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Lenient in Theory, Dumb in Fact:
Prison, Speech, and Scrutiny
David M. Shapiro*
ABSTRACT
The Supreme Court declared thirty years ago in Turner v. Safley that
prisoners are not without constitutional rights: any restriction on those rights
must be justified by a reasonable relationship between the restriction at issue
and a legitimate penological objective. In practice, however, the decision has
given prisoners virtually no protection. Exercising their discretion under Turner, correctional officials have saddled prisoners’ expressive rights with a host
of arbitrary restrictions—including prohibiting President Obama’s book as a
national security threat; using hobby knives to excise Bible passages from letters; forbidding all non-religious publications; banning Ulysses, John Updike,
Maimonides, case law, and cat pictures. At the same time, the courts have had
no difficulty administering the Religious Land Use and Institutionalized Persons Act (RLUIPA), which gives prisons far less deference by extending strict
scrutiny to free exercise claims by prisoners. Experience with the Turner standard demonstrates that it licenses capricious invasions of constitutional rights,
and RLUIPA demonstrates that a heightened standard of review can protect
prisoners’ expressive freedoms without compromising prison security. It is
time for the Court to revisit Turner.

TABLE

OF

CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I. TURNER IN THE SUPREME COURT . . . . . . . . . . . . . . . . . . . . . .
II. TURNER IN THE LOWER COURTS . . . . . . . . . . . . . . . . . . . . . . .
A. Hatch v. Lappin (First Circuit) . . . . . . . . . . . . . . . . . . . . . .
B. Munson v. Gaetz (Seventh Circuit) . . . . . . . . . . . . . . . . .
C. Singer v. Raemisch (Seventh Circuit) . . . . . . . . . . . . . . .
D. Hause v. Vaught (Fourth Circuit) . . . . . . . . . . . . . . . . . . .
E. Prison Legal News v. Livingston (Fifth Circuit) . . . . .
III. TURNER ON THE GROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A. Challenging a Jail’s Censorship of Bible Passages . . .
B. Case Law and Medical Textbooks Prohibited . . . . . . .
C. Lunar Maps Deemed to Create Escape Risk . . . . . . . .

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* Clinical Assistant Professor of Law, Northwestern University School of Law. For Margaret Winter, on the occasion of her retirement, with gratitude for friendship and inspiration.
Brenna Helppie-Schmieder contributed invaluable research assistance to this Article and Andrew Koppelman improved the piece with insightful comments.
July 2016

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D. Crime Novels and Malcom X Biography
Forbidden . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
E. President’s Books Rejected as a National Security
Threat. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F. Cat Picture Banned . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
G. Journals Censored for Summaries of Judicial
Decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
H. Complete Newspaper and Magazine Ban . . . . . . . . . . . .
I. Mail Rejected for Incoherent Reasons . . . . . . . . . . . . . . .
J. Publication Censored for Containing Certain Pages
Then Censored for Not Containing the Same Pages .
K. Postcard-Only Policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
L. Federal Prisons Censor Maimonides . . . . . . . . . . . . . . . .
M. Solitary Confinement for Facebook Posts . . . . . . . . . . .
N. No to John Updike, Yes to Porn . . . . . . . . . . . . . . . . . . . .
O. Internet Printouts Banned . . . . . . . . . . . . . . . . . . . . . . . . . . .
P. Internet Printouts Banned (Again) . . . . . . . . . . . . . . . . . .
Q. Ulysses Banned . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
IV. THE REALITIES OF LITIGATING UNDER TURNER . . . . . . .
V. BROADER BARRIERS TO PRISON CONDITIONS
LITIGATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A. Access to Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B. Retained Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1. Public Interest Lawyers . . . . . . . . . . . . . . . . . . . . . . . . .
2. Court-Appointed Lawyers . . . . . . . . . . . . . . . . . . . . . .
3. Contingent Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4. Reasons that Prison Conditions Litigation is
Economically Unrewarding for Private
Attorneys . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C. Pro Se Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
VI. LESSONS FROM RELIGIOUS EXERCISE STATUTES . . . . . . . .
A. History of RFRA and RLUIPA . . . . . . . . . . . . . . . . . . . . .
B. Costs of Heightened Review . . . . . . . . . . . . . . . . . . . . . . . . .
C. Coherent Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
INTRODUCTION
“When the prison gates slam behind an inmate, he does not
lose his human quality; his mind does not become closed to
ideas; his intellect does not cease to feed on a free and open
interchange of opinions; his yearning for self-respect does not

