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, 1987 The Solicitor General, on behalf of the Attorney General of the United States and all other petitioners, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the District of Columbia Circuit in this case. Petition for a Writ of Certiorari to the United States Court of Appeals for the District of Columbia Circuit 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, Charles Turnbo, 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 this 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 Questions Presented Parties to the Proceedings Opinions Below Jurisdiction Constitutional provision, regulations and program statement involved Statement Reasons for granting the petition OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-25a) is reported at 824 F.2d 1166. The opinion of the district court (App., infra, 26a-48a) is unreported. JURISDICTION The judgment of the court of appeals (App., infra, 50a-51a) was entered on July 28, 1987. A petition for rehearing was denied on October 31, 1987 (App., infra, 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 jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). CONSTITUTIONAL PROVISION, 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 the court of appeals' opinion (App., infra, 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 United States 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 federal prisons: the Prisoners' Union, Weekly Guardian Associates, and the Revolutionary Socialist League (App., infra, 2a). On September 13, 1984, following a 10-day bench trial, the district court entered an order upholding the challenged regulations and policies (id. at 26a-48a). The court of appeals reversed (id. at 1a-25a), holding that the district court had applied an erroneous standard of review, and that under the correct standard -- strict scrutiny -- the regulations were unconstitutional on their face. /1/ 1. a. Under the BOP's 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 cotent 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 (App., infra, 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 at issue. 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 stte 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 and directed the parties to submit proposed findings of fact and conclusions of law. 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 (App., infra, 28a-32a, 43a-47a). In its opinion, the court found that at higher-security federal prisons, "minimizing violence is a primary concern" (App., infra, 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" (App., infra, 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, inflammatory terms," and that "a warden might well find such publications too provocative 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 instead provided for a "case-by-case determination" of acceptability (App., infra, 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 petitioner to show that the regulations furthered an important government interest and were not unnecessarily broad (App., infra, 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 rquired 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" (App., infra, 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 (App., infra, 32a-33a). The court noted that, while the reasons given did not refer to specific prison risks, the government's witnesses "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 (App., infra, 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 was 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 was 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" (App., infra, 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 (App., infra, 21a). /7/ REASONS FOR GRANTING THE PETITION The court of appeals has seriously erred in holding that the BOP's regulations are subject to strict scrutiny review. In a line of cases culminating most recently in O'Lone v. Estate of Shabazz, No. 85-1722 (June 9, 1987), and Turner v. Safley, No. 85-1384 (June 1, 1987), this Court has made clear that a prison regulation that impinges on a prisoner's constitutional rights is valid if it is "'reasonably related to legitimate penological interests'" (Shabazz, slip op. 5-6 (quoting Turner, slip op. 9)). In rejecting that standard, the court of appeals relied entirely on this Court's decision in Procunier v. Martinez, 416 U.S. 396 (1974). But as we explain below, 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 best an incidental impact on publishers. Indeed, this Court has declined to apply the Martinez standard in every subsequent case raising a challenge to prison regulations. See O'Lone v. Estate of Shabazz, supra; Block v. Rutherford, 468 U.S. 576 (1984); Bell v. Wolfish, 441 U.S. 520 (1979); Jones v. North Carolina Prisoners' Labor Union, 433 U.S. 119 (1977); Pell v. Procunier, 417 U.S. 817 (1974); cf. Turner, slip op. 13-14, 17 (applying deferential standard to regulations governing inmate-to-inmate correspondence but leaving open question whether Martinez applies to regulations restricting marriages between inmates and outsiders). The present case is of great practical significance to the BOP because of its effect on the already difficult job of administering the federal prison system. As this Court recently recognized, "(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 district court in the present case specifically found as a factual matter that publications can threaten prison security even when prison officials cannot justify rejection under a strict scrutiny standard (App., infra, 32a). Furthermore, because this is a nationwide class action involving all federal prisoners, the BOP will not have the opportunity to seek "adjudication by a number of different courts and judges." Califano v. Yamasaki, 442 U.S. 682, 702 (1979). The court of appeals' decision, if not overturned, will apply to every federal prison in the country. For these reasons, review by this Court is plainly warranted. 