156 F.3d 192 (D.C. Cir. 1998), 97-5293, Amatel v. Reno

Docket Nº:97-5293, 97-5294, 97-5295.
Citation:156 F.3d 192
Party Name:Joseph AMATEL, et al., Appellees v. Janet RENO, Attorney General of the United States, et al., Appellants
Case Date:September 15, 1998
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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156 F.3d 192 (D.C. Cir. 1998)

Joseph AMATEL, et al., Appellees


Janet RENO, Attorney General of the United States, et al., Appellants

Nos. 97-5293, 97-5294, 97-5295.

United States Court of Appeals, District of Columbia Circuit

September 15, 1998

Argued May 8, 1998.

Rehearing Denied Dec. 11, 1998.[*]

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[Copyrighted Material Omitted]

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[332 U.S.App.D.C. 193] Appeals from the United States District Court for the District of Columbia (No. 96cv02774) (No. 96cv02790) (No. 97cv00475).

Edward Himmelfarb, Attorney, U.S. Department of Justice, argued the cause for appellants. With him on the briefs were Frank W. Hunger, Assistant Attorney General, Wilma A. Lewis, U.S. Attorney, and Barbara L. Herwig, Assistant Director, U.S. Department of Justice.

Jodie L. Kelley argued the cause for appellees. With her on the brief were Ann M. Kappler, Marjorie Rifkin and Margaret Winter.

Bruce A. Taylor was on the brief for amici curiae National Coalition for the Protection of Children & Families, et al.

Before: WALD, WILLIAMS and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge WILLIAMS.

Dissenting opinion filed by Circuit Judge WALD.


A group of prisoners and publishers challenges the constitutionality of a statutory ban on the use of Bureau of Prisons funds to distribute sexually explicit material to prisoners. The statute is not enforced directly; instead, the Bureau has promulgated regulations defining the terms of the proscription and significantly narrowing its scope. The district court, analyzing the statute, ruled that it was facially invalid as a violation of the First Amendment and enjoined its enforcement. Finding that scrutiny should be directed to the substance of the regulations instead, and disagreeing with the district court's evaluation, we reverse and remand.

* * *

Before 1996, federal regulations authorized prison wardens to reject a publication "only if it [was] determined detrimental to the security, good order, or discipline of the institution or if it might facilitate criminal activity." 28 C.F.R. § 540.71(b). Sexually explicit material fell into this category if it "by its nature or content pose[d] a threat to the security, good order, or discipline of the institution, or facilitate[d] criminal activity." 28 C.F.R. § 540.71(b)(7). Under this standard, explicit heterosexual material was ordinarily admitted. See Thornburgh v. Abbott, 490 U.S. 401, 405 n. 6, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989).

In 1996 Congress passed the Ensign Amendment, which bars the use of Bureau of Prisons funds to pay for the distribution of commercial material that "is sexually explicit or features nudity." 1 See Omnibus Consolidated Appropriations Act of 1997, Pub. L. No. 104-208 § 614. 2 Regulations later adopted by the Bureau assign rather narrow meanings to these terms: "nudity" means "a pictorial depiction where genitalia or female breasts are exposed"; "features" means that "the publication contains depictions of nudity or sexually explicit conduct on a routine or regular basis or promotes itself based upon such depictions in the case of individual onetime issues." Even material that otherwise would be said to "feature nudity" is excepted if it contains "nudity illustrative of medical, educational, or anthropological content." "Sexually explicit" means "a pictorial depiction of actual or simulated sexual acts including sexual intercourse, oral sex, or masturbation." 28 C.F.R. § 540.72(b). Under these regulations, then, there is no restriction whatever on non-pictorial sexually explicit material.

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[332 U.S.App.D.C. 194] In 1997, three inmates, each denied receipt of either Playboy or Penthouse, filed separate suits alleging that the Ensign Amendment violated the First Amendment. Their suits were consolidated, along with similar suits filed by the publishers of those magazines and a publishing trade organization; the consolidated plaintiffs moved for injunctive relief. The district court, purporting to apply the test set out in Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), found the Ensign Amendment facially invalid--implicitly granting plaintiffs' motion for summary judgment (which, in fact, they never made)--and permanently enjoined its enforcement. 975 F.Supp. 365, 370 (D.D.C.1997).

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Both sides agree that Safley sets out the appropriate framework for reviewing government regulation of prisons. 3 But before beginning that analysis, we must note that our first difference with the district court is as to the proper object of judicial scrutiny.