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end; nor is his quest for self-realization concluded. . . . It is the
role of the First Amendment and this Court to protect those
precious personal rights by which we satisfy such basic yearnings of the human spirit.”
—Justice Thurgood Marshall (1974)1
Some of the greatest works of literature and social commentary—
everything from Don Quixote, to O. Henry’s stories, to Martin Luther
King Jr.’s “Letter from a Birmingham Jail”—were written in whole or
in part while their authors were incarcerated.2 In many prisons and
jails today, however, speech is burdened by regulations that make little sense. Examples include the following:
• A federal prison employee prevented a prisoner in Colorado
from receiving books by President Obama, citing national security concerns.3
• A Wisconsin prison banned all materials related to the fantasy
roleplay game Dungeons & Dragons, concerned that the game
would promote gang activity.4
• A jail in South Carolina prohibited all publications with
staples on the ground that staples could be used in makeshift
tattoo guns.5 At the same time, the jail allowed prisoners to
purchase legal pads that contained staples from the jail’s
commissary.6
• Jail employees in Virginia used scissors or a hobby knife to cut
out biblical passages from letters a mother wrote to her incarcerated son.7 The letters given to the son had holes where the
biblical passages had been.8
1

Procunier v. Martinez, 416 U.S. 396, 428 (1974) (Marshall, J., concurring).

See Heba Hasan, Jailhouse Lit: Great Works of Literature Written in Prison, THE AT(Aug. 17, 2012), http://www.theatlantic.com/entertainment/archive/2012/08/jailhouse-litgreat-works-of-literature-written-in-prison/261190/ (highlighting Don Quixote by Miguel de
Cervantes); John J. Miller, His Writers’ Workshop? A Prison Cell, WALL ST. J. (June 8, 2010,
12:01 AM), http://www.wsj.com/articles/SB10001424052748704852004575258824174766374 (discussing the works of author William Sydney Porter, also known as O. Henry); King Center Marks
50th Anniversary of MLK’s ‘Letter from a Birmingham Jail,’ KING CTR. (Apr. 16, 2013), http://
www.thekingcenter.org/news/2013-04-king-center-marks-50th-anniversary-mlk-s-letter-birmingham-jail (commemorating Martin Luther King Jr.’s “Letter from a Birmingham Jail,” written
while King was incarcerated).
3 See infra Part III.E.
4 See infra Part II.C.
5 See infra Part IV.
6 See id.
7 See infra Part III.A
8 See id.
2

