[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________ ________________ No. 12

- 11144

________________________ D.C. Docket No. 2:10

- cv - 00428

- CEH

- DNF

JAMES R. PESCI, Plaintiff

- Appellant,

versus TIM BUDZ, Defendant

- Appellee.

________________________ Appeal from the United States District Court for the Middle District of Florida

________________________ (September 23, 2013) Before BAR KETT and MARCUS , Circuit Judges , and HUCK, * District Judge

. MARCUS, Circuit Judge :

* Honorable Paul C. Huck, United States District Judge for the Southern District of Florida, sitting by designation.

Case: 12-11144 Date Filed: 09/23/2013 Page: 1 of 212 Appellant James Pesci , a civil detainee at the Florida Civil Commitment Center (FCCC), is involuntarily committed pursuant to Fla. Stat. § 394.910 et seq. , the “Involunta ry Civil Commitment of Sexually Violent Predators Act,” commonly referred to as the “Jimmy Ryce Act.” The Act provides for involuntary civil commitment of a sex offender who is determined to be a sexually violent predator for the purposes of safeguarding the general public and rehabilitating the detainee

. Pesci and some 600 other residents of the FCCC are not prisoner s ; rather they are civil detainee s who ha ve already served their terms of incarceration

. For some years, Pesci has published a newsletter called “Duck Soup ” at the
FCCC that is highly critical of the center, its policies, and its personnel

. In April 2009, Tim othy Budz, the facility director at the center , promulgated a policy barring all residents from copying Duck Soup in order to limit it s circulation, on the rationale that Duck Soup had disrupt ed order and discipline at the FCCC a s well as ha d a powerful adverse effect on the facility ’s capacity to rehabilitate its civil detainees. P ro se, Pesci filed a § 1983 civil rights action against Budz in the United States District Court for the Middle District of Florida. He claim ed the policy violated his expressive freedom s under the First and Fourteenth Amendments and therefore s ought both monetary and injunctive relief . In
Nov ember 2010, after the litigation had beg u n but notably before the district court entered summary judgment for Budz , the facility director adopted a new, different,

Case: 12-11144 Date Filed: 09/23/2013 Page: 2 of 213 and stricter policy treating the newsletter as “contraband” and banning outright its
possess ion or distribution. In February 2012, t he district court granted final summary judgment in favor of the facility director , but only considered Pesci’s First Amendment claim as to the April 2009 policy , offering no view about the replacement policy bannin g Duck Soup . Pesci timely appeal ed , initially pro se, but now with the assistance of appointed counsel. After thorough review, we vacate and remand for further proceedings consistent with this opinion

. In view of the peculiar posture of this case, we believe the wiser course would be for the district court to consider the constitutionality of the November 2010 policy banning Duck Soup along with the April 2009 policy

. T he district court never had occasi on to review the constitutionality of this more restrictive policy

-- a policy that mooted out any possibility of injunctive relief based on the April 2009 policy. Moreover, the record is limited and the plaintiff was uncounseled throughout the proceeding s in the district court. Accordingly, we remand the entire matter back to the district

court to engage in th e necessarily fact

- intensive review of the facility director’ s policies in the first instance . This course will avoid piecemeal adjudication of th e constitutionality of the two policies

. I.

Case: 12-11144 Date Filed: 09/23/2013 Page: 3 of 214 The complaint alleges that James Pesci has for “ some years” published a newsletter called “Duck Soup” in both hard copy and online formats . The newsletter was available electronically for download ing and for printing and copying in the Florida Civil Commitment Center ’s computer lab. The record contains three issues of Duck Soup from July , August, and September of 2009

