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. e du/thir dc ir c uit_1998/203Filed 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 Superinten dent of the State Correctional Institution at Greene; MA RTIN HORN, in his official capacity as Commissioner of t he 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 th e United States Court of Appeals for the Eighth Circuit, sitting by desig nation.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 murderin g a Philadelphia police officer and is currently on d eath row

at the State Correctional Institute at Greene. The Pennsylvania Department of Corrections has a rule t hat prohibits inmates from carrying on a business or profession. Jamal alleges that this rule is unconst itutional and that the Department used this rule as a pretext to retaliate against him for the content of his writin gs, radio commentaries, and his book, Live From Death Row, wh ich

he wrote while at the State Correctional Institutio n at

2Huntingdon. He alleges that this retaliation includ ed

opening, reading and distributing his legal mail by Department officials and denying visits by his para legals.

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 violation s of, and enforcing its business or profession rule again st him. When he made the motion, Jamal was serving a prison disciplinary sentence for engaging in the professio n of journalism at S.C.I. Greene.

The district court denied Jamal's motion for a prel iminary injunction against the enforcement of the business or profession rule, but granted a limited injunction a gainst the opening of Jamal's legal mail. The court held that the disciplinary proceedings and the Department's decis ion 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 suspect ed that Jamal had entered into a contract with a publisher for compensation. The trial court also denied Jamal's m otion to rescind disciplinary action for violating the busin ess or profession rule. The court, however, enjoined the r eading, photocopying, distributing or collection of his leg al mail, except to "investigate the violation of prison regu lations 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 in terviews from February through June of 1995. During that time, th e Department granted media requests for other inmates. The distr ict court found that the Department's justifications for denying media a ccess to Jamal were not credible, and concluded that this action was cl early retaliatory. The district court granted an injunction prohibiting fu rther denials of media access. This order is not challenged on appeal.

3We conclude that Jamal has a reasonable probability of

demonstrating that the Department's actions violate d his rights under the First and Fourteenth Amendments, a nd 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 inve stigation and enforcement of the business or profession polic y as it pertains to Jamal. We affirm the district court's o rder 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 incarcerat ed. Approximately forty publications carried articles u nder Jamal's byline on a regular basis while he was inca rcerated 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 insta nce, on one occasion, the superintendent of S.C.I. Huntingd on commended Jamal for a Yale Law Journal article. See Mumia Abu-Jamal, Teetering on the Brink: Between De ath and Life, 100 Yale L.J. 993 (1991). Jamal received compensation for the Yale article, and for other ar ticles published by The Nation, Covert Action, and Against the Current. Department officials were not aware, howev er, that Jamal was paid for any other publications.

In July of 1992, Jamal recorded an extensive interv iew with the Prison Radio Project, which aired in segme nts

featured as commentaries from Jamal. Jamal did not receive compensation for these interviews. The Pris on Radio Project wrote a letter to the assistant superintend ent in August of 1992 requesting permission to regularly t ape and air commentaries by Jamal, who would be introduced as a correspondent. In the same letter, the Project info rmed the Department that they were "in the process of approa ching publishers with a book proposal."

The Department denied the Project's request to tape regular commentaries, stating that "it does not per mit

4inmates to conduct or participate in regularly sche duled

news broadcasts or commentary." In April 1994, Nati onal Public Radio also interviewed Jamal, and intended t o use the recordings as commentaries critical of prison l ife, among other topics. NPR paid Jamal for these interv iews,

which focused considerable media attention on Jamal 's case. Several members of the public and the Fratern al Order of Police contacted the Department to express outrage that a convicted murderer could benefit fro m his

status.

As a result of the complaints, the Department began to "investigate" whether Jamal was violating the busin ess or profession rule, despite the fact that Jamal freely admitted that he was writing and publishing his works. It in stituted a "mail watch" in August of 1994, which is separate and distinct from the routine search of incoming person al mail. Under a mail watch, corrections officers were entit led 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 en gage in a business or profession while under the super vision of the Department of Corrections except as indi cated below.2 An inmate who is engaged in a busine ss or profession prior to incarceration is expecte d to assign authority for the operation of such business or profession to a person in the community."

(footnote added). The Department contends that it r eviewed Jamal's legal mail specifically to determine whethe r one of Jamal's attorneys was helping him obtain compensati on for his writing and commentaries, even though the busin ess or profession rule applies irrespective of whether Jam al is compensated.

___________________________________________________ ______________

2. The exceptions to this rule allow inmates to con tinue to make major decisions, on occasion, that substantially affect t heir businesses; and allow unsentenced inmates, inmates on work release, and inmates in community corrections programs, to continue to prac tice a business or profession provided their work does not impose a bu rden on prison

administration.