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• A Wisconsin prison forbade a prisoner from ordering the Physicians’ Desk Reference.9
• Some jails ban all newspapers and magazines.10 Others prohibit letters sent to prisoners and allow only postcards.11
• A purge of books in religious libraries maintained by federal
prisons resulted in works by Maimonides, the medieval Jewish
philosopher, being pulled from the shelves.12
• A prison allowed magazines such as Playboy and Maxim but
prohibited works by John Updike as salacious.13
This Article catalogues speech restrictions imposed without reasonable justification in American prisons and jails; those above are
but a few examples. The picture that emerges from this exercise is
rather bleak: incarcerated men and women are often subjected to substantial limitations on their ability to communicate, and many of these
restrictions are indefensible. In cases involving prisoners’ First
Amendment rights, the Supreme Court has often repeated the principle that “[p]rison walls do not form a barrier separating prison inmates from the protections of the Constitution.”14 Despite this
admonition, however, jailers frequently act as if unconstrained by judicial review in matters affecting the speech of those in their custody.
This was not the state of affairs the Supreme Court intended to
create some three decades ago, when it handed down Turner v.
Safley.15 The task at hand, Justice Sandra Day O’Connor wrote, was
to balance two conflicting considerations at play in prison First
Amendment cases: the “policy of judicial restraint regarding prisoner
complaints” and “the need to protect constitutional rights.”16 The legal test the Court devised to answer this challenge is now called the
Turner standard: there must be a reasonable relationship between the
restriction at issue and a legitimate penological objective.17 Today,
Turner has been cited in over 8000 judicial decisions.18 The Turner
See infra Part II.B.
See infra Part I, notes 85–95 and accompanying text (discussing Beard v. Banks, 548
U.S. 521 (2006)); infra Part III.H.
11 See infra Part III.K.
12 See infra Part III.L.
13 See infra Part III.Q.
14 Thornburgh v. Abbott, 490 U.S. 401, 407 (1989) (quoting Turner v. Safley, 482 U.S. 78,
84 (1987)).
15 Turner v. Safley, 482 U.S. 78 (1987).
16 Id. at 85 (quoting Procunier v. Martinez, 416 U.S. 396, 406 (1974)).
17 Id. at 89.
18 Online legal search engines may not be comprehensive; however, a Westlaw search
showed that 8743 cases have cited to Turner.
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standard has been described, fairly, as “the most important and widely
used legal standard for evaluating prisoners’ rights claims.”19
Three decades after the decision, we are now in a position to assess whether in a practical reality—and by this, I mean on the ground
in American prisons and jails—the Turner standard has accomplished
the objective behind its genesis. Does the standard strike a reasonable balance between the deference due to prison officials and the expressive liberties of incarcerated men and women?
While the Turner standard has been widely discussed in the scholarly literature, this Article offers a new perspective by focusing on the
practical realities that exist in prisons and jails. Others have offered
doctrinal and theoretical assessments of the Turner standard or analyzed the manner in which Turner plays out in the lower courts.20
19 Christopher E. Smith, Justice Sandra Day O’Connor and Corrections Law, 32 HAMLINE
L. REV. 477, 493 (2009).
20 Erwin Chemerinsky, for example, argues that judicial deference in authoritarian institutions—i.e., prisons, schools, and the military—can be dangerous for two reasons: “first, the authoritarian nature of these institutions makes them places where serious abuses of power and
violations of rights are likely to occur; and second, the political process is extremely unlikely to
provide any protections in these arenas.” Erwin Chemerinsky, The Constitution in Authoritarian
Institutions, 32 SUFFOLK U. L. REV. 441, 458 (1999). Scott Moss contends that judicial review of
speech restrictions has splintered into too many different rules for separate institutions (including prisons, schools, and workplaces) and that, in all of these contexts, the application of intermediate scrutiny “seems the best way to assure that courts take appropriate, but not excessive,
account of institutional needs that might justify speech restrictions.” Scott A. Moss, Students and
Workers and Prisoners—Oh, My! A Cautionary Note About Excessive Institutional Tailoring of
First Amendment Doctrine, 54 UCLA L. REV. 1635, 1678–79 (2007). Sharon Dolovich, examining judicial deference in prison cases generally, writes that Supreme Court doctrine gives the
impression “of a skewed process that deprives a whole category of vulnerable citizens of meaningful constitutional protections while only seeming to take their legal claims seriously.” Sharon
Dolovich, Forms of Deference in Prison Law, 24 FED. SENT’G REP. 245, 245 (2012). Ronald
Kuby and William Kunstler offer a colorful perspective that the lower courts are so deferential in
prison speech cases that “entrusting trained chimps to paste up clichés from [Supreme Court
decisions regarding prisoner speech] above the word ‘denied’ would achieve roughly the same
result as seeking redress from the federal judiciary.” Ronald L. Kuby & William M. Kunstler,
Silencing the Oppressed: No Freedom of Speech for Those Behind the Walls, 26 CREIGHTON L.
REV. 1005, 1010 (1993). Clay Calvert and Kara Carnley Murrhee conclude, after a survey of
prison First Amendment cases decided by the lower federal courts in 2010 and 2011, that prisoners face a “steep, uphill battle . . . when fighting for their First Amendment rights to access
magazines, movies, music, and other popular forms of media materials.” Clay Calvert & Kara
Carnley Murrhee, Big Censorship in the Big House—A Quarter-Century After Turner v. Safley:
Muting Movies, Music & Books Behind Bars, 7 NW. J.L. & SOC. POL’Y 257, 269 (2012); see also
Alphonse A. Gerhardstein, False Teeth? Thornburgh’s Claim That Turner’s Standard for Determining a Prisoner’s First Amendment Rights Is Not “Toothless,” 17 N. KY. L. REV. 527, 529
(1990) (arguing that when courts apply the Turner standard, “deference to prison administrators
should not cause courts to accept watered-down evidence in support of challenged regulations”);
Giovanna Shay, Ad Law Incarcerated, 14 BERKELEY J. CRIM. L. 329, 341 (2009) (arguing that
Turner “emphasizes deference to prison officials and the relative technical and administrative