. T he newsletter primarily reported on FCCC matters and was often bitterly critical of the FCCC ’s staff , its management and the state contractor, GEO Group, Inc., that runs the facility. Thus, f or example, in one issue Pesci described the Florida Department of Children and Families and its contractor GEO as a “white collared [sic], criminal enterprise” and encouraged FCCC staff to file lawsuits against GEO. Perhaps even more importantly, Pesci attacked the foundation and efficacy of the FCCC’s treatment program s . He also said that FCCC residents should h old “collective protests” and “demonstrations” and that they were “cowar d[s]” for not doing so. In addition, he launched a series of personal attacks on several of
FCCC ’s staff by name. He stated that a particular lieutenant liked watching residents show er; he accused the facility director Budz of using illegal drugs; and he claimed that the FCCC ’s medical staff caus ed a resident’s death. Pesci was fully aware of the newsletter’s inflammatory nature, writing in one month’s newsletter that he had “every i ntention of hitting a lot of nerves in this month’s edition.” He also acknowledged the palpable tension that arose from some of the

Case: 12-11144 Date Filed: 09/23/2013 Page: 4 of 215 content in Duck Soup, describing in one issue the hostility that he faced from some staff in the FCCC ’s medical department after publishing an earlier edition of th e newsletter that “exposed” the department. In April 2009, the facility director of the Florida Civil Commitment Center , Timothy Budz, promulgated a policy (the first policy) preventing residents from printing or copying Duck Soup in the FCCC’s computer lab

. 1 According to Budz, the policy was designed to limit dissemination of the newsletter, which he claimed had generat ed substantial hostility between the detainees and the FCCC ’s staff, undermin ed staff authority, and disrupt ed detainee treatment. In July 2010, Pesci, acting pro se, brought this civil rights action pursuant to 42 U.S.C. § 1983 against Budz, alleging that the first policy (the April 2009 policy ) violated his First and Fourteenth Amendment rights . He sought both monetary and injunctive relief In November 2010, some months after the litigation had beg u n, Budz replaced the April 2009 policy with a second policy banning outright the possession or distribution of Duck Soup, citing the increasingly inflammatory nature of the newsletter and it s continuing detrimental effect on order and treatment at the facility . In April 2011, Budz moved for summary

1 There is a factual dispute about the exact scope of the April 2009 policy

. Budz claims the April 200 9 policy only prevented detainees from using FCCC paper , and that they could print or copy the newsletter with their own paper. Pesci, on the other hand, filed affidavits from a few FCCC detainees saying they were forbidden from making any copies of Duck Soup in the computer lab, no matter whose paper they were using . Because th is factual dispute arises on summary judgment , it cannot be resolved by the court on summary judgment. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 252

- 55 (1986).

Case: 12-11144 Date Filed: 09/23/2013 Page: 5 of 216 judgment. Along with the motion, Budz filed his own affidavit and the affidavit of Dr. Robin Wilson, clinical director of the FCCC. In his affidavit, Budz explained that staff members and residents named in Duck Soup had complained to him about the newsletter, offering that Duck Soup had caused real tension between the resi dents and the staff and among the facility’s employees as well. According to Budz ’s version , the staff could still view Duck Soup online after the promulgation of the April 2009 policy and the residents could still make copies of the newsletter if they used their own paper instead of the institution’s paper. Budz averred that after promulgating the first policy in April 2009 , Duck Soup became “increasingly inflammatory, degrading and demeaning toward FCCC staff and administration , ” and that it “continue d to raise animosity, hostility, and anger among staff and residents by insulting certain staff and placing them in a false light amongst their peers and residents.” For t hese reason s , in November 2010, Budz adopted the second policy characterizing Duck S oup as “ contraband ” and forb idding its possession or distribution. Dr. Wilson’s affidavit , in turn, detailed the effect s of Duck Soup on the treatment of the center’s detainees. He averred that Pesci used Duck Soup “to make reports on the GEO staff a nd other residents and would specifically name individuals.” Wilson observed that the newsletter created considerable tension between residents and the treatment staff during the period that Pesci was allowed

