Procunier v. Martinez
Opinion of the Court
delivered- the opinion of the ' Court.
This case concerns the constitutionality of certain regulations promulgated by appellant Procunier in his. capacity as Director of the California Department of Corrections. Appellees brought a class action on behalf of themselves and. all other inmates of penal institutions under the Department’s jurisdiction to challenge the rules relating to censorship of prisoner mail and the ban against the use of law' student's and legal paraprofessionals to conduct attorney-client, interviews with inmates. Pursuant to 28 U. S. C. § 2281 a three-judge United States District Court was convened to hear appellees’ request for declaratory and injunctive relief. That court entered summary judgment enjoining continued enforcement of the rules in question and ordering appellants to submit new regulations for the court’s approval. 354 F. Supp. 1092 (ND Cal. 1973). Appellants’ first revisions resulted in counterproposals by appellees.and a court order issued May 30, 1973, requiring further modification of the proposed rules. The second set of revised regulations was approved by the District Court on July 20, 1973, over appellees’ objections. While the first proposed revisions of the Department’s regulations were pending before the District Court, appellants brought this appeal to contest that court’s decision holding the original regulations unconstitutional.
We noted probable jurisdiction. 412 U. S. 948 (1973). We affirm.
I
- First we consider the constitutionality of the Director’s rules restricting the personal correspondence of prison inmates. Under • these regulations, correspondence be
Prison employees screened both incoming and outgoing personal mail for violations of these regulations. No further criteria were provided to help members' of the mailroom staff decide' whether a particular letter contravened any prison rule or policy. When a prison employee found a letter objectionable, he could take one or more of the following actions: (1) refuse to mail or deliver the letter and return it to the author; (2) submit a disciplinary report, which could lead to suspension of mail privileges, or other sanctions; or (3) place a copy of the letter or a summary of its contents in the prisoner’s file, where it might be a factor in determining the inmate’s work and housing assignments and in setting a date for parole eligibility.
The District Court held that the regulations relating to prisoner mail authorized censorship of protected expression without adequate justification in violation of the First Amendment and that they were void for vagueness. The. court also noted that the regulations failed to provide minimum procedural safeguards against error and arbitrariness in the censorship of inmate correspondence. Consequently, it enjoined their continued enforcement.
Appellants contended that the District Court should have abstained from deciding these questions. In that court appellants advanced no reason for abstention other than the assertion that the federal court should defer to the California courts on the basis of comity. The District Court properly rejected this suggestion, noting’ that the
Appellants now contend that we should vacate the judgment and remand the case to the District Court with instructions to abstain on the basis of two arguments not presented to it. First, they contend that any vagueness challenge to an uninterpreted state statute or regulation is a proper case for abstention. According to appellants, “[t]he very statement'by the district court that the regulations are vague constitutes a compelling reason for abstention.” Brief for Appellants 8-9. As this Court made plain in Baggett v. Bullitt, 377 U. S. 360 (1964), however, not every vagueness challenge to an uninterpreted state statute or regulation constitutes a proper case for abstention.
As a second ground for abstention appellants rely on Cal. Penal Code § 2600 (4), which assures prisoners the right to receive books, magazines, and periodicals.
A state court interpretation of § 2600 (4) would not avoid or substantially modify the constitutional question presented here. That statute does not contain any provision purporting to regulate censorship of personal correspondence. It only preserves the right of inmates to receive “newspapers, periodicals, and books” and authorizes prison officials to exclude “obscene publications or writings, and mail containing information concerning
A
Traditionally, federal courts have adopted a broad hands-off attitude toward problems of prison administration. In part this policy is the product of various limitations on the scope of federal review of conditions in state penal institutions.
