EDWIN MEESE III, ATTORNEY GENERAL OF THE UNITED STATES, ET AL.,
PETITIONERS V. JACK ABBOTT, ET AL.

   No. 87-1344

   In the Supreme Court of the United States

   October Term, 1988

   On Writ of Certiorari to the United States Court of Appeals for the
District of Columbia Circuit

   Brief for the Petitioners

                      PARTIES TO THE PROCEEDINGS

   In addition to the petitioner named in the caption, the following
were defendants in the district court and are petitioners in this
Court:  Elliott L. Richardson, Norman A. Carlson, Ralph A. Aaron, Noah
Allredge, Marvin R. Hogan, George W. Pickett, Elwood O. Toft, Charles
Campbell, P.J. Ciccone, Loren E. Daggett, James Henderson, Mason
Holley, John J. Norton, Paul Walker, and Samuel J. Britton.
Additional petitioners, who are defendants pursuant to Rule 25(d)(1)
of the Federal Rules of Civil Procedure, are the current director of
the Bureau of Prisons and the current wardens at various federal
prisons:  J Michael Quinlan, John Sullivan, Calvin Edwards, Patrick W.
Keohane, Gary Henman, Tom C. Martin, Dave Kastner, Al Turner, Joseph
Petrovsky, Robert Honstead, Dennis Luther, Roderick D. Brewer, and
Robert Matthews.

   In addition to the respondent named in the caption, the following
were plaintiffs in the district court and are respondents in the
Court:  the Prisoners' Union, Weekly Guardian Associates, and the
Revolutionary Socialist League.

   In addition to the various claims for equitable relief,
respondents' lawsuit also involves individual damage actions by 82
named plaintiffs.  Those claims were severed by the district court in
1979;  they have not yet been adjudicated and are not part of the
present proceeding.

           TABLE OF CONTENTS
   Question Presented
   Parties To The Proceedings
   Opinions below
   Jurisdiction
   Constitutional provisions, regulations, and program statement
     involved
   Statement
   Summary of argument
   Argument:
      The Bureau of Prisons' regulations governing the receipt of
      publications by inmates should be judged under a reasonableness
      standard
      A. As a general rule, prison regulations and policies must be
         upheld if they are reasonably related to legitimate
         penological objectives
      B. This Court's decision in Procunier v. Martinez does not
         require heightened scrutiny in the present case
      C. A heightened scrutiny standard would undermine this Court's
         decisions involving nonpublic forums
      D. A heightened scrutiny standard would create serious practical
         problems for prison officials and the courts
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 1a-25a) is reported
at 824 F.2d 1166.  The opinion of the district court (Pet. App.
26a-48a) is unreported.

                             JURISDICTION

   The judgment of the court of appeals was entered on July 28, 1987
(Pet. App. 50a-51a).  A petition for rehearing was denied on October
13, 1987 (Pet. App. 52a).  On December 24, 1987, the Chief Justice
extended the time within which to file a petition for a writ of
certiorari to and including February 10, 1988.  The petition was filed
on that date and was granted on April 25, 1988.  The jurisdiction of
this Court rests upon 28 U.S.C. 1254(1).

 CONSTITUTIONAL PROVISIONS, REGULATIONS, AND PROGRAM STATEMENT
INVOLVED

   The First Amendment to the United States Constitution provides in
pertinent part:

         Congress shall make no law * * * abridging the freedom of
      speech, or of the press * * *.

   The pertinent regulations and program statement -- 28 C.F.R. 540.70
and 540.71 and Bureau of Prisons Program Statement No. 5266.5 (Jan. 2,
1985) -- are set forth, in relevant part, as an appendix to this brief
(App., infra, 1a-4a).  They are also reproduced as an appendix to the
court of appeals' opinion (Pet. App. 22a-25a).

                          QUESTION PRESENTED

   Whether the court of appeals erred in holding that the
constitutionality of prison regulations and policies governing the
receipt of publications by federal prisoners should be evaluated under
the strict scrutiny standard enunciated in Procunier v. Martinez, 416
U.S. 396 (1974).

                               STATEMENT

   This is a nationwide class action brought by federal prisoners in
May 1973.  The suit challenges the constitutionality of certain
regulations and policies of the Federal Bureau of Prisons (BOP)
governing the receipt of publications by federal inmates.  Numerous
federal officials responsible for enforcing those regulations and
policies were sued in both their official and individual capacities.
In September 1978, the district court ordered the addition, as
plaintiffs, of three publishers whose magazines had been rejected at
various federal prisons:  the Prisoner's Union, Weekly Guardian
Associates, and the Revolutionary Socialist League (Pet. App. 2a).  On
September 13, 1984, following a ten-day bench trial, the district
court entered an order upholding the challenged regulations and
policies (id. at 26a-48a).  The court of appeals reversed, holding
that the district court had applied an erroneous standard of review.
Under a strict scrutiny standard, the court held, the regulations were
unconstitutional on their face (id. at 1a-25a).  /1/

   1. a. Under the BOP'a regulations, inmates are ordinarily entitled
to "subscribe to or to receive publications without prior approval"
(28 C.F.R. 540.70(a)).  /2/ A publication may be withheld from a
prisoner only upon the decision of the warden (28 C.F.R. 540.70(b)),
and only if the warden finds that the publication would be
"detrimental to the security, good order, or discipline of the
institution or (that) it might facilitate criminal activity" (28
C.F.R. 540.71(b)).  The warden must review the individual publication
before rejecting it;  he may not simply establish "an excluded list of
publications" (28 C.F.R. 540.71(c)).  Moreover, the warden may not
reject a publication "solely because its content is religious,
philosophical, political, social or sexual, or because its content is
unpopular or repugnant" (28 C.F.R. 540.71(b)).  Publications that a
warden may reject include those that meet one of seven specified
criteria.  /3/ The regulations also contain procedures for providing
notice and an explanation to the inmate if a publication is rejected
and for enabling inmates and publishers to file administrative
appeals.  /4/ Finally, although it is not set out in the regulations,
the BOP's practice is that when any portion of a publication is deemed
excludable, the entire publication is withheld (Pet. App. 34a).

   b. At trial, respondents presented the testimony of various present
and former state correctional officials, correctional experts, and
federal prisoners.  Those witnesses offered their opinions concerning
the need for the BOP's regulations.  In addition, respondents offered
into evidence 46 publications that had been rejected at various
federal prisons.

   Petitioners introduced the testimony of several federal
correctional officials, a state correctional official, and a social
scientist who headed the BOP's training program.  Those witnesses
similarly offered their opinions concerning the need for the BOP's
regulations.