Case: 12-11144 Date Filed: 09/23/2013 Page: 6 of 217 to publish the newsletter. He offered that the newsletter caused the residents to lose confidence in the treatment staff and in the treatment itself, leading some residents to believe that the treatment staff were in competent, the treatment program itself was a sham, and that they would never reach their ultimate goal of release. Dr. Wilson also observed that the residents who pursued treatment were often unwilling to share their thoughts or information about themselves during group therapy sessions because they fear ed that what they said wo uld wind up in Pesci’s newsletter. He opi ned that the April 2009 policy limiting circulation of Duck Soup did not improve t he situation, but , notably, the effectiv eness of the treatment program returned to normal after Budz banned the newsletter entirely on November 18, 2010. Opposing the summary judgment motion pro se, Pesci offered two sets of largely identical affidavits from a total of eleven fellow detainees. In the first set, eight detainees said the following:

• Duck Soup has not caused me to be hostile to any person, staff or resident.

• I have never been uncomfortable with the sharing of information with the Plaintiff James Pesci, and have been in group activity with Pesci.

• I have never known any other residents to fear their treatment issues be ing published in Duck Soup.

• The only parties I have ever heard complaint [sic] of Duck Soup were staff members employed at FCCC. In the second set, three attested:

Case: 12-11144 Date Filed: 09/23/2013 Page: 7 of 218 • While it may be true that the resident population is in a state of agitation it has nothing to do with Duck Soup, rather it is the prison like conditions of confinement that T he Geo Group, Inc. is imposing on its mental health patients.

• I am in treatment and as such I have never witnessed any impairment of the treatment process at the Florida Civil Commitment Center as a result [of] the publication of Duck Soup.

• Per Tim Budz’s order no resident is allowed to print or copy Duck Soup in th e facility computer lab. This standing order has never allowed such printing or copying to take place if a resident has his own paper. This simply is not true. In February 2012, sixteen months after the facility director adopted the second policy, t he distric t court entered final summary judgment for Budz , concluding only that the first April 2009 policy was constitutional . The court acknowledged the undisputed existence of the second November 2010 policy, which was in effect at the time it granted summary judgment, but declined to consider the second policy’s lawfulness because Pesci had not formally amended his complaint.
II. We review a district court’s order of summary judgment de novo, viewing all evidence and drawing all reasonable inference s in favor of the nonmoving party. Chapman v. AI Transp. , 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc). Summary judgment is appropriate where the moving party demonstrates, through

Case: 12-11144 Date Filed: 09/23/2013 Page: 8 of 219 materials in the record, that no genuine issue of material fact exists, and they are entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a), (c). We begin with the question of whether the district court should have consider ed the lawfulness of the second November 2010 policy banning the newsletter outright at the s ame time it addressed the now

- defunct first policy

. T he district court declined to consider the second policy , offer ing only that Pesci’s complaint had not been amended. As we see it, it makes far more sense to consider the second policy along with the first. The new policy replaced in toto the 2009 policy, rendering moot any discussion about whether injunctive relief could lie against the first policy. Second, it banned outright all possession and distribution of the newsletter as opposed to simply limiting the means of its propagation

. Third, the record is largely undeveloped and Pesci, although now counseled, was proceeding pro se throughout the summary judgment proce edings. We add that the November 2010 policy, as a factual matter, was clearly placed before the district court. Indeed, in a “Pretrial Narrative Statement” Pesci filed in June 2011, Pesci complained broadly that Budz “unconstitutionally shut down the ne wsletter Duck Soup.” Pesci also put the November 2010 policy before the court in the form of a motion for a preliminary injunction. Moreover, there has been no factual dispute at any time about the existence of the November 2010 policy which banned outri ght the

Case: 12-11144 Date Filed: 09/23/2013 Page: 9 of 2110 newsletter, deeming it to be contraband. Indeed, Budz issued a memorandum to that effect to all FCCC residents and staff on November 18, 2010. Accordingly,

we can see precious little reason for addressing and adjudicating piecemeal first the Apri l 2009 policy and then only later the 2010 policy, which swallowed up the first

one . Indeed, by the time summary judgment was entered by the district court , consideration of the November 2010 policy’s constitutionality was the only way the district court could meaningfully ad dress Pesci’s request for injunctive relief.
T he November 2010 ban supplanted in every respect the April 2009 policy

