United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 98-2271

___________

Michael Jon Herlein, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the Southern

* District of Iowa.

Charles Higgins, MPCF Deputy *

Superintendent; Andrea Wright, *

MPCF Grievance Officer; and *

David Bell, MPCF Correctional *

Counselor, *

*

Appellants. *

___________

Submitted: February 9, 1999

Filed: April 20, 1999

___________

Before WOLLMAN, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

Michael Jon Herlein, formerly an inmate at the Mount Pleasant Correctional

Facility (MPCF), sued three MPCF officials, challenging on First Amendment

grounds the prison's ban on the possession of music cassettes bearing the warning

"parental advisory -- explicit lyrics." The trial court denied an injunction but granted
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declaratory relief and awarded nominal damages to Mr. Herlein. The defendants

appeal, and we reverse. 

I.

Prison regulations survive a constitutional challenge if they are "reasonably

related to legitimate penological interests." Turner v. Safley, 482 U.S. 78, 89 (1987).

In Turner, the Supreme Court upheld a ban on inmate-to-inmate correspondence and

identified four considerations that are material in such decisions: Whether a " 'valid,

rational connection' " exists between the prison policy and a legitimate government

interest; whether alternative means of exercising the asserted right are open to

inmates; whether ready alternatives are available that accommodate the asserted right

at de minimis cost to the pursuit of valid penological objectives; and whether

accommodation of the asserted right will have negative effects on guards, inmates,

or prison resources. Id. at 89-91, quoting Block v. Rutherford, 468 U.S. 576, 586

(1984). Assuming arguendo that there is a constitutional right to possess music tapes,

and that this right is one of those retained by prisoners, we consider each of these

matters in turn. 

The MPCF officials assert that security in prisons is a legitimate government

interest, and note specifically the threat to security that can arise from exposing the

gang members and sex offenders detained at MPCF to music with explicit lyrics. 

Security, of course, is a valid penological objective. See, e.g., O'Lone v. Estate of

Shabazz, 482 U.S. 342, 348 (1987). The trial court ruled, however, that the

defendants failed to demonstrate a rational connection between banning tapes with

warning labels and maintaining security. 

In Turner, 482 U.S. at 89-90, the Supreme Court stated that the connection

between a prison regulation and a government interest is inadequate when "the logical

connection between the regulation and the asserted goal is so remote as to render the

policy arbitrary or irrational." We do not believe that it is arbitrary or irrational to
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believe that music with violent or sexually explicit lyrics might present a security risk

in an environment that includes gangs and sex offenders. 

Mr. Herlein further argues, however, that the overbreadth of the policy is

demonstrated by the lack of evidence of security difficulties caused by the censored

material prior to the ban, and notes the lack of trial evidence of any such difficulties.

There is nothing in our cases, though, that requires actual proof that a legitimate

interest will be furthered by the challenged policy. The connection between the two

need be only objectively rational. In fact, the Supreme Court held in Turner, 482 U.S.

at 91-92, that a ban on inmate-to-inmate correspondence was rationally connected to

maintaining security and to suppressing gang activity, without adverting to any

specific evidence that such correspondence had led to violence or gang activity in the

past. 

II.

The trial court found that Mr. Herlein had only "limited and random" means of

obtaining the banned music over the radio. The Supreme Court has taken a broad

view, however, of what can constitute alternative avenues for the exercise of a right,

and has pointed out, for instance, that a ban on inmate-to-inmate correspondence

"does not deprive prisoners of all means of expression" but bars communication only

with a limited class of prisoners who give particular cause for concern. Turner, 482

U.S. at 92. That is equally the case here: The policy bars prisoners from possessing

a limited class of music that rationally gives prisons particular cause for concern.

Mr. Herlein cites two possible alternative policies that he claims will entail at

most only de minimis costs: Limiting an inmate to the possession of 20 tapes,

whether or not they have a warning label, and individually reviewing all tapes to

determine if they present a risk. The defendants contend that the first alternative not

only does not accommodate their asserted penological objective but in fact

undermines it. We agree. If the problem is exposure to explicit lyrics, then allowing
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each inmate to have up to 20 tapes with such lyrics accomplishes very little. The

defendants further contend that the second alternative would require significant

resources, and thus involve more than de minimis cost. We agree again: Individual

review would require a significant amount of staff time for listening to tapes and

would still present a substantial risk that harmful material would escape review. See

Turner, 482 U.S. at 93. These costs are certainly more than de minimis.

Finally, it is clear to us that the accommodation of Mr. Herlein's asserted right

might have a significant "ripple effect," see id. at 90, on guards, inmates, and the

allocation of resources at the prison. If the right were accommodated by reviewing

tapes individually, that would significantly affect guards and resources by forcing

prison officials to spend time reviewing tapes; if prisoners were allowed to possess

tapes with explicit lyrics, that would run the risk of creating threats to the security of

the prison.

III.

In sum, we believe that the ban on the possession of tapes with labels that warn

of explicit lyrics is reasonably related to the legitimate penological objective of

maintaining prison security. There is a rational connection between the policy and

the government interest, Mr. Herlein has significant alternative means of exercising

his asserted right, there are no alternative policies to accommodate Mr. Herlein that

involve only a de minimis cost, and the proposed alternatives may present the threat

of a significant ripple effect on guards, prisoners, and resources at MPCF. 

Furthermore, we believe that the Supreme Court's holding in Turner requires

the result that we reach. The alleged constitutional infirmity of the ban on tapes with

warning labels is its overbreadth, but we believe that the scope of the ban on inmateto-inmate correspondence that was upheld in Turner was far more pronounced than

the one here. The letters between inmates might have concerned any number of

harmless topics, while tapes with warning labels have at least been previously judged
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to have potentially disruptive content. The challenged policy therefore does not

violate the First Amendment.

IV.

For the reasons stated, we reverse the judgment of the trial court.

A true copy.

Attest:

 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.