Notice: This opinion is subject to formal revision before publication in the

Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify

the Clerk of any formal errors in order that corrections may be made

before the bound volumes go to press.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 18, 2002 Decided February 11, 2003

No. 01-5387

BRETT C. KIMBERLIN AND DARRELL RICE,

APPELLANTS

v.

U.S. DEPARTMENT OF JUSTICE AND BUREAU OF PRISONS,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 97cv02633)

Arthur B. Spitzer argued the cause for the appellants.

Robin M. Earnest, Assistant United States Attorney, argued the cause for the appellees. Roscoe C. Howard, Jr.,

United States Attorney, and R. Craig Lawrence, Assistant

United States Attorney, were on brief.

 Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.
2

Before: SENTELLE, HENDERSON and TATEL, Circuit Judges.

Opinion for the court filed Per Curiam.

Concurring opinion filed by Circuit Judge HENDERSON.

Separate opinion concurring in part and dissenting in part

filed by Circuit Judge TATEL.

PER CURIAM: The appellants, Brett C. Kimberlin and Darrell Rice are, respectively, a former inmate and a current

inmate of the Federal Correctional Institution in Cumberland,

Maryland (Cumberland).1

 Kimberlin and Rice appeal an

order of the district court dismissing in part their challenge

to Bureau of Prisons (BOP) regulations that prohibit federal

inmates from possessing electric or electronic musical instruments (other than for religious purposes). See Kimberlin v.

Dep’t of Justice, 150 F. Supp. 2d 36 (D.D.C. 2001). The

appellants contend the regulations both exceed the BOP’s

statutory authority, in violation of the Administrative Procedure Act (APA), and infringe their rights under the First

Amendment to the United States Constitution to freedom of

(musical) expression. We conclude the district court correctly rejected each contention.

On July 26, 1995 a then congressman from New Jersey

introduced a budget rider (Zimmer Amendment) to prohibit

the use of appropriated funds to provide for several enumerated ‘‘amenities or personal comforts in the federal prison

system,’’ including ‘‘the use or possession of any electric or

electronic musical instrument.’’ 147 Cong. Rec. H7751,

H7768 (July 1995) (statement of Rep. Zimmer)

On November 15, 1995 the BOP issued a memorandum

‘‘providing guidance to wardens on how provisions of the

Zimmer Amendment will be implemented in all [BOP] institutions.’’ JA 50. The memorandum expressly noted that, while

‘‘[p]rovisions of the Zimmer Amendment relate only to the

use of appropriated funds,’’ given the BOP’s ‘‘understanding

of the intent,’’ ‘‘the guidance provided [in the memorandum]

1 Kimberlin was released from Cumberland in 2001. See Appellees’ Br. at 10 n.4.
3

TTT may vary slightly from a literal reading of the amendment.’’ Id. With regard to electric and electronic musical

instruments, the memorandum provides:

Use or Possession of any Electric or Electronic Musical

Instrument:

This section prohibits the use of funds for inmates’ use or

possession of electric or electronic musical instruments.

1. Institutions which currently have electric or electronic instruments may retain these instruments. No

appropriated funds will be used to purchase new or to

repair existing equipment.

2. New institutions will not purchase electric or electronic instruments.

3. Trust Fund profits or inmate organization funds

will not be used to purchase or repair electric or

electronic equipment. Donations of these types of

instruments will not be accepted.

4. The only authorized exception is electric or electronic equipment which is used in conjunction with

religious activities, stored in the chapel area and is

under the supervision of the Religious Services Department. Appropriated funds may be used to purchase or maintain such equipment in all BOP facilities.

JA 54–55.

On December 28, 1995 the BOP issued an ‘‘Institution

Supplement’’ for Cumberland (No. CUM 5370.08),2

 which

directed that ‘‘[t]he only musical instrument an inmate may

possess is a harmonica,’’ with the proviso that ‘‘[i]nmates with

authorized possession of a guitar or keyboard at the time this

supplement is issued may retain possession of the instrument

while at this institution.’’ The document also recited that

‘‘the institution will provide a limited number of musical

2 ‘‘Institution Supplement’’ is ‘‘a label that apparently is attached

to regulations issued by a particular prison pursuant to nationwide

Bureau of Prisons regulations.’’ American Fed. of Gov’t Employees, Local 2441 v. Fed. Labor Relations Auth., 864 F.2d 178, 183 n.4

(D.C. Cir. 1988).
4

instruments for the music program.’’ No. CUM 5370.08 at 3–

4.

On April 26, 1996 the Congress enacted the Zimmer

Amendment as section 611 of the Omnibus Budget Act of

Fiscal Year 1997, Pub. L. No. 104–208, 110 Stat. 3009, § 611.

The enacted language, identical to that initially proposed by

Representative Zimmer, was as follows:

None of the funds made available in this Act shall be

used to provide the following amenities or personal comforts in the Federal prison system—

(1) in-cell television viewing except for prisoners who are

segregated from the general prison population for their

own safety;

(2) the viewing of R, X, and NC–17 rated movies,

through whatever medium presented;

(3) any instruction (live or through broadcasts) or training equipment for boxing, wrestling, judo, karate, or

other martial art, or any bodybuilding or weightlifting

equipment of any sort;

(4) possession of in-cell coffee pots, hot plates, or heating

elements; or

(5) the use or possession of any electric or electronic

musical instrument.

