1998 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-25-1998

Abu-Jamal v. Price

Precedential or Non-Precedential:

Docket 96-3756

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1998

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 1998 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Abu-Jamal v. Price" (1998). 1998 Decisions. Paper 203.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/203
Filed August 25, 1998 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 96-3756 

MUMIA ABU-JAMAL, 

 Appellant 

v. 

JAMES PRICE, in his official capacity as Superintendent 

of the State Correctional Institution at Greene; MARTIN 

HORN, in his official capacity as Commissioner of the 

Pennsylvania Department of Corrections; THOMAS 

FULCOMER, in his official capacity as Deputy 

Commissioner of the Pennsylvania Department of 

Corrections 

ON APPEAL FROM THE 

UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF PENNSYLVANIA 

(D.C. Civil No. 95-cv-00618) 

Argued: December 8, 1997 

Before: NYGAARD, ALITO, and LAY,* Circuit Judges 

(Opinion Filed: August 25, 1998) 

_________________________________________________________________ 

* The Honorable Donald P. Lay, Circuit Judge for the United States Court 

of Appeals for the Eighth Circuit, sitting by designation. 
 Timothy P. O'Brien 

 Mitchell, O'Brien & Krakoff 

 429 Forbes Avenue 

 1705 Allegheny Building 

 Pittsburgh, PA 15219 

 Jere Krakoff (Argued) 

 Pennsylvania Institutional Law 

 Project 

 1705 Allegheny Building 

 Pittsburgh, PA 15219 

 Counsel for the Appellant 

 Amy Zapp (Argued) 

 Office of Attorney General of 

 Pennsylvania 

 Department of Justice 

 Strawberry Square, 15th Floor 

 Harrisburg, PA 17120 

 Thomas F. Halloran, Jr. 

 Office of Attorney General of 

 Pennsylvania 

 564 Forbes Avenue 

 Manor Complex 

 Pittsburgh, PA 15219 

 Counsel for Appellees 

OPINION OF THE COURT 

NYGAARD, Circuit Judge. 

Appellant Mumia Abu-Jamal was convicted of murdering 

a Philadelphia police officer and is currently on death row 

at the State Correctional Institute at Greene. The 

Pennsylvania Department of Corrections has a rule that 

prohibits inmates from carrying on a business or 

profession. Jamal alleges that this rule is unconstitutional 

and that the Department used this rule as a pretext to 

retaliate against him for the content of his writings, radio 

commentaries, and his book, Live From Death Row, which 

he wrote while at the State Correctional Institution at 

 2 
Huntingdon. He alleges that this retaliation included 

opening, reading and distributing his legal mail by

Department officials and denying visits by his paralegals. 

Jamal filed suit against the Department and 

Superintendent James Price seeking declaratory and 

injunctive relief under 42 U.S.C. S1983. He claims that the 

Department violated his rights under the First and 

Fourteenth Amendments, and challenges the business or 

profession rule. He sought a preliminary injunction to 

prevent the Department from investigating violations of, 

and enforcing its business or profession rule against him. 

When he made the motion, Jamal was serving a prison

disciplinary sentence for engaging in the profession of 

journalism at S.C.I. Greene. 

The district court denied Jamal's motion for a preliminary 

injunction against the enforcement of the business or 

profession rule, but granted a limited injunction against the 

opening of Jamal's legal mail. The court held that the 

disciplinary proceedings and the Department's decision to 

open Jamal's mail were not motivated by retaliation for 

Jamal's writings. Instead, the district court held that the 

Department initiated these actions after it suspected that 

Jamal had entered into a contract with a publisher for 

compensation. The trial court also denied Jamal's motion to 

rescind disciplinary action for violating the business or 

profession rule. The court, however, enjoined the reading, 

photocopying, distributing or collection of his legal mail, 

except to "investigate the violation of prison regulations or 

other misconduct." Finally, the court denied Jamal's motion 

to enjoin the Department from requiring paralegals to be 

trained or licensed and to work under contract with the 

attorneys, concluding that the Department had valid, 

nonretaliatory reasons for enforcing the visitation rule.1 

Jamal appeals. 