5Department of Corrections officials opened Jamal's legal

mail, copied it, and sent it to David Horwitz, assi stant general counsel of the Department of Corrections. H orwitz read the letters in their entirety, and concluded t hat 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 Yo ung and to Brian Gottlieb, Deputy Counsel in the Office of the General Counsel--the office charged with advising t he Governor of Pennsylvania on, among other things, si gning

death warrants.

The Department forwarded three letters from Jamal's attorneys to the governor's office. Two of those le tters, dated August 16, 1994 and August 23, 1994, were from Jama l's lead attorney in his state appeal and contained a c andid

discussion of the merits of his claim and sensitive information regarding the defense strategy. The thi rd letter, dated August 25, 1994 had been written by staff cou nsel on Jamal's state appeal, and also discussed his case. The Department continued a "mail watch" on Jamal's lega l mail from August 1994, until Jamal filed this lawsuit, a nd confiscated and copied various incoming and outgoin g letters. When Jamal filed his motion for a prelimin ary injunction, he had entered into a contract with Eme rge Magazine to submit an article. The Department conti nued 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 w as also working with Jamal as part of the Prison Radio Project; Jeannette Patton and Bobby Blocker, who were involv ed in fund-raising for Jamal's legal defense; and Jamila Levi, who calls herself Jamal's "spiritual sister" and had vi sited Jamal in the past. Levi visited Jamal as a social visitor in October 1993 and began visiting as a paralegal in October 1 994. In January of 1995, she was admitted as a social guest . In February of 1995, she was admitted as a paralegal f our times. Levi marked herself as "friend" in the priso n's visitors book even when she was admitted for legal visits,

6and 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 d esignate persons as investigators and paralegals unless the identified individuals can produce documentation th at they are, in fact, licensed investigators or credentiale d 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 employ ed by Jamal's attorney, and was not receiving compensatio n for her visits. Levi was denied admission as a paralega l 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, 20 6 (3d Cir. 1993). We review the district court's findings of fact for clear error. Philadelphia Marine Trade Ass'n v. Loc al 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 constit utional rights are valid if reasonably related to legitimat e penological objectives. Turner v. Safley, 482 U.S. 78, 89, 107 S. Ct. 2254, 2261 (1987). The deference we acco rd to the Department in establishing, interpreting and ap plying prison regulations presents a formidable barrier to Jamal's claim that the prison regulations are unconstitutio nal. See Turner, 482 U.S. at 89, 107 S. Ct. at 2262 (noting that less

___________________________________________________ ______________

3. Under DCM-812, an inmate's attorney may designat e persons, such as law students, paralegals, or investigators to visit the inmate to act as

the attorney's agent. The attorney is required to submi t 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 t hat the visit is for

the purpose of legal consultation."

7stringent First Amendment scrutiny is appropriate i n the

prison setting because "prison administrators . . . and not the courts [are] to make the difficult judgments co ncerns the institutional operations.") Incarceration, howe ver, necessitates that many rights and privileges, inclu ding rights derived from the First Amendment, be elimina ted 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 conn ection between the prison regulation and the legiti mate governmental interest put forward to justify it. Thus, a regulation cannot be sustained where the log ical connection between the regulation and the as serted goal is so remote as to render the policy ar bitrary or irrational. Moreover, the governmental objec tive must be a legitimate and neutral one. We have fou nd it important to inquire whether prison regulati ons restricting inmates' First Amendment rights operated in a neutral fashion, without regard to the con tent of the expression.

A second factor relevant in determining the reasonableness of a prison restriction, as P ell shows, is

whether there are alternative means of exerc ising the right that remain open to prison inmates. Wh ere other

avenues remain available for the exercise of the asserted right, courts should be particularl y conscious of the measure of judicial deference owed to corrections officials . . . in gauging the validity of t he regulation.

A third consideration is the impact accommod ation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally. In the necessarily clos ed 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 fo r preserving

institutional order. When accommodation of a n asserted right will have a significant rippl e effect on fellow inmates or on prison staff, courts sh ould be

8particularly deferential to the informed dis cretion of

corrections officials.

Finally, the absence of ready alternatives i s evidence of the reasonableness of a prison regulation . By the same token, the existence of obvious, easy a lternatives may be evidence that the regulation is not r easonable, but is an exaggerated response to prison con cerns. This

is not a least restrictive alternative test prison officials do not have to set up and then shoot down ev ery conceivable alternative method of accommodat ing the claimant's constitutional complaint. But if an inmate claimant can point to an alternative that fu lly accommodates the prisoner's rights at de min imis cost to valid penological interests, a court may consider that as evidence that the regulation does not sat isfy the reasonable relationship standard."