But a policy of judicial restraint cannot encompass any failure to take cognizance of valid constitutional claims whether arising in a federal or státe institution. When a .prison regulation or practice offends á fundamental constitutional guarantee, federal courts will discharge their duty to protect consti
The issue before us is the. appropriate standard of review for prison regulations restricting fr.eedom of speech. This Court has not previously addressed this question, and the tension between the traditional policy of judicial restraint regarding prisoner complaints and the need to protect constitutional rights has led the' federal courts to adopt a variety of widely inconsistent approaches to the problem. Some have maintained a hands-off posture in the face of constitutional challenges to censorship' of prisoner mail. E. g., McCloskey v. Maryland, 337 F. 2d 72 (CA4 1964); Lee v. Tahash, 352 F. 2d 970 (CA8 1965) (except insofar as mail censorship rules are applied to discriminate against a particular racial or religious group); Krupnick v. Crouse, 366 F. 2d 851 (CA10 1966); Pope v. Daggett, 350 F. 2d 296 (CA10 1965). Another, has required only that censorship of personal correspondence not lack support “in any rational and constitutionally- acceptable concept of a prison system.” Sostre v. McGinnis, 442 F. 2d 178, 199 (CA2 1971), cert. denied sub nom. Oswald v. Sostre, 405 U. S. 978 (1972). At the other extreme some courts have- been willing tp require demonstration of a “compelling state interest” to justify censorship of' prisoner mail. E. g., Jackson v. Godwin, 400 F. 2d 529
This array , of disparate approaches áríd the absence of any generally accepted standard for testing the constitutionality of prisoner mail censorship regulations disserye both the' competing interests at stake. On the one hand, the First' Amendment interests implicated by censorship of inmate • correspondence are given only haphazard and inconsistent protection. On the other, the uncertainty of the constitutional standard makes it impossible for correctional officials to anticipate what is required of them and invites repetitive, piecemeal litigation on behalf of inmates. The result has been unnecessarily ,to perpetuate the involvement of the federal courts in ■ affairs of prison administration. Our task is to formulate a standard of review for prisoner mail censorship .that will be responsive to these concerns.
B
We begin our analysis of the proper standard of review for constitutional challenges to censorship of prisoner mail, with a somewhat different premise from that taken
Communication by letter is not accomplished by the act of writing words on paper. Rather, it is effected only when the letter is read by the addressee. Both parties to the correspondence have an interest in securing that result, and censorship of the communication between them necessarily impinges on the interest of each. Whatever the status of a prisoner’s claim to uncensored correspondence with an -outsider, it is plain that the latter’s interest is grounded in the First Amendment’s, guarantee of freedom of speech. And this does not depend .on whether the nonprisoner correspondent is the author or intended recipient of a particular letter, for the addressee as well as the sender of direct personal corre
Accordingly, we reject any attempt to justify censorship of inmate correspondence merely by reference to Certain assumptions about the legal status of prisoners. Into this category of argument falls appellants’ contention that “an inmate’s rights with reference to social correspondence are something fundamentally different than those enjoyed by his free brother.” Brief for Appellants 19. This line of argument and the undemanding standard of review it is intended to support fail to recognize that the First Amendment liberties of free citizens are implicated in censorship of prisoner mail. We therefore turn for guidance, not to cases involving questions of “prisoners’ rights,” but to decisions of this Court dealing with the general problem of incidental restrictions on First Amendment liberties imposed in furtherance of legitimate governmental activities.
As the Court noted in Tinker v. Des Moines School District, 393 U. S. 503, 506 (1969), First Amendment
In United States v. O’Brien, 391 U. S. 367 (1968), the Court dealt with incidental restrictions on free speech occasioned by the exercise of the governmental power to conscript men for military service. O’Brien had burned his Selective Service registration certificate on the steps
“[A] government regulation is sufficiently justified .if.it is within the constitutional power of the Government; if it furthers an .important or substantial governmental interest; if the governmental interest is unrelated to the suppression,of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest/’ Id., at 377'.