   At the conclusion of the trial, the district court took the case
under advisement.  On September 13, 1984, the court issued a lengthy
opinion setting forth its findings of fact and conclusions of law.
Based on the evidence at trial and the governing case law, the court
held that the BOP's regulations and policies represented a reasonable
response to legitimate penological concerns and were therefore
constitutional (Pet. App. 28a-32a, 43a-47a).

   In its opinion, the court found that at higher-security federal
prisons, "minimizing violence is a primary concern" (Pet. App. 28a).
The court noted that the problem has been "aggravated" in recent years
by "the growth (in prisons) of ethnic gangs," which "engage in
organized crime including extortion, drug activity, and homicide"
(ibid. (footnote omitted)).  In addition, the court indicated that
homosexual behavior, while prohibited in federal prisons, is
"widespread in the male prisons," and that "(m)any assaults on fellow
inmates are precipitated by or manifested in homosexual activity"
(ibid.).

   Addressing the link between publications and security problems, the
court found that "publications can present a security threat" Pet.
App. 31a).  After summarizing the types of publications that have been
rejected at federal prisons (id. at 29a), /5/ the court noted that not
only "racial publications but materials concerning prison management
and prison life" frequently "speak in strident, inflamatory terms,"
and that "a warden might well find such publications too provacative
for his institution at a given time" (id. at 31a).  In addition, the
court noted, "(o)ther publications too might be dangerous to have on
hand in a particular facility" (ibid.).  For example, "a sexual
magazine * * * might be undesirable in an institution that has had a
high incidence of sexual assault" (ibid.).  According to the court,
"(t)he possible dangerous situations are as various as publications
and circumstances at given institutions" (ibid.).

   The district court held that the BOP's regulations were reasonable
because they were directed at "potentially volatile publications" and
because they did not contain a "blanket ban" on publications but
provided for a "case-by-case determination" of acceptability (Pet.
App. 47a).  The court further held that in light of the differences in
circumstances at different times and among different institutions, the
BOP was justified in adopting "a standard that gives the warden wide
discretion" (id. at 31a).

   The court rejected respondents' argument that under Procunier v.
Martinez, 416 U.S. 396 (1974), the burden was on petitioners to show
that the regulations furthered an important government interest and
were not unnecessarily broad (Pet. App. 43a-44a).  The court pointed
out that in several post-Martinez cases, /6/ the Supreme Court had
applied a more deferential standard -- i.e., whether there is a
rational relationship between the prison regulations and legitimate
penological objectives (id. at 44a-47a).  The court noted (id. at 47a)
that heightened scrutiny was not required simply because various
publishers had joined in challenging the regulations.  It reasoned
that Martinez did not apply because, unlike in that case, "the rights
of (the outsiders) are not 'inextricably meshed' with those of
inmates" (id. at 46a & n.16 (quoting 416 U.S. at 409)).  Moreover, the
court found that the standard proposed by respondents, which required
a "'likely,' 'immediate,' or 'substantial' threat," could lead to the
admission of publications which, even if they did not lead directly to
violence, would exacerbate tensions and lead indirectly to disorder"
(Pet. App. 32a (footnote omitted)).

   The court also rejected respondents;  contention that the reasons
given by prison officials for rejecting the 46 publications introduced
at trial were not sufficiently clear or precise (Pet. App. 32a-33a).
The court noted that, while the reasons given did not refer to
specific prison risks, the government's witness "testified * * * that
it is unwise to inform inmates of conditions that cause security
concerns in the warden" (id. at 33a).  Finally, the court upheld the
BOP's policy of rejecting an entire publication if a portion is found
to be excludable (id. at 34a).

   2. The court of appeals reversed the district court and held that
the challenged portions of the BOP's publication regulations were
unconstitutional on their face (Pet. App. 6a-21a).  While the court
did not dispute the district court's finding that the regulations
passed muster under a reasonableness standard, the court held that,
because the case deals "with some aspect of the First Amendment rights
of a non-inmate, and * * * with the expression of ideas on paper," the
strict scrutiny standard adopted in Martinez is the governing standard
(id. at 7a-8a).  The court found that this Court's post-Martinez
decisions applying a more deferential standard were distinguishable
because those cases dealt with "conduct within the prison, rather than
the content of expression" (id. at 12a).

   The court stated that, under Martinez, the proper test is whether a
publication "encourage(s) conduct which would constitute, or otherwise
(is) likely to produce, a breach of security or order or an impairment
of rehabilitation" (Pet. App. 20a).  The court found that the BOP's
regulations were deficient under that test because they permitted "a
far looser causal nexus between expression and proscribed conduct"
(id. at 15a).  The court also struck down the BOP's policy of
withholding an entire publication if a portion is deemed excludable
(id. at 16a-17a).

   The court remanded the case to the district court to rule, under a
strict scrutiny standard, on whether the BOP had acted lawfully in
rejecting the 46 publications that respondents had introduced at trial
(Pet. App. 21a).  /7/

                          SUMMARY OF ARGUMENT

   The court of appeals held that the constitutionality of the BOP's
regulations and policies governing the receipt of publications by
federal inmates must be reviewed under the strict scrutiny standard
enunciated in Procunier v. Martinez, 416 U.S. 396 (1974).  In our
view, the court's holding is erroneous because it fails to give proper
weight to the judgments of prison officials and to the unique
characteristics of penal institutions.

   A. This Court has stated that "when a prison regulation impinges on
inmates' constitutional rights, the regulation is valid if it is
reasonably related to legitimate penological interests." Turner v.
Safley, No. 85-1384 (June 1, 1987), slip op. 9.  Applying that test,
the Court has upheld a variety of prison regulations and policies.
See O'Lone v. Estate of Shabazz, No. 85-1722 (June 9, 1987) (work
attendance rules that prevented attendance at weekly religious
services);  Block v. Rutherford, 468 U.S. 576 (1984) (ban on contact
visits with nonprisoners);  Bell v. Wolfish, 441 U.S. 520 (1979) (ban
on receipt of hardback books from outside sources);  Jones v. North
Carolina Prisoners' Labor Union, 443 U.S. 119 (1977) (prohibition on
prisoners' union meetings, inmate solicitation of other inmates
concerning the union, and bulk mailings from outside sources regarding
union activities);  Pell v. Procunier, 417 U.S. 817 (1974) (ban on
inmate interviews with members of the press);  cf. Turner v. Safley,
supra (applying deferential standard to regulations governing
inmate-to-inmate correspondence but leaving open question whether
strict scrutiny standard should apply to regulations restricting
marriages between inmates and outsiders).