The Zimmer Amendment has since been regularly incorporated into appropriations acts in identical form. See Pub. L.

No. 107–77, 115 Stat. 748 (fiscal year 2002); Pub. L. No. 106–

113, 113 Stat. 1501, § 611 (fiscal year 2000); Pub. L. No. 105–

277, 112 Stat. 2681, § 611 (fiscal year 1999); Pub. L. No. 104–

134, 110 Stat. 1321, § 611 (fiscal year 1998).

On December 28, 1996 the BOP issued another ‘‘Institution

Supplement’’ (No. CUM 5370.08A) setting out the same restrictions on musical instruments as No. CUM 5370.08 except

that the grandfather proviso was revised to prohibit retention

of previously authorized guitars or keyboards as of November

1, 1997. No. CUM 5370.808A at 3–4 .
5

Appellant Kimberlin filed an initial complaint in this action

on November 7, 1997. The amended complaint, filed on

behalf of both appellants on May 17, 2001, alleged that the

BOP musical instrument regulations violate the APA and

infringe the appellants’ First Amendment rights to express

themselves musically (specifically by playing electric guitars)

and, insofar as they make an exception for use of electric/electronic musical instruments in conjunction with religious activity, their Fifth Amendment rights to equal protection.

In a memorandum opinion and order dated May 22, 2001

the district court granted the BOP’s motion to dismiss the

complaint’s APA and First Amendment claims and granted

summary judgment in favor of Kimberlin and Rice on the

Equal Protection claim. Kimberlin and Rice appeal the

dismissal.3

II.

‘‘ ‘On appeal, we review the dismissal of the plaintiffs’TTTT

complaint de novo, Moore v. Valder, 65 F.3d 189, 196 (D.C.

Cir. 1995), and ‘‘accept all of the factual allegations in [the]

complaint as true,’’ ’ United States v. Gaubert, 499 U.S. 315,

327, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991) (quoting Berkovitz

v. United States, 486 U.S. 531, 540, 108 S.Ct. 1954, 100

L.Ed.2d 531 (1988)).’’ Sloan v. HUD, 236 F.3d 756, 759 (D.C.

Cir. 2001) (alteration original). Applying this standard, we

conclude the district court’s dismissal should be affirmed.

The appellants first contend the challenged regulations

exceed the BOP’s statutory authority, and therefore violate

the APA, because the Zimmer Amendment prohibits only

expenditure of public funds on electric and electronic instruments, not their mere possession by inmates. In reviewing

the BOP’s interpretation of the Zimmer Amendment, we use

the familiar Chevron analysis:

If TTT ‘‘ ‘Congress has directly spoken to the precise

question at issue,’ ’’ we ‘‘must give effect to Congress’s

3 The BOP’s cross appeal of the summary judgment was voluntarily dismissed by an order filed July 2, 2002.
6

‘unambiguously expressed intent.’ ’’ Secretary of Labor

v. [Fed. Mine Safety & Health Review Comm’n], 111

F.3d 913, 917 (D.C. Cir. 1997) (quoting Chevron USA,

Inc. v. Natural Resources Defense Council, Inc., 467

U.S. 837, 842–43, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694

(1984)). ‘‘If ‘the statute is silent or ambiguous with

respect to the specific issue,’ we ask whether the agency’s position rests on a ‘permissible construction of the

statute.’ ’’ Id. (quoting Chevron, 467 U.S. at 843, 104

S.Ct. 2778, 2782, 81 L.Ed.2d 694).

National Multi Housing Council v. EPA, 292 F.3d 232, 234

(D.C. Cir. 2002) (quoting Cyprus Emerald Resources Corp. v.

Fed. Mine Safety & Health Review Comm’n, 195 F.3d 42, 45

(D.C. Cir.1999)). We conclude the BOP’s absolute ban on

electric and electronic musical instruments reflects, at a

minimum, a reasonable interpretation of the Zimmer Amendment under Chevron.

As the BOP points out, Appellees’ Br. at 15–16, the express

language of the Zimmer Amendment supports its interpretation because the ban on using appropriated funds for ‘‘the use

or possession’’ of electric and electronic instruments may

reasonably be construed to prohibit paying for costs incidental to such use or possession, notably, those incurred for

storage, supervision and electricity. Cf. Envtl. Def. Ctr. v.

Babbitt, 73 F.3d 867, 871–72 (9th Cir. 1995) (holding ‘‘use of

any government resources—whether salaries, employees, paper, or buildings—to accomplish a final listing [of a species as

endangered] would entail government expenditure’’ and

therefore would run afoul of statutory moratorium on spending for such purpose). Further, the blanket ban on electric

and electronic instruments is consistent with the rationale

underlying the amendment, as announced by its sponsor, that

‘‘[p]risons should be places of detention and punishment’’ and

that ‘‘prison perks undermine the concept of jails as deterrence.’’ 147 Cong. Rec. at H7768; see Nat’l Sec. Archive v.

United States Dep’t of Def., 880 F.2d 1381, 1384–85 (D.C. Cir.