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What this Article shows, through numerous examples of unjustified prison speech restrictions imposed throughout the country, is that
prison and jail officials often act as if unconstrained by judicial review
and impose arbitrary (indeed, nonsensical) restrictions on speech. For
this reason, if strict scrutiny may be characterized as “‘strict’ in theory
and fatal in fact,”21 the legacy of Turner may be described—fairly, if
somewhat polemically—as lenient in theory and dumb in fact. Judicial deference has been complicit in allowing even the worst rules to
remain on the books.22 An important measure of a constitutional
standard is whether, in reality, the standard accords due weight to the
interests it purports to balance. Here, the evidence suggests that the
standard must change.
The laxness of the Turner standard becomes especially anomalous when compared to the far more searching standard of review for
prisoners’ free exercise claims expounded by the Supreme Court in its
recent decision in Holt v. Hobbs.23 In 2000, Congress enacted the Reexpertise of corrections authorities”); Anna C. Burns, Note, Beard v. Banks: Restricted Reading,
Rehabilitation, and Prisoners’ First Amendment Rights, 15 J.L. & POL’Y 1225, 1227–28 (2007)
(arguing, based on doctrinal analysis, that Turner, as interpreted in Beard v. Banks, insufficiently
protects prisoner First Amendment claims, and that courts should afford less deference to prison
administrators); Cheryl Dunn Giles, Note, Turner v. Safley and Its Progeny: A Gradual Retreat to
the “Hands-Off” Doctrine?, 35 ARIZ. L. REV. 219, 230 (1993) (presenting doctrinal argument
that Turner “unnecessarily restricts the scope of inmate rights in some instances”); Tara Kao,
Note, They Can Take Your Body but Not Your Soul—or So You Thought—the Third Circuit’s
Application of the Turner Standard in Prisoners’ Free Exercise Cases, 10 BOALT J. CRIM. L. 1,
¶ 47 (2005) (concluding, based on analysis of case law, that Turner’s “policy of deference . . . has
allowed courts to arbitrarily infringe on prisoners’ free exercise rights”); Lorijean Golichowski
Oei, Note, The New Standard of Review for Prisoners’ Rights: A “Turner” for the Worse? Turner
v. Safley, 33 VILL. L. REV. 393, 432 (1988) (arguing that “[t]he Turner Court’s excessively deferential reasonableness standard provides the barest scrutiny of restrictions upon prisoners’ rights
and essentially validates officials’ action on the basis of assertions regarding possible administrative and security problems rather than on the basis of any proof that the regulations are necessary to further governmental interests”); Kyrsten Sinema, Note, Overton v. Bazzetta: How the
Supreme Court Used Turner to Sound the Death Knell for Prisoner Rehabilitation, 36 ARIZ. ST.
L.J. 471, 472 (2004) (arguing, based on analysis of doctrine, that the Turner standard should be
abandoned in favor of a return to the more exacting Procunier v. Martinez standard); Joseph
Thomas Wilson, Comment, The Big Man in the Big House: Prisoner Free Exercise in Light of
Employment Division v. Smith, 73 LA. L. REV. 219, 220 (2012) (arguing, based on doctrinal
analysis, that the Turner standard is more protective than the Employment Division v. Smith
standard for nonprisoner free exercise claims, and that the Turner standard should be abandoned for such claims); Eric J. Zogry, Comment, Orthodox Jewish Prisoners and the Turner
Effect, 56 LA. L. REV. 905, 926–27 (1996) (examining rulings on the free exercise rights of Orthodox Jewish prisoners and concluding that the Turner standard is overly deferential).
21 See, e.g., Gerald Gunther, Foreword: In Search of Evolving Doctrine on a Changing
Court: A Model for a Newer Equal Protection, 86 HARV. L. REV. 1, 8 (1972).
22 See infra Part II.
23 Holt v. Hobbs, 135 S. Ct. 853, 859 (2015).