   B. Notwithstanding this Court's repeated rejection of a heightened
scrutiny standard, the court of appeals applied that standard in
reviewing the constitutionality of the BOP's regulations and policies
governing the receipt of publications by inmates.  In doing so, the
court relied almost entirely on this Court's decision in Procunier v.
Martinez, supra.  In Martinez, the Court applied strict scrutiny in
striking down prison regulations restricting correspondence between
inmates and outsiders.

   Martinez was a very narrow decision.  The Court emphasized that the
class of outsiders involved in that case had a special interest in
communicating with specific prisoners (416 U.S. at 408), and it stated
that its decision applied only to "direct personal correspondence
between inmates and those who have a particularized interest in
corresponding with them" (ibid. (footnote omitted)).  The Court noted
(id. at 408 n.11) that "(d)ifferent considerations may come into play
in the case of mass mailings," and it "intimate(d) no view as to (the)
proper resolution" of that issue.

   The court of appeals adopted the Martinez standard in this case,
despite the Martinez Court's refusal to extend its analysis to cases
such as this one.  The court of appeals held the Martinez standard
applicable because that case like this one, "deal(t) with some aspect
of the First Amendment rights of a non-inmate, and both deal(t) with
the expression of ideas on paper and not with conduct qua expression"
(Pet. App. 7a-8a).

   The court of appeals' distinction between "the expression of ideas
on paper" and "conduct qua expression" finds no support in this
Court's cases.  To the contrary, several cases in which the Court has
applied a reasonableness standard involved restrictions on "the
expression of ideas on paper." See Turner v. Safley, supra;  Jones v.
North Carolina Prisoners' Labor Union, supra;  Bell v. Wolfish, supra.

   The fact that nonprisoners are affected by a particular regulation
is not enough to mandate heightened scrutiny.  There is a critical
distinction between the interests at stake in Martinez and those
involved here.  Martinez involved personalized correspondence from
individuals, such as family members and friends.  Substantial
restrictions on such correspondence would effectively disable the
nonprisoners from engaging in the communication that was the reason
for their correspondence.  In the case of publishers, however, the
interests at stake are far less substantial.  Unlike correspondents, a
publisher and a reader do not engage in personal communication, and
the publisher has no particularized interest in communicating with an
individual reader.  The regulations at issue merely reduce the
potential audience for a particular publication by enabling a specific
institution to exclude that publication.  Because the interests of the
nonprisoners in Martinez, there is no justification for applying the
special standard in Martinez, rather than the standard generally
applicable when prison regulations are subjected to constitutional
challenge.

   C. In addition to conflicting with the Court's decisions upholding
restrictions on inmate conduct, the adoption of the Martinez standard
in this case would be inconsistent with this Court's cases involving
nonpublic forums.  Those cases make clear that regulations governing
nonpublic forums must be upheld if they are "reasonable in light of
the purpose which the forum at issue serves." Perry Education Ass'n v.
Perry Local Educators' Ass'n, 460 U.S. 37, 49 (1983) (footnote
omitted).  A reasonableness standard applies in such cases because, in
a nonpublic forum, outsiders have no generalized right to distribute
materials or engage in other First Amendment activity.  The court of
appeals, by applying strict scrutiny, erroneously treated prisons as
if they were public forums, even though they "most emphatically" are
not (Prisoners' Union, 433 U.S. at 136).

   D. Finally, the standard adopted by the court of appeals is unsound
as a matter of policy and would lead to serious practical problems
within prisons.  As the district court found (Pet. App. 32a),
publications are likely to be directly linked to violence or
disruption.

   Contrary to the court of appeals' assumption, the reasonableness
standard is not without substance;  it provides protection to
publishers or inmates in cases where the prison's security concerns
are irrational or greatly exaggerated.  At the same time, however,
that standard gives prison administrators the flexibility to enable
them to perform the difficult task of maintaining security and good
order without having every decision they make subject to exacting
scrutiny by a court.

                               ARGUMENT

   THE BUREAU OF PRISONS' REGULATIONS GOVERNING THE RECEIPT OF
PUBLICATIONS BY INMATES SHOULD BE JUDGED UNDER A REASONABLENESS
STANDARD

   The question in this case is whether the court of appeals applied
the correct standard of review in evaluating the constitutionality of
the BOP's regulations and policies governing the receipt of
publications by federal prisoners.  The court held that those
regulations and policies must be tested under the heightened scrutiny
standard of Procunier v. Martinez, 416 U.S. 396, 413 (1974), i.e.,
whether prison officials demonstrated that the regulations or policies
"'further an important or substantial governmental interest unrelated
to the suppression of expression'" and are "'no greater than is
necessary or essential to the protection of the particular
governmental interest involved'" (Pet. App. 8a (quoting 416 U.S. at
413)).  The court of appeals rejected the government's claim that a
more deferential standard was appropriate (Pet. App. 10a).

   It is our submission that the court of appeals applied an incorrect
standard.  This Court, in every prison case decided since Martinez,
has indicated that a prison regulation or policy must be sustained if
it "is reasonably related to legitimate penological interests." Turner
v. Safley, No. 85-1384 (June 1, 1987);  accord O'Lone v. Estate of
Shabazz, No. 85-1722 (June 9, 1987), slip op. 5-6;  Block v.
Rutherford, 468 U.S. 576, 586, 589 (1984);  Bell v. Wolfish, 441 U.S.
520, 550-551 (1979);  Jones v. North Carolina Prisoners' Labor Union,
433 U.S. 119, 125, 128 (1977);  Pell v. Procunier, 417 U.S. 817, 827
(1974).  In rejecting a "reasonableness" standard, the court of
appeals viewed Martinez as controlling.  But Martinez was a narrow
decision based on the substantial impact of particular regulations on
the rights of a unique category of nonprisoners.  That decision is not
applicable in the present case, which involves, at most, merely an
incidental impact on publishers.

   Moreover, as we explain below, a heightened scrutiny standard would
subject prison administrators to a burden that is generally
insurmountable, thereby forcing prisons to admit publications that may
lead to serious safety and security problems.  We submit that a
reasonableness standard best balances the interests of publishers (and
inmates seeking to receive publications) against the need for prison
security.