. By limiting its inquiry , however, only to the April 2009 policy, the district court effectively mooted Pesci’s application for an injuncti on . Even if the district court had been disposed to enter an injunction concerning the April 2009 policy , a n y such order would have been wholly academic and advisory. While Pesci’s application for monetary damages arising from the April 2009 policy was not mooted by the adoption of the 2010 policy, Pesci specifically sought injunctive

r e lief as well. Thus , in the face of the procedural posture of the case, including the unitary nature of the claims, the initial pro se status of the plaintiff, the limited record, and the powerful prudential need to avoid piecemeal adjudication, we conclude that the November 2 010 policy should be considered along with the April 2009 policy in the first instance by the district court. While we offer no view about

Case: 12-11144 Date Filed: 09/23/2013 Page: 10 of 2111 the merits, w e believe the wiser course is to vacate the final order of summary judgment and remand for proceedings consistent with this opinion.
III. The central legal issue raised in this case concerns the appropriate legal standard against which to measure Pesci’s First Amendment claim. The district court applied the standard drawn from the Supreme Court’s landmark opinion in Turner v. Safley , 482 U.S. 78 (1987), where the Court held that “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests,” id. at 89. Pesci, h owever, argues that since he is not a prison inmate

-- rather only a civil detainee

-- Turner does not provide sufficient protection of his First Amendment rights, offering instead a standard of intermediate scrutiny which he has drawn from United States

v . O’Brien , 391 U.S. 367 (1968) . In light of the limited case precedent available , and in order to provide further guidance to the district court, we address the appropriate legal standard.
In Turner , the Supreme Court recogniz ed that “[p]rison walls do not form a barrier separating prison inmates from the protections of the Constitution,” and that federal courts must “discharge their duty to protect constitutional rights.” Id. at 84. But the Court also recognized that “courts are ill equipped to deal with the increasingly urgent problems of prison administration and reform.” Id. (quoting

Case: 12-11144 Date Filed: 09/23/2013 Page: 11 of 2112 Procunier v. Martinez , 416 U.S. 396, 405 (1974), overruled on other grounds by Thornburgh v. Abbott , 490 U.S. 401 (1989)). P rison administration “is an inor dinately 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.” Id. at 84

- 85. Because the task of prison administ ration is committed to those branches, “separation of powers concerns counsel a policy of judicial restraint.” Id. at 85. Recognizing these competing concerns, the Court concluded that its task was “to formulate a standard of review for prisoners’ consti tutional claims that is responsive both to the policy of judicial restraint regarding prisoner complaints and to the need to protect constitutional rights.” Id. (internal quotation marks omitted) ; see also Bell v. Wolfish , 441 U.S. 520, 546 (1979) (“The f act of confinement as well as the legitimate goals and policies of the penal institution limits [inmates’] retained constitutional rights. There must be a mutual accommodation between institutional needs and objectives and the provisions of the Constituti on that are of general application.” (citations and internal quotation marks omitted)). The balance the Court struck was embodied in a four part inquiry: (1) whether there is a “valid, rational connection” between the regulation and a legitimate governmental interest put forward to justify it; (2) whether there are alternative means of exercising the asserted constitutional right that remain open to the inm ates; (3) whether and the extent to which accommodation of the asserted right will have an impact on prison staff, inmates, and the allocation of Case: 12-11144 Date Filed: 09/23/2013 Page: 12 of 2113 prison resources generally; and (4) whether the regulation represents an “exaggerated response” to prison conc erns. Pope v. Hightower , 101 F.3d 1382, 1384 (11th Cir. 1996) (quoting Turner , 482 U.S. at 89