1989) (absent other legislative history, ‘‘we must look to the

statements of the sponsors of the bill as ‘the only authoritative indications of congressional intent’ ’’) (quoting North Ha-
7

ven Bd. of Educ. v. Bell, 456 U.S. 512, 527 (1982)). Nor is the

ban on electric and electronic instruments arbitrary or capricious, as the appellants contend, merely because it deviates

from past policy. The BOP implemented the new policy as a

consequence of the Zimmer Amendment’s enactment based

on the Congress’s rational determination that electric and

electronic instruments are ‘‘perks’’ that make prison life less

rigorous and therefore undermine its deterrence.4

We also reject the appellants’ First Amendment challenge,

but do so on grounds different from the district court’s. See

Jenkins v. Wash. Convention Ctr., 236 F.3d 6, 8 n.3 (D.C. Cir.

2001) (‘‘The court may affirm the district court on grounds

different from those relied upon by the district court.’’)

(citations omitted). First, we conclude that the BOP’s decision to prohibit all use and possession of electric and electronic instruments does not implicate the appellants’ First

Amendment rights and that we therefore need not invoke the

four factor analysis the United States Supreme Court established in Turner v. Safley, 482 U.S. 78, 89 (1987). As we

noted above, the aim of the Zimmer Amendment, as shown by

both its text and the legislative history, is to prevent expenditure of public funds to provide inmates with ‘‘perks,’’ including ‘‘the use or possession of any electric or electronic musical

instrument,’’ and the BOP has articulated this rationale to

support its ban on all electric and electronic musical instruments. See supra p. 6. As the appellants acknowledge,

‘‘Congress is not required to fund the exercise of First

Amendment rights.’’ Appellants’ Br. at 11. The Supreme

Court has squarely ‘‘reject[ed] the ‘notion that First Amendment rights are somehow not fully realized unless they are

subsidized by the State.’ ’’ Regan v. Taxation With Representation of Wash., 461 U.S. 540, 546 (1983) (quoting Cammarano v. United States, 358 U.S. 498, 515 (1959) (Douglas,

4 We do not consider the appellants’ argument, raised belatedly in

their reply brief, that the regulations are arbitrary and capricious

insofar as they distinguish between electric or electronic instruments and acoustic instruments. See Steel Joist Inst. v. OSHA, 287

F.3d 1165, 1166 (D.C. Cir. 2002) (argument raised for first time in

reply brief is waived).
8

J. concurring)). This is not a case where the government has

undertaken ‘‘to discriminate invidiously in its subsidies in

such a way as to ‘ ‘‘aim[ ] at the suppression of dangerous

ideas.’’ ’ ’’ Id. (quoting Cammarano, 358 U.S. at 513 (quoting

Speiser v. Randall, 357 U.S. 513, 519 (1958))). Rather, the

BOP has simply chosen not to subsidize inmates’ use or

possession of a class of instruments requiring the expenditure

of funds for electricity and care.

Even applying Safley, we conclude that the regulations

banning electric/electronic instruments do not impermissibly

infringe the appellants’ First Amendment rights.

Safley directs courts to uphold a regulation, even one

circumscribing constitutionally protected interests, so

long as it ‘‘is reasonably related to legitimate penological

interests.’’ We are to assess the overall reasonableness

of such restrictions with attention to four factors: first,

whether the restriction bears a ‘‘valid, rational connection’’ to the ‘‘legitimate governmental interest put forward to justify it,’’ such that the ‘‘asserted goal is [not] so

remote as to render the policy arbitrary or irrational,’’

second, whether inmates retain alternative means of

exercising the circumscribed right, third, the costs that

accommodating the right imposes on other inmates,

guards, and prison resources generally, and fourth,

whether there are alternatives to the regulation that

‘‘fully accommodate[ ] the prisoner’s rights at de minimis

cost to valid penological interests.’’

Amatel v. Reno, 156 F.3d 192, 196 (D.C. Cir. 1998) (citing

Safley, 482 U.S. at 89) (alterations original). Balancing the

four Safley factors, we conclude that the challenged BOP

regulations should be upheld.

The first and most important factor favors the regulations

because the ban on electric musical instruments plainly bears

a reasonable relationship to the legitimate interest of conserving correctional department funds. Further, the ban is reasonably related to the asserted goal—conserving correctional

funds. Common sense tells us, and the appellants do not

dispute, that a prisoner’s possession and use of an electric
9

guitar costs correctional institutions money for electricity,

upkeep, storage and supervision. See Amatel, 156 F.3d at

198 (noting that ‘‘scientific studies can have a corrective effect

by establishing an apparently implausible connection or refuting an apparently obvious one, but, subject to such corrections, conformity to commonsensical intuitive judgments is a

standard element of both reasonableness and rationality’’).

Thus, ‘‘[t]he logical connection between the regulation and the

asserted goal is [not] so remote as to render the policy

arbitrary or irrational.’’ Safley, 482 U.S. at 89–90.

The remaining Safley factors are largely encompassed by

the first, see Amatel, 156 F.3d at 196, and can be handily

disposed of here. The second factor asks whether the prisoner has an alternative means of exercising the right at stake.