_________________________________________________________________ 

1. The Department also denied media requests for interviews from 

February through June of 1995. During that time, the Department 

granted media requests for other inmates. The district court found that 

the Department's justifications for denying media access to Jamal were 

not credible, and concluded that this action was clearly retaliatory. The 

district court granted an injunction prohibiting further denials of media 

access. This order is not challenged on appeal. 

 3 
We conclude that Jamal has a reasonable probability of 

demonstrating that the Department's actions violated his 

rights under the First and Fourteenth Amendments, and 

that Jamal has demonstrated that he will be subject to 

irreparable harm if the injunction is not granted. 

Accordingly, we will reverse, and remand the cause to the 

district court with instructions to enjoin the investigation 

and enforcement of the business or profession policy as it 

pertains to Jamal. We affirm the district court's order 

insofar as it denied Jamal's motion to enjoin the 

Department's visitation restrictions. 

I. 

Jamal worked as a journalist before his conviction, and 

he has continued to write articles while incarcerated. 

Approximately forty publications carried articles under 

Jamal's byline on a regular basis while he was incarcerated 

at S.C.I. Huntingdon. Supporters would send copies of 

Jamal's published articles via regular prison mail. S.C.I. 

Huntingdon corrections officers opened and searched these 

articles as part of screening procedures. For instance, on 

one occasion, the superintendent of S.C.I. Huntingdon 

commended Jamal for a Yale Law Journal article. See

Mumia Abu-Jamal, Teetering on the Brink: Between Death 

and Life, 100 Yale L.J. 993 (1991). Jamal received 

compensation for the Yale article, and for other articles 

published by The Nation, Covert Action, and Against the 

Current. Department officials were not aware, however, that 

Jamal was paid for any other publications. 

In July of 1992, Jamal recorded an extensive interview 

with the Prison Radio Project, which aired in segments 

featured as commentaries from Jamal. Jamal did not 

receive compensation for these interviews. The Prison Radio 

Project wrote a letter to the assistant superintendent in 

August of 1992 requesting permission to regularly tape and 

air commentaries by Jamal, who would be introduced as a 

correspondent. In the same letter, the Project informed the 

Department that they were "in the process of approaching 

publishers with a book proposal." 

The Department denied the Project's request to tape

regular commentaries, stating that "it does not permit 

 4 
inmates to conduct or participate in regularly scheduled 

news broadcasts or commentary." In April 1994, National 

Public Radio also interviewed Jamal, and intended to use 

the recordings as commentaries critical of prison life, 

among other topics. NPR paid Jamal for these interviews, 

which focused considerable media attention on Jamal's 

case. Several members of the public and the Fraternal 

Order of Police contacted the Department to express

outrage that a convicted murderer could benefit from his 

status. 

As a result of the complaints, the Department began to 

"investigate" whether Jamal was violating the business or 

profession rule, despite the fact that Jamal freely admitted 

that he was writing and publishing his works. It instituted 

a "mail watch" in August of 1994, which is separate and 

distinct from the routine search of incoming personal mail. 

Under a mail watch, corrections officers were entitled to 

open Jamal's legal mail outside of his presence. 

The business or profession rule states, in relevant part: 

 "No inmate is permitted to incorporate or engage in a 

 business or profession while under the supervision of 

 the Department of Corrections except as indicated 

 below.2 An inmate who is engaged in a business or 

 profession prior to incarceration is expected to assign 

 authority for the operation of such business or 

 profession to a person in the community." 

(footnote added). The Department contends that it reviewed 

Jamal's legal mail specifically to determine whether one of 

Jamal's attorneys was helping him obtain compensation for 

his writing and commentaries, even though the business or 

profession rule applies irrespective of whether Jamal is 

compensated. 

_________________________________________________________________ 

2. The exceptions to this rule allow inmates to continue to make major 

decisions, on occasion, that substantially affect their businesses; and 

allow unsentenced inmates, inmates on work release, and inmates in 

community corrections programs, to continue to practice a business or 

profession provided their work does not impose a burden on prison 

administration. 

