Amatel, Joseph v. Hawk, Kathleen

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 8, 1998 Decided September 15, 1998

No. 97-5293

Joseph Amatel, et al., Appellees v.

Janet Reno, Attorney General of the United States, et al., Appellants

Consolidated with Nos. 97-5294, 97-5295

Appeals from the United States District Court for the District of Columbia (No. 96cv02774) (No. 96cv02790) (No. 97cv00475)

Edward Himmelfarb, Attorney, U.S. Department of Jus- tice, argued the cause for appellants. With him on the briefs were Frank W. Hunger, Assistant Attorney General, Wilma A. Lewis, U.S. Attorney, and Barbara L. Herwig, Assistant Director, U.S. Department of Justice.

Jodie L. Kelley argued the cause for appellees. With her on the brief were Ann M. Kappler, Marjorie Rifkin and Margaret Winter.

Bruce A. Taylor was on the brief for amici curiae National Coalition for the Protection of Children & Families, et al.

Before: Wald, Williams and Tatel, Circuit Judges.

Opinion for the Court filed by Circuit Judge Williams.

Dissenting opinion filed by Circuit Judge Wald.

Williams, Circuit Judge: A group of prisoners and publish- ers challenges the constitutionality of a statutory ban on the use of Bureau of Prisons funds to distribute sexually explicit material to prisoners. The statute is not enforced directly; instead, the Bureau has promulgated regulations defining the terms of the proscription and significantly narrowing its scope. The district court, analyzing the statute, ruled that it was facially invalid as a violation of the First Amendment and enjoined its enforcement. Finding that scrutiny should be directed to the substance of the regulations instead, and disagreeing with the district court's evaluation, we reverse and remand.

* * *

Before 1996, federal regulations authorized prison wardens to reject a publication "only if it [was] determined detrimental to the security, good order, or discipline of the institution or if it might facilitate criminal activity." 28 CFR s 540.71(b).

Sexually explicit material fell into this category if it "by its nature or content pose[d] a threat to the security, good order, or discipline of the institution, or facilitate[d] criminal activi- ty." 28 CFR s 540.71(b)(7). Under this standard, explicit heterosexual material was ordinarily admitted. See Thorn- burgh v. Abbott, 490 U.S. 401, 405 n.6 (1989).

In 1996 Congress passed the Ensign Amendment, which bars the use of Bureau of Prisons funds to pay for the distribution of commercial material that "is sexually explicit or features nudity." 1 See Omnibus Consolidated Appropria- tions Act of 1997, Pub. L. No. 104-208 s 614.2 Regulations later adopted by the Bureau assign rather narrow meanings to these terms: "nudity" means "a pictorial depiction where genitalia or female breasts are exposed"; "features" means that "the publication contains depictions of nudity or sexually explicit conduct on a routine or regular basis or promotes itself based upon such depictions in the case of individual one- time issues." Even material that otherwise would be said to "feature nudity" is excepted if it contains "nudity illustrative of medical, educational, or anthropological content." "Sexual- ly explicit" means "a pictorial depiction of actual or simulated sexual acts including sexual intercourse, oral sex, or mastur- bation." 28 CFR s 540.72(b). Under these regulations, then, there is no restriction whatever on non-pictorial sexually explicit material.

In 1997, three inmates, each denied receipt of either Play- boy or Penthouse, filed separate suits alleging that the En- sign Amendment violated the First Amendment. Their suits were consolidated, along with similar suits filed by the pub- lishers of those magazines and a publishing trade organiza- tion; the consolidated plaintiffs moved for injunctive relief.

The district court, purporting to apply the test set out in Turner v. Safley, 482 U.S. 78 (1987), found the Ensign Amendment facially invalid--implicitly granting plaintiffs' In this case, both proponents in congressional debate, and the government in its briefs here, assert as the goal an interest in the rehabilitation of prisoners. See, e.g., 142 Cong. Rec. H8261 (daily ed. July 24, 1996) ("Congress should not be fueling the sexual appetites of offenders, espe- cially those who have been convicted of despicable sex of- fenses against women and children. Magazines that portray and exploit sex acts have no place in the rehabilitative envi- ronment of prisons, nor should we pay Bureau of Prison[s] staff to distribute them.") (statement of Rep. Ensign); id. at H8262 ("The infamous serial killer Ted Bundy ... stated before his death his belief that pornographic materials direct- ly contributed to his violent crimes. While a number of factors determine whether a prisoner will become a law- abiding citizen upon release from prison, cutting prisoners off from their sexually explicit magazines will certainly do no harm.") (statement of Rep. Ensign). The next question is whether rehabilitation is a legitimate and "neutral" govern- ment interest within the meaning of Safley.

The legitimacy of the rehabilitative purpose appears indis- putable. Indeed, the Supreme Court has often characterized rehabilitation as one of the primary goals of penal institu- tions. See, e.g., O'Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987) (describing rehabilitation as "valid penological objective[ ]"); Procunier v. Martinez, 416 U.S. 396, 413 (1974) (identifying "substantial government interests of security, order, and rehabilitation"). At least since the mid-19th cen- tury, it is hard to imagine a prison system that did not seek to reduce the likelihood that prisoners would again transgress society's norms. The inventors of the prison in New York and Pennsylvania framed its goals in these terms: The penitentiary, free of corruptions and dedicated to the proper training of the inmate, would inculcate the discipline that negligent parents, evil companions, tav- erns, houses of prostitution, theaters, and gambling halls had destroyed. Just as the criminal's environment had led him into crime, the institutional environment would lead him out of it.

David J. Rothman, The Invention of the Asylum: Social Order and Disorder in the New Republic 82-83 (rev. ed. 1990).