In answering this question the court does not view the right

‘‘in terms of the materials excluded by the ban,’’ as for

example, here, the right to possess and use electric or electronic instruments. Amatel, 156 F.3d at 200. Rather, ‘‘the

relevant right ‘must be viewed sensibly and expansively.’ ’’

Id. at 201 (quoting Thornburgh v. Abbott, 490 U.S. 401, 417

(1989)). In Thornburgh, where the challenged prison regulation banned all ‘‘sexually explicit material which by its nature

or content poses a threat to the security, good order, or

discipline of the institution, or facilitates criminal activity,’’

Thornburgh, 490 U.S. at 405 n.5, the Supreme Court found

the second factor ‘‘clearly satisfied’’ because ‘‘the regulations

at issue [there] permit[ted] a broad range of publications to

be sent, received, and read,’’ id. at 418. The right asserted

here must similarly be broadly limned to include, at a minimum, all forms of musical expression (rather than simply the

appellants’ preferred medium of the electric guitar) and under the BOP regulations prisoners remain free to exercise

such a right through alternative outlets such as voice and

acoustic instruments. The third factor—whether accommodating the right has an ‘‘adverse impact ‘on guards and other

inmates, and on the allocation of prison resources,’ ’’ Amatel,

156 F.3d at 200 (quoting Safley, 482 U.S. at 90)—‘‘seems in

part a restatement of the deferential balancing called for

under the first factor,’’ id, and here can be readily answered.
10

If, as we have concluded, the possession and use of electric/electronic instruments costs prisons money, then it necessarily has an ‘‘adverse impact TTT on the allocation of prison

resources.’’ See id. (concluding that ‘‘if Congress may reasonably conclude that pornography increases the risk of

prison rape, then the adverse impact [of accommodating the

alleged right to pornography] is substantial’’ because it ‘‘poses

a threat to the safety of guards and other inmates’’). The

fourth Safley factor—‘‘whether there are alternatives that can

accommodate that right ‘at de minimis costs to valid penological interests,’ ’’ Amatel, 156 F.3d at 200 (quoting Safley, 482

U.S. at 91)—raises the only question here. While we know

that the regulations save the BOP money, we do not know

how much because we do not know the number of inmates

who would otherwise use the banned instruments or the exact

electrical and other costs that might be incurred. Nevertheless, given that the other factors all plainly favor upholding

the regulation and this last remains an unknown, we believe

the balance tips in favor of the appellees.

For the foregoing reasons, we conclude that the challenged

BOP regulations prohibiting prisoner possession or use of

electric and electronic musical instruments do not violate the

APA or the Constitution. Accordingly, the judgment of the

district court is

Affirmed.
1

KAREN LECRAFT HENDERSON, Circuit Judge, concurring:

I concur in the majority opinion but write separately

because I believe the district court’s decision can be affirmed

on the ground the district court articulated. Following Representative Zimmer’s lead, the BOP initially identified the

penological interest underlying the ban as ‘‘to make prison

more of a place of deterrence and punishment.’’ Def’s. Opp’n

to Pls.’ Statement of Material Facts at 2. Punishment and

deterrence are not only legitimate penological interests, they

are among the fundamental goals of our penological system.

See Rhodes v. Chapman, 452 U.S. 337, 352 (1981) (identifying

‘‘goals of the penal function in the criminal justice system’’ as

‘‘to punish justly, to deter future crime, and to return imprisoned persons to society with an improved change of being

useful, law-abiding citizens’’); Pell v. Procunier, 417 U.S. 817,

822 (1974) (‘‘An important function of the corrections system

is the deterrence of crime. The premise is that by confining

criminal offenders in a facility where they are isolated from

the rest of society, a condition that most people presumably

find undesirable, they and others will be deterred from

committing additional criminal offenses.’’).* Further, the ban

is reasonably related to the asserted goal—deterrence

through punishment. It may be true, as the district court

acknowledged, that ‘‘banning musical instruments, by itself,

may not actually deter anyone.’’ Kimberlin v. Dep’t of Justice, 150 F. Supp. 2d 36, 45 (D.D.C. 2001). Nevertheless, as a

matter of common sense, it is not irrational to believe that

banning a broad spectrum of ‘‘perks,’’ including electric and

electronic musical instruments as both the Zimmer Amendment and the BOP regulations do, may, in the aggregate,

produce such an effect. See Safley, 482 U.S. at 89–90 (noting

that ‘‘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’’);

Amatel, 156 F.3d at 198 (noting that ‘‘scientific studies can

* The appellants ‘‘do not argue here that the governmental

objective of punishment is not neutral, in the sense that it is

‘ ‘‘unrelated to the suppression of expression.’’ ’ ’’ Appellants’ Br.

at 22 n.4 (quoting Amatel 156 F.3d at 197 (quoting Thornburgh v.

Abbott, 490 U.S. 401, 415 (1989))).
2

have a corrective effect by establishing an apparently implausible connection or refuting an apparently obvious one, but,

subject to such corrections, conformity to commonsensical

intuitive judgments is a standard element of both reasonableness and rationality’’).