 5 
Department of Corrections officials opened Jamal's legal 

mail, copied it, and sent it to David Horwitz, assistant 

general counsel of the Department of Corrections. Horwitz 

read the letters in their entirety, and concluded that they 

were not relevant to the Department's investigation. In the 

face of this conclusion, and even though Horwitz 

determined that the letters were pertinent to Jamal's state 

appeals, Horwitz forwarded them to Chief Counsel Young 

and to Brian Gottlieb, Deputy Counsel in the Office of the 

General Counsel--the office charged with advising the 

Governor of Pennsylvania on, among other things, signing 

death warrants. 

The Department forwarded three letters from Jamal's

attorneys to the governor's office. Two of those letters, dated 

August 16, 1994 and August 23, 1994, were from Jamal's 

lead attorney in his state appeal and contained a candid 

discussion of the merits of his claim and sensitive

information regarding the defense strategy. The third letter, 

dated August 25, 1994 had been written by staff counsel on 

Jamal's state appeal, and also discussed his case. The 

Department continued a "mail watch" on Jamal's legal mail 

from August 1994, until Jamal filed this lawsuit, and 

confiscated and copied various incoming and outgoing 

letters. When Jamal filed his motion for a preliminary 

injunction, he had entered into a contract with Emerge 

Magazine to submit an article. The Department continued 

its investigation of Jamal. 

In September 1994, the Department became suspicious

of the number of people admitted as paralegals for legal 

visits with Jamal. Jamal's attorney designated six legal 

assistants. Among these were Noelle Hanrahan, who was 

also working with Jamal as part of the Prison Radio Project; 

Jeannette Patton and Bobby Blocker, who were involved in 

fund-raising for Jamal's legal defense; and Jamila Levi, who 

calls herself Jamal's "spiritual sister" and had visited Jamal 

in the past. Levi visited Jamal as a social visitor in October 

1993 and began visiting as a paralegal in October 1994. In 

January of 1995, she was admitted as a social guest. In 

February of 1995, she was admitted as a paralegal four 

times. Levi marked herself as "friend" in the prison's 

visitors book even when she was admitted for legal visits, 

 6 
and had written articles complaining of the limits imposed 

upon social visits for death row inmates. 

In a February 24, 1995 letter, the Department wrote to 

Jamal's attorney: "it is not sufficient merely to designate 

persons as investigators and paralegals unless the 

identified individuals can produce documentation that they 

are, in fact, licensed investigators or credentialed paralegals 

acting under contract with, or as employees of the 

attorney." These requirements went beyond those set forth 

in prison regulations.3 Levi was not licensed as an

investigator, had no legal training, was not employed by 

Jamal's attorney, and was not receiving compensation for 

her visits. Levi was denied admission as a paralegal on 

February 28, 1995. 

II. 

We must determine whether the district court erred as a 

matter of law when it decided Jamal's motion for a 

preliminary injunction. Our review is plenary. See Olde 

Discount Corp. v. W. Michael Tupman, 1 F.3d 202, 206 (3d 

Cir. 1993). We review the district court's findings of fact for 

clear error. Philadelphia Marine Trade Ass'n v. Local 1291, 

909 F.2d 754, 756 (3d Cir. 1990). We first consider Jamal's 

request to enjoin the investigation and enforcement of the 

business or profession rule against him. 

Prison regulations that curtail an inmate's constitutional 

rights are valid if reasonably related to legitimate 

penological objectives. Turner v. Safley, 482 U.S. 78, 89, 

107 S. Ct. 2254, 2261 (1987). The deference we accord to 

the Department in establishing, interpreting and applying 

prison regulations presents a formidable barrier to Jamal's 

claim that the prison regulations are unconstitutional. See 

Turner, 482 U.S. at 89, 107 S. Ct. at 2262 (noting that less 

_________________________________________________________________ 

3. Under DCM-812, an inmate's attorney may designate persons, such as 

law students, paralegals, or investigators to visit the inmate to act as 

the 

attorney's agent. The attorney is required to submit a "written statement 

signed by the attorney on the letterhead of his or her firm identifying 

each person as the attorney's agent and attesting that the visit is for 

the 

purpose of legal consultation." 

 7 
stringent First Amendment scrutiny is appropriate in the 

prison setting because "prison administrators . . . and not 

the courts [are] to make the difficult judgments concerns 

the institutional operations.") Incarceration, however, 

necessitates that many rights and privileges, including 

rights derived from the First Amendment, be eliminated or 

curtailed. Pell, 417 U.S. at 822, 94 S. Ct. at 2804. 