Plaintiffs ask for relief against both the Ensign Amendment and its implementing regulations. The district court seemed to assume that the statute itself has been and will be applied to these plaintiffs; accordingly, it directed its analysis primarily towards the statute. Id. at 368-70. But there is no suggestion that any warden does or will apply the statute directly; so far as appears, all enforcement is mediated through the regulations.

Insofar as plaintiffs attack the proscriptions of the statute not embodied in the regulations, they effectively pursue a pre-enforcement challenge. Even in the First Amendment context, such a challenge presents a justiciable controversy only if the probability of enforcement is "real and substantial." Salvation Army v. Dep't of Comm. Affairs, 919 F.2d 183, 192 (3d Cir.1990); see also Steffel v. Thompson, 415 U.S. 452, 460, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974). In the statutory borderland beyond the implementing regulations (i.e., the statute's apparent ban on some non-pictorial material, its vaguer language, and its lack of any exception for medical or educational material), the prospect of enforcement appears completely insubstantial. It is as if the government had waived certain provisions of the law. And with such a waiver, as Salvation Army explicitly holds, there is no standing to challenge the waived provisions. See 919 F.2d at 192-93 ("[T]he district court should decline to provide an advisory opinion regarding the constitutionality of these provisions."). See also Forsyth County, Georgia v. Nationalist Movement, 505 U.S. 123, 131, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992) (evaluation of facial challenge to statute must take into account construction by enforcing body). We therefore limit our focus to the substantive prohibitions of the regulations. 4

* * *

Cases analyzing constitutional claims by those within governmental institutions such as prisons, public schools, the military, or the government workplace often open with the axiom that the boundaries of those institutions do not separate inhabitants from their constitutional rights. See, e.g., Safley, 482 U.S. at 84, 107 S.Ct. 2254 ("Prison walls do not form a barrier separating prison inmates from the protections of the Constitution."); Connick v. Myers, 461 U.S. 138, 142, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983) ("[I]t has been settled that a State cannot condition public employment on a basis that infringes the employee's constitutionally protected interest in freedom of [332 U.S.App.D.C. 195] expression."); Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 506, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) ("It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or

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expression at the schoolhouse gate."); General Media Communications, Inc. v. Cohen, ("GMC ") 131 F.3d 273, 276 (2d Cir.1997) ("The Constitution does not, of course, stop at the gates of a military base."). This observation is invariably followed by the complementary principle that by their nature such environments must allow regulation more intrusive than what may lawfully apply to the general public. See Safley, 482 U.S. at 84-85, 107 S.Ct. 2254; Connick, 461 U.S. at 143, 103 S.Ct. 1684; Tinker, 393 U.S. at 507, 89 S.Ct. 733; GMC, 131 F.3d at 276. In these environments, the government is permitted to balance constitutional rights against institutional efficiency in ways it may not ordinarily do. 5 See, e.g., Waters v. Churchill, 511 U.S. 661, 675, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994) (describing governmental power to restrict speech in the name of efficiency); Safley, 482 U.S. at 88, 107 S.Ct. 2254 (noting balancing between First Amendment rights and governmental interests).

For the prison context, Safley directs courts to uphold a regulation, even one circumscribing constitutionally protected interests, so long as it "is reasonably related to legitimate penological interests." 482 U.S. at 89, 107 S.Ct. 2254. We are to assess the overall reasonableness of such restrictions with attention to four factors: first, whether the restriction bears a "valid, rational connection" to the "legitimate governmental interest put forward to justify it," such that the "asserted goal is [not] so remote as to render the policy arbitrary or irrational," id. at 89-90, 107 S.Ct. 2254; second, whether inmates retain alternative means of exercising the circumscribed right, id. at 90, 107 S.Ct. 2254; third, the costs that accommodating the right imposes on other inmates, guards, and prison resources generally, id.; and fourth, whether there are alternatives to the regulation that "fully accommodate[ ] the prisoner's rights at de minimis cost to valid penological interests," id. at 90-91, 107 S.Ct. 2254. Although the factors are intended as guides to a single reasonableness standard, see id. at 89, 107 S.Ct. 2254; see also Thornburgh, 490 U.S. at 414, 109 S.Ct. 1874 ("The Court in [Safley] identified several factors that are relevant to, and that serve to channel, the reasonableness inquiry."), the first factor looms especially large. Its rationality inquiry tends to encompass the remaining factors, and some of its criteria are apparently necessary conditions. Nothing can save a regulation that...

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