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ligious Land Use and Institutionalized Persons Act (“RLUIPA”),24
which provides that a restriction may not substantially burden a prisoner’s religious exercise unless it “is in furtherance of a compelling
governmental interest” and “is the least restrictive means of furthering that compelling governmental interest.”25 Holt clarifies that the
RLUIPA standard is a species of strict scrutiny.26
RLUIPA creates a bifurcated regime for expressive activity in
prison, in which speech claims are governed by a highly deferential
standard27 while free exercise claims are reviewed under strict scrutiny.28 Thus, for example, a prisoner who challenges a restriction on
the number of books she may have in her cell because she wants to
read secular publications has a far weaker claim than a prisoner who
challenges the same restriction but wants to read religious books.29
RLUIPA has been in effect, and this rather anomalous dual regime
has operated, for nearly fifteen years30—and there is little evidence
that the stricter standard for religious claims has undermined prison
authorities or caused major security threats.31 By analogy, the security
24 Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C.
§§ 2000cc–2000cc5 (2012).
25 Id. § 2000cc(a)(1).
26 See Holt, 135 S. Ct. at 863.
27 See Derek L. Gaubatz, RLUIPA at Four: Evaluating the Success and Constitutionality of
RLUIPA’s Prisoner Provisions, 28 HARV. J.L. & PUB. POL’Y 501, 583 (2005).
28 See Cutter v. Wilkinson, 544 U.S. 709, 713–14 (2005); Robert J. D’Agostino, The Religious Rights of Incarcerated Persons: The Georgia Clergy Privilege, RLUIPA, and the Free Exercise Clause, 1 J. MARSHALL L.J. 91, 106 (2008).
29 See, e.g., Jones v. Shabazz, No. H-06-1119, 2007 WL 2873042, at *4 (S.D. Tex. Sept. 28,
2007) (“Plaintiff fails to show that TDCJ’s denial of his request for these secular books, especially in light of other accessible reading material, in any way materially burdens the exercise of
his faith in violation of RLUIPA.”); Kaufman v. Schneiter, 474 F. Supp. 2d 1014, 1027 (W.D.
Wis. 2007) (“[P]rison officials are not required to indulge secular interests in the same way they
are required to accommodate religious beliefs.”); Gaubatz, supra note 27, at 583.
30 See James D. Nelson, Incarceration, Accommodation, and Strict Scrutiny, 95 VA. L. REV.
2053, 2059 (2009) (“[I]n 2000, Congress passed the Religious Land Use and Institutionalized
Persons Act (RLUIPA), which re-established strict scrutiny for government actions regarding . . .
federally funded institutions (including prisons) that substantially burden religious exercise.”).
31 Cutter, 544 U.S. at 725 (“For more than a decade, the federal Bureau of Prisons has
managed the largest correctional system in the Nation under the same heightened scrutiny standard as RLUIPA without compromising prison security, public safety, or the constitutional rights
of other prisoners.”) (quoting Brief for United States as Amici Curiae Supporting Petitioners at
24, Cutter, 544 U.S. 709 (2005) (No. 03-9877)); see also Kelly Gower, Religious Practice in Prison
& The Religious Land Use and Institutionalized Persons Act (RLUIPA): Strict Scrutiny Properly
Restored, 6 RUTGERS J.L. & RELIGION 7, ¶ 39 (2004) (“Under RLUIPA, correctional administrators and officials will not lose their ability to argue that restrictions on the free exercise of
religion further a compelling governmental interest in the context of prison safety and
security.”).