- 91). This standard was necessary if “‘prison administrators . . ., and not the courts, [are] to make the difficult judgments concerning institutional operations

. ’ ” Turner , 482 U.S. at 89 (alterations in original) (quoting Jones v. N

. Carolina Prisoners’ Labor Union , Inc. , 433 U.S. 119, 128 (1977)). A more heightened standard of review would inevitably make the courts “the primary arbiters of what constitutes th e best solution to every administrative problem, thereby unnecessarily perpetuating the involvement of the federal courts in affairs of prison administration.” Id. (alterations and internal quotation marks omitted). We determine that a similar b alance should be struck in scrutinizing the constitutional claims of civil detainees, but the standard must be modified to reflect the salient differences between civil detention and criminal incarceration. As the district court rightly noted, Pesci is not a priso ner and the F lorida C ivil
C ommitment C enter is not a prison. Application of the Turner standard in th e civil detention context must be tailored to reflect that the range of legitimate government al interests is narrower here than it is in a prison context

. More precisely , the “legitimate penological interests” highlighted by the Supreme Court
in Turner are not coextensive with the legitimate interests found in the civil detention context

. Thus, t he government’s interest s in retribution and general

Case: 12-11144 Date Filed: 09/23/2013 Page: 13 of 2114 deterrence

-- plainly legitimate justifications for prison regulations

-- decidedly are
not a proper foundation for the rest riction of civil detainees’ constitutional rights

. The Supreme Court drew this distinction with clarity when it upheld a
K ansas statute similar to the Florida statute providing for civil commitment of sexually violent predators. See Kansas v. Hendricks , 521 U.S. 346 (1997). In Hendricks , the cross

- petitioner challenged the constitutionality of the statute on double jeopardy and ex post facto grounds. In rejecting these challenges, the Court was “unpersuaded by Hendricks’ argument that Kansas has established criminal proceedings.” Id. at 361. The Court noted that “commitment under the Act does not implicate either of the t wo primary objectives of criminal punishment: retribution or deterrence.” Id. at 361

- 62. The Court further emphasized that “involuntary confinement pursuant to the Act is not punitive” and that “commitment under the Act is not tantamount to ‘punishment.’ ” Id. at 369 . These were not mere asides; rather, the Court’s “conclusion that the Act is nonpunitive thus remove[d] an essential prerequisite for both Hendricks’ double jeopardy and ex post facto claims.” Id. ; see also id. at 373 (Kennedy, J., concurri ng) (“On the record before us, the Kansas civil statute conforms to our precedents. If, however, civil confinement were to become a mechanism for retribution or general

Case: 12-11144 Date Filed: 09/23/2013 Page: 14 of 2115 deterrence . . . our precedents would not suffice to validate it.”). 2 Thus, the
gover nment undoubtedly may justify a civil detention regulation based on its valid, rational connection to legitimate interest s in institutio nal order, safety, and security and in the rehabilitation and treatment of civil detainees, but it may not justify a

res traint on detainees’ constitutional rights for reasons related to punitive conditions of confinement

. See id. (Kennedy, J., concurring) (“[W]hile incapacitation is a goal common to both the criminal and civil systems of confinement, retribution and general deterrence are reserved for the criminal system alone.”). In short, while there may be shared government al interests surrounding c ivil and crim inal detention , they are not coextensive. Thus, in the context of this case, the government may not justify a limitation on expressive freedoms based on r etribution or general deterrence. Pesci , however, asks this Court to go further than this modificatio n to the first Turner factor

. He relies on Youngberg v. Rome o , 457 U.S. 307 (1982),
argu ing that a more searching standard of review should apply. In Youngberg , the Supreme Court observed that “[p]ersons who have been involuntarily committed are entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish.” Id. at 321

- 22. But this observation does not warrant the wholesale departure from the Turner

2 Justice Kennedy’s concurrence is especially relevant because Justice Kennedy also provided the fifth vote for the Court’s opinion.