In turning to "neutrality," the district court looked at the statute itself, not the goal, and found it non-neutral. "[T]he Ensign Amendment is a content-based statute with a sole focus on the sexual nature of the publications it seeks to prohibit." The conclusion is correct--the Ensign Amendment is formulated in terms of content. But we do not understand that characteristic to run afoul of Safley's neutrality require- ment. Despite the apparent similarity in terms, "neutrality" in the Safley sense is quite different from the familiar First Amendment notion of "content-neutrality." The Court most recently explained in Thornburgh that "neutral" here means no more than that "the regulation or practice in question must further an important or substantial governmental inter- est unrelated to the suppression of expression." 490 U.S. at 415 (quoting Martinez). There the Court found neutrality simply because in application of the regulations the prison administrators were to "draw distinctions between publica- tions solely on the basis of their potential implications for prison security." Id. It pointed out that the regulations struck down in Martinez, in contrast, barred writings that "unduly complain[ed]" or "magnif[ied] grievances," or ex- pressed "inflammatory" views, thus inviting the prison au- thorities " 'to apply their own personal prejudices and opin- ions as standards for prisoner mail censorship.' " 490 U.S. at 416 n.14 (quoting Martinez); see also Martinez, 416 U.S. at 415 (striking down regulations because no legitimate interest at all was offered as justification). Thus the Martinez regula- tions were "decidedly not 'neutral' in the relevant sense." Thornburgh, 490 U.S. at 416 n.14.

The rehabilitative interest offered by the government here meets this rather thin neutrality requirement. The Court cannot have meant to insist upon neutrality in its classic First Amendment sense, as embodied, for example, in the dictum of Gertz v. Robert Welch, Inc., 418 U.S. 323, 339 (1974), that "[u]nder the First Amendment, there is no such thing as a false idea." In its role as an operator of prisons, the govern- ment surely does not lapse from the required neutrality if it bans "how-to" manuals on fraud and embezzlement ("Fraud for Dummies"). The idea that committing such crimes is not proper may not be "false" in the Gertz sense, but in the prison context the government may oppose it rather absolute- ly. This authority cannot be explained away on the theory that such a ban could withstand even the strictest scrutiny and that its validity therefore tells us nothing of the "neutrali- ty" requirement; as voiced by the Court, the "neutrality" requirement is an absolute prerequisite. Accordingly, we think the Court's actual application of the requirement, with its focus on the existence of some legitimate goal and on assuring that rules are in fact not framed so as to advance illegitimate or unvetted goals, must control our understanding of its meaning.

That government power to inculcate values conflicts with the libertarian premises of the First Amendment is clear, but such power is well established. Even outside special govern- mental institutions, the state has some authority to become a player in the marketplace of ideas. It may commission advertising urging children to stay in school or off drugs; it can sponsor anti-violence campaigns. See Regan v. Taxation with Representation, 461 U.S. 540, 548-59 (1983); see gener- ally Rust v. Sullivan, 500 U.S. 173, 193 (1991) ("The Govern- ment can, without violating the Constitution, selectively fund a program to encourage certain activities it believes to be in the public interest, without at the same time funding an alternate program which seeks to deal with the problem in another way.").

And within its own institutions, government's power to pursue its legitimate goals is elevated: within reasonable limits, it may attach sanctions to or exclude speech that threatens its goals--even if those goals include promotion of particular values. That is the general lesson of cases such as Waters, 511 U.S. 661 (upholding dismissal of employee for speech that might have caused disruption); Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, 685 (1986) (upholding suspension of student who used indecent language in assem- bly speech); and Greer v. Spock, 424 U.S. 828 (1976) (uphold- ing exclusion from military base of civilians who wished to distribute political literature).

Of course this does not mean by a long shot that every government institution can pursue any value. Our century has seen more than enough of governments trying to act as engineers of human souls. But inculcation of values cannot be characterized as a suppression of expression in every context. The Supreme Court has in fact taken the position that democratic society depends on inculcation of democratic values. See, e.g., Ambach v. Norwick, 441 U.S. 68, 76-77 (1979) (stating that public schools are important "in the preparation of individuals for participation as citizens, and in the preservation of the values on which our society rests"); Brown v. Board of Education, 347 U.S. 483, 493, (1954) ("[Public education] is a principal instrument in awakening the child to cultural values, in preparing him for later profes- sional training, and in helping him to adjust normally to his environment."). The generality of Safley's reasonableness test, and common sense as well, suggest that the flexibility open to the political branches must be at its apogee in institutions for the care and custody of those who have already transgressed society's norms. If "promoting respect for authority and traditional values" among schoolchildren is a legitimate interest of government and not inherently a form of speech suppression, see Board of Education, Island Trees Union Free School Dist. No. 26 v. Pico, 457 U.S. 853, 864 (1982) (plurality opinion), surely the same is true of promot- ing such a goal among criminals.

Prisoners of course differ from the other examples of individuals entangled with the government in that they have no recourse to a private sphere. For them, there is no outside. Judges plainly must bear in mind the total occupa- tion of prisoners' lives by the state. But prisoners find themselves in the maw of the state not because they have been drawn there by the promise of government wages, nor because a statute imposes a universal requirement of edu- cation, but because they have broken the law. Moreover, even government workers have suffered a similar eclipse of the private sphere; the government's ability to fire them for speech that threatens workplace disruption is not limited to speech within the workplace. See, e.g., Pickering v. Board of Education, 391 U.S. 563 (1968) (analyzing letter to the edi- tor). See generally Note, The Costs of Agencies: Waters v. Churchill and the First Amendment in the Administrative State, 106 Yale L.J. 1233, 1239-40 (1997) (discussing scope of governmental authority). Accordingly, we conclude that re- habilitation, and such character-moulding as may be implicit therein, constitute legitimate and neutral goals as those are understood in Safley.