The other three Safley factors give little pause. Under the

BOP regulations prisoners are free to exercise their first

amendment rights through forms of musical expression other

than the electric guitar. Addressing the third factor, I

believe that if the Congress and the BOP reasonably concluded that affording prisoners perks will reduce the deterrent

effect of prisons, as a consequence the prison census will

presumably increase so that ‘‘the adverse impact is substantial.’’ Cf. maj. op. at 10 (‘‘If, as we have concluded, the

possession and use of electric/electronic instruments costs

prisons money, then it necessarily has an ‘adverse impact TTT

on the allocation of prison resources.’ ’’) (quoting Amatel, 156

F.3d at 200). As for the fourth factor, the appellants have

not suggested an alternative that will accommodate their

rights but will not at the same time diminish the deterrent

effect of the BOP regulations.
1

TATEL, Circuit Judge, concurring in part and dissenting in

part: I agree that the BOP regulation prohibiting electric and

electronic instruments is a reasonable interpretation of the

Zimmer Amendment and therefore does not violate the Administrative Procedure Act. I also have no doubt that the

government can constitutionally restrict the use and possession of electric guitars in federal prisons. If the government

had defended the electronic-music ban as reasonably necessary to promote internal order, for example, or even to

promote a more efficient allocation of prison resources, then

the Zimmer Amendment would easily qualify as a constitutional exercise of Congress’s authority to manage the federal

prisons. Or if the government had denied funds only for the

purchase of electric and electronic instruments, that too

would easily pass constitutional muster, since the government

has no obligation to subsidize the exercise of First Amendment rights. The government, however, has done neither of

these things. This court nevertheless sustains the amendment’s constitutionality on the basis of a broad—indeed limitless—legal principle under which prison officials may ban not

only the use and possession of electric guitars, but also the

exercise of virtually any other constitutional right that requires electricity, guard supervision, or other prison resources––including the sending and receiving of inmate mail,

and even the use and possession of books and magazines.

Because the court’s holding conflicts with binding Supreme

Court and circuit precedent, and because its alternative basis

for affirmance was neither argued nor even mentioned by the

BOP, I dissent.

I.

In Turner v. Safley, 482 U.S. 78 (1987), which governs

prisoners’ constitutional challenges, the Supreme Court

struck a balance between two competing principles. Safley

first recognizes that ‘‘[p]rison walls do not form a barrier

separating prison inmates from the protections of the Constitution.’’ Id. at 84. In the case before us, the BOP concedes—and this court agrees—that the Zimmer Amendment’s

electric-and electronic-music ban does restrict prisoners’ First

Amendment rights. Appellee’s Br. at 8; cf. Ward v. Rock

Against Racism, 491 U.S. 781 (1989) (employing First
2

Amendment scrutiny to analyze New York City’s soundamplification controls for a music concert). At the same time,

however, Safley recognizes the competing principle that

‘‘ ‘prison administrators TTT, and not the courts, [must] make

the difficult judgments concerning institutional operations,’ ’’

and that ‘‘[s]ubjecting the day-to-day judgments of prison

officials to an inflexible strict scrutiny analysis would seriously hamper their ability to anticipate security problems and to

adopt innovative solutions to the intractable problems of

prison administration.’’ Safley, 482 U.S. at 89 (quoting Jones

v. North Carolina Prisoners’ Union, 433 U.S. 119, 128

(1977)). Safley therefore establishes a ‘‘unitary, deferential

standard for reviewing prisoners’ constitutional claims:

‘[W]hen a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to

legitimate penological interests.’ ’’ Shaw v. Murphy, 532 U.S.

223, 229 (2001) (quoting Safley, 482 U.S. at 89). To evaluate

a prison regulation’s reasonableness, Safley directs courts to

consider four factors:

[F]irst, whether the restriction bears a ‘‘valid, rational

connection’’ to the ‘‘legitimate governmental interest put

forward to justify it,’’ such that the ‘‘asserted goal is [not]

so remote as to render the policy arbitrary or irrational’’;

second, whether inmates retain alternative means of

exercising the circumscribed right; third, the costs that

accommodating the right imposes on other inmates,

guards, and prison resources generally; and fourth,

whether there are alternatives to the regulation that

‘‘fully accommodate[ ] the prisoners’ rights at de minimis

cost to valid penological interests.’’

Amatel v. Reno, 156 F.3d 192, 196 (D.C. Cir. 1998) (quoting

Safley, 482 U.S. at 89–91) (citations omitted) (alterations in

original).

In sustaining the Zimmer Amendment’s constitutionality,

this court adopts a theory that effectively eviscerates Safley’s

premise that prisoners generally retain their constitutional

rights, as well as the decision’s carefully constructed four-part

test for evaluating the constitutionality of prison regulations
3

that restrict those rights. According to the court, because

‘‘the BOP has simply chosen not to subsidize inmates’ use or

possession of a class of instruments requiring the expenditure

of funds for electricity and care,’’ the BOP’s regulation ‘‘does

not implicate the appellants’ First Amendment rights,’’ and

the court ‘‘therefore need not invoke the four factor analysis

the United States Supreme Court established in Turner v.