   A. As A General Rule, Prison Regulations And Policies Must Be
Upheld If They Are Reasonably Related To Legitimate Penological
Objectives

   This Court has identified two principles that govern the analysis
of inmates' constitutional rights.  The first principle is that
"federal courts must take cognizance of the valid constitutional
claims of prison inmates" (Turner, slip op. 4).  Thus, prisoners
retain a variety of constitutional rights notwithstanding the fact of
their incarceration.  See, e.g., Bounds v. Smith, 430 U.S. 817 (1977)
(access to courts);  Estelle v. Gamble, 429 U.S. 97 (1976) (Eighth
Amendment);  Wolff v. McDonnell, 418 U.S. 539, 556 (1974) (due
process);  Johnson v. Avery, 393 U.S. 483 (1969) (access to courts).
Of course, a corollary of that principle is that "(l)awful
incarceration brings about the necessary withdrawal or limitation of
many privileges and rights, a retraction justified by the
considerations underlying our penal system." Price v. Johnston, 334
U.S. 266, 285 (1948).  See, e.g., Hudson v. Palmer, 468 U.S. 517, 530
(1984) (noting that "prisoners have no legitimate expectation of
privacy and * * * the Fourth Amendment's prohibition on unreasonable
searches does not apply in prison cells").

   The second principle is "the recognition that 'courts are ill
equipped to deal with the increasingly urgent problems of prison
administration and reform'" (Turner, slip op. 5 (quoting Martinez, 416
U.S. at 405)).  As this Court has explained, "(r)unning a prison is an
inordinately difficult undertaking that requires expertise, planning,
and the commitment of resources, all of which are peculiarly within
the province of the Legislative and Executive Branches of Government"
(Turner, slip op. 5).  An "essential" objective in running a prison is
"maintaining institutional security and preserving internal order and
discipline" (Wolfish, 441 U.S. at 546).  To carry out that objective,
prison officials must be given "wide-ranging deference" in the way
they run their prisons (Prisoners' Union, 433 U.S. at 126).  Judicial
deference is essential "not merely because the administrator
ordinarily will, as a matter of fact in a particular case, have a
better grasp of his domain than the reviewing judge" (Wolfish, 441
U.S. at 548), but also because of "separation of powers concerns"
(Turner, slip op. 5).  In addition, deference is appropriate because
of the unique characteristics of penal institutions.  Prisons are
"closed, tightly controlled environment(s) peopled by those who have
chosen to violate the criminal law and who have been lawfully
incarcerated for doing so." Wolff v. McDonnell, 418 U.S. 539, 561
(1974);  see also Prisoners' Union, 433 U.S. at 137 (Burger, C.J.,
concurring).  For that reason, "rules far different from those imposed
on society at large must prevail within prison walls," and judges "are
not equipped by experience or otherwise to 'second guess' the
decisions" of legislators or administrators "except in the most
extraordinary circumstances" (ibid.).

   In a series of cases involving challenges to prison regulations and
policies, the Court has applied these two principles in selecting the
standard of review to govern prisoners' constitutional complaints.  In
each case, the Court has refused to apply a heightened scrutiny
standard, but has instead adopted a reasonableness standard.  See Pell
v. Procunier, supra;  Jones v. North Carolina Prisoners' Labor Union,
supra;  Bell v. Wolfish, supra;  Block v. Rutherford, supra;  Turner
v. Safley, supra;  O'Lone v. Estate of Shabazz, supra.

   Thus, in Pell, the Court rejected a First Amendment challenge by
various prisoners and journalists to a California prison regulation
that prohibited face-to-face media interviews with individual
prisoners.  The Court noted that the security concerns upon which the
regulation was based were "peculiarly within the province and
professional expertise of correction officials" and were therefore
entitled to deference (417 U.S. at 827).  /8/

   In Prisoners' Union, the Court upheld a prison's ban on union
meetings, union membership solicitation, and bulk mailings of union
publications for distribution within the prison.  The Court stated
that "(t)he necessary and correct result of our deference to the
informed discretion of prison administrators permits them, and not the
courts, to make the difficult judgments concerning institutional
operations in situations such as this" (433 U.S. at 128).

   In Wolfish, the Court upheld, against a First Amendment challenge,
a rule restricting prisoners' receipt of hardback books unless mailed
directly from publishers, book clubs, or bookstores.  Stressing the
need for deference to the "considered judgment" of prison experts, the
Court found the rule to be a "rational response" to a bona fide
security problem (441 U.S. at 550-551).  Similarly, in Rutherford, the
Court upheld a prison's ban on contact visits with nonprisoners on the
ground that such a ban was "reasonably related" to legitimate security
concerns, as determined by "responsible, experienced administrators"
(468 U.S. at 586, 589).

   Finally, in two cases decided last Term, Turner and Shabazz, the
Court made clear that all inmate challenges to the constitutionality
of prison regulations must be assessed under a reasonableness test.
In Turner, the Court upheld regulations governing inmate-to-inmate
correspondence.  /9/ And in Shabazz, the Court upheld against a First
Amendment challenge a prison's work assignment rules that had the
effect of preventing inmates from attending a weekly Muslim
congregational service held at the prison.  In both Turner and
Shabazz, the Court rejected the lower courts' holdings that a
heightened scrutiny standard was the proper one (Turner, slip op. 8;
Shabazz, slip op. 6-7).  In so doing, the Court stated in no uncertain
terms that "'when a prison regulation impinges on inmates'
constitutional rights, the regulation is valid if it is reasonably
related to legitimate penological interests'" (Shabazz, slip op. 5-6
(quoting Turner, slip op. 9)).

   In both Turner and Shabazz, the Court rejected prisoners' arguments
that the reasonableness standard should govern only in a limited
category of cases.  Thus, the Court refused to endorse the position
that the reasonableness test should apply solely to "'presumptively
dangerous' conduct" (Shabazz, slip op. 6 note *;  Turner, slip op. 8).
 According to the Court, "(t)he determination that an activity is
'presumptively dangerous' appears simply to be a conclusion about the
reasonableness of the prison restriction in light of the articulated
security concerns" (Turner, slip op. 9).  Such a determination, the
Court noted (ibid.), "provides a tenuous basis for creating a
hierarchy of standards of review." Similarly, the Court rejected the
argument that "heightened scrutiny is appropriate whenever regulations
effectively prohibit, rather than simply limit, a particular exercise
of constitutional rights" (Shabazz, slip op. 6 n.*).  According to the
Court, "the presence or absence (of) alternative accommodations of
prisoners' rights is properly considered a factor in the
reasonableness analysis rather than a basis for heightened scrutiny"
(ibid.).

   In light of Turner and Shabazz, there can no longer be any dispute
that all inmate challenges to prison regulations or policies must be
governed by a "reasonableness" standard.  The Court has made clear its
unwillingness, even where claims are made under the First Amendment,
to "'substitute (its) judgment on * * * difficult and sensitive
matters of institutional administration' for the determinations of
those charged with the formidable task of running a prison" (Shabazz,
slip op. 10 (quoting Rutherford, 468 U.S. at 588)).