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risks of careful judicial review of speech regulations may be overstated.32 Thus, it is not only the experience of Turner but also the
experience of RLUIPA (and its predecessor, the Religious Freedom
Restoration Act) that suggests that the time has come for a stricter
standard in prison speech cases.
That being said, the Turner standard alone cannot be blamed for
all the unnecessary speech restrictions that exist in prisons and jails.33
Many indefensible restrictions are never litigated because of barriers
(some economic, some procedural) that are external to the Turner
standard,34 but that combine with it to ratchet up the difficulties prisoners face when challenging First Amendment regulations. The realworld effect of these obstacles is to confer upon prison officials a layer
of what I call “practical immunity”—effective insulation from suit that
flows partly from formal immunity doctrines (such as absolute or
qualified immunity) but primarily from other barriers that protect potential defendants.35 These obstacles include, among others, limited
access to counsel,36 procedural requirements imposed by the Prison
Litigation Reform Act (“PLRA”),37 and restrictions on the recovery
of damages and attorneys fees in prisoners’ rights cases.38 The result
of jailers’ “practical immunity” is to weaken their incentives to eliminate illegal regulations.
Part I of this Article surveys the Turner decision and those that
have followed it in the Supreme Court, showing that the standard was
meant to be deferential, but not excessively so—indeed, Turner itself
struck down a regulation. Part II argues that, to the extent the SuSee Cutter, 544 U.S. at 722–26.
See generally Margo Schlanger, Trends in Prisoner Litigation, as the PLRA Enters
Adulthood, 5 U.C. IRVINE L. REV. 153 (2015) (presenting updated statistics on the decline in
civil litigation caused by the PLRA).
34 See Michael W. Martin, Foreword: Root Causes of the Pro Se Prisoner Litigation Crisis,
80 FORDHAM L. REV. 1219, 1225–26 (2011) (describing conditions of incarceration and prisoners’ general inability to access legal tools as barriers to litigation); Ira P. Robbins, Ghostwriting:
Filling in the Gaps of Pro Se Prisoners’ Access to the Courts, 23 GEO. J. LEGAL ETHICS 271, 283
(2010) (“Not only do inmates face procedural difficulties . . . but prisoners may also fear retaliation from prison officials for filing grievances.”).
35 Schlanger, Trends in Prisoner Litigation, supra note 33, at 162.
36 See Ahmed A. White, The Concept of “Less Eligibility” and the Social Function of
Prison Violence in Class Society, 56 BUFF. L. REV. 737, 786 (2008).
37 Prison Litigation Reform Act, 42 U.S.C. § 1997e (2012). For discussion as to the procedural requirements this statute forces, see Grace DiLaura, Comment, “Not Susceptible to the
Logic of Turner”: Johnson v. California and the Future of Gender Equal Protection Claims from
Prisons, 60 UCLA L. REV. 506, 555 (2012).
38 See 42 U.S.C. § 1997e(e) (2012); Schlanger, Trends in Prisoner Litigation, supra note 33,
at 167–68; Wilson, supra note 20, at 247 n.187, 248.
32
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preme Court intended the standard to have teeth, many lower court
decisions have defanged it with an obsequious deference to prison administrators. Part III turns away from judicial rulings and toward decisions made on the ground in correctional institutions throughout the
country, showing that prison officials have abused judicial deference
and saddled prisoners with unnecessary restrictions.
Such restrictions might be less significant if it were easy to eliminate unconstitutional restrictions through litigation, but, as Part IV
suggests, based on my personal experience litigating publication restrictions imposed by a jail in South Carolina, challenging even the
most irrational speech restrictions can require substantial time and resources. Part V expands the discussion to a broader set of impediments to litigation brought by prisoners. Prisoners litigating First
Amendment claims encounter an array of barriers, of which Turner is
but one. As a result of these obstacles, some litigation that could succeed even under the Turner standard is never brought, and invalid
speech restrictions remain in force.
Part VI considers the experience of RLUIPA and finds that it has
been at least moderately successful in improving protection of prisoners’ religious access rights without demonstrably compromising security. Finally, Part VII suggests that Congress or the Supreme Court
should follow the same model in revisiting the standard for speech
claims brought by prisoners.
I.

TURNER

IN THE

SUPREME COURT

In 1987, in Turner v. Safley,39 the Supreme Court of the United
States wrestled with the appropriate constitutional standard for restrictions on speech by incarcerated persons, a task complicated by
earlier authorities that pointed in opposite directions. In Pell v.
Procunier,40 a case dealing with media access to prisons, and in other
earlier decisions, the Court’s language buzzed with the words “deference” and “latitude”;41 judges, it was said, should not look too closely
at the day-to-day operations of prisons and jails.42 But in Procunier v.
Turner v. Safley, 482 U.S. 78 (1987).
Pell v. Procunier, 417 U.S. 817 (1974).
41 Id. at 826–27.
42 Bell v. Wolfish, 441 U.S. 520, 547 (1979) (“Finally, as the Court of Appeals correctly
acknowledged, the problems that arise in the day-to-day operation of a corrections facility are
not susceptible of easy solutions. Prison administrators therefore should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are
needed to preserve internal order and discipline and to maintain institutional security.”); Jones
v. N.C. Prisoners’ Labor Union, Inc., 433 U.S. 119, 125 (1977) (“The District Court, we believe,
39
40