Case: 12-11144 Date Filed: 09/23/2013 Page: 15 of 2116 standard that Pesci now urges on us. Indeed, Youngberg establishes that many of the considerations u pon which the Turner standard is grounded , including , notably, judicial restraint and deference to the professional judgmen t of institutional officials, remain relevant in a civil detention context as well

. In Youngberg , the mother of an involuntarily committed civil detainee brought a next friend § 1983 claim challenging h er son’s conditions of confinement. The Court held that civil detainees have a constitutionally protected
l iberty interest under the Due Process Clause of the Fourteenth Amendment to reasonably safe conditions of confinement, freedom from unreasonable bodily restraints, and such minimally adequate training or “habilitation” as reasonably may be required by thes e interests. Id. at 314

- 19. The Court noted that these rights are not absolute, however, and may sometimes be drawn in to conflict. Thus, the Court recognized the need to articulate a standard of review that balanced the detainee’s liberty interests agai nst the relevant state interests. Id. at 321. The standard the Supreme Court adopted requires only “that the courts make certain that professional judgment in fact was exercised,” and that in determining what minimall y adequate habilitation may be reason able, “ courts must show deference to the judgment exercised by a qualified professional.” Id. at 321

- 22. Plainly, as the Supreme Court expressly recognized, t his standard is lower than a “compelling” or “substantial” governmental interests test, and such a heightened

Case: 12-11144 Date Filed: 09/23/2013 Page: 16 of 2117 standard “would place an undue burden on the administration of institutions.” Id. at 322; accord id. (“By so limiting judicial review of challeng es to conditions in state institutions, interference by the federal judiciary with the internal operations of these institutions should be minimized.”). J ust as it would do in Turner five years later, the Court emphasized a principle of judicial deferen ce to the professional judgment of institutional officials. See i d. at 322

- 23.
T here are parallels that may be drawn between the administration of an institution like the FCCC and a prison that support the application of a modified
Turner standard we describe herein

. Florida enacted a law providing that a person determined by a court or jury to be a “sexually violent predator” is required, following his term of incarceration, to be housed in a “ secure facility” and segregated from other detainees not committed under the law in order to receive “control, care, and treatment until such time as the person’s mental abnormality or personality disorder has so changed that it is safe for the person to be at large.” Fla. Stat. § 394.917(2) (emphasis added). A “sexually violent predator , ” in turn, is defined as a person who “[h]as been convicted of a sexually violent offense” and who “[s]uffers from a mental abnormality or personality disorder that makes the person more likely to engage in acts of sexual viol ence if not confined in a secure facility for long

- term control, care, and treatment.” Id. § 394.912(1 0 ). As the Florida Supreme Court has observed , the law was enacted for the “dual state

Case: 12-11144 Date Filed: 09/23/2013 Page: 17 of 2118 interests of providing mental health treatment to sexually violent predators and protecting the public from these individuals.” Westerheide v. State , 831 So. 2d 93, 112 (Fla. 2002). Although not a prison, the FCCC is a facility that houses approximat ely 600 persons involuntarily committed as sexually violent predators after their terms of incarceration. Florida law commands both that the facility be secure and that it serve a rehabilitative purpose, thus making those twin aims every bit as relevant

a nd legitimate here as in the prison context. Moreover, FCCC staff and the state contractor GEO that manages the facility are the ones that “are best equipped to make difficult decisions” regarding the administration of the facility in keeping with these o bligations. Washington v. Harper , 494 U.S. 210, 223

- 24 (1990) (citing
Turner , 482 U.S. at 84

- 85; Jones , 433 U.S. at 128). We can discern no salient difference between a civil detention center like the FCCC and a prison on this point , making the balance t he Supreme Court struck in Turner equally applicable here

. At the same time, deference to the professional judgment of the facility administration is not tantamount to carte blanche permission to deny the fundamental rights of free speech and free express ion. Care must be exercised to examine each claim individually and particularly