   B. This Court's Decision In Procunier v. Martinez Does Not Require
Heightened Scrutiny In The Present Case

   Notwithstanding this Court's repeated rejection of a heightened
scrutiny standard, the court of appeals applied that standard in
evaluating the BOP's regulations and policies governing the admission
of publications.  The court determined (Pet. App. 7a-8a) that a strict
scrutiny standard was mandated by this Court's decision in Procunier
v. Martinez, supra.  In fact, however, Martinez involved a completely
different factual setting and is not controlling here.

   In Martinez, the Court was faced with a constitutional challenge to
California prison regulations that prohibited letters between inmates
and noninmates that "unduly complain" or "magnify grievances,"
"express() inflammatory political, racial, religious, or other views
or beliefs," "pertain to criminal activity," are "lewd, obscene, or
defamatory;  contain foreign matter, or are otherwise inappropriate"
(416 U.S. at 399-400 (citations and footnotes omitted)).  Although
many of those restrictions arguably would not have survived even under
a reasonableness standard, the Court applied strict scrutiny because
the regulations imposed a substantial burden on the First Amendment
rights of nonprisoners (id. at 408).

   As the Court's opinion makes clear, Martinez was a very narrow
decision.  The Court emphasized that the outsiders had a special
interest in communicating with specific prisoners (416 U.S. at 408).
To illustrate the point, the Court noted that "(t)he wife of a prison
inmate who is not permitted to read all that her busband wanted to say
to her has suffered an abridgment of her interest in communicating
with him as plain as that which results from censorship of her letter
to him" (id. at 409).

   Significantly, the Court in Martinez stated that the decision in
that case applied only to "direct personal correspondence between
inmates and those who have a particularized interest in communicating
with them" (416 U.S. at 408).  The Court noted that "(d)ifferent
considerations may come into play in the case of mass mailings" (id.
at 408 n.11).  With respect to materials of that nature, the Court
"intimate(d) no view" as to the proper standard to apply.

   The court of appeals concluded that the Martinez standard was
controlling in this case, despite the Martinez Court's express refusal
to extend its analysis to cases such as this one.  According to the
court of appeals (Pet. App. 7a-8a), Martinez was dispositive because
both that case and this one "deal with some aspect of the First
Amendment rights of a noninmate, and both deal with the expression of
ideas on paper and not with conduct qua expression." We submit that
neither of the two grounds relied upon by the court of appeals for
applying Martinez can withstand scrutiny.

   The court of appeals' distinction between "the expression of ideas
on paper" and "conduct qua expression" finds no support in Martinez
itself and is contrary to all of this Court's post-Martinez decisions.
 If the court of appeals' standard were applied logically, heightened
scrutiny would be required whenever the "expression of ideas on paper"
is involved, even if only prisoners' claims are at issue.  Yet, as we
have noted, this Court has made clear that all claims that prison
regulations violate inmates' constitutional rights must be reviewed
under a reasonableness standard.  See Shabazz, slip op. 5-6;  Turner,
slip op. 9.  Indeed, several cases that have applied a reasonableness
standard plainly involve restrictions on "the expression of ideas on
paper." See Turner v. Safley, supra (upholding restrictions on
inmate-to-inmate correspondence);  Jones v. North Carolina Prisoners'
Labor Union, supra (upholding, inter alia, ban on the receipt by
prisoners of bulk mailings about unions);  Bell v. Wolfish, supra
(upholding rule restricting prisoners' receipt of hardback books,
except where such books are mailed directly from publishers, book
clubs, or book stores).  /10/ We know of no decision by this Court
that supports the court of appeals' conclusion that heightened
scrutiny should apply in reviewing prison regulations simply because
ideas expressed on paper are involved.

   The court of appeals is equally incorrect in holding that, under
Martinez, strict scrutiny is required merely because the rights of
nonprisoner publishers are involved.  To begin with, there is a
critical distinction between the rights at stake in Martinez and those
of the outsiders here.  Martinez involved correspondence from
individuals, such as family members and friends, who have a direct
personal relationship with a particular inmate.  Substantial
restrictions on personal correspondence with inmates would amount to a
prohibition against communication of that kind.  In the case of
publishers, however, the interests at stake are far less substantial.
Unlike correspondents, a publisher and a reader do not engage in
"personal" communication (Martinez, 416 U.S. at 408), and a publisher
has no "particularized interest" (ibid.) in distributing its
publication to any individual reader.  Moreover, the regualtions at
issue in this case affect publishers in only the most indirect way.
They do not prohibit a publisher from printing a particular article or
distributing it to the general public.  Rather, out of a universe of
potential readers, the regulations simply reduce the potential
audience for a particular issue of a publication by preventing a
specific institution from receiving it at a particular time.
Furthermore, with the exception of those specific publications that
are determined to pose a danger to a particular institution at a
particular time, publishers are free to send their publications to
federal inmates.  See 28 C.F.R. 540.70(a).

   This Court's post-Martinez decisions refute the court of appeals'
apparent assumption that an impact on outsiders, however indirect,
triggers strict scrutiny review.  In several cases, the Court has
upheld prison restrictions under a deferential standard of review,
even though the constitutional rights of outsiders were involved to
some extent.  For example, in Block v. Rutherford, supra, the Court
upheld, under a reasonableness standard, a blanket prohibition on
contact visits with nonprisoners.  The respondent in that case,
relying on Martinez, unsuccessfully argued for heightened scrutiny on
the ground that the rights of outsiders -- the visitors -- were
involved (see Rutherford Resp. Br. 32).  Similarly, in Pell v.
Procunier, supra, the Court applied a reasonableness standard and
upheld a regulation prohibiting face-to-face media interviews with
individual inmates.  That regulation, of course, had a direct and
immediate impact on members of the press and the public at large.
Pell and Rutherford thus demonstrate that Martinez does not stand for
the broad proposition that the court of appeals attributed to it:
that strict scrutiny must be applied to any prison regulation that
somehow affects the rights on nonprisoners.

   C. A Heightened Scrutiny Standard Would Undermine This Court's
Decisions Involving Nonpublic Forums

   By extending Martinez to apply to outside publishers, the court of
appeals not only disregarded this Court's cases dealing with
constitutional claims in the prison context, it also ignored a
separate but parallel line of authority:  the Court's decisions
involving nonpublic forums.  The court of appeals erroneously treated
prisons as it they were public forums, even though they "most
emphatically" are not.  Prisoners' Union, 443 U.S. at 136;  see also
Perry Education Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 49
& n.9 (1983).