In Turner, the Supreme Court listed four factors to help 

determine whether prison regulations and practices are 

reasonable: 

 "First, there must be a valid, rational connection 

 between the prison regulation and the legitimate 

 governmental interest put forward to justify it. Thus, a 

 regulation cannot be sustained where the logical 

 connection between the regulation and the asserted 

 goal is so remote as to render the policy arbitrary or 

 irrational. Moreover, the governmental objective must 

 be a legitimate and neutral one. We have found it 

 important to inquire whether prison regulations 

 restricting inmates' First Amendment rights operated in 

 a neutral fashion, without regard to the content of the 

 expression. 

 A second factor relevant in determining the 

 reasonableness of a prison restriction, as Pell shows, is 

 whether there are alternative means of exercising the 

 right that remain open to prison inmates. Where other 

 avenues remain available for the exercise of the 

 asserted right, courts should be particularly conscious 

 of the measure of judicial deference owed to corrections 

 officials . . . in gauging the validity of the regulation. 

 A third consideration is the impact accommodation of 

 the asserted constitutional right will have on guards 

 and other inmates, and on the allocation of prison 

 resources generally. In the necessarily closed 

 environment of the correctional institution, few changes 

 will have no ramifications on the liberty of others or on 

 the use of the prison's limited resources for preserving 

 institutional order. When accommodation of an 

 asserted right will have a significant ripple effect on 

 fellow inmates or on prison staff, courts should be 

 8 
 particularly deferential to the informed discretion of 

 corrections officials. 

 Finally, the absence of ready alternatives is evidence 

 of the reasonableness of a prison regulation. By the 

 same token, the existence of obvious, easy alternatives 

 may be evidence that the regulation is not reasonable, 

 but is an exaggerated response to prison concerns. This 

 is not a least restrictive alternative test prison officials 

 do not have to set up and then shoot down every 

 conceivable alternative method of accommodating the 

 claimant's constitutional complaint. But if an inmate 

 claimant can point to an alternative that fully 

 accommodates the prisoner's rights at de minimis cost 

 to valid penological interests, a court may consider that 

 as evidence that the regulation does not satisfy the 

 reasonable relationship standard." 

Turner, 482 U.S. at 89-91, 107 S. Ct. at 2262 (citations and 

internal quotation marks omitted). 

Federal Rule of Civil Procedure 65 permits a court to 

grant a preliminary injunction if the moving party 

demonstrates a likelihood of success in the litigation, and 

that he will suffer great or irreparable injury absent an 

injunction. Fed. R. Civ. P. 65; Delaware River Port Auth. v. 

Transamerican Trailer Tranp. Inc., 501 F.2d 917, 919-20 (3d 

Cir. 1974). Accordingly, to succeed on his motion for a 

preliminary injunction, Jamal must first demonstrate that 

the business or profession rule, as enforced against him, is 

not reasonably related to any legitimate interests. We 

conclude that Jamal has satisfied this requirement because 

he is likely to show: first, that the Department enforced the 

business or profession rule because of the content of his 

writings; second, that his writing does not affect the 

allocation of prison resources, other inmates, or the orderly 

administration of the prison system any more than does the 

writing of other inmates; and third, that there are obvious, 

easy alternatives to address the Department's security 

concerns. 

A. 

Prison regulations, like the business or profession rule, 

which restrict an inmate's First Amendment rights must 

 9 
operate in a neutral fashion, without regard to the content 

of the expression. Turner, 482 U.S. at 90, 107 S. Ct. at 

2262. We analyze content neutrality in the prison context 

differently than we do for non-inmates. Jones v. North 

Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 133, 97 

S. Ct. 2532, 2541 (1977). For example, limiting speech that 

may include escape plans or incite other prisoners would 

be a valid response to a potential security threat,"even 

though the same showing might be unimpressive if . . . 

submitted as justification for governmental restriction of 

personal communication among members of the general

public." Id. at 133 n. 9, 97 S. Ct. at 2541 n. 9 (citation and 

internal quotation marks omitted). Nevertheless, once 

prison security is accomplished, "a prison inmate retains 

those First Amendment rights that are not inconsistent 

with his status as a prisoner or with the legitimate 

penological objectives of the corrections system." Pell v. 