Turner, 482 U.S. at 89-91, 107 S. Ct. at 2262 (cita tions 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 litigat ion, and that he will suffer great or irreparable injury abs ent an injunction. Fed. R. Civ. P. 65; Delaware River Port Auth. v. Transamerican Trailer Tranp. Inc., 501 F.2d 917, 91 9-20 (3d Cir. 1974). Accordingly, to succeed on his motion f or a preliminary injunction, Jamal must first demonstrat e that the business or profession rule, as enforced agains t 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 en forced 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 t he orderly administration of the prison system any more than d oes the writing of other inmates; and third, that there are obvious, easy alternatives to address the Department's secur ity

concerns.

A.

Prison regulations, like the business or profession rule, which restrict an inmate's First Amendment rights m ust

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

of the expression. Turner, 482 U.S. at 90, 107 S. C t. at 2262. We analyze content neutrality in the prison c ontext differently than we do for non-inmates. Jones v. No rth Carolina Prisoners' Labor Union, Inc., 433 U.S. 119 , 133, 97 S. Ct. 2532, 2541 (1977). For example, limiting spe ech 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 restric tion of personal communication among members of the general public." Id. at 133 n. 9, 97 S. Ct. at 2541 n. 9 (c itation and internal quotation marks omitted). Nevertheless, on ce prison security is accomplished, "a prison inmate r etains those First Amendment rights that are not inconsist ent with his status as a prisoner or with the legitimat e 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 awa re of Jamal's writings when Jamal published the Yale a rticle in 1991. An August 16, 1992 letter to the Departmen t noted that Jamal was approaching publishers regardi ng a book deal. Nevertheless, the Department did not beg in to investigate him until May 6, 1994, after National P ublic Radio sought permission to broadcast Jamal's interv iews as regular commentaries. The district court determined that "the investigation was initiated after public compl aints concerning Jamal's proposed NPR commentaries were m ade by the Fraternal Order of Police" and concluded tha t any delay in the Department's enforcement of the rule w as 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 o f his writings. We disagree, and conclude that the distri ct court

erred.

The Department began its investigation under public pressure to do so, and because of the content of Ja mal's writing, not because he was being paid for it. Inde ed, under the Department's own regulations, compensation is irrelevant in these circumstances. Furthermore, cor rections officers permitted another inmate at the S.C.I. Hun tingdon

10to publish, promote, and receive royalties for a no vel

without punishment despite the business or professi on rule.

The Department states that the rule is justified by "multifarious purposes and the impossibility of accommodating the practice of a profession or busin ess 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 resource s, contributed to unrest among the inmate population, or enhanced Jamal's stature as a prisoner, resulting i n danger to himself or others. To the contrary, the Departme nt was able to accommodate a live radio call-in show to pr omote another inmate's book. From the record it appears t hat Jamal's writing affected prison administration only when it went through the mail screening system--just like t he rest of the inmates' mail. Until it imposed its "mail wa tch," the Department did not have to make any special accommodations for Jamal's writing. As for the Department's remaining asserted interest -- ensurin g that prisoners are unable "to carry on with life as usua l," Appellee's Br. At 8 -- the Department has failed to explain how this interest is reasonably advanced by allowin g some prisoners to publish books but not allowing Jamal t o do likewise. Even if this interest might justify a rul e that precludes inmates from receiving compensation for t heir writings, we need not resolve the issue whether thi s interest can justify a rule preventing uncompensated (as opp osed 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 agai nst him, was motivated, at least in part, by the content of his articles and mounting public pressure to do somethi ng 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 p rofession, and he began to write in prison as early as 1989.

11B.

Jamal is likely to demonstrate that his writing nei ther requires accommodation by prison officials, nor aff ects other inmates or the allocation of prison resources . The Supreme Court discussion in Turner bears repeating here:

"In the necessarily closed environment of th e correctional institution, few changes will h ave no ramifications on the liberty of others or on the use of the prison's limited resources for preservin g institutional order. When accommodation of a n asserted right will have a significant "ripp le effect" on fellow inmates or on prison staff, courts sh ould be particularly deferential to the informed dis cretion of

corrections officials."

Turner, 482 U.S. at 90, 107 S. Ct. at 2262. The rec ord 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 acti ons until the Fraternal Order of Police outcry in 1994.

C.

Naturally, an inmate relinquishes some First Amendm ent rights that he would enjoy if not incarcerated. Jon es, 433 U.S. at 125, 97 S. Ct. at 2538. "The concept of

incarceration itself entails a restriction on the f reedom of inmates to associate with those outside of the pena l institution. Equally as obvious, the inmate's `stat us as a prisoner' and the operational realities of a prison dictate restrictions on the associational rights among inma tes." Id. at 126, 97 S. Ct. at 2538. Nonetheless, Jamal is li kely to show that the Department's discriminatory applicati on of the business or profession rule to his writing is a n exaggerated response to the Department's security objectives because there are obvious, easy alternat ives to address the Department's concerns. Id. If Jamal "ca n point to an alternative that fully accommodates [his] rig hts at de minimis cost to valid penological interests, [we] m ay 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

12fashion. Without listing all the other possible alt ernative

rules, the Department could apply the business or profession rule to those businesses that place a su bstantial burden on the Department's staff, which would tend to exclude writers, whether episodic or notorious. The re are no doubt many businesses or professions, which if prac ticed 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 offic ers, or incite the inmate population, a more narrow rule co uld sufficiently protect the Department's security inte rests.