Of course, none of these precedents directly, controls the instant case. In O’Brien the Court considered a federal statute which on its face prohibited certain conduct having no necessary connection with freedom of speech. This led the Court to differentiate between “speech” and “nonspeech” elements of a single course of conduct, a distinction that has little relevance here. Both Tinker and Heady concerned First and Fourteenth Amendment liberties in the context of state educational institutions, a circumstance involving rather different governmental interests than are at. stake here. In broader terms,' however, these precedents involved inci
' The case at hand arises in the context of prisons. One of. the primary functions of government is the preservation of societal order through enforcement of the criminal íaw, and th.e maintenance of penal institutions is an essential part of that task. The identifiable governmental interests at stake in this task are the preservation of internal order and discipline,
Applying the teachings of our prior decisions to the instant context, we hold that censorship of prisoner mail is .justified if the following criteria are met. First, the regulation or practice in question must further an important or substantial governmental interest unrelated to the suppression of expression. Prison officials may not censor inmate correspondence simply to eliminate unflattering or unwelcome opinions or factually inaccurate statements. Rather, they must show that a regulation authorizing mail censorship furthers one or more of the substantial governmental interests of security, order, and rehabilitation. Second, the limitation of First Amendment freedoms must be no greater than is necessary or essential to the protection of the particular governmental interest involved. Thus a restriction on inmate corre
On the basis of this standard, we affirm the judgment of the District Court. The regulations invalidated by that court authorized, inter alia, censorship of statements that “unduly complain” or “magnify grievances,” expression of “inflammatory political, racial, religious or other views,” and matter deemed “defamatory” or “otherwise inappropriate.” These regulations fairly invited prison officials and employees to apply their own personal prejudices and opinions as standards for prisoner mail censorship. Not surprisingly, some prison officials used the extraordinary latitude for discretion authorized by the regulations to suppress unwelcome criticism. For ex.ample, at one institution under the Department’s jurisdiction, the checklist used by the maiboom staff authorized rejection of letters “criticizing policy, rules or officials,” and the maiboom sergeant stated in a deposition that he would reject as “defamatory” letters “belittling staff or our judicial system or anything connected with Department of Corrections.” • Correspondence was also censored for “disrespectful comments,” “derogatory remarks,” and the like.
Appellants have failed to show that these broad restrictions on prisoner mail were in any way necessary to the furtherance of a governmental interest unrelated to the suppression of expression. Indeed, the heart of appellants’ position is not that the regulations are justified by a legitimate governmental interest but that they do not need to be. This misconception is not only stated affirmatively; it also• underlies appellants’ discussion of the particular regulations under attack. For example, appellants’ sole defense of the prohibition against matter that is “defamatory” or “otherwise inappropriate” is that
We also agree with the District Court that the decision to censor or withhold délivery of a particular letter must be accompanied by minimum procedural safeguards.
II
The District Court' also enjoined continued enforcement of Administrative Rule MV-IV-02, which provides in pertinent part:
“Investigators for an attorney-of-record will be confined-to not more than two. Such investigators must be licensed by the State or must be members of the State Bar. Designation must be made in writing by the Attorney.”
By restricting access to prisoners to members of the bar and licensed private investigators, this regulation imposed an absolute ban on the use by attorneys of law students and legal paraprofessionals to interview inmate clients. In fact, attorneys could not even, delegate to such persons the task of obtaining prisoners’ signatures on legal documents. The District Court reasoned that this rule constituted an unjustifiable restriction on the right of access to the courts. We agree.
The' constitutional guarantee of due process of law has as a corollary the requirement that prisoners be afforded access to the courts in order to challenge unlawful convictions and to seek redress for violations of their constitutional rights. This means that inmates must have a reasonable opportunity to seek and receive the assistance of attorneys. Regulations and practices that unjustifiably obstruct the availability of professional representation or other aspects of the right of access to the courts are invalid. Ex parte Hull, 312 U. S. 546 (1941).
As the District Court recognized, this conclusion does not end the inquiry, for prison administrators are not required to adopt every proposal that may be thought to facilitate prisoner access to the courts. The extent to which that right is burdened by a particular regulation or practice must be weighed against the legitimate interests of penal administration, and the proper regard that judges should give to the expertise and discretionary authority of correctional officials. In this case the ban against the use of law students and other paraprofes-. sional personnel was absolute. Its prohibition was not limited to prospective interviewers who posed some color-able threat to security or to those inmates thought to be especially dangerous. Nor was it shown that a less restrictive regulation would unduly burden the administrative task of screening and monitoring visitors.