Safley.’’ Maj. Op. at 7–8. I would have no problem with this

conclusion if the Zimmer Amendment were limited to denying

funds for purchasing electric guitars. But the amendment

also prohibits prisoners from using and possessing their own

guitars, and there is an important difference between a

regulation that denies funds to buy guitars and one that

denies funds for electricity or other infrastructural resources

necessary for the exercise of constitutional rights. All prison

activities depend on an infrastructure of basic resources, such

as electricity, guard supervision, and space, which the government both necessarily pays for and controls. If the government can ‘‘cho[ose] not to subsidize inmates’ use or possession

of a class of instruments requiring the expenditure of funds

for electricity and care,’’ Maj. Op. at 8, then the government

could just as easily choose not to ‘‘subsidize’’ inmates’ use or

possession of books, by withdrawing funds for electricity for

light to read by, or it could decide not to ‘‘subsidize’’ inmate

correspondence, by withdrawing funds for the distribution of

prison mail.

To be sure, the costs associated with these various activities

may differ, but as the court concedes, we have no evidentiary

record to tell us how the costs of allowing prisoners to use

and possess electric guitars compare with the costs of providing sufficient reading light or delivering prison mail. Maj.

Op. at 10. In any event, the court’s rationale for sustaining

the Zimmer Amendment makes no distinction between activities that require large expenditures and those that do not.

Indeed, by upholding the BOP’s ban on electric and electronic

instruments as a reasonable interpretation of the Zimmer

Amendment, which merely denies funding for the use or

possession of such instruments, the court itself recognizes the

proposition that an appropriations law denying funding for

certain activities generally amounts to a substantive ban on
4

those activities, regardless of the amount of funding involved.

Maj. Op. at 6; see Robertson v. Seattle Audubon Soc’y, 429

U.S. 429, 440 (1992) (‘‘Congress TTT may amend substantive

law in an appropriations statute, as long as it does so clearly.’’); Envtl. Def. Ctr. v. Babbitt, 73 F.3d 867, 871–72 (9th Cir.

1995) (noting that the ‘‘use of any government resources––

whether salaries, employees, paper, or buildings—TTT entail[s] government expenditure,’’ and that ‘‘[t]he government

cannot make expenditures, and therefore cannot act, other

than by appropriation’’) (emphasis added).

In the end, almost any restriction of prisoners’ constitutional rights can be recast as a ban on funding for those rights.

But as this court observed in Amatel, in prisons, ‘‘[w]here the

government absolutely monopolizes the means of speech or

controls a bottleneck, TTT a refusal to fund functions the same

as an outright ban.’’ 156 F.3d at 194 n.1. That the government ‘‘monopolizes’’ certain ‘‘means of speech’’ in prisons is

what sets this case apart from Regan v. Taxation With

Representation, 461 U.S. 540 (1983). See Maj. Op. at 9. In

Regan, the Supreme Court upheld a restriction on lobbying

activities for tax-exempt charities on the ground that ‘‘a

legislature’s decision not to subsidize the exercise of a fundamental right does not infringe the right, and thus is not

subject to strict scrutiny.’’ Id. at 549. Describing the governing principle as ‘‘simple,’’ the Court explained that ‘‘ ‘although government may not place obstacles in the path of a

[person’s] exercise of TTT freedom of [speech], it need not

remove those not of its own creation.’ ’’ Id. at 549–50 (quoting Harris v. McRae, 448 U.S. 297, 316 (1980)). In other

words, when the government denies tax-exempt status to

organizations that engage in lobbying, those organizations

remain free to continue their lobbying activities—the First

Amendment expression in question. See Taxation With Representation, 461 U.S. at 545. Similarly, when the government

denies tax deductions for lobbying activities, taxpayers remain free to engage in political advocacy, see Cammarano v.

United States, 358 U.S. 498 (1959), and when the government

denies public funding to candidates for public office, those
5

candidates remain free to seek election, see Buckley v. Valeo,

424 U.S. 1, 90–107 (1976) (per curiam).

Even in the prison context, if the government denies federal funds for purchasing magazines, books, stationery, or even

electric guitars, it has ‘‘place[d] no governmental obstacle in

the path’’ of prisoners seeking to read, write, or play, since

they remain free to purchase those items on their own.

Harris v. McRae, 448 U.S. 297, 315 (1980). This is not so

when the government denies funds for prisoners’ use of

prison-controlled infrastructural resources to exercise constitutional rights. Because prisons absolutely control the electricity supply and storage space, as well as other infrastructural resources, such as mail distribution systems, denying

federal funds for those resources is quite different from a

refusal to ‘‘subsidize’’ First Amendment rights. Prisoners

can neither generate their own electricity, nor construct their

own storage space, nor deliver their own mail. Denying

access to these resources therefore places an intractable

‘‘governmental obstacle in the path’’ of prisoners seeking to

exercise their rights.