* * *

We thus turn to whether there is a "valid rational connec- tion" between the interest and the regulations. Prison juris- prudence is not well enough developed to indicate precisely how demanding the requirement of rational means-end con- nection is. But the similarity between Safley's phrasing and the language of rational basis review suggests to us that, as far as the means-end fit is concerned, Safley's standard is, if not identical, something very similar. Compare, e.g., Nord- linger v. Hahn, 505 U.S. 1, 11 (1992) ("[T]he relationship of the classification to its goal is not so attenuated as to render the distinction arbitrary or irrational.") with Safley, 482 U.S. at 89-90 ("[T]he logical connection between the regulation and the asserted goal is so remote as to render the policy arbitrary or irrational.").

The legislative judgment is that pornography adversely affects rehabilitation. It does not matter whether we agree with the legislature, only whether we find its judgment rational. The question for us is not whether the regulation in fact advances the government interest, only whether the legislature might reasonably have thought that it would. See, e.g., Nordlinger, 505 U.S. at 11.

We think that the government could rationally have seen a connection between pornography and rehabilitative values.

Congress might well perceive pornography as tending gener- ally to thwart the character growth of its consumers. One current exposition of this view sees pornography as treating women purely as objects of male sexual gratification. See, e.g., Catharine A. MacKinnon, Only Words 108-10; Mac- Kinnon, "Francis Biddle's Sister: Pornography, Civil Rights, and Speech," in Feminism Unmodified 163, 174 (1987); Mar- tha C. Nussbaum, "Objectification," 25 Phil. & Pub. Affairs 249, 283-86 (1995); Cass Sunstein, The Partial Constitution 257-90 (1993). But this viewpoint shares at least a core with ideas that have a lineage of a few centuries, perhaps millen- nia, stressing the desirability of deferring gratification, of sublimation of sexual impulses, of channeling sexual expres- sion into long-term relationships of caring and affection, of joining eros to agape. The supposition that exclusion of pornography from prisons will have much of an impact in this direction may be optimistic, but it is not irrational.

There is, of course, no "record evidence," and certainly no sophisticated multiple regression analyses or other social science data, to support this belief--a fact our dissenting colleague finds fatal. See Dissent at 8-11. We do not think, however, that common sense must be the mere handmaiden of social science data or expert testimonials in evaluating congressional judgments. Quite the opposite: scientific stud- ies can have a corrective effect by establishing an apparently implausible connection or refuting an apparently obvious one, but, subject to such corrections, conformity to commonsensi- cal intuitive judgments is a standard element of both reason- ableness and rationality. Compare D.N. McCloskey, The Rhetoric of Economics 44 (1985) ("Not all regression analyses are more persuasive than all moral arguments; not all con- trolled experiments are more persuasive than all introspec- tions. People should not discriminate against propositions on the basis of epistemological origin. There are some subjec- tive, soft, vague propositions that are more persuasive than some objective, hard, precise propositions.") Nor do we think Safley requires more. In that case, the Court scoured the record for evidence of a rational link between the asserted security interests and the marriage ban because common sense does not suggest any. See Safley, 482 U.S. at 97-100.

Here, the regulations restrict prison consumption of publica- tions that implicitly elevate the value of the viewer's immedi- ate sexual gratification over the values of respect and consid- eration for others. Common sense tells us that prisoners are more likely to develop the now-missing self-control and re- spect for others if prevented from poring over pictures that are themselves degrading and disrespectful.

Nor can we find irrationality in a congressional fear that pornography may set back rehabilitation in the narrower sense, more directly related to recidivist activity. The briefs, particularly that of the amicus curiae, call our attention to studies purporting either to document or to demolish the causal link between pornography and sex crimes.6 Without attempting a comprehensive summary, we note a few. One concludes that exposing "already angered men" (probably not especially rare in prison) to nonviolent pornography can lead to short-term increases in their aggressiveness. Edward Donnerstein, et al., The Question of Pornography 40-48 (1987). Another finds that "pornography provides ideational support for rape...." Larry Baron & Murray A. Straus, Four Theories of Rape in American Society 185 (1989).

Baron & Straus's primary evidence for this claim is an observed correlation between the circulation rates of sex magazines and reported rape rates. While they are hesitant to defend a "cause-effect" link between pornography and rape, they do see the correlation as explained by "the pres- ence of a hypermasculine or macho culture pattern." Id. at 186. This cultural pattern, Baron and Straus hypothesize, causes both higher incidence of rape and higher consumption of pornography. Of course, it seems quite likely that a culture and its manifestations have a mutually reinforcing relationship, so that a prohibition of pornography is a reason- able element of a struggle against machismo and its ill effects.

Finally, there is a significant body of research showing that long-term exposure to pornography, particularly pornog- __________ Congress did not cite these materials, an omission of no impor- tance. See Jones v. United States, 463 U.S. 354, 365 n.13 (1983).

Our concern is not why Congress believed that pornography affect- ed rehabilitation, but whether it would have been rational so to believe. Cf. Turner Broadcasting System, Inc. v. FCC, 117 S. Ct. 1174, 1197 (1997) ("Congress is not obligated, when enacting its statutes, to make a record of the type that an administrative agency or court does to accommodate judicial review.").

raphy containing scenes of "aggressive sexuality," can make its (male) audience more aggressive, more tolerant of violence against women, and more susceptible to myths about rape, such as the notion that women can enjoy being raped. See Neil Malamuth, "Aggression against Women: Cultural and Individual Causes," in Malamuth & Donnerstein, 19, 32-39; see also Mike Allen et al., "Exposure to Pornography and Acceptance of Rape Myths," 45 J. Communication 5 (1995) ("Although the experimental studies demonstrate that violent pornography has more effect [inducing rape myth acceptance] than nonviolent pornography, nonviolent pornography still demonstrates an effect.") See also Richard A. Posner, Sex and Reason, 366-71 (1992) (noting inconclusiveness of social science findings on net effects of pornography on incidence of rape; pornography may tend to increase rape by its ideologi- cal and aphrodisiac effects, but may tend to decrease it by enhancing a substitute (masturbation), the balance of these effects being unknown).