This result is mandated by our decision in Johnson v. Avery, 393 U. S. 483 (1969). There the Court struck down a prison regulation prohibiting any inmate from advising or assisting another in the preparation of legal documents. Given the inadequacy of alternative sources of legal assistance, the rule had the effect of denying to illiterate or poorly educated inmates any opportunity to vindicate possibly valid constitutional claims;. The Court found that the regulation impermissibly burdened the right of access to the courts despite the not insignificant state interest in preventing the establishment of personal power structures by unscrupulous jailhouse lawyers and the attendant problems of prison discipline that
The judgment is
Affirmed.
Director’s Rule 2401 provided:
“The sending and receiving of mail is a privilege, not a right, and any violation of the rules governing mail privileges either by you or by your correspondents may cause suspension of the mail privileges.”
Director’s Rule 1201 provided:
“INMATE BEHAVIOR: Always conduct yourself in an orderly manner. Do not fight or take part in horseplay or physical encounters except as part of the regular athletic program. Do not agitate, unduly complain, magnify grievances, or behave in any way which might lead to violence.” ••
It is undisputed that the phrases “unduly complain” and "magnify grievances” were applied to personal correspondence.
Director’s Rule 1205 provided:
“The following is contraband:
“d. Any writings or voice recordings expressing inflammatory political, racial, religious or other views or beliefs when not in the immediate possession, of the originator, or when the originator’s possession is used to subvert prison discipline by display or circulation.”
Rule 1205 also provides that writings ’ “not defined as contraband under this rule, but which, if circulated among other inmates, would in the judgment of the warden or superintendent tend to subvert prison order, or discipline, may be placed in the inmate’s property, to which he shall have accfes under supervision.”
At the time of appellees’ amended complaint, Rule 2402 (8) included prohibitions against “prison gossip or discussion of other inmates.” Before the first opinion of the District Court, these provisions were deleted, and the phrase “contain foreign matter” was substituted in their stead.
In Baggett the Court considered the constitutionality of loyalty oaths required of certain state employees as a condition of employment.- For the purpose of applying the doctrine of abstention the Court distinguisherhbetween two kinds of vagueness attacks. Where the case turns on the-applicability of a state statute or regulation to a particular person of a defined course of conduct, resolution of the unsettled question of state law may eliminate any need for constitutional adjudication. 377 U. S., at 376-377. Abstention is therefore appropriate. Where, however, as in this case, the statute or regulation is challenged as vague because individuals to whom it plainly applies simply cannot understand what is required of them and do not wish to forswear all activity arguably within the scope of the vague terms, abstention is not required. Id., at 378. In such a case no single adjudication by a state court could eliminate the constitutional difficulty. Rather it would require “extensive adjudications, under the impact of a variety of factual situations,” to bring the challenged statute or regulation “within the bounds of permissible constitutional certainty.” Ibid!
Cal. Penal Code §2600 provides that “[a] sentence of imprisonment in. a state prison for. any term suspends all the civil rights of .the person so sentenced . . . ,” and it' allows for partial restoration of those rights by the California Adult Authority. The .statute then declares, in pertinent part:
“This section shall be construed so as not to deprive such person of the following civil rights, in accordance with the laws of this state:
“ (4) To purchase, receive, and read any and ah newspapers, periodicals, and books accepted for distribution by the United States Post Office. Pursuant to the provisions of this section, prison authorities shall have the authority- to exclude obscene publications or writings, and mail containing information concerning where, how, or from whom such matter may be obtained; and any-matter of a character tending to incite murder, arson, riot, violent racism, or any other form of violence; and any matter concerning gambling or a lottery... .”
Appellants argue that the correctness of their abstention argument is demonstrated by the District Court’s disposition of Count II of appellees’ amended complaint. In Count II appellees challenged the mail regulations on the ground that their application to correspondence between inmates and attorneys contravened the Sixth and Fourteenth Amendments. Appellees later discovered that, a case was then pending before the Supreme Court of California in which the application of the prison rules to attorney-client mail was being attacked under subsection (2) of §2600, which provides:
“This section shall be construed so as not to deprive [an inmate] of the following civil rights, in accordance with the laws of this state:
“(2) To correspond, confidentially, with any member of the State Bar, or holder of public office, provided that the prison authorities may open and inspect such mail to search for contraband.”