1. This Court has recognized that "(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 goal, prison officials must be given "wide-ranging deference" in pursuing legitimate penological concerns (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 societies populated by individuals who have demonstrated their inability, or refusal, to conform their conduct to the norms demanded by a civilized society" (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 recognition of these principles, this Court has stated that, while "convicted prisoners do not forfeit all constitutional protections by reason of their conviction and confinement in prison" (Wolfish, 441 U.S. at 545), imprisonment "'brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.'" Shabazz, slip op. 5 (quoting Price v. Johnston, 334 U.S. 266, 285 (1948)). The Court has therefore refused, "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 (citation omitted)). Under this Court's decisions, "prison regulations alleged to infringe constitutional rights are judged under a 'reasonableness' test less restrictive than that ordinarily applied to alleged infringements of fundamental constitutional rights" (id. at 5, citing Prisoners' Union, 433 U.S. at 128). Only once has this Court applied heightened scrutiny in ruling on First Amendment challenges to prison regulations. In Procunier v. Martinez, 416 U.S. 396 (1974), the Court struck down prison regulations restricting correspondence between inmates and outsiders. The Court held that strict scrutiny was required in that case because the First Amendment rights of nonprisoners were involved (id. at 408, 413-414). The decision, however, was a very narrow one. The Court emphasized that the outsiders had a special interest in communicating with specific prisoners (id. 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 husband wanted to say to her has suffered an abridgment of her interest in communicating with him as plain as that which results from censorship of her letter to him" (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 corresponding with them" (id. at 408 (footnote omitted)). The Court noted that "(d)ifferent considerations may come into play in the case of mass mailings" (id. at 408 n.11), and it "intimate(d) no view" as to the proper resolution of that issue (ibid.), which is the issue presented in this case. 2. In the present case, the court of appeals concluded that the Martinez standard was controlling, despite the Martinez Court's refusal to extend its analysis to cases such as this one. According to the court of appeals (App., infra, 7a-8a), Martinez is dispositive because both that case and this one "deal with some aspect of the First Amendment rights of a non-inmate, and both deal with the expression of ideas on paper and not with conduct qua expression." Contrary to the court's holding, however, Martinez is not controlling here. In relying on Martinez and paying insufficient attention to the Court's later decisions, the court of appeals "got off on the wrong foot * * * by not giving appropriate deference to the decisions of prison administrators and appropriate recognition to the peculiar and restrictive circumstances of penal confinement" (Prisoners' Union, 433, U.S. at 125). The court of appeals' distinction between "the expression of ideas on paper" and "conduct qua expression" finds no support in this Court's decisions. This Court has stated in no uncertain terms that all claims by inmates that prison regulations violate their constitutional rights must be reviewed under a reasonableness standard. See Shabazz, slip op. 5-6; Turner, slip op. 9. Indeed, several cases applying a reasonableness test clearly 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, the receipt by prisoners of bulk mailings about unions); Bell v. Wolfish, supra (upholding the rule restricting prisoners' receipt of hardback books, except where such books are mailed directly from publishers, book clubs, or book stores). We know of no decision by this Court that supports the court of appeals' conclusion that heightened scrutiny applies 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 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 personalized correspondence from individuals, such as family members and friends. Substantial restrictions on such correspondence would greatly undermine the ability of the outsider to communicate with an inmate. In the case of publishers, however, the "rights" 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 "particularlized interest" (ibid.) in distributing its publication