   This Court has made clear that the "First Amendment does not
guarantee access to property simply because it is owned or controlled
by the government." United States Postal Service v. Council of
Greenburgh Civic Ass'ns, 453 U.S. 114, 129 (1981).  Thus, while "the
most exacting scrutiny" applies in the context of public forums when
the government seeks to regulate communication, e.g., Boos v. Barry,
No. 86-803 (Mar. 22, 1988), slip op. 7, different standards apply in
the case of nonpublic forums.  Perry, 460 U.S. at 46.  In a nonpublic
forum, outsiders have no generalized right to distribute materials or
engage in other First Amendment activity.  See, e.g., Greer v. Spock,
424 U.S. 828, 838-840 (1976) (upholding regulations prohibiting
demonstrations and partisan political speeches on military bases and
barring distribution of publications deemed detrimental to the
functioning of the base);  Adderley v. Florida, 385 U.S. 39, 47-48
(1966) (rejecting argument that demonstrators have a constitutional
right to speak and protest within a jail facility).  Thus, "(i)n
addition to time, place, and manner regulations, the (government) may
reserve the (nonpublic) forum for its intended purposes, communicative
or otherwise, as long as the regulation on speech is reasonable and
not as effort to suppress expression merely because public officials
oppose the speaker's view." Perry, 460 U.S. at 46.  Furthermore, in a
nonpublic forum, distinctions that "may be impermissible in a public
forum" are "inherent and inescapable in the process of limiting a
nonpublic forum to activities compatible with the intended purpose of
the property" (Perry, 460 U.S. at 49).  See generally Hazelwood School
Dist. v. Kuhlmeier, No. 86-836 (Jan. 13, 1988), slip op. 9 (holding
that the high school newspaper at issue was not a public forum and
that "school officials were entitled to regulate the contents of (the
newspaper) in any reasonable manner");  Lehman v. City of Shaker
Heights, 418 U.S. 298 (1974) (plurality opinion) (upholding city's ban
on political advertisements in rapid transit system because a public
forum was not involved and restriction was based on legitimate
concerns involving, inter alia, claims of favoritism that likely would
arise in the allocation of limited space).

   These principles involving nonpublic forums are directly applicable
here.  Since prisons are not public forums, publishers have no
generalized right to distribute their publications within prison
facilities.  Rather, prisons are permitted to impose "reasonable"
restrictions (Perry, 460 U.S. at 46) -- even restrictions that would
be unconstitutional if they were applied to public forums.  This
standard of reasonableness, of course, is the same one that, under
Turner, Shabazz, and several other cases, is applicable to inmates'
challenges to prison regulations.  By holding the BOP to a strict
scrutiny standard, the court of appeals erroneously extended to
publishers a broad right to disseminate written materials in prisons,
a right that simply does not exist in the case of a nonpublic forum.

   To be sure, even in a nonpublic forum, the government may not
"suppress expression merely because public officials oppose the
speaker's view." Perry, 460 U.S. at 46.  But no such suppression is
involved here.  The BOP's regulations, as written and as applied, are
concerned solely with publications that threaten security, discipline,
or good order (see App., infra, la;  Pet. App. 22a).  Indeed, the
regulations expressly provide that "(t)he Warden may not reject a
publication solely because its content is religious, philosophical,
political, social or sexual, or because its content is unpopular or
repugnant" (ibid. (emphasis added)).  Since the regulations do not
restrict speech merely because of a disagreement over its content, the
government is permitted to "make distinctions in access on the basis
of subject matter and speaker identity." Perry, 460 U.S. at 49.  See
generally Prisoners' Union, 433 U.S. at 133 (upholding prison
regulations on bulk mailings from unions even though similar
restrictions had not been imposed on bulk mailings from the Jaycees,
Alcoholics Anonymous, and the Boy Scouts).

   D. A Heightened Scrutiny Standard Would Create Serious Practical
Problems For Prison Officials And The Courts

   In addition to conflicting with the standard of review applied by
this Court in numerous decisions involving prisons and other nonpublic
forums, the standard adopted by the court of appeals would lead to
serious practical problems within federal prisons.  As this Court
recently noted, "(s)ubjecting the day-to-day judgments of prison
officials to an inflexible strict scrutiny analysis would seriously
hamper their ability to anticipate security problems and to adopt
innovative solutions to the intractable problems of prison
administration" (Turner, slip op. 9).  The result of such a
restriction could be extremely serious for inmates and officials
alike, since it is well known that "(p)rison life, and relations
between the inmates themselves and between the inmates and prison
officials or staff, contain the ever-present potential for violent
confrontation and conflagration" (Prisoners' Union, 433 U.S. at 132).
Because prisons "are places of involuntary confinement of persons who
have a demonstrated proclivity for anti-social criminal, and often
violent, conduct," Hudson v. Palmer, 468 U.S. 517, 526 (1984),
officials must be allowed "to take reasonable steps to forestall * * *
a threat * * * before the time when they can compile a dossier on the
eve of a riot" (Prisoners' Union, 433 U.S. at 132-133 (footnote
omitted)).

   These concerns are fully applicable to the present case.  As the
district court found (Pet. App. 28a), the evidence at trial revealed
that prison violence is a serious problem, particularly at higher
security facilities.  Nonetheless, while a warden may have a
legitimate fear that a particular publication will cause problems, he
will rarely be able to prove a likelihood of violence or disorder as a
result of the admission of a particular publication.  The inability to
prove the existence of a substantial security risk in a particular
case does not necessarily mean that the warden's fears are
exaggerated.  As the district court found (id. at 32a), requiring
strict scrutiny review "could result in admission of publications
which, even if they did not lead directly to violence, would
exacerbate tensions and lead indirectly to violence, would exacerbate
tensions and lead indirectly to disorder."

   The number of publications actually rejected by the BOP in recent
years has been quite small.  /11/ At the same time, the BOP believes
that certain publications have a considerable potential for disruptive
effect, even though it would be difficult to prove that potential
effect in a particular case.  We submit that in order to maintain
security and minimize the risks of disorder within their institutions,
BOP officials must retain the right to reject publications without
having to satisfy a strict scruting test of the sort imposed by the
court of appeals.

   Several publications introduced at trial as examples of materials
that, in respondents' view, were improperly excluded by federal
prisons illustrate the basis of our concern.  For example, an issue of
Drummer magazine (Resp. Exh. 20) contains a series of photographs,
drawings, and articles depicting, in explicit detail, a wide range of
sadomasochistic homosexual acts.  An issue of the NS Report (Resp.
Exh. 21), a publication of the American Nazi Party, contains various
white supremacist articles glorifying violent, physical assaults on
blacks.  An issue of Hustler magazine (Resp. Exh. 19) contains
depictions of bestiality as well as several photographs featuring a
nude child posing with an adult model.  And as issue of Soldier of
Fortune (Resp. Exh. 124) contains a martial arts article accompanied
by photographs that demonstrate how to disarm and disable an armed
assailant.  Although it would seem obvious that such material has no
place in a prison, respondents have maintained throughout this case
that, under the Martinez standard, these and numerous other
publications cannot be excluded from federal prisons.  We submit that
a standard that compels the admission of such articles cannot be
correct.