The District Court did stay its hand, and the subsequent decision in In re Jordan, 7 Cal. 3d 930, 600 P. 2d 873 (1972) (holding that § 2600 (2) barred censorship of attorney-client correspondence), rendered Count II moot. This disposition of the claim relating to attorney-client mail is, however, quite irrelevant to appellants’ contention that the District Court should have abstained from deciding whether the mail regulations are constitutional as they apply to personal mail. Subsection (2) of § 2600 speaks directly to the issue of censorship of attorney-client mail but says nothing at all about personal correspondence, and appellants have not informed us of any. challenge to the censorship of ¡personal mail presently pending in the state coufts.
See Note, Decency and Fairness: An Emerging Judicial Role in Prison Reform, 57 Va. L. Rev. 841, 842-844 (1971).
They are also ill suited to act as the front-line agencies for the consideration and resolution of the infinite variety of prisoner complaints.- Moreover; the capacity of our criminal justice system to deal fairly -and fully with legitimate claims will .be impaired by a burgeoning increase of frivolous prisoner complaints. As one means of alleviating this problem, The Chief Justice has suggested that federal and state authorities explore the possibility of instituting internal administrative procedures for disposition of inmate grievances. 59 A. B. A. J. 1125, 1128 (1973). At the Third Circuit Judicial Conference meeting of October 15,1973, at which the problem was addressed, suggestions also included (i) abstention where appropriate to avoid needless consideration of federal constitutional issues; and (ii) the. use of federal magistrates who could be sent into penal institutions to conduct hearings and make findings of fact. We emphasize that- we express no view as to the merit or validity of any particular proposal, but we do think it appropriate to indicate the necessity of prompt and thoughtful consideration by responsible federal and state authorities, of this worsening situation.
Specifically, the District Court held that the regulations authorized restraint of lawful expression. in. violation of the First and Fourteenth Amendments, that they were fatally vague,-and that they failed to provide minimum procedural safeguards against arbitrary- - or erroneous censorship of protected speech.
Different considerations may come into play in the case of mass mailings. No such issue-is raised on these facts, and we intimate no view as.to its proper resolution.
We need not and do not address in this case the validity of a temporary prohibition of an inmate’s personal correspondence as a disciplinary sanction (usually as part of the regimen of solitary-confinement) for violation of prison rules.
Policy Statement 7300.1A of the Federal Bureau of Prisons sets forth the Bureau’s position regarding general correspondence by the prisoners entrusted to its custody: It authorizes all federal institutions to adopt open correspondence regulations and recognizes that any need for restrictions arises primarily from considerations of order and security rather than rehabilitation:'
“Constructive, wholesome contact with the community is a valuable therapeutic tool in the overall correctional process. At the same time, basic controls need to b.e exercised in order to protect the security of the institution, individuals and/or the community-atlárge.”
The recommended policy guideline adopted by the Association of State Correctional Administrators on August 23, 1972, echoes the view that personal correspondence by prison inmates is a generally wholesome activity:
“Correspondence with members of an inmate’s family, close friends, associates and organizations is beneficial to the morale of all confined*413 persons and may form the basis for good adjustment in the institution and the community.”
While not necessarily controlling, the policies followed at other well-run institutions would be relevant to a determination of the need for a particular type of restriction. For example, Policy Statement 7300.1A of the Federal Bureau 'of Prisons specifies that personal. correspondence of inmates in federal prisons, whether incoming ór outgoing, may be rejected for inclusion of the following kinds of material:
“(1) Any material which might violate postal regulations, i. e., threats, blackmail, contraband or which indicate plots of escape.
“(2) Discussions of criminal activities.
