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.