If this court’s subsidy rationale were correct, the reasoning

of Amatel, Safley, and other like cases would have been quite

different. Amatel dealt with an appropriations rider that

barred the use of federal funds to distribute sexually explicit

materials in prisons. Observing that the prison distribution

system was a ‘‘bottleneck’’ under the government’s control,

and that there was no suggestion that prisoners might be able

to ‘‘obtain[ ] such material at their own expense’’ outside of

that distribution system, we treated the government’s refusal

to spend money on the distribution of such material as an

‘‘outright ban’’ on sexually explicit materials in prison. Amatel, 156 F.3d at 194 n.1. But if Congress’s decision to

eliminate expenditures necessary for the exercise of First

Amendment rights implicates no First Amendment concerns,

as this court now holds, then we need not have spent pages

running through the Safley factors to determine whether the

ban on sexually explicit materials was reasonably related to

the government’s interest in rehabilitating prisoners; we

could have ended the opinion after the statement of facts.

The same is true for Safley, part of which sustained restric-
6

tions on inmate-to-inmate correspondence, and Thornburgh v.

Abbott, 490 U.S. 401 (1989), which sustained restrictions on

certain book and magazine subscriptions. Had the Government defended those restrictions on the theory that they

merely eliminated ‘‘subsidies’’ for First Amendment rights,

the Court’s careful application of the Safley factors would

have been entirely unnecessary. Indeed, under this court’s

holding, Missouri could now reenact the prohibition on inmate

marriage that the Supreme Court struck down in the remainder of Safley simply by recasting it as a ban on funding for

inmate marriage, since inmate weddings no doubt require

expenditures for guard supervision and for electricity to light

the wedding venue.

Of course, the government need not provide any and all

resources necessary for prisoners to engage in constitutionally protected activities, but Safley teaches that if the government wants to cut back on infrastructural resources necessary for the enjoyment of constitutional rights, it must

explain how the cutback is ‘‘reasonably related’’ to its ‘‘legitimate penological interest’’ in ensuring a more efficient allocation of BOP resources and show how the cutback satisfies

the four-part Safley test. In other words, Congress may

not bypass Safley through the simple expedient of using an

appropriations law that functions, in effect, as an outright

ban.

II.

Perhaps recognizing the weakness in its attempted end-run

around Safley and justifiably dubious that this court might

actually accept it, the BOP devotes most of its brief to

defending the Zimmer Amendment on the ground that it does

in fact satisfy Safley, arguing—apparently for the first time

in litigation of this kind, see Kimberlin v. Dep’t of Justice, 150

F. Supp. 2d 36, 44 (D.D.C. 2001)—that the government’s

interest in enhancing the punitive and deterrent value of

prison can justify a regulation that limits prisoners’ constitutional rights. Although both the district court and the con-
7

curring opinion embrace it, this argument is as flawed as it is

novel.

Because punishment and deterrence are unquestionably

among the fundamental ‘‘goals of the penal function in the

criminal justice system,’’ Rhodes v. Chapman, 452 U.S. 337,

352 (1981), I have no doubt that the government may enhance

prison’s punitive and deterrent value by eliminating weightlifting equipment, in-cell coffee pots, and other ‘‘perks’’ not

protected by the First Amendment. See Omnibus Consolidated Appropriations Act of 1997, Pub. L. No. 104–208, § 611,

110 Stat. 3009, 3009–66 (1996). The BOP’s defense of the

Zimmer Amendment, however, presents a very different

question: Does the goal of enhancing the punitive and deterrent value of prison by making prison conditions more onerous justify limiting prisoners’ constitutional rights? As long

as Safley is the law––that is, as long as prisoners generally

retain their constitutional rights––the answer must be no, for

there is no discernable limit to the government’s ability to

invoke punishment or deterrence as reasons for adopting

regulations that restrict constitutional rights. The BOP’s

rationale for banning electric guitars could also justify banning all musical instruments, or all music, or even all books,

including the Bible and the Koran, on the ground that denying these ‘‘perks’’ will make prison more onerous and ‘‘more

of a place of deterrence and punishment.’’ Concurring Op. at

1 (internal quotation marks and citation omitted). Under this

theory, the government could, subject only to whatever limitations the Eighth Amendment imposes, reduce prisons to

places of virtually silent, solitary confinement, where prisoners may not read, write, or engage in any other expressive

activity.

The BOP’s theory conflicts with Safley in two additional

respects. First, Safley does not contemplate punishment as

one of the interests that justifies restrictions on prisoners’

constitutional rights. Its deferential standard of review is

designed only to respond to the fact that ‘‘[r]unning a prison

is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources, all of which

are peculiarly within the province of the legislative and
8

executive branches of government.’’ 482 U.S. at 84–85; see

also Amatel, 156 F.3d at 196 (‘‘[B]y their nature, [governmental institutions such as prisons] must allow regulation more

intrusive than what may lawfully apply to the general public.

In these environments, the government is permitted to balance constitutional rights against institutional efficiency in

ways it may not ordinarily do.’’) (citations omitted). The type

of ‘‘legitimate penological interests’’ to which Safley refers are

administrative matters such as ‘‘the preservation of internal

order or discipline, the maintenance of institutional security

against escape or unauthorized entry, and the rehabilitation

of the prisoners,’’ all of which are particularly within prison

officials’ expertise. Procunier v. Martinez, 416 U.S. 396, 412

(1974). The BOP’s novel punishment rationale has nothing

whatsoever to do with these operational, security, and management concerns. And while it is possible that a prison

regulation might not be rationally related to such concerns,

see, e.g., Safley, 482 U.S. at 97–98 (holding a ban on inmate

marriage to be insufficiently related to the state’s asserted

goals of promoting security and prisoner rehabilitation), regulations that deprive prisoners of their constitutional rights

will always be rationally related to the goal of making prison

more miserable. Banishing electric guitars from prison will

certainly make prison less pleasant, but banishing all musical

instruments—or even all music—would make it even less

pleasant still, as would banning books, magazines, and letters

from family and friends. While it is true that this case

involves a relatively minor incursion on prisoners’ constitutional rights, the rationale the BOP offers, and that the

district court accepted, would justify all of these far more

significant constitutional deprivations.