“(3) NÓ inmate may be permitted to direct his business while he is in confinement. This does not go to the point of prohibiting correspondence necessary to enable the inmate to protect the property and funds that were legitimately- his . at the time he was committed 1b the institution. Thus, an inmate could correspond about refinancing a mortgage on his home or sign insurance papers, but he could not operate a mortgage or insurance -business while in the institution.
“ (4) Letters containing codes or other obvious attempts to circumvent these regulations will be subject to rejection.
“(5) Insofar as possible, all letters should be written in English, but every effort should be made to accommodate those inmates who are unable to write in English or whose correspondents would be unable to understand a letter written in English. The criminal sophistication of the inmate, the relationship of the inmate and the*415 correspondent are factors to be considered in deciding whether correspondence in a foreign language should be permitted.”
After the District Court held the original regulations uncorfstitutional, revised’ regulations were developed by appellants and approved by the court. Supp to App. 194-200, 211. Although these regulations are not before us for review, tk / are indicative of one solution to the problem. The following provisions govern censorship of prisoner correspondence:
‘-‘CORRESPONDENCE
“A. Criteria- for Disapproval of Inmate Mail
“1. Outgoing Letters'
“Outgoing letters -from inmates of institutions not’ requiring approval of inmate correspondents may be disapproved for mailing only if the content falls as a whole or. in significant part into any of the following categories:
“a. The letter contains threats of physical-harm against any person or threats of criminal activity.
*417 “b. The letter threatens blackmail \ . . or extortion. '
“c. The letter concerns sending contraband in or out of the institutions.
“d. The letter concerns plans to escape.
“e. The letter concerns plans for activities in violation of institutional rules. •
“f. The letter, concerns plans for criminal activity.
“g. The letter is in code and its contents are not understood by reader.
“h. The letter solicits gifts of goods or money from other than family.
“i. The letter is obscene.
“j. The letter contains information which if communicated would create a clear and present danger of violence and physical harm to. a human being. Outgoing letters from inmates of institutions requiring approval of correspondents may.be disapproved only for the foregoing reasons, or if the addressee is not an approved correspondent of the inmate and special permission for the letter has not been obtained.
“2. Incoming Letters
“Incoming letters to inmates may be disapproved for receipt only for the foregoing reasons, or if the letter contains material which would cause severe psychiatric or emotional disturbance to .the inmate, or in an institution requiring approval of -inmate correspondents, is from-a person who is not an approved correspondent and special permission for the letter has not been obtained.
“3. Limitations
“Disapproval of a letter on the basis that it would cause severe psyehiatpe or einptional disturbance to the inmate may be done only by- a member of the institution’s psychiatric staff after consultation • with the inmate’s caseworker.. The staff member may disapprove the letter only, upon a finding that receipt of the letter would be likely to affect prison discipline or security or the inmate’s rehabilitation, and that there is no reasonable alternative means -of ameliorating the disturbance of the inmate. Outgoing or incoming letters*418 may hot be rejected solely upon the ground that they contain criticism of the institution or its personnel.
“4. Notice of Disapproved of Inmate Mail
“a. When an inmate is prohibited from sending a letter, the letter and a written and signed notice stating one of the authorized reasons for disapproval and indicating the portion or portions of the letter causing disapproval will be given the inmate.
• “b. When an inmate is prohibited from receiving a letter, the letter and a written and signed notice stating one of the authorized reasons for disapproval and indicating the portion or portions of the letter causing disapproval will be given the sender. The inmate will be given notice in writing that a letter has been rejected, indicating one of the authorized reasons and the sender’s name.
“c. Material from correspondence which violates the provisions of paragraph one may be placed in an inmate’s file. Other material from correspondence may not be placed in an inmate’s file unless it has been lawfully observed by an employee of the department and is relevant to assessment of the inmate’s rehabilitation. However, such material which is not in violation of the provisions of paragraph one may not be thé subject of disciplinary proceedings against an inmate. An inmate shall be notified in writing of the placing of any material from correspondence in his file.
“d. Administrative review of. inmate grievances regarding the application of this rule may be had in accordance with paragraph DP-1003 of these rules.”
Apparently, the Department’s policy regarding law school programs providing legal assistance to inmates, though well established, is not embodied in any regulation.