The point of this is not to suggest that a causal link has been shown. The array of academic authority on the other side is at least as substantial, and quite possibly more so.

But even undertaking to weigh the competing scholarship would misconceive the judicial role. Dealing with legislative judgments about rehabilitation, the Supreme Court has said that "[w]hen Congress undertakes to act in areas fraught with medical and scientific uncertainties, legislative options must be especially broad and courts should be cautious not to rewrite legislation, even assuming, arguendo, that judges with more direct exposure to the problem might make wiser choices." Marshall v. United States, 414 U.S. 417, 427 (1974) (emphasis in original); see also Kansas v. Hendricks, 117 S. Ct. 2072, 2081 n.3 (1997). And in upholding a statute barring provision of sexually explicit material to minors, the Court noted that "while these studies all agree that a causal link [between exposure to explicit material and impaired ethical and moral development] has not been demonstrated, they are equally agreed that a causal link has not been disproved either." Ginsberg v. New York, 390 U.S. 629, 642 (1968) (internal quotation omitted); see also American Booksellers Ass'n v. Hudnut, 771 F.2d 323, 329 n.3 (7th Cir. 1985). The same uncertainty prevails here, and suffices to place the legislative judgment within the realm of reason under the standards applicable to the political branches' management of prisons.

The evidence is simply not conclusive on the efficacy of a ban on pornography in promoting prisoners' rehabilitation.

For judges seeking only a reasonable connection between legislative goals and actions, scientific indeterminacy is deter- minative.

* * * The remaining Safley factors further substantiate the over- all reasonableness of the regulations. The second involves the prisoners' alternative means of exercising the right at stake. Of course if the "right" at stake is defined in terms of the materials excluded by the ban, any regulation will come up short. The Court accordingly observed in Thornburgh that the relevant right "must be viewed sensibly and expan- sively," 490 U.S. at 417, though it stated no method for actually carrying out the definitional process. In Thorn- burgh, where the regulation barred all "sexually explicit material which by its nature or content poses a threat to the security, good order, or discipline of the institution, or facili- tates criminal activity," id. at 405 n.5, the Court found the second factor "clearly satisfied" because "the regulations [there at issue] permit a broad range of publications to be sent, received, and read," id. at 418. In so doing, it made no inquiry into the scope of sexually explicit material not covered by the ban. Thus, unless there is some minimum entitlement to smut in prison, the origins of which must be obscure, this factor can hardly be fatal.7 The third Safley factor concerns the adverse impact "on guards and other inmates, and on the allocation of prison __________ Even if there were such a bizarre entitlement, the regulations would still satisfy this factor, as they leave the inmate free to enjoy all written forms of smut not barred by the regulations upheld in Thornburgh. resources" of accommodating the right claimed. 482 U.S. at 90. It thus seems in part a restatement of the deferential balancing called for under the first factor: if Congress may reasonably conclude that pornography increases the risk of prison rape, then the adverse impact is substantial. Accom- modating the right poses a threat to the safety of guards and other inmates. The issue of the allocation of prison resources we take up below; we think the third and fourth factors are strongly interrelated.

The fourth Safley factor poses the question whether there are alternatives that can accommodate that right "at de minimis costs to valid penological interests." Safley, 482 U.S. at 91. This is not, the Court emphasized, a " 'least restrictive alternative' test." Id. at 90. The most obvious alternative is a detailed prisoner-by-prisoner (and presumably publication-by-publication) sifting to determine whether a particular publication will harm the rehabilitation of a particu- lar prisoner. The costs of this approach seem far from de minimis. Apart from the purely administrative burden of such a process, the exercise of such broad discretion seems highly conducive to just the sort of conflicting decisions that give bite to vagueness concerns. And the reality is that prisoners are likely to pass pornographic materials about, so that prisoner-by-prisoner determinations may run aground on the "ripple effect" that the Court mentioned in Safley, 482 U.S. at 90. Even if pornography could be directed only to those not likely to be adversely affected, it could find its way to others, interfering with their rehabilitation and increasing threats to safety.

Of course the flip side of avoiding the costs and hazards of a grant of broad discretion to wardens is the possibility of preventing delivery of materials that, either generally or for a specific set of (effectively segregated) prisoners, pose little or no threat of the harm Congress sought to diminish. Outside prison walls this concern is addressed by the overbreadth doctrine. Here it seems to us captured in part by the demand for a rational relation between the regulation and the goal, and by consideration of alternatives under the fourth "factor." Thus, the objections to a more flexible standard-- such as one that would vest discretion in wardens to prevent delivery of materials in any case where in his judgment it would impair a specific prisoner's rehabilitation--go a long way to rebut the claim.

The dissent, nonetheless, seems to regard only such a case- by-case approach as constitutional, and makes much of vari- ous hypothetical situations in which the categorical ban could unneccessarily exclude certain publications. See Dissent at 15-21. To the extent that these hypotheticals assume direct enforcement of the Ensign Amendment, the likelihood of such enforcement is, as we have noted, quite remote and not before us in this case. Further, the actions of the Bureau of Prisons also suggest that the likelihood of this sort of exclu- sion under the actual regulatory scheme is remote. The Bureau's Program Statement, for example, listing examples of permissible publications, cites National Geographic; Our Bod[ies], Our Selves; Sports Illustrated (Swimsuit Edition); and the Victoria's Secret Catalog. P.S. 5266.07, at 7. We find it all but impossible to believe that the Swimsuit Edition and Victoria's Secret pass muster while Michelangelo's David or concentration camp pictures fail; nor has there been any suggestion that any prison official has attempted to imple- ment such a bizarre interpretation. As there is no allegation that women in segregated women's prisons are demanding Playboy, neither the possibility of such demand nor the Bureau's possible response assists plaintiffs in their over- breadth claim.8 Leaving aside these possible fringe applications of the regulation, we again note that the regulation by its terms only restricts pictures; a prisoner may read anything he pleases. __________ To the extent that the Dissent's insistence on individualized determinations turns on a view that general rules with any impact on First Amendment values must correspond to the underlying reason in every application, see, e.g., Dissent at 1 (suggesting that government must show that "any pictorial display of nudity or sexual activity will be harmful to the rehabilitation of all prisoners") (emphasis in original), it asserts a burden that few general rules could satisfy.