   Another problem with the heightened scrutiny standard is that it
would in effect shift from prison administrators to the courts the
decision whether to admit specific publications.  In virtually every
case in which a publication has been withheld, a prisoner can make a
nonfrivolous claim under a strict scrutiny standard that the
publication should have been admitted.  As this Court recently noted
(Turner, slip op. 9), a heightened scrutiny analysis would "distort
the decisionmaking process, for every administrative judgment would be
subject to the possiblity that some court somewhere would conclude
that it had a less restrictive way of solving the problem at hand." As
a result, "(c)ourts inevitably would become the primary arbiters of
what constitutes the best solution to every administrative problem"
(ibid.).

   It is important to emphasize that the reasonableness test is not a
toothless one;  it does not leave inmates and publishers without an
effective remedy in cases involving arbitrary or irrational rejections
of publications.  For instance, in Turner the Court struck down, under
a reasonableness standard, a prison regulation that prohibited most
inmate marriages, reasoning that the regulation constituted an
exaggerated response to security and rehabilitation concerns (see slip
op. 15-20);  see also Green v. Ferrell, 801 F.2d 765, 772 (5th Cir.
1986) (citation omitted) (striking down prison ban on newspapers and
magazines as an "'exaggerated response'" to security concerns);  Mann
v. Smith, 796 F.2d 79, 82 (5th Cir. 1986) (prison ban on newspapers
struck down under deferential standard).  /12/ A reasonableness test
is thus responsive both to the First Amendment concerns at stake and
to the needs of prison administrators in their efforts to maintain
security and good order.

                         * * * * *

   The district court, applying a reasonableness test, upheld the
constitutionality of the BOP's prison regulations (Pet. App. 31a-32a,
46a-47a).  It further upheld the BOP's "all or nothing" policy of
excluding an entire publication if any portion is deemed objectionable
(id. at 34a).  And that court rejected respondents' contention that
the reasons given by prison officials for rejecting the 46
publications introduced at trial were not sufficiently clear or
precise (id. at 32a-33a).  The court of appeals, without deciding
whether the regulations and policies were valid under a reasonableness
standard, ruled that those regulations and policies could not survive
strict scrutiny (id. at 15a-17a).  The court did not rule on the
propriety of the BOP's exclusion of the 46 articles introduced at
trial by respondents.  Instead, while it noted by way of example that
the reasons given by the BOP for the exclusion of five of the articles
could not withstand scrutiny (see id. at 18a-20a), it remanded the
matter to the district court for individualized review of the 46
articles under the Martinez standard (id. at 20a-21a).  /13/

   We believe that the district court was correct in upholding the
BOP's regulations, under a reasonableness standard, against a claim of
facial invalidity.  The regulations permit the exclusion of particular
publications only if they are found to be "detrimental to the
security, good order, or discipline of the institution," or if they
"might facilitate criminal activity" (28 C.F.R. 540.71(b)).  To
provide guidance to wardens, the regulations contain a nonexclusive
list of criteria that justify rejection (see 28 C.F.R.
540.71(b)(1)-(7)).  The regulations also make clear that a warden's
discretion has limits;  thus, a publication may not be rejected simply
because "its content is religious, philosophical, political, social or
sexual, or because its content is unpopular or repugnant" (28 C.F.R.
540.71(b)).  Moreover, the regulations prohibit a warden from
establishing an "excluded list of publications" (28 C.F.R. 540.71(c));
 instead, the warden must review the specific publication prior to
rejecting that publication (ibid.).  Finally, an appeals procedure is
available to publishers and inmates who are dissatisfied with the
warden's decision rejecting a publication (see 28 C.F.R. 540.71(d)).

   It is apparent that the regulations are drafted to address
legitimate security risks within a prison.  Indeed, those same
concerns are the very type that this Court has held to be "legitimate
penological interests." Turner v. Safley, slip op. 9;  Pell v.
Procunier, 417 U.S. at 823;  Procunier v. Martinez, 416 U.S. at 412.
The fact that the regulations do not require the warden to find the
risk of disruption in the case of a particular publication to rise to
the level of a high probability does not render the regulations
facially invalid.  As this Court stated in Prisoners' Union, 433 U.S.
at 132, all that is required under a reasonableness standard to
justify the curtailment of otherwise protected activities is that the
prison officials, "in the exercise of their informed discretion,
reasonably conclude that (the activities) possess the likelihood of
disruption to prison order or stability, or otherswise interfere with
the legitimate penological objectives of the prison environment." It
is precisely that standard that the BOP regulations embody.  Of
course, even if the regulations are held facially valid, that does not
bar constitutional challenges to particular exclusion decisions.  If
the regulations are applied in a particular instance in a way that
violates the reasonableness standard, by reflecting an exaggerated or
irrational response to the perceived danger, the application of the
regulations can be challenged in that particular case.

   While we believe that the court of appeals erred by holding the
BOP's regulations to be invalid on their face, we recognize that this
Court may wish to leave that issue to the lower courts for disposition
on remand.  The resolution of that issue will require analysis of each
of the individual sections of the regulations.  Even under a
reasonableness standard, the regulations need not be declared either
constitutional or unconstitutional in their entirety.  Cf. Prisoners'
Union, 433 U.S. at 138-139 (Stevens, J., concurring in part and
dissenting in part).  Respondents conceded below that portions of the
regulations are constitutional even under a strict scrutiny test (Pet.
App. 15a), and they apparently contend that other portions of the
regulations cannot satisfy even a reasonableness test.  The court of
appeals has not had occasion to determine whether the regulations
would be sustained, in whole or in part, under a reasonableness
standard, and the Court may wish to have the benefit of that court's
analysis rather than reaching that issue on its own.

   In addition, there are several subsidiary factual issues that
clearly should be remanded to the court of appeals for consideration
under a reasonableness standard.  To begin with, there is an issue
concerning the constitutionality of the BOP's "all or nothing" policy
-- i.e., the policy of rejecting an entire publication if any portion
is found to be excludable.  That issue can only be determined after a
detailed analysis of the evidence in this case.  The validity of that
policy will depend, among other things, on the security and
administrative justifications for that policy, the availability of
alternative courses of action, and the costs and risks associated with
employing those alternatives.  See Turner v. Safley, slip op. 10-11.
In addition, the question as to whether the 46 publications introduced
by respondents at trial were properly rejected is one that should be
left to the lower courts on remand.  That question involves factual
issues as to the nature of each of the publications, the perceived
dangers presented by each, and even whether there continues to be a
live controversy with respect to particular publications.