Procunier, 417 U.S. 817, 822, 94 S. Ct. 2800, 2804 (1974). 

The superintendent of the S.C.I. Huntingdon was aware 

of Jamal's writings when Jamal published the Yale article 

in 1991. An August 16, 1992 letter to the Department 

noted that Jamal was approaching publishers regarding a 

book deal. Nevertheless, the Department did not begin to 

investigate him until May 6, 1994, after National Public 

Radio sought permission to broadcast Jamal's interviews as 

regular commentaries. The district court determined that 

"the investigation was initiated after public complaints 

concerning Jamal's proposed NPR commentaries were made 

by the Fraternal Order of Police" and concluded that any 

delay in the Department's enforcement of the rule was 

attributable to its investigatory procedures. As a result, it 

held that Jamal was unlikely to succeed in showing that 

the action was in retaliation against the content of his 

writings. We disagree, and conclude that the district court 

erred. 

The Department began its investigation under public

pressure to do so, and because of the content of Jamal's 

writing, not because he was being paid for it. Indeed, under 

the Department's own regulations, compensation is 

irrelevant in these circumstances. Furthermore, corrections 

officers permitted another inmate at the S.C.I. Huntingdon 

 10 
to publish, promote, and receive royalties for a novel 

without punishment despite the business or profession 

rule. 

The Department states that the rule is justified by

"multifarious purposes and the impossibility of 

accommodating the practice of a profession or business in 

a penal setting." (Appellee's Br. at 25.) There is no evidence, 

however, that Jamal's prison writing,4 any more so than 

that of other inmates, has strained prison resources, 

contributed to unrest among the inmate population, or 

enhanced Jamal's stature as a prisoner, resulting in danger 

to himself or others. To the contrary, the Department was 

able to accommodate a live radio call-in show to promote 

another inmate's book. From the record it appears that 

Jamal's writing affected prison administration only when it 

went through the mail screening system--just like the rest 

of the inmates' mail. Until it imposed its "mail watch," the 

Department did not have to make any special 

accommodations for Jamal's writing. As for the 

Department's remaining asserted interest -- ensuring that 

prisoners are unable "to carry on with life as usual," 

Appellee's Br. At 8 -- the Department has failed to explain 

how this interest is reasonably advanced by allowing some 

prisoners to publish books but not allowing Jamal to do 

likewise. Even if this interest might justify a rule that 

precludes inmates from receiving compensation for their 

writings, we need not resolve the issue whether this interest 

can justify a rule preventing uncompensated (as opposed to 

compensated) speech, because we conclude that it is likely 

that Jamal can demonstrate that the Department's 

enforcement of the business or profession rule against him, 

was motivated, at least in part, by the content of his 

articles and mounting public pressure to do something 

about them, and hence, the actions were not content

neutral as required by Turner, 482 U.S. at 90, 107 S. Ct. at 

2262, and Pell, 417 U.S. at 822, 94 S. Ct. at 2804.

_________________________________________________________________ 

4. Writing also happens to have once been Jamal's profession, and he 

began to write in prison as early as 1989. 

 11 
B. 

Jamal is likely to demonstrate that his writing neither 

requires accommodation by prison officials, nor affects 

other inmates or the allocation of prison resources. The 

Supreme Court discussion in Turner bears repeating here: 

 "In the necessarily closed environment of the 

 correctional institution, few changes will have no 

 ramifications on the liberty of others or on the use of 

 the prison's limited resources for preserving 

 institutional order. When accommodation of an 

 asserted right will have a significant "ripple effect" on 

 fellow inmates or on prison staff, courts should be 

 particularly deferential to the informed discretion of 

 corrections officials." 

Turner, 482 U.S. at 90, 107 S. Ct. at 2262. The record 

contains no evidence of such a "ripple effect." As explained 

before, Jamal was acting as a journalist from 1986, and the 

Department did not claim to be burdened by his actions 

until the Fraternal Order of Police outcry in 1994.

C. 