The dissent's appeal to the value of ideas, pointing by way of example to the vistas opened for Malcolm X by his prison reading, see Dissent at 15-16, thus makes little sense here.

Congress could, we think, reasonably be skeptical of the proposition that study of the pictures in Penthouse would help a prisoner become "an intelligent customer in the mar- ketplace of ideas." If anything, the ban could strengthen the impact of literature by removing the distraction of pictures that in almost every case would be pornographic.

In any event, even under conventional overbreadth doc- trine outside of prison, overbreadth claims by those on the margins of pornography have fared poorly. See, e.g., Young v. American Mini Theatres, Inc., 427 U.S. 50, 61 (1976) ("Since there is surely a less vital interest in the uninhibited exhibition of material that is on the borderline between pornography and artistic expression than in the free dissemi- nation of ideas of social and political significance ... we think this is an inappropriate case in which to adjudicate the hypothetical claims of persons not before the Court.") And regardless of the type of speech at issue, narrow or improba- ble excesses of a statute are not a ground for invalidation before application shows their reality: [W]here a statute regulates expressive conduct, the scope of the statute does not render it unconstitutional unless its overbreadth is not only "real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." Even where a statute at its margins infringes on protected expression, "facial invalidation is inappropri- ate if the 'remainder of the statute ... covers a whole range of easily identifiable and constitutionally proscriba- ble ... conduct....' " Osborne v. Ohio, 495 U.S. 103, 112 (1990) (citations omitted) (ellipses in original). Accordingly, such problems of applica- tion can be left to the time when, if ever, they arise.

We find that the statute and regulation satisfy Safley's demand for reasonableness, scoring adequately on all four factors.

* * *

Plaintiffs argue that if we are unpersuaded by the district court's analysis we should remand the case to allow them to introduce evidence supporting their position. But that sug- gestion misconceives the legal issue under Safley. The ques- tion is not whether curtailment of pictorial smut will advance the prisons' rehabilitative project, but whether Congress could reasonably have believed that it would do so. The studies cited above, coupled with Congress's implicit appeal to ethical norms against the undue stimulation of carnal appe- tites, indicate the reasonableness of such a belief. If the Bureau of Prisons applies the regulations in a manner that would violate the Safley priciples, of course, that would be another case. Accordingly, the district court should have granted the defendants' motion to dismiss plaintiffs' com- plaint insofar as that complaint rested upon Safley.

* * * Besides the overbreadth issue, which we have already addressed in the Safley context, plaintiffs have raised two additional theories--excessive vagueness and a claim that the regulations' distinction between pictorial and verbal works is content-based. In fact, the distinction between pictorial and verbal works seems more directed to form than to content, and in any event we have seen that Safley's neutrality requirement both displaces conventional First Amendment strictures on content-based limits and is satisfied by these regulations. Although Safley may well function as an all- encompassing free speech test for the circulation of reading materials in prison, supplanting otherwise applicable First Amendment doctrine, it may be that plaintiffs' vagueness claim has independent force. If it did, of course, the role of the Bureau of Prisons, as manager rather than as law enforc- er, might well play an important role in resolution of the claim. Accordingly, as the district court has not addressed these vagueness issues, we remand the case for it to do so.

In the meantime, we lift the permanent injunction that it has imposed on enforcement of the regulations.

So ordered.

Wald, Circuit Judge, dissenting: The prohibition to all federal prisoners of publications "featuring nudity" or depict- ing "sexually explicit" activities indisputably raises First Amendment concerns. See, e.g., Reno v. American Civil Liberties Union, 117 S. Ct. 2329, 2346 (1997) ("In evaluating the free speech rights of adults, we have made it perfectly clear that sexual expression which is indecent but not obscene is protected by the First Amendment.") (internal quotation omitted); Martin v. Struthers, 319 U.S. 141, 143 (1943) (noting that the right of freedom of speech "necessarily protects the right to receive [publications]"). Indeed, if the First Amendment, at its core, is designed to promote the free exchange of ideas, the debate in this case goes to the very heart of its protections. The government argues that the reason all publications featuring nudity or sexually explicit material, whether or not they are pornographic or obscene, should be withheld from all federal prisoners is that any pictorial display of nudity or sexual activity communicates messages that are harmful to the rehabilitation of all prison- ers. Relying on what it claims to be the inherent reasonable- ness of a legislative judgment that such materials are always inimical to rehabilitation, the government throughout this case has steadfastly resisted creating any kind of record to support such a wide-reaching incursion on the constitutional rights of incarcerated individuals. Today, the majority un- questioningly endorses the government's approach. Because I believe this result sets an unwise and arbitrary precedent that runs contrary to prior case law, I respectfully dissent.1

It appears to need restating once again that prisoners do not lose all their constitutional rights when the prison door clangs behind them. While the prison gate may serve to isolate those inside from the outside world, it does not, as the Supreme Court has taken pains to emphasize, "form a barrier separating prison inmates from the protections of the Consti- tution." Turner v. Safley, 482 U.S. 78, 84 (1987). Although the majority pays lip service to this canon, it ignores an important corollary: Whatever sentiments we might hold regarding prisoners for the crimes they have committed, these sentiments must not infect our determination of the prisoners' constitutional rights. Indeed, the Supreme Court has recently reaffirmed, albeit in a different context, that " 'a bare ... desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.' " Romer v. Evans, 517 U.S. 620, 634 (1996) (quoting Department of Agriculture v. Moreno, 413 U.S. 528, 534 (1973)) (invalidating state constitutional amendment prohibiting official action de- signed to protect homosexual persons from discrimination).