Concurring Opinion
with whom Mr. Justice Brennan joins, ^ concurring.
I
I concur in the opinion and judgment of the Court. I write separately only to emphasize my view that prison authorities do not have a general right to open and read all incoming and outgoing prisoner mail. Although the issue of the First Amendment rights of inmates is explicitly reserved by the Court, I would reach that issue and hold that prison authorities may not read inmate mail as a matter of course.
II
As Mr. Justice Holmes observed over a half century ago, “the use of the mails is almost as much a part of free speech as the right to use our tongues . . . .” Milwaukee Social Democratic Publishing Co. v. Burleson, 255 U. S. 407, 437 (1921) (dissenting opinion), quoted with approval in Blount v. Rizzi, 400 U. S. 410, 416 (1971). See also Lamont v. Postmaster General, 381 U. S. 301, 305 (1965). A prisoner does not shed such basic First. Amendment rights at the .prison gate.
It seems clear that this freedom may be seriously infringed by permitting correctional authorities to read all prisoner correspondence. A prisoner’s free and open expression will surely be restrained by the knowledge that his every word may be read by his jailors and that his message could well find its way into a disciplinary file, be the object of ridicule, or even lead to reprisals. A similar pall may be cast over the free expression of the inmates’ correspondents. Cf. Talley v. California, 362 U. S. 60, 65 (1960); NAACP v. Alabama, 357 U. S. 449, 462 (1958). Such an intrusion on First Amendment freedoms can only be justified by & substantial government interest and a showing that the means chosen' to effectuate the State’s purpose are not unnecessarily restrictive of personal freedoms.
“[E]ven though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more*424 narrowly achieved.” Shelton v. Tucker, 364 U. S. 479 488 (1960).4
The First Amendment must in each context “be applied ‘in light of the special characteristics of the . . . environment/ ” Healy v. James, 408 U. S. 169, 180 (1972), and the exigencies of governing persons in prisons are different from and greater than those in governing persons without. Barnett v. Rodgers, 133 U. S. App. D. C. 296, 301-302, 410 F. 2d 995, 1000-1001 (1969); Rowland v. Sigler, 327 F. Supp. 821, 827 (Neb.), aff’d, 452 F. 2d 1005 (CA8 1971). The State has legitimate and substantial concerns as to security, personal safety, institutional discipline, and prisoner rehabilitation- not applicable to the community at large. Bu+ these considerations do not eliminate the need for reasons imperatively justifying the particular deprivation of fundamental constitutional rights at issue. Cf. Healy v. James, supra, at 180; Tinker v. Des Moines School District, 393 U. S. 503, 506 (1969).
The State asserts a number of .justifications for a general right to read all prisoner correspondence. The State argues .that contraband weapons or narcotics may be smuggled into the prison via the mail, and certainly this is a legitimate concern of prison authorities. But this argument provides no justification for reading outgoing mail. Even as to incoming mail, there is no showing that stemming the traffic in contraband could not be accomplished equally well by means of physical tests
It is also suggested that prison authorities must read all prison mail in order to detect escape plans. The State surely could not justify reading everyone’s mail and listening to all phone conversations on the off chance that criminal schemes were being concocted. Similarly, the reading of all prisoner mail is too great an intrusion on First Amendment rights to be justified by such a speculative concern. There has been no showing as to the seriousness of the problem of - escapes planned or arranged via the mail.' Indeed, the State’s claim of concérn over this problem is undermined by the general practice of permitting unmonitored personal interviews during which any number of surreptitious plans might be discussed undetected.
It is also occasionally asserted that'reading prisoner mail is a useful tool in the rehabilitative process. The therapeutic model of corrections has come under increasing criticism and in most penal institutions rehabilitative programs are more ideal than reality.
