not going to report exactly the same incidents if he wants to write to another inmate. You mean, a letter like this?

MR. RENZ: A letter like this. Remember, the prison has acted to apply its rules in a certain way. It's extended the scope of its rule to encompass this kind of speech. Now, the prison is free to do that so long as they show a connection between its interests and the extension of the rule and the punishment of Mr. Murphy, but they haven't done that here.

QUESTION: Well, if you say that you're in agreement that there's no special right to render legal advice, then all this is is a question whether or not this communication, or other communications like them, can, for general purposes be suppressed, and the fact that he wants to give legal advice, he doesn't have a right to do that.

MR. RENZ: I think that's --

QUESTION: I just don't know what -- this is just a routine prison disciplinary case once you concede the main proposition on which we granted the case.

MR. RENZ: Well, he certainly has no special right. I mean, he was hired and retained as a legal clerk. He was under the practices of the prison permitted to communicate and assist Mr. Murphy, even though Mr. Murphy may have had counsel.

But the question here is whether he can be punished by the prison for his communication, and the prison has taken a rule, expanded its scope to encompass Mr. Murphy's speech, and they've not articulated a basis for it.

QUESTION: Turner v. Safley dealt with a constitutional right, I mean, you know, the right to marry, and you know, rested on the proposition that it is settled that a prison inmate retains those constitutional rights that are not inconsistent with his status as a prisoner. Once you've acknowledged that there is no constitutional right to provide legal advice to another prisoner, which was the question presented, how does Turner v. Safley come into play?

MR. RENZ: Well, I disagree with your statement, Justice Scalia. There is a constitutional right to provide advice to another prisoner. The question is whether it survives a Turner analysis. In this case, it survives the Turner analysis.

QUESTION: Now you have me confused. I thought you acknowledged, in response to Justice O'Connor, that there is no constitutional right to assist another State prison inmate with a pending court case.

MR. RENZ: As I understood Justice O'Connor's question, it was whether or not there was a special, sort of elevated right, and I would have to agree --

QUESTION: A freestanding First Amendment right to represent another prisoner, and I thought you told me no, there is not, that you did not defend --

MR. RENZ: Then --

QUESTION: -- what it was the Ninth Circuit panel said.

MR. RENZ: Then, Justice O'Connor, I apologize, because I misunderstood your question. If --

QUESTION: Well, are you defending the Ninth Circuit, or are you not? Do you adopt their reasoning, and are you prepared to defend it?

MR. RENZ: I'm prepared to defend it. If we --

QUESTION: Let's rephrase that, because I read the question to you before and I thought I got a different answer. Let's make absolutely sure where you stand on this thing.

The question presented is, does the First Amendment to the United States Constitution grant a State prison inmate an independent and freestanding right to assist another State prison inmate with a pending court case even if the State supplies other forms of legal assistance to the prison inmate?

Now, is that a correct statement of the law or an incorrect statement of the law?

MR. RENZ: I -- as I construe it, I think it's a fair statement, and that is that were Mr. Murphy outside the prison, he would have an independent and freestanding right --

QUESTION: But he's inside the prison.

MR. RENZ: That's correct, and once he is inside the prison we then engage in the Turner analysis. I'm not sure if --

QUESTION: I'm at a loss to --

MR. RENZ: I'm at a loss, too. If we take -- what I'm saying is that we don't have an independent freestanding right that survives, or stands outside of Turner. I think that is a correct statement.

QUESTION: Well then you really don't defend the Ninth Circuit's decision.

MR. RENZ: To the extent that they create a right outside of Turner --

QUESTION: Okay.

MR. RENZ: -- but they didn't do that. They engaged in a straightforward Turner analysis.

QUESTION: They did have a whole paragraph where -- I thought a whole paragraph where the Ninth Circuit says there's a special right that every prisoner has to represent other prisoners. I mean, it's on -- it's appendix page 9 here. It says, the prison discipline of Murphy implicates the First Amendment right recognized by this Court in Rizzo, where we held the provision of legal assistance to fellow inmates is an activity protected by the First Amendment. And then they said, several of our sister circuits have refused to recognize a constitutional right to assist others.

MR. RENZ: Yes.

QUESTION: It's not a right to get assistance. It's a right to assist others. Everybody has a constitutional right to be a lawyer.

MR. RENZ: Justice Breyer, that's right.

QUESTION: That's how I read it.