So long as prisoners retain constitutional rights, including First Amendment rights, see O'Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987) ("Inmates clearly retain protections about the "rehabilitative" benefits of denying a prisoner's most fundamental constitutional right, i.e., her freedom to read, renders any and all prisoners' constitutional rights a nullity. I had thought it went without saying that courts do not rely on the mere assertion of a regulation's drafters that the regulation is reasonable; to do so would amount to an abdication of our judicial role. See, e.g., Salaam v. Lockhart, 905 F.2d 1168, 1171 (8th Cir. 1990) ("We would misconstrue [Thornburgh, O'Lone, and Safley ] if we deferred not only to the choices between reasonable policies made by prison offi- cials but to their justifications for the policies as well."); Campbell v. Miller, 787 F.2d 217, 227 n.17 (7th Cir. 1986) ("[D]eference to the administrative expertise and discretion- ary authority of correctional officials must be schooled, not absolute."). Nor can the judicial role be diminished to the disappearing point solely because the original decisionmaking body in this case is Congress itself rather than the Bureau of Prisons ("BOP"). Cf. Sable Communications of California, Inc. v. FCC, 492 U.S. 115, 129 (1989) ("To the extent that the federal parties suggest that we should defer to Congress' conclusion about an issue of constitutional law, our answer is that while we do not ignore it, it is our task in the end to decide whether Congress has violated the Constitution. This is particularly true where the Legislature has concluded that its product does not violate the First Amendment.").3 The Safley standard reconciles prisoners' constitutional rights with institutional needs and defers to prison administrators as the most appropriate articulators of those needs; so long as Congress acts with those same needs in mind, it is entitled to the same deference. But were we simply to defer to Con- gress's assertion that the Ensign Amendment ("the Amend- ment") was reasonably related to the interest asserted, there would be no need for judicial review at all, for no statute infringing on inmates' constitutional rights would fail to satis- fy this test. The Court has reminded us that the Safley standard "is not toothless," Thornburgh, 490 U.S. at 414 (internal quotation omitted); more precisely, it is not a license for lawmakers, any more than prison wardens, to shortchange the constitutional rights that the Supreme Court has insisted prisoners continue to possess. Only if our assessment is not a cursory one can we give adequate weight to both concerns that underlie the Safley standard. See, e.g., Salaam, 905 F.2d at 1171 n.6 ("Reasonableness in this context refers not only to the relation between the goals of a regulation and its means, but also to the balance struck between the needs of the prison administrators and the constitutional rights of prisoners.").

It is crucial, therefore, to ensure that although the strict- ness of our review is lessened, it is not eliminated altogether.

Our task, ultimately, is to assess the fit between the interest proffered and the remedy adopted--whether the regulation under consideration is a reasonable means of addressing the legitimate penological interest put forward by the govern- ment. In Safley itself, for example, although the prison's asserted interests in security and rehabilitation were suffi- cient to justify some restriction on the right to marry, the Court held that the particular restriction adopted was too broad to be upheld. See Safley, 482 U.S. at 97-98 ("No doubt legitimate security concerns may require placing reasonable restrictions upon an inmate's right to marry, and may justify requiring approval of the superintendent. The Missouri reg- ulation, however, represents an exaggerated response to such security objectives."); id. at 98 ("[I]n requiring refusal of permission absent a finding of a compelling reason to allow the marriage, the rule sweeps much more broadly than can be explained by petitioners' penological objectives."). In Thorn- burgh, by contrast, the pre-Amendment version of the restric- tions under consideration here were found to represent a reasonable response to institutional concerns because the "individualized nature" of the determinations ensured that the policy would not result in "needless exclusions." Thornburgh, 490 U.S. at 416-17; see also id. (noting that even a publica- tion that met one of the criteria for exclusion would be rejected "only if it is determined to meet that standard under the conditions prevailing at the institution at the time").

These cases illustrate that the standard of review established by Safley sets some limits on the means the government may use to further penological interests. Although these limits are flexible, they are by no means as vaporous as the majori- ty rules them to be.

I agree that rehabilitation is, conceptually, a legitimate governmental interest, even if no one is sure how to achieve it and the Federal Sentencing Guidelines have abandoned it as an attainable goal. Compare Pell v. Procunier, 417 U.S. 817, 823 (1974) ("[S]ince most offenders will eventually return to society, another paramount objective of the corrections sys- tem is the rehabilitation of those committed to its custody.") and Dawson v. Scurr, 986 F.2d 257, 260 (8th Cir. 1993) (noting that rehabilitation is a "legitimate objective") with Kerr v. Puckett, 138 F.3d 321, 324 (7th Cir. 1998) ("Congress abandoned 'rehabilitation' as a justification of imprisonment when it enacted the Sentencing Reform Act of 1984.") and S.

Rep. No. 98-225 (1983), at 38, reprinted in 1984 U.S.C.C.A.N.

3182, 3221 ("[A]lmost everyone involved in the criminal justice system now doubts that rehabilitation can be induced reliably in a prison setting, and it is now quite certain that no one can really detect whether or when a prisoner is rehabilitated.").