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Martinez,43 a case about censorship of prisoners’ outgoing mail, the
Court spoke with a different voice.44 While acknowledging the view
that courts should afford “deference to the appropriate prison authorities,” the Court enunciated a test that suggested a heightened standard of review, one akin to intermediate—if not strict—scrutiny.45
Turner, then, lay at a crossroads: which Procunier would carry the
day?46 In the end, deference won—for the most part. The Court narrowed Procunier v. Martinez with a reading specific to its facts; its
more exacting standard was relegated to outgoing mail from a prisoner, as distinguished from speech entering a prison or occurring
within a prison.47
More specifically, Turner involved a challenge to two Missouri
prison regulations.48 The first banned prisoner correspondence with
other prisoners, with exceptions for legal correspondence and letters
with incarcerated members of one’s immediate family.49 The second
forbade prisoners from marrying anyone, whether a prisoner or not,
with limited exceptions.50
In considering the inmate correspondence ban, the Turner Court
wrote that its task was “to formulate a standard of review for prisoners’ constitutional claims” that balanced two conflicting considerations: the “policy of judicial restraint regarding prisoner complaints”
and “the need to protect constitutional rights.”51 While proclaiming
that “[p]rison walls do not form a barrier separating prison inmates
from the protections of the Constitution,” the Court underscored the
need for deference to the professional judgments of prison officials:
got off on the wrong foot in this case by not giving appropriate deference to the decisions of
prison administrators and appropriate recognition to the peculiar and restrictive circumstances
of penal confinement.”); Pell, 417 U.S. at 826 (“So long as reasonable and effective means of
communication remain open and no discrimination in terms of content is involved, we believe
that, in drawing such lines, ‘prison officials must be accorded latitude.’ ”) (quoting Cruz v. Beto,
405 U.S. 319, 321 (1972)).
43 Procunier v. Martinez, 416 U.S. 396 (1974).
44 Id. at 400, 405.
45 Id. at 413 (“First, the regulation or practice in question must further an important or
substantial governmental interest unrelated to the suppression of expression. . . . 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.”).
46 The lead defendant in the two earlier cases is the same person, Raymond K. Procunier,
Director of the California Department of Corrections. See id. at 398; Pell, 417 U.S. at 819.
47 See Turner v. Safley, 482 U.S. 78, 85–89 (1987).
48 Id. at 81.
49 Id. at 81–82.
50 Id. at 82.
51 Id. at 85 (quoting Procunier v. Martinez, 416 U.S. 396, 405 (1974)).

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Running a prison is an inordinately difficult undertaking that
requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the
legislative and executive branches of government. Prison administration is, moreover, a task that has been committed to
the responsibility of those branches, and separation of powers concerns counsel a policy of judicial restraint. Where a
state penal system is involved, federal courts have . . . additional reason to accord deference to the appropriate prison
authorities.52
In an attempt to give due regard to the competing interests, the
Court developed a four-part test. “First, there must be a ‘valid, rational connection’ between the prison regulation and the legitimate
governmental interest put forward to justify it”53—a standard much
lower than the strict scrutiny or even intermediate scrutiny ordinarily
applied to First Amendment claims in other contexts. This factor has
proven dispositive in other cases, and may justly be called the heart of
the Turner standard.54 The three additional factors identified in Turner are: (1) “whether there are alternative means of exercising the
right,” (2) “the impact accommodation of the asserted constitutional
right will have on guards and other inmates, and on the allocation of
prison resources generally,” and (3) whether “obvious, easy alternatives” to the challenged regulation exist.55
Applying this standard, the Court upheld the prisoner correspondence regulation.56 Justice O’Connor wrote that correspondence
among prisoners “is a potential spur to criminal behavior” and that
prohibiting prisoner-to-prisoner correspondence may further Missouri’s policy of “separating and isolating gang members” from each
52

Id. at 84–85.

53

Id. at 89 (quoting Block v. Rutherford, 468 U.S. 576, 586 (1984)).

See, e.g., Beard v. Banks, 548 U.S. 521, 532–33, (2006) (acknowledging that “the second,
third, and fourth factors, being in a sense logically related to the Policy itself, here add little, one
way or another, to the first factor’s basic logical rationale,” and stating: “The real task in this
case is not balancing these factors, but rather determining whether the Secretary shows more
than simply a logical relation, that is, whether he shows a reasonable relation”); Overton v. Bazzetta, 539 U.S. 126, 131–32 (2003) (“We need not attempt to explore or define the asserted right
of association at any length or determine the extent to which it survives incarceration because
the challenged regulations bear a rational relation to legitimate penological interests. This suffices to sustain the regulation in question.”); Thornburgh v. Abbott, 490 U.S. 401, 409 (1989)
(“[T]he relevant inquiry is whether the actions of prison officials were ‘reasonably related to
legitimate penological interests.’ ”) (quoting Turner, 482 U.S. at 89).
54

55

Turner, 482 U.S. at 90.

56

See id. at 91.