MR. RENZ: That's right.

QUESTION: I didn't know you had that right, and I haven't seen it.

MR. RENZ: But the holding in Rizzo was, Rizzo was a retaliation case decided at the pleadings stage, and in that case the prisoner was free to assist other prisoners in his particular prison.

QUESTION: Do you think there is a separate, freestanding right to assist others in pressing legal claims? That's where A wants to represent B. I'm not talking about B's right to get assistance. I'm talking about A's right to go to somebody and say, I want to represent you. Do you think there's a special, freestanding, First Amendment right to do that?

MR. RENZ: To provide assistance?

QUESTION: Yes.

MR. RENZ: Not outside of Turner.

QUESTION: Oh, I mean -- all right. I didn't read Turner recently, so don't say not outside of Turner. Just say yes or no.

MR. RENZ: Well, yes, there is in the sense that we have the same kind of right outside of prison.

QUESTION: Is there? I didn't know there was. I mean, everyone has a right to go assist other people as a lawyer?

MR. RENZ: Not as a lawyer, Your Honor, but of course --

QUESTION: Do you have -- what is there, a special First Amendment right to be a lawyer? I don't know what it is.

MR. RENZ: Well, if --

QUESTION: I'm not saying there isn't one.

MR. RENZ: Oh, no, I understand.

QUESTION: I'm just saying I'm not familiar with it.

MR. RENZ: If the Brotherhood of Trainmen can send a union secretary to another trainman and say, don't settle this case, go see this lawyer, and that is protected under the First Amendment --

QUESTION: You mean, there's a special First Amendment right to do that? I mean, maybe there is. I just haven't seen it. I don't know. I'm not familiar with it. What case -- is there a case that says that?

MR. RENZ: It's the Brotherhood of Trainmen, Your Honor.

QUESTION: And there you have a special right to give somebody legal assistance that's different from your ordinary First Amendment right?

MR. RENZ: No, not different from the ordinary First Amendment.

QUESTION: You don't think that stemmed from some labor union contract dealing with discipline of employees and union members?

MR. RENZ: I -- in terms of the right of association?

QUESTION: Right.

MR. RENZ: I don't think necessarily because of Primus and --

QUESTION: In the private world, outside the labor contract, no labor union agreement, and you just have a nonlawyer who wants to give legal advice to somebody else. Is there some freestanding First Amendment right to give legal advice? You don't have to be a lawyer. You have some right to go give legal advice to somebody?

MR. RENZ: I would suggest, Your Honor, that the -- it depends upon what we call legal advice. Someone on the street can say, gee, you know, this car ran over you, your case is worth a lot of money, you should go see a lawyer. That's legal advice, but it certainly isn't the sort of legal advice that we'd consider in terms of what lawyers give.

This is much the same character of the advice that Murphy gave. Gee, I know about these things about Mr. Galle. You should have your lawyer get a hold of me on this.

QUESTION: That sounds like somebody saying, I'm a witness, a potential witness for you, but not that I have a right to give you legal advice.

MR. RENZ: And part of that communication from Mr. Murphy said that exactly, Justice Ginsburg. He said, this happened to me, and that makes him a competent witness.

QUESTION: Well, it seems to me that you're arguing for some kind of a right for somebody with relevant information to convey it to someone who's in trouble, but that's not the theory that the Ninth Amendment, Ninth Circuit proceeded on, and I'm wondering where they got it from. Was it in your briefs? Did you argue that theory to the Ninth Circuit, that there is a right of one person to represent another?

MR. RENZ: I suspect that it may have come from our argument in which we articulated that the prison has no legitimate interest in regulating a communication that is intended for a court outside the prison. I can't say. I don't see that specifically in the Ninth Circuit's opinion.

QUESTION: Would you object to an opinion from us that says the following? There are passages in the Ninth Circuit's opinion that suggests there exists a special, separate, freestanding right of a prisoner to represent someone else, even if he doesn't want it, or whatever. We are not aware of any such right. Of course, the First Amendment applies to prisons as anywhere else, and so we've written about that, so go back and consider it.

MR. RENZ: I think that's a fair statement of the law, Justice Breyer.

QUESTION: That's what you'd like?

MR. RENZ: Yes.

QUESTION: What about adding, and we're not certain how you happen to be in Court, because there might be a problem here of declaratory relief. What you asked for in your complaint was a declaration that Rule 009 and 022 are too vague, and that this violated -- and that you can't have a policy in a prison which says content of a letter is relevant to discipline.