Where the majority and I part company is on the ultimate question: Has any "valid, rational connection" between the extremely broad ban on publications featuring nudity or explicit sexual activity and rehabilitation been shown in this case? And while I certainly do not discount the possibility that a ban more narrowly targeted on certain kinds of violent pornography or even on certain types of prisoners might satisfy this requirement, I cannot conclude, on the present record, that these regulations implementing the Amendment pass muster.4

I believe that the determination of whether a regulation (or statute) is reasonably related to a legitimate penological interest must depend, in all but the most obvious cases, on the evidentiary support for that nexus in the record before the court. Of course I recognize too that the question of what or how much evidence is necessary may depend on what logic or everyday experience show us to be the connection between the disputed means and the rehabilitative end. If the Amendment prohibited the distribution of publications containing escape plans, the connection between the ban and the penological interest in institutional security would be obvious, and we could uphold such a prohibition based on little or no demonstrated evidence. Where, as here, however, the connection (between nudity and rehabilitation) is far murkier, courts (and I would include legislators as well) far removed from the day-to-day operations of a prison are much of the Court's negative conclusion about the validity of the regulation starkly suggests that while a reasonable relation- ship might possibly have been demonstrated between the marriage restriction and the interests asserted, the prison had failed to present sufficient evidence to establish that relationship.

The majority's apparent conclusion that the government bears no responsibility for compiling evidence to support the breadth of its ban--in other words, that the courts may simply hypothesize a rational connection--runs counter to the wisdom of several other circuit courts. See, e.g., Shimer v. Washington, 100 F.3d 506, 509 (7th Cir. 1996) (prison admin- istration "must proffer some evidence to support its restric- tion of ... constitutional rights" under Safley standard); Mann v. Reynolds, 46 F.3d 1055, 1061 (10th Cir. 1995) (invalidating restrictions on contact visits with attorneys, noting that "defendants were unable to provide any evidence the restrictions on contact were reasonably related to prison security"); Muhammad v. Pitcher, 35 F.3d 1081, 1085 (6th Cir. 1994) (invalidating prison mail regulation because "there is no evidence in the record supporting Defendants' factual claim" that policy was reasonably related to interest in con- serving resources); Walker v. Sumner, 917 F.2d 382, 386 (9th Cir. 1990) ("Prison authorities cannot rely on general or conclusory assertions to support their policies. Rather, they must first identify the specific penological interests involved and then demonstrate both that those specific interests are the actual bases for their policies and that the policies are reasonably related to the furtherance of the identified inter- ests. An evidentiary showing is required as to each point."); Waterman, 1998 WL 354932, at *10 ("To establish that a legitimate penological interest supports a statute, a state must provide evidence that the interest it proffered is the actual basis for the statute."); Powell v. Riveland, 991 F. Supp. 1249, 1254 (W.D. Wash. 1997) (upholding restriction on sexually explicit incoming mail where "[p]rior to implement- ing the policy, research was done on the effects of sexually explicit material and the policy/regulation was written to target those harmful materials"). In sum, it is clear, as Judge Posner has suggested, that the Safley analysis cannot be met simply on the basis of "pure conjecture." Reed v. Faulkner, 842 F.2d 960, 963 (7th Cir. 1988); see also id. ("[T]o suppose that the wearing of dreadlocks [as an expres- sion of religious belief] would lead to racial violence is, on this record, the piling of conjecture upon conjecture. The poten- tial infringement of the free-speech clause of the First Amendment is too plain to warrant comment."). Safley cer- tainly does not stand for the proposition that Congress or prison officials may "set constitutional standards by fiat." Whitney v. Brown, 882 F.2d 1068, 1074 (6th Cir. 1989).

I might, therefore, have been able to go along--as the majority does here--with deferring to Congress had the government seen fit to proffer evidence that links a ban on the prohibited publications to rehabilitation or if the connec- tion between that ban and rehabilitation was so self-evident that no further evidence was necessary to demonstrate its reasonableness. But neither event has occurred, and the majority's once-over-lightly of the scientific literature that does exist certainly does not accomplish the task, as the majority itself admits. See Maj. Op. at 14 ("The point of this is not to suggest that a causal link has been shown. The array of academic authority on the other side is at least as substantial, and quite possibly more so."). At best, it can be said that a few studies have shown a causative relationship between violent pornography and short-term increases in aggression--perhaps a helpful finding with regard to the security interests of prison authorities but next to useless in determining the effect on any long-term interest in rehabilita- tion.5 In all other respects, the relationship between pornog- raphy and criminal activity is merely correlative,6 and there is no evidence that simply viewing nonpornographic nudity or depictions of sexual activities (as opposed to pornography) has any effect at all.7 See, e.g., Edward Donnerstein, Daniel Linz & Steven Penrod, The Question of Pornography 177 (1987) (stating conclusion of Attorney General's Commission on Pornography that "in general, the scientific evidence shows no causal relationship between exposure to [nonviolent and nondegrading sexual] depictions and acts of sexual vio- lence" and noting that the authors' "view of the scientific literature ... is in agreement with this conclusion"); id. at 40-48 (citing studies finding that exposing already angered men to nonviolent pornography can cause a short-term in- crease in their aggressive tendencies); Ernest D. Giglio, Pornography in Denmark: A Public Policy Model for the United States? in 8 Comparative Social Research 281, 285 (Richard F. Tomasson ed., 1985) ("[A] positive causal relation- ship between pornography and sex crimes has not been documented by criminologists and psychologists."); Berl Kutchinsky, Obscenity and Pornography: Behavioral As- pects, in Encyclopedia of Crime and Justice 1077, 1083 (Sanford Kadish ed., 1983) (noting that the authoritative studies on the link between pornography and crime have concluded that there is apparently no causative relationship between nonviolent pornography and sex crimes). Indeed, it difficult, if not impossible, to ascertain precisely if or how a particular publication may work to frustrate the rehabilitative goals of prisoners. To start with, there is no consensus on whether in order to transform a law violator into a good citizen, he must be "remolded" attitudinally and instilled with desirable values or whether it is sufficient that he be con- vinced that further criminal activity would be counterproduc- tive in his own case, whatever his vision of society or the world. Rehabilitation may also be viewed--in the majority's parlance--as an effort to direct the "character growth" of prisoners by limiting the reading materials to which he has access. See Maj. Op. at 11. But, whatever the rehabilitative vision, it should not be possible to proceed on some vague assertion of an interest in "rehabilitation" without the need to define the term or to show a connection between the pro- scribed activity and the chosen definition; to do so runs an overwhelming risk of overregulation and invasion of the in- nermost recesses of the human mind and spirit. Indeed, undertaking the Herculean task of "character-molding" is inherently problematic in its First Amendment implications, for it presumably involves casting emerging prisoners in society's own image. This, of course, is the antithesis of First Amendment freedoms; indeed, "[t]otalitarian ideologies we profess to hate have styled as 'rehabilitation' the process of molding the unorthodox mind to the shape of prevailing dogma." Sobell v. Reed, 327 F. Supp. 1294, 1305 (S.D.N.Y. 1971); cf., e.g., Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 511 (1969) (noting "this Nation's repudiation of the principle that a State might so conduct its schools as to foster a homogeneous people") (internal quota- tion omitted). Under this theory, lawmakers who believe that books on Russian history may lead to disrespect for the United States may ban those books for prisoners; lawmakers who hold pro-life views may prevent prisoners from reading publications describing Roe v. Wade; and lawmakers who hold an antiquated view of the role women should play in society may ban the distribution in prisons of publications with feminist themes. Each of these actions could logically be taken in the name of rehabilitation, broadly defined, and each, without doubt, would contribute to a continual eviscer- ation of the First Amendment rights of prisoners. Cf., e.g., Stanley v. Georgia, 394 U.S. 557, 565-66 (1969) ("Our whole constitutional heritage rebels at the thought of giving govern- ment the power to control men's minds.... [I]t cannot constitutionally premise legislation on the desirability of con- trolling a person's private thoughts."); McCabe v. Arave, 827 F.2d 634, 638 (9th Cir. 1987) ("Given the strength of First Amendment protection for freedom of belief, prison authori- ties have no legitimate penological interest in excluding reli- gious books from the prison library merely because they contain racist views.") (citation omitted); American Booksel- lers Ass'n, Inc. v. Hudnut, 771 F.2d 323, 330 (7th Cir. 1985), aff'd mem., 475 U.S. 1001 (1986) ("If the fact that speech plays a role in a process of conditioning were enough to permit governmental regulation, that would be the end of freedom of speech."). These examples may sound extreme-- they are--but the majority's rationale easily encompasses them in its umbrella-like authorization for restricting prison- ers' reading material on the basis of a minimum plausibility test for tying the censorship to some vague rehabilitation concept.