                              CONCLUSION

   The judgment of the court of appeals should be reversed and the
case remanded for further consideration under a reasonableness
standard of review.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   EDWARD S.G. DENNIS, JR.

      Acting Assistant Attorney General

   WILLIAM C. BRYSON

      Deputy Solicitor General

   ROBERT H. KLONOFF

      Assistant to the Solicitor General

   ANDREW LEVCHUK

   CURTIS E. HALL

      Attorneys

   JUNE 1988

   /1/ In addition to resolving respondents' equitable claims
involving restrictions on publications, the courts below also
adjudicated respondents' challenges to various regulations restricting
inmate correspondence.  The district court enjoined petitioners from
enforcing certain of those regulations, a ruling not appealed by the
government, but it upheld the BOP's regulation governing
inmate-to-inmate correspondence (Pet. App. 34a-43a, 47a-48a).  The
court of appeals affirmed the latter ruling (id. at 3a-6a), and
respondents have not sought review of that aspect of the court of
appeals' decision.  Accordingly, the validity of the BOP's
restrictions on inmate-to-inmate correspondence are not at issue in
this Court.  Similarly, no issue is raised with respect to individual
damage claims brought by 82 named plaintiffs as part of this case.
Those claims were severed by the district court in October 1979 (id.
at 26a n.1) and are still pending.

   /2/ The regulations define "publication" as "a book (for example,
novel, instructional manual), or a single issue of a magazine or
newspaper, plus other materials addressed to a specific inmate as
advertising brochures, flyers, and catalogues" (28 C.F.R. 540.70(a)).

   /3/ Those criteria (with brackets reflecting portions that have not
been challenged by respondents) are as follows (28 C.F.R. 540.71(b)):

         (1) (It depicts or describes procedures for the construction
      or use of weapons, ammunition, bombs or incendiary devices;)

         (2) It depicts, encourages, or describes methods of escape
      from correctional facilities, (or contains blueprints, drawings
      or similar descriptions of Bureau of Prisons institutions;)

         (3) (It depicts or describes procedures for the brewing of
      alcoholic beverages, or the manufacture of drugs;)

         (4) (It is written in code;)

         (5) It depicts, describes or encourages activities which may
      lead to the use of physical violence or group disruption;

         (6) It encourages or instructs in the commission of criminal
      activity;

         (7) It is sexually explicit material which by its nature or
      content poses a threat to the security, good order, or
      discipline of the institution, or facilitates criminal activity.

   In addition to these criteria, the standards governing sexually
explicit publications are contained in BOP Program Statement No.
5266.5 (see App., infra, 3a-4a;  Pet. App. 24a-25a).

   /4/ Under 28 C.F.R. 540.71(d), the warden must "promptly advise the
inmate in writing of the decision (rejecting a publication) and the
reasons for it." The notice must refer to "the specific article(s) or
material(s) considered objectionable" (ibid.).  The inmate shall be
permitted to review the material for purposes of filing an
administrative appeal (see 28 C.F.R. 542.15) "unless such review may
provide the inmate with information of a nature which is deemed to
pose a threat or detriment to the security, good order or discipline
of the institution or to encourage or instruct in criminal activity"
(28 C.F.R. 540.71(d)).  The regulations also provide that the warden
shall send a copy of the inmate's notice to the publisher or sender of
the publication (28 C.F.R. 540.71(e)).  Furthermore, the warden is
required to "advise the publisher or sender that he may obtain an
independent review of the rejection by writing to the Regional
Director within 15 days of receipt of the rejection letter" (ibid.).

   /5/ According to the court, such publications include "sexually
explicit" publications, "non-explicit homosexual publications,"
publications that "preach ethnic superiority, such as the newsletter
of the American Nazi Party," publications that "advocate the
unionization of prisoners, highlight instances of alleged abuse by
prison officials, or state grievances of prisoners generally,"
publications that "facilitate gambling by giving odds for the week's
sporting events," publications relating to "self-defense," and
"instructional materials on electronics and radio" (Pet. App. 29a
(footnote omitted)).  The court stated that "(m)agazines and journals
are not excluded by title but are reviewed on an issue-by-issue basis"
(ibid.).

   /6/ Pell v. Procunier, 417 U.S. 817 (1974);  Jones v. North
Carolina Prisoners' Labor Union, 433 U.S. 119 (1977);  Bell v.
Wolfish, 441 U.S. 520 (1979)).

   /7/ The court noted that, because some of the rejections occurred
in 1977, "the district court should determine whether and to what
extent the individual rejections are moot" (Pet. App. 21a).  In
addition, the court of appeals analyzed, for illustrative purposes,
the reasons given by wardens for rejecting five of the publications at
issue.  The court held that, in each case, the statements could not
"be deemed findings of an adequate causal nexus between a rejected
publication and a breach of security or order or interference with
rehabilitation" (id. at 17a-20a).

   /8/ Similar policies of the Federal Bureau of Prisons were upheld
by the Court in Saxbe v. Washington Post Co., 417 U.S. 843 (1974),
which was decided the same day as Pell.

   /9/ The Court struck down, under a reasonableness test, regulations
prohibiting most inmate marriages (Turner, slip op. 17).  In addition,
the Court noted (ibid.), without deciding the issue, that regulations
governing marriages between inmates and outsiders might be governed by
heightened scrutiny because of the impact on nonprisoners.

   /10/ The court of appeals is simply wrong in distinguishing those
cases as dealing with "action and conduct occurring or threatened
within the prisons" rather than with the "expression of ideas on
paper" (Pet. App. 10a;  see Pet. App. 7a).

   /11/ For example, the BOP advises us that during the one-year
period between September 1, 1986, and August 31, 1987, an estimated
1,728 publications were withheld by federal prisons out of
approximately 1.8 million publications sent to federal inmates.

   /12/ The application of a similar standard (a rational basis test)
in the equal protection area confirms that such a standard has
substance.  See, e.g., City of Cleburne v. Cleburne Living Center,
Inc., 473 U.S. 432, 447-450 (1985) (requirement of a special use
permit for group home for the mentally retarded did not satisfy
deferential standard);  Zobel v. Williams, 457 U.S. 55, 61-63 (1982)
(state program of distributing income derived from natural resources
based on length of residence held to be irrational and therefore a
violation of equal protection).

   /13/ The court of appeals noted that some of the rejections
occurred as far back as 1977 and that, as to some publications, there
may no longer be a live controversy concerning admissibility (Pet.
App. 21a).

   APPENDIX