MR. RENZ: Well, now we're talking about fashioning relief --

QUESTION: Yes.

MR. RENZ: -- and I think that's for the lower court.

QUESTION: But you'd be happy to be thrown back into the briar patch, essentially, right?

(Laughter.)

MR. RENZ: I would not be objecting to being thrown into the briar patch. I think it's fair to say that the crafting of relief is something that needs to be done. We haven't done that yet.

QUESTION: Well, there are many other imaginative solutions of this case that can be devised, I suppose, and this would knock off one of them, anyway.

MR. RENZ: I think so. I mean, we're sort of jumping down the road here when we talk about the form of relief. I mean, the form of relief hasn't been crafted yet, and I think that we can do that.

QUESTION: Mr. Renz, I don't want to invade your attorney-client privilege or anything like that, so don't answer the question if you think it's improper, but I'm just very puzzled, how is it that you're not challenging the discipline to your client, when you're challenging the basis for the discipline?

MR. RENZ: Well, as we read Edwards -- well, Edwards hadn't been decided yet. As we read Heck and played Heck out it was argued that we were not in a position to purge the sanction against him. To the extent that --

QUESTION: But the sanction must have adverse consequences for his future status in prison, doesn't it?

MR. RENZ: That would be true, but an opinion from the district court order of the Ninth Circuit that said he was -- what he had done was protected by the Constitution would certainly vitiate that.

QUESTION: Not if you're not asking to have it expunged. It would still be on his record.

MR. RENZ: It would be on his record, but --

QUESTION: I'm very puzzled. I just don't understand.

MR. RENZ: -- the holding of the Court that what he had done was protected by the Constitution and was legal and permitted would also be before the parole board or whoever might see that information.

QUESTION: You could get it expunged later. I mean, this is a strange manner of litigating, that you bring a declaratory judgment that something that's been done to you was unlawful, and then bring a second suit to undo what was done to you because it has been declared to be unlawful. I don't understand it. I'm not sure that the conditions for a declaratory judgment exist when it is -- I mean, it is equitable relief, and I'm not sure a court should provide it --

MR. RENZ: Well, we also --

QUESTION: -- when there is available to you legal relief that will give full satisfaction to your client.

MR. RENZ: We do seek conjunctive relief in this case, Judge -- Justice --

QUESTION: Well, I understand that. That's equitable, but --

MR. RENZ: Yes.

QUESTION: -- I don't think that a court ought to give that if you don't care enough about what's happened to you to seek to have that undone. I don't understand that.

QUESTION: Several years ago we held in a habeas corpus case where the person sought declaratory relief, also from the Ninth Circuit, incidentally, that when there's a specific remedy provided you can't impose a declaratory judgment on top of it.

MR. RENZ: Uh-huh, but this Court also held in Edwards v. Ballistock, and that was a prison discipline case, that the correction of that prison discipline was not something that was cognizable under section 1983.

If there are no further questions, I'll submit the case.

QUESTION: Thank you, Mr. Renz.

Mr. Ohler, you have 4 minutes remaining.

REBUTTAL ARGUMENT OF DAVID L. OHLER ON BEHALF OF THE PETITIONERS

MR. OHLER: Mr. Chief Justice, I don't have any rebuttal, but I would be happy to answer any questions.

QUESTION: Would you respond to the last point? Was there any manner in which this litigant could have gotten the allegedly unlawful imposition of discipline undone through the courts? Was there no means by which that could have been done?

MR. OHLER: I believe that he could have sought expungement of the disciplinary infraction.

QUESTION: How would that proceed? He'd challenge it before the prison administration and, if it was rejected by the prison administration, then he would go where? Surely the State court, I assume he could have gone.

MR. OHLER: He could have gone to the State court, yes.

QUESTION: And what about Federal court?

MR. OHLER: It seems to me that he could have raised that in this particular case, Your Honor.

QUESTION: What if he were now to go back to the district court and ask to amend the complaint and say, under my prayer for any other relief, or whatever the language is, I would like to have this order expunged from my record? Would that be untimely?

MR. OHLER: It seems to me it would be untimely, Your Honor, but I don't have a firm answer with respect to the law.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Ohler.

The case is submitted.

(Whereupon, at 11:46 a.m., the case in the above-entitled matter was submitted.)