Even if the goal of rehabilitation is a more modest one--to convince the prisoner his own best interest lies in avoiding future crime--it is hard to see how that goal is furthered by returning him unequipped to be an intelligent customer in the marketplace of ideas. And while serious questions may well be raised about the value of some of the publications banned under the Amendment, there is much that falls under this broad ban that speaks intelligently to mankind, including prisoners: Michelangelo's David, for example, or grim photo- graphs of naked bodies piled in the pits of Germany's concen- tration camps.8 There is even a potential for such depictions notes, "explicit heterosexual material" was ordinarily admit- ted. See Thornburgh, 490 U.S. at 405 n.6 (quoting Program Statement 5266.5(b)(2)). It was this "individualized nature" of the determinations that led the Thornburgh Court to conclude that the regulations at issue in that case were rationally related to security interests, the nature of which, like rehabilitation, can change over time.10 See Thornburgh, 490 U.S. at 417 ("We agree that it is rational for the Bureau to exclude materials that ... are determined by the warden to create an intolerable risk of disorder under the conditions of a particular prison at a particular time.").

Because I believe that, on this record, there is no basis for concluding that there is a rational connection between the interest asserted by the government--rehabilitation--and the restriction chosen to further that interest--a ban on the delivery to all federal prisoners of all publications that are adverse effect on the rehabilitation of other inmates. Reha- bilitation is a gradual process, and it is entirely possible that any momentary lapses caused by the inadvertent receipt of an inappropriate publication may be reversed with additional rehabilitative efforts. This is not true of security breaches: Once an inmate has received information on how to escape from the prison, he cannot be made to forget it. It thus cannot be concluded, on this record, that accommodation of Amatel's First Amendment right will have a significant effect on the rehabilitation of other inmates.

Finally, the fourth factor considers whether there are "obvious, easy alternatives" that "fully accommodate[ ] the prisoner's rights at de minimis cost to valid penological interests"; if so, this may be evidence that the regulation is an "exaggerated response" to prison concerns. Id. at 90-91.

One such alternative comes immediately to mind: the pre- Amendment policy, under which wardens had discretion to examine each incoming publication and determine whether institutional interests favored its prohibition. The Court's approval of this policy in Thornburgh eliminates any concerns the majority might have that such a policy would be deemed arbitrary or particularly burdensome; indeed, since prison officials under the current policy must examine each publica- tion to determine whether it is sexually explicit or features nudity, the prior policy arguably represents no additional administrative burden.

Moreover, other aspects of the Amendment suggest that it is indeed an "exaggerated response" to rehabilitative con- cerns. The Amendment does not allow the warden to take into account whether a prisoner is in a high- or low-security institution, whether a prisoner is male or female, what kinds of crimes the prisoner has committed,11 the nature of the prisoner's sentence,12 how long the prisoner has been incar- cerated and how long he or she has left to serve, whether the prisoner is receiving rehabilitative treatment,13 or even whether a prisoner is in a prison environment that provides an opportunity to share the material with anyone else (partic- ularly with other prisoners convicted of sex crimes). In these respects, the Amendment "sweeps much more broadly than can be explained by [the government's] penological objec- tives." Safley, 482 U.S. at 98 (invalidating ban on all prisoner marriages by noting that prison officials had experienced no problems with marriages by male inmates or with inmate- civilian marriages; the prison's rehabilitative concern "ap- pear[ed] from the record to have been centered almost exclu- sively on female inmates marrying other inmates or ex-