The record does not show that the Department action s were motivated by concerns about escape plans, plan s 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 advocat e violence, have any impact on the prison population, threaten corrections officers, or burden prison sec urity 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 discipli nary provision, and violations are punishable at the sam e level as horseplay or smoking. Although, Jamal's articles , book, and radio commentaries may have generated controver sy 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 i s 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 Jam al did not face irreparable harm as a result of the investigat ion of the business or profession rule. The court held that Ja mal "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.

13We have already concluded that Jamal has a reasonab le

likelihood of success in showing that the Departmen t violated his First Amendment rights. "The loss of F irst Amendment freedoms, for even minimal periods of tim e, unquestionably constitutes irreparable injury." Elr od v. Burns, 427 U.S. 347, 373, 96 S. Ct. 2673, 2689 (197 6). This harm--the investigation for violations of the business or profession rule--was both threatened and occurri ng at the time of respondent's motion. Under Elrod, this is sufficient to show irreparable harm because the tim eliness 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 pro fession rule, and Jamal has also unequivocally stated that he will continue to write. Thus, there is no reason to beli eve that the Department will not subject Jamal to the same

treatment in the future. The district court held th at the reading and copying Jamal's legal mail was acceptab le if the prison officials had "a reasonable suspicion th at plaintiff was violating an institutional regulation by engaging in a business or profession in which witti ngly or not one or more of his attorneys was complicit." Th e Department argues in support that its decision to o pen Jamal's legal mail was necessitated by its investig ation into whether Jamal was conducting a business or professi on. This argument is nonsensical. We have difficulty se eing the need to investigate an act that Jamal openly confes ses he is doing. Jamal's writing is published, and he free ly 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 co mmunicate

with counsel.

The district court's injunction is too narrow to pr otect Jamal from irreparable harm that results from openi ng his confidential legal mail. We conclude that Jamal has a reasonable likelihood of success in showing that th e Department's application of the business or profess ion rule in this case violates his right to free speech. We will

therefore remand the cause to the district court wi th instructions to grant Jamal's preliminary injunctio n,

14preventing 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 Departme nt retaliated against him by restricting paralegal vis its. Here, the facts show that Jamal is not likely to succeed on the merits, because the Department has articulated a va lid, content neutral reason for applying more strict vis itation 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, visite d as a paralegal in October 1994, as a social guest in Jan uary of 1995, and visited as a paralegal four times in Febr uary 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 consti tutional right of access to courts. In such a case we weigh the extent to which his rights are burdened, against th e "legitimate interests of penal administration and t he 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. A bbott, 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 attorn ey. Jamal has not demonstrated that the paralegal visitation restriction delayed or hindered his state court app eal. Visitation--whether it is legal or personal--may je opardize the security of a facility. We must defer to the ex pertise of prison officials to assess the security of the faci lities and to assure that legal visitors are properly admitted. C f. Block v.

15Rutherford, 468 U.S. 576, 586, 104 S. Ct. 3227, 323 4

(1984). Accordingly, we conclude that security conc erns outweigh any burdens placed on Jamal's state court appeal

and affirm the district court's denial of Jamal's m otion 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 d oes not affect the allocation of prison resources, other in mates, or the orderly administration of the prison system any more than does writing of other inmates; and third, ther e exist obvious, easy alternatives open to the Department t o address its security concerns. After considering al l of these factors,5 we conclude that Jamal is likely to demon strate that there is no valid, rational connection between the Department's application of the business or profess ion rule in this case and a legitimate penological interest. Thus, he is likely to succeed in showing a First Amendment v iolation, and we hold that he will suffer irreparable injury as a result. Accordingly, we will reverse that portion o f the district court's order respecting this issue, and i nstruct it to enjoin the investigation and enforcement of the bus iness or profession rule as it pertains to Jamal; and enjoin the Department from opening Jamal's legal mail to inves tigate whether he is violating the business or profession rule.

We also conclude that Jamal is not likely to succee d in showing that the Department retaliated against him by limiting paralegal visits, and on this issue we wil l affirm the

district court.

___________________________________________________ ______________

5. We note that neither party addressed the remaini ng Turner factor -- whether there are alternative means of exercising t he 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.

16A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

17