. Moreover , we again observe that t h e Turner standard is a deferential one , but it is not toothless. See Thornburgh , 490 U.S. at 414 (“We adopt the Turner

Case: 12-11144 Date Filed: 09/23/2013 Page: 18 of 2119 standard in this case with confidence that, as petitioners here have asserted, ‘a reasonableness s tandard is not toothless.’”). Turner itself illustrates the point. At issue in Turner were two regulations: a restriction on inmate

- to

- inmate correspondence between differen t institutions and a marriage regulation that permitted inmates to marry only with the permission of the superintendent of the prison, who, in turn, could only give approval when there were “compelling reasons to do so.” Turner , 482 U.S. at 81

- 82. The in mate

- to

- inmate restriction passed muster because of legitimate security concerns about the coordination of escape plans and assaults and the need to curb gang communications and the absence of any obvious alternatives. Id. at 91

- 93. But the marriage regu lation

-- which amounted to an “almost complete ban on the decision to marry”

-- was not reasonably related to the legitimate penological interests of either security or rehabilitation, because there were obvious, easy alternatives that would accommodate i nmates’ right to marry with only a de minimis burden on security objectives. Id. at 97

- 99. As an example, the Court cited the federal regulation generally permitting federal prisoners to marry unless the warden finds that the marriage presents a threat t o the security or order of the institution or to public safety. Id. at 98 (citing 28 C.F.R. § 551.10). Deference to facility administrators and concerns relating to safety and security cannot be used as a pretext to silence undesirable speech.

Case: 12-11144 Date Filed: 09/23/2013 Page: 19 of 2120 Fin ally , Pesci has not provide d us with a satisfactory alternative standard

. He concedes that the governing standard must be less than strict scrutiny, because civil detainees do not have all of the liberties afforded non

- confined persons, but urges that the standard be more restrictive than is found in Turner ’s reasonableness review

. Thus, he recommends some form of intermediate scrutiny drawn from United States v. O’Brien , 391 U.S. 367 (1968) . In O’Brien , the Supreme Court upheld a 1965 law criminalizing the destruction of Selective Service certificates. The Court subjected the law to the following standard: [A] government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is e ssential to the furtherance of that interest. Id. at 377. The problem with adopting th is standard is that O’Brien had nothing to do with detention centers

-- whether penal or civil in nature

-- and said nothing about the balance of interests that must be weighed in those contexts. Indeed, a doption of t he O’Brien standard would mark a departure from the balance struck by the Supreme Court in Turner and Youngberg . It would change the government al interest from “legitimate,” Turner , 482 U.S. at 89, to “important or substantial,” O’Brien , 391 U.S. at 377 , and it would require the restriction of First Amendment

r ights to be “incidental” and “no greater than is essential to the furtherance” of the

Case: 12-11144 Date Filed: 09/23/2013 Page: 20 of 2121 governmental interest, id. , rather tha n being “reasonably related” to governmental interests

. T he far more probing standard found in O’Brien would leave little room for judicial restraint and the deference to institutional officials’ professional judgment required in both the civil detention and prison contexts. Indeed, the adoption of a n “important or substantial” interests test would find itself in considerable tension with the Supreme Court’s observation , in the civil detention

context , that a heightened standard would place an “undue burd en” on institutional officials and the administration of civil detention facilities

. Youngberg , 457 U.S.
at 322. In short, we hold that a rational relation standard as described herein is the appropriate standard against which to measure Pesci’s First Amendment claim s . The district court’s order of final summary judgment in favor of Budz is vacated, and the case is remanded for further proceedings. 3

VACATED AND REMANDED .

3 I n light of our disposition of this case, Pesci’s pending motion for this Court to take judicial notice of various media reports is DENIED as moot. We add that in our view counsel should be appointed at the trial level to represent Pesci on remand, and observe that appointed appellate counsel has well and vigorously represented Pesci on appeal.

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