Naturally, an inmate relinquishes some First Amendment 

rights that he would enjoy if not incarcerated. Jones, 433 

U.S. at 125, 97 S. Ct. at 2538. "The concept of 

incarceration itself entails a restriction on the freedom of 

inmates to associate with those outside of the penal 

institution. Equally as obvious, the inmate's `status as a 

prisoner' and the operational realities of a prison dictate 

restrictions on the associational rights among inmates." Id. 

at 126, 97 S. Ct. at 2538. Nonetheless, Jamal is likely to 

show that the Department's discriminatory application of 

the business or profession rule to his writing is an 

exaggerated response to the Department's security 

objectives because there are obvious, easy alternatives to 

address the Department's concerns. Id. If Jamal "can point 

to an alternative that fully accommodates [his] rights at de 

minimis cost to valid penological interests, [we] may 

consider that as evidence that the regulation does not 

satisfy the reasonable relationship standard." Id. The 

Department could simply apply its rule in a content neutral 

 12 
fashion. Without listing all the other possible alternative 

rules, the Department could apply the business or 

profession rule to those businesses that place a substantial 

burden on the Department's staff, which would tend to 

exclude writers, whether episodic or notorious. There are no 

doubt many businesses or professions, which if practiced 

within the prison, would necessarily burden prison officials 

or other inmates. As long as the inmate/writer does not 

attain a special status, threaten corrections officers, or 

incite the inmate population, a more narrow rule could 

sufficiently protect the Department's security interests. 

The record does not show that the Department actions 

were motivated by concerns about escape plans, plans 

about ongoing criminal activity, or threats. To the contrary, 

it appears that Jamal's activity has not heightened tensions 

at the prison, and that his writings do not advocate 

violence, have any impact on the prison population,

threaten corrections officers, or burden prison security 

resources. See, e.g., Bell v. Wolfish, 441 U.S. 520, 547, 99 

S. Ct. 1861, 1878 (1979). Instead, the Department's

business or profession rule is a class two disciplinary 

provision, and violations are punishable at the same level 

as horseplay or smoking. Although, Jamal's articles, book, 

and radio commentaries may have generated controversy 

beyond prison walls, unless they amount to fraud, 

extortion, or threats to those outside the prison, the valid 

objectives dwindle. Hence, we conclude that Jamal is likely 

to demonstrate that the Department's enforcement of the 

business or profession rule with respect to him is too broad 

to be justified by the concerns articulated by the 

Department. 

D. 

Turning to the second prong of the Federal Rule of Civil 

Procedure 65 test, the district court held that Jamal did not 

face irreparable harm as a result of the investigation of the 

business or profession rule. The court held that Jamal "is 

and has been able to disseminate his ideas through the 

written work to any and all outlets without direct 

interference from [the Department]." We disagree. 

 13 
We have already concluded that Jamal has a reasonable 

likelihood of success in showing that the Department 

violated his First Amendment rights. "The loss of First 

Amendment freedoms, for even minimal periods of time, 

unquestionably constitutes irreparable injury." Elrod v. 

Burns, 427 U.S. 347, 373, 96 S. Ct. 2673, 2689 (1976). 

This harm--the investigation for violations of the business 

or profession rule--was both threatened and occurring at 

the time of respondent's motion. Under Elrod, this is 

sufficient to show irreparable harm because the timeliness 

of speech is often critical. See id. at n.29. 

Importantly, Jamal is a condemned man, whose only 

time to speak and write is now. The Department has not 

disavowed its intent to enforce the business or profession 

rule, and Jamal has also unequivocally stated that he will 

continue to write. Thus, there is no reason to believe that 

the Department will not subject Jamal to the same 

treatment in the future. The district court held that the 

reading and copying Jamal's legal mail was acceptable if 

the prison officials had "a reasonable suspicion that 

plaintiff was violating an institutional regulation by 

engaging in a business or profession in which wittingly or 

not one or more of his attorneys was complicit." The 

Department argues in support that its decision to open 

Jamal's legal mail was necessitated by its investigation into 

whether Jamal was conducting a business or profession. 

This argument is nonsensical. We have difficulty seeing the 

need to investigate an act that Jamal openly confesses he 

is doing. Jamal's writing is published, and he freely admits 

his intent to continue. Continued investigation and

enforcement of the rule invades the privacy of his legal mail 

and thus directly interferes with his ability to communicate 

with counsel. 