Second, the remaining factors that Safley instructs us to

consider in evaluating the ‘‘reasonableness’’ of a prison regulation that impinges on constitutional rights make little sense

when the government’s only reasons for the regulation are

punishment and deterrence. All of those factors––‘‘whether

inmates retain alternative means of exercising the circumscribed right,’’ ‘‘the costs that accommodating the right imposes on other inmates, guards, and prison resources general-
9

ly,’’ and ‘‘whether there are alternatives to the regulation that

‘fully accommodate[ ] the prisoners’ rights at de minimis cost

to valid penological interests,’ ’’ Amatel, 156 F.3d at 196

(quoting Safley, 482 U.S. at 90–91)––are designed to ensure

that legitimate management and security considerations do

not unnecessarily limit prisoners’ constitutional rights. But if

the government’s very purpose is to make prison more onerous, then why ask whether there are alternative means of

expression available or less costly ways to accommodate the

constitutional rights at issue? After all, the greater the

deprivation, the stronger the connection between the restriction and the government’s goal of punishment and deterrence.

III.

This brings me finally to the court’s alternative holding.

Unable to accept the BOP’s assertion of punishment and

deterrence as legitimate penological interests for purposes of

the Safley test, and perhaps aware of the flaws in its primary

holding that Safley does not apply at all, the court offers its

own Safley-based reason for sustaining the Zimmer Amendment: that the regulation is ‘‘reasonably related’’ to the

‘‘legitimate penological interest’’ of conserving correctional

funds. Maj. Op. at 8–10. Had the BOP made this argument,

it might well have provided a valid basis for upholding the

Zimmer Amendment. But the BOP identifies only deterrence and punishment as its ‘‘legitimate penological interests,’’ and explains only how the Zimmer Amendment relates

to these two interests, never once even hinting––either in its

brief or at oral argument—that the Zimmer Amendment

might also reasonably relate to a governmental interest in

conserving correctional funds. The only place the concept of

money appears in the BOP’s discussion of the Zimmer

Amendment’s goals is in a quotation from the district court––

‘‘The District Court found from this legislative history that

Congress enacted the Zimmer Amendment to ‘curb spending

on prison amenities and to enhance the prison as a deterrent’ ’’—to which the BOP attaches the following conclusion:

‘‘Therefore, Congress’ punitive intent is clear from the legislative history.’’ Appellee’s Br. at 12–13. The BOP’s focus on
10

punishment and deterrence is hardly surprising, since, aside

from a cursory reference to eliminating this ‘‘waste of taxpayer dollars,’’ the Zimmer Amendment’s legislative history

makes quite clear that punishment and deterrence were in

fact the amendment’s primary objectives. 147 Cong. Rec.

H7751, H7768 (July 1995) (statement of Rep. Zimmer), (emphasizing that ‘‘inmate amenities are better than what lawabiding Americans have’’ and that such ‘‘prison perks undermine the concept of jails as deterrence’’).

Although we are, of course, free to ‘‘consider any argument

on appeal that supports the judgment of the District Court,’’

Dimond v. District of Columbia, 792 F.2d 179, 187 (D.C. Cir.

1986), we may not decide a case on a claim that the parties

have neither briefed nor argued nor even mentioned. Doing

so is not only unfair to the parties, who have had no opportunity to respond to the court’s rationale or to object to the

court’s willingness to decide the case without an appropriate

evidentiary record, Corson & Gruman Co. v. NLRB, 899 F.2d

47, 50 n.4 (D.C. Cir. 1990) (‘‘We require petitioners and

appellants to raise all of their arguments in the opening brief

to prevent ‘sandbagging’ of appellees and respondents and to

provide opposing counsel the chance to respond.’’), but it

undermines ‘‘[t]he premise of our adversarial system[,] TTT

that appellate courts do not sit as self-directed boards of legal

inquiry and research, but essentially as arbiters of legal

questions presented and argued by the parties before them.’’

Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983).

IV.

Whether Congress may ban electric guitars from federal

prisons might seem an unimportant—even trivial—question,

but courts are obligated to adjudicate even seemingly unimportant issues in accordance with the Constitution and prevailing case law. So long as Safley remains the law of the

land, courts are obligated to ensure that any restriction on

prisoners’ constitutional rights—whether in the form of an

outright ban or a denial of funding that functions as an

outright ban—is reasonably related to the government’s legit-
11

imate penological interests. I would thus reject the BOP’s

subsidy rationale and remand to the district court, where the

BOP may, if it chooses, attempt to defend the Zimmer

Amendment as a reasonable response to its financial concerns.