“ ‘Letter writing keeps the inmate in contact with the outside world, helps to hold in check some of the morbidity and hopelessness produced by prison life and isolation, stimulates his more natural and human impulses, and otherwise may make contributions to better mental attitudes and reformation.’ ”10
and:
“ ‘The harm censorship does to rehabilitation ... cannot be gainsaid. Inmates lose contact with the outside world and become wary of placing intimate thoughts or criticisms of the prison in letters. This artificial increase of alienation from society is ill advised.’ ”11
The Court today agrees that “the weight of professional opinion seems to be that inmate freedom to correspond with outsiders advances rather than retards the goal of rehabilitation.” Ante, at 412.
The First Amendment serves not only the needs of the polity but also those of the human spirit — a spirit that demands self-expression. Such expression is an integral part of the development of ideas and a sense of identity. To suppress expression is to reject the basic human desire for recognition and affront the individual’s worth and dignity.
See, e. g., Cruz v. Beto, 405 U. S. 319 (1972); Cooper v. Pate, 378 U. S. 546 (1964); Brown v. Peyton, 437 F. 2d 1228, 1230 (CA4 1971); Howland v. Sigler, 327 F. Supp. 821, 827 (Neb.), aff’d, 452 F. 2d 1005 (CA8 1971); Fortune Society v. McGinnis, 319 F. Supp. 901, 903 (SDNY 1970).
Accord, Moore v. Ciccone, 459 F. 2d 574, 576 (CA8 1972); Nolan v. Fitzpatrick, 451 F. 2d 545, 547 (CA1 1971); Brenneman v. Madigan, 343 F. Supp. 128, 131 (ND Cal. 1972); Burnham v. Oswald, 342 F. Supp. 880, 884 (WDNY 1972); Carothers v. Follette, 314 F. Supp. 1014, 1023 (SDNY 1970).
See, e. g., Sostre v. McGinnis, 442 F. 2d 178, 199 (CA2 1971) (en banc); Preston v. Thieszen, 341 F. Supp. 785, 786-787 (WD Wis. 1972); cf. Gray v. Creamer, 465 F. 2d 179, 186 (CA3 1972); Morales v. Schmidt, 340 F. Supp. 544 (WD Wis. 1972); Palmigiano v. Travisono, 317 F. Supp. 776 (RI 1970); Carothers v. Follette, supra.
The test I would apply is thus essentially the same' as the test applied by the Court:
“[T]he regulation ... in question must further an important or substantial governmental interest unrelated to the suppression of expression . .. [and] the limitation of First Amendment freedoms must be no greater than is necessary or essential to the protection of the particular governmental interest involved.” Ante, at 413.
See Marsh v. Moore, 325 F. Supp. 392, 395 (Mass. 1971).
See Moore v. Ciccone, supra, at 578 (Lay, J., concurring); cf. Jones v. Wittenberg, 330 F. Supp. 707, 719 (ND Ohio 1971), aff'd sub nom. Jones v. Metzger, 456 F. 2d 854 (CA6 1972).
Palmigiano v. Travisono, supra.
See generally J. Mitford, Kind and Usual Punishment: The Prison Business (1973).
See, e. g., National Advisory Commission on Criminal Justice Standards and Goals, Corrections 67-68 (1973).
See Palmigiano v. Travisono, supra, at 791.
Singer, Censorship of Prisoners’ Mail and the Constitution, 56 A. B. A. J. 1051, 1054 (1970).
Various studies have strongly recommended that correctional authorities have the right to inspect mail for contraband but not to read it. ' National Advisory Commission on Criminal Justice Stand
See, e. g., Nolan v. Fitzpatrick, 451 F. 2d, at 547-548.
Emerson, Toward a General Theory of the First Amendment, 72 Yale L. J. 877, 879-880 (1963).
Concurring Opinion
concurring in the judgment.
I have joined Part II of Mr. Justice Marshall’s opinion because I think it makes abundantly clear that foremost among the Bill of Rights of prisoners in this country, whether under state or federal detention, is the First Amendment. Prisoners are still “persons” entitled to all constitutional rights unless their liberty has been constitutionally curtailed by procedures that satisfy all of the requirements of due process.
While Mr. Chief Justice Hughes in Stromberg v. California, 283 U. S. 359, stated that the First Amendment was applicable to the States by reason of .the Due Process Clause of the Fourteenth, it has become customary, to
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