The district court's injunction is too narrow to protect 

Jamal from irreparable harm that results from opening his 

confidential legal mail. We conclude that Jamal has a 

reasonable likelihood of success in showing that the 

Department's application of the business or profession rule 

in this case violates his right to free speech. We will 

therefore remand the cause to the district court with 

instructions to grant Jamal's preliminary injunction, 

 14 
preventing the Department from opening his mail on the 

pretext that it is investigating violations of the business or 

profession rule. 

III. 

Finally, we turn to Jamal's claim that the Department 

retaliated against him by restricting paralegal visits. Here, 

the facts show that Jamal is not likely to succeed on the 

merits, because the Department has articulated a valid, 

content neutral reason for applying more strict visitation 

rules to Jamal's visitors. Turner, 482 U.S. at 89, 107 S. Ct. 

at 2262. 

Indeed, the facts show that the Department had a 

legitimate reason to suspect that legal visitation privileges 

were being abused so that Jamal could receive more than 

the permitted number of social visits. Jamila Levi made a 

personal visit to Jamal during October 1993, visited as a 

paralegal in October 1994, as a social guest in January of 

1995, and visited as a paralegal four times in February 

1995. Levi marked herself as "friend" in the prison's visitors 

book even when she was admitted for legal visits. 

Jamal's visitation claim also implicates his constitutional 

right of access to courts. In such a case we weigh the 

extent to which his rights are burdened, against the 

"legitimate interests of penal administration and the proper 

regard that judges should give to the expertise and

discretionary authority of correctional officials." Procunier v. 

Martinez, 416 U.S. 396, 420, 96 S. Ct. 1800, 1815 (1974), 

overruled in part on other grounds, Thornburgh v. Abbott, 

490 U.S. 401, 109 S. Ct. 1874 (1989). In Procunier, the 

prison regulation absolutely prohibited the use of law 

students and paraprofessionals. Id. Here, however, the 

Department has only asked for verification that the legal 

visitors are credentialed or employed by the attorney. Jamal 

has not demonstrated that the paralegal visitation 

restriction delayed or hindered his state court appeal. 

Visitation--whether it is legal or personal--may jeopardize 

the security of a facility. We must defer to the expertise of 

prison officials to assess the security of the facilities and to 

assure that legal visitors are properly admitted. Cf. Block v. 

 15 
Rutherford, 468 U.S. 576, 586, 104 S. Ct. 3227, 3234 

(1984). Accordingly, we conclude that security concerns 

outweigh any burdens placed on Jamal's state court appeal 

and affirm the district court's denial of Jamal's motion to 

enjoin the Department's visitation restrictions. 

IV. 

To summarize, we hold that Jamal is likely to 

demonstrate first, that the Department enforced the

business or profession rule against him based upon the 

content of his writings; second, that his writing does not 

affect the allocation of prison resources, other inmates, or 

the orderly administration of the prison system any more 

than does writing of other inmates; and third, there exist 

obvious, easy alternatives open to the Department to 

address its security concerns. After considering all of these 

factors,5 we conclude that Jamal is likely to demonstrate 

that there is no valid, rational connection between the 

Department's application of the business or profession rule 

in this case and a legitimate penological interest. Thus, he 

is likely to succeed in showing a First Amendment violation, 

and we hold that he will suffer irreparable injury as a 

result. Accordingly, we will reverse that portion of the 

district court's order respecting this issue, and instruct it to 

enjoin the investigation and enforcement of the business or 

profession rule as it pertains to Jamal; and enjoin the 

Department from opening Jamal's legal mail to investigate 

whether he is violating the business or profession rule. 

We also conclude that Jamal is not likely to succeed in 

showing that the Department retaliated against him by 

limiting paralegal visits, and on this issue we will affirm the 

district court. 

_________________________________________________________________ 

5. We note that neither party addressed the remaining Turner factor -- 

whether there are alternative means of exercising the right that remain 

open to prison inmates, See Turner, 492 U.S. at 90 -- and we have thus 

considered this to be a neutral factor for purposes of our analysis. 

 16 
A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 17