to any individual reader. Moreover, the regulations at issue 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. The court of appeals did not even attempt to explain how the interests of the publishers are comparable to the interests of the non-prisoners in Martinez. Moreover, this Court's post-Martinez decisions refute the suggestion that an impact on outsiders, however indirect, triggers strict scrutiny review. In numerous cases, the Court has upheld prison restrictions under a deferential standard of review, even though the constitutional rights of outsiders were involved. For example, in Block v. Rutherford supra, the Court upheld a blanket prohibition on contact visits on the ground that there was a "valid, rational connection" between the ban and the "internal security of a detention facility" (468 U.S. at 586). Significantly, the respondent in that case, relying on Martinez, had argued for heightened scrutiny on the ground that the rights of outsiders were involved (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. And in Shabazz, the Court upheld work assignment rules that had the effect of preventing inmates from attending a weekly Muslim congregational service held at the prison. As petitioners' brief in Shabazz revealed (at 17), that religious service was performed by an outside Islamic minister who came into the facility for that purpose. The restriction on the rights of prisoners to attend the service thus implicated the free exercise rights of the minister, and it similarly implicated the concerns of the nonprisoner Islamic community, whose members undoubtedly have an interest in ensuring that fellow Muslims be permitted to worship in accordance with the dictates of their religion (see Shabazz Amicus Br. for Imam Jamil Abdullah Al-Amin, et al. 2)). /8/ Clearly, all of these cases involved regulations that affected the rights of non-prisoners; yet, in each case the Court applied a deferential standard rather than the "strict scrutiny" test applied in Martinez. /9/ In addition, the court of appeals erred by treating prisons as if they were public forums, when they "most emphatically" are not (Prisoners' Union, 433 U.S. at 136; see also Perry Education Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 46 (1983)). In a non-public forum, outsiders have no generalized right to engage in 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 clearly detrimental to the functioning of the base); Adderley v. Florida, 385 U.S. 39, 47-48 (1966) (rejecting argument that demonstrators have First Amendment rights to speak and protest within a jail facility); cf. Hazelwood School District v. Kuhlmeier, No. 86-836 (Jan. 13, 1988), slip op. 6 (noting that "public schools do not possess all of the attributes of streets, parks, and other traditional public forums"). Furthermore, in a non-public 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 use of the property" (Perry, 460 U.S. at 49). Under this Court's forum cases, since the BOP's regulations at issue seek to limit the publishers' rights to distribute publications in the non-public forum of a prison, they pass constitutional muster if they are "reasonable in light of the purpose which the forum at issue serves" (ibid. (footnote omitted)). That standard, of course, is the same one that, under Turner and Shabazz, is applicable in evaluting inmates' constitutional claims. 3. The court of appeals, by applying an erroneous standard of review, has invalidated several portions of the BOP's regulations governing publications. /10/ Unless it is overturned, the decision in this nationwide class action will undermine the efforts of prison officials to maintain security by withholding publications that, in their professional opinion, could lead to violence or disorder. The evidence at trial revealed that prison violence is a serious problem, particularly at the higher security facilities (see App., infra, 28a). See Prisoners' Union, 433 U.S. at 132 ("Prison 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."). Yet, 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 publication. That does not mean that the warden's fears are exaggerated. As the distrct court specifically found (App., infra, 32a), requiring such a high degree of proof "could result in admission of publications which, even if they did not lead directly to violence, would exacerbate tensions and lead indirectly to disorder." The recent uprisings by Mariel Cuban prisoners at two federal facilities confirm that information from the outside can, in some circumstances, have grave consequences within a prison. Accordingly, prison 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 (footnote omitted)). /11/ Under the court of appeals' standard of review, the decision whether a publication threatens prison security would in effect shift from prison administrators to the courts. In virtually every case, a prisoner can make a nonfrivolous claim that the publication at issue was improperly withheld under the court's onerous standard of review. Courts would therefore become the "primary arbiters" (Turner, slip op. 9) of the kinds of publications that belong in a prison. That is precisely the kind of result that this Court has repeatedly sought to prevent. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. CHARLES FRIED Solicitor General WILLIAM F. WELD Assistant Attorney General WILLIAM C. BRYSON Deputy Solicitor General ROBERT H. KLONOFF Assistant to the Solicitor General ANDREW LEVCHUK CURTIS E. HALL Attorneys FEBRUARY 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 (App., infra, 34a-43a, 47a-48a). The court of appeals affirmed the latter ruling (id. at 3a-6a); accordingly, no issue involving inmate correspondence is raised in this petition. 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 such 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 (Jan. 2, 1985) (see App., infra, 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" (App., infra, 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" (App., infra, 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/ Although the court of appeals purported to deal with all of this Court's post-Martinez decisions, it did not discuss, or even cite, the Court's decision in Shabazz, which had been rendered six weeks earlier. /9/ The court of appeals noted (App., infra, 8a n.1 (citing cases)) that a number of courts, when faced with a similar issue in the context of state prisons, have applied the Martinez standard. But those cases are not helpful in resolving the present controversy. All of the cases cited by the court were rendered prior to this Court's decisions in Turner and Shabazz. The circuit court decisions cited by the court of appeals do not appear to rely on the rights of outsiders; their holdings are apparently based entirely or primarily on the rights of prisoners. See, e.g., Abdul Wali v. Coughlin, 754 F.2d 1015, 1030 (2d Cir. 1985) (applying Martinez "to resolve cases involving an inmate's right to receive publications"). As noted, however, in light of Turner and Shabazz, it is clear tht the rights of prisoners must be assessed under a reasonableness standard. See generally Shabazz, slip op. 6n.* (rejecting analytical approach taken in Abdul Wali). Moreover, the district court decisions cited by the court of appeals either do not refer to the rights of outsiders or do so without any real analysis. And as the court of appeals acknowledged, there is language in various Fifth Circuit cases that the standard applicable to regulations governing publications may be lower than the Martinez standard (see App., infra, 8a n.1 (citing cases)). In Brooks v. Seiter, 779 F.2d 1177 (1985), a case not cited by the court of appeals, the Sixth Circuit discussed the rights of nonprisoner publishers, noting that it could "perceive no principled basis for distinguishing publications specifically ordered by a prison inmate from letters written to that inmate for purposes of first amendment protection" (id. at 1181). According to the court, "(t)he sender's interest in communicating the ideas in the publication corresponds to the recipient's interest in reading what the sender has to say" (id. at 1180). In our view, that analysis is erroneous; as noted, there are important differences between personal correspondence and publications. In any event, the Sixth Circuit did not explicitly adopt a strict scrutiny standard, but simply held that the district court had erred in dismissing an inmate's complaint. Indeed, the court quoted Wolfish for the proposition that prison officials must be given "'wide-ranging deference'" in executing policies they deem necessary for prison security (id. at 1181 (quoting 441 U.S. at 547)). /10/ The court upheld certain portions of the regulations that were not challenged by respondents (see App., infra, 15a; note 3, supra). We agree with the court that the regulations should be evaluated on a section-by-section basis and 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). As respondents conceded below, portions of the regulations are constitutional even under strict scrutiny (App., infra, 15a). Similarly, a reasonableness standard is not toothless; prison regulations that do not reasonably serve to promote legitimate penological concerns are subject to challenge even under that more lenient standard. Regardless of the test to be applied, then, a court reviewing a facial challenge to a particular set of regulations must examine the individual sections of the regulations separately and determine whether each is justified under the governing standard. /11/ This is not to suggest that the BOP has excluded large numbers of publications in the past or that it would expect to do so in the future if the decision of the court of appeals were reversed. The number of publications actually withheld under the regulations has been quite small. For example, the BOP advises us that during the one-year period between September 1, 1986, and August 31, 1987, an estimated 1728 publications were withheld by federal prisons out of approximately 1.8 million publications sent to federal inmates. These figures -- which are derived from surveys of individual prisons -- reveal that, during the same period, only about one publication was withheld for every 1,000 received by federal prisoners. Yet, while the number of rejected publications is small, the BOP believes that certain publications have a considerable potential for disruptive effect, and that it must retain the right to reject publications without having to satisfy a strict scrutiny test of the sort imposed by the court of appeals.