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other.57 But the Court went on to strike down the marriage ban, applying the same standard it had just articulated in upholding the correspondence ban.58 The Court viewed the prison’s concern that
marriage would foster excessive dependency by prisoners, undermine
rehabilitation, and promote “love triangles” as exaggerated.59
Turner marked the first and last time that the Turner standard
resulted in the invalidation of a prison regulation in a case before the
Supreme Court.60 In the decades since Turner was decided, the result
in prison First Amendment cases has always been the same: the prison
wins.61
Eight days after Turner was decided, the high Court handed
down O’Lone v. Estate of Shabazz,62 which extended the Turner standard to free exercise claims.63 A prison in New Jersey had allowed
Muslims to participate in the daily Jumu’ah, a weekly congregational
prayer required by their religion, in an area of the prison compound
known as “the Farm.”64 The prison, however, experienced problems
with prisoners on work assignments outside the prison leaving their
details for various reasons, including to participate in the Jumu’ah.65
In the view of prison administrators, this both created security
problems related to the movement of prisoners and detracted from
the rehabilitative function of work assignments.66 The prison therefore forbade prisoners with outside work assignments from returning
to the prison during their shifts—a policy that had the effect of
prohibiting prisoners with such assignments from participating in the
Jumu’ah.67
The Supreme Court, in an opinion by Chief Justice Rehnquist,
upheld the policy under the Turner standard.68 The opinion noted
both that the prison had experimented unsuccessfully with solutions
other than banning returns from outside work details, and that the
prison was solicitous of Muslim inmates practicing other aspects of
Id. at 91–92.
See id. at 97.
59 Id. at 97–98.
60 See Trevor N. McFadden, Note, When to Turn to Turner? The Supreme Court’s Schizophrenic Prison Jurisprudence, 22 J.L. & POL. 135, 143 (2006).
61 See id. at 144.
62 O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987).
63 Id. at 349–50.
64 Id. at 344–45.
65 See id. at 346.
66 See id. at 351.
67 See id. at 347.
68 See id. at 349–50.
57
58

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their religion.69 As in Turner, the Court took the “opportunity to reaffirm [its] refusal, even where claims are made under the First Amendment, to ‘substitute [its] judgment on . . . difficult and sensitive matters
of institutional administration.’”70
Two years later, the Supreme Court revisited regulations that
limit prisoners’ First Amendment rights in Thornburgh v. Abbott,71
which involved a Federal Bureau of Prisons’ policy that restricted the
publications prisoners could receive in the mail.72 The regulations at
issue allowed a federal prison warden to refuse to deliver a publication to a prisoner “if it is determined detrimental to the security, good
order, or discipline of the institution or if it might facilitate criminal
activity.”73
The majority opinion, written by Justice Blackmun, acknowledged that the challenged regulation countenanced content-based restrictions on speech, and that “[t]here is little doubt that the kind of
censorship just described would raise grave First Amendment concerns outside the prison context.”74 Nonetheless, the Supreme Court
upheld the regulation as reasonable in a prison context—not so much
for fear that the content of the publications would negatively affect
the recipient, but because “prisoners may observe particular material
in the possession of a fellow prisoner, draw inferences about their fellow’s beliefs, sexual orientation, or gang affiliations from that material, and cause disorder by acting accordingly.”75 While rejecting the
facial challenge to the regulation, the Court did not analyze whether
the censorship of particular publications under the regulation ran
afoul of the First Amendment; it passed this issue to the lower court
on remand.76
The Court remained silent on First Amendment rights in prison
for the next fourteen years, handing down Overton v. Bazzetta77 in
2003. Overton involved several restrictions on prisoner visits imposed
by the Michigan Department of Corrections.78 First, the Department
banned contact visits (meaning all interactions with visitors would oc69
70
71
72
73
74
75
76
77
78

See id. at 346, 352.
Id. at 353 (quoting Block v. Rutherford, 468 U.S. 576, 588 (1984)).
Thornburgh v. Abbott, 490 U.S. 401 (1989).
Id. at 403.
Id. at 404 (quoting 28 C.F.R. § 540.71(b) (1988)).
Id. at 407.
Id. at 412–13.
Id. at 419.
Overton v. Bazzetta, 539 U.S. 126 (2003).
Id. at 128.

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cur through a pane of glass) for those prisoners considered the most
dangerous.79 Second, children except for immediate family—defined
as children, stepchildren, grandchildren, or siblings of the prisoner—
were not permitted to visit prisoners.80 Third, if a prisoner had multiple substance abuse violations, he or she could not receive any visitors
other than attorneys and clergy.81
The Court, in an opinion by Justice Kennedy, upheld these and
other visitation regulations.82 While asserting that “freedom of association is among the rights least compatible with incarceration,” the
Court applied the Turner standard, rather than establishing an even
weaker standard for prisoners’ associational claims.83 The Court
found that the prison’s interest in limiting visitation, including “reducing the total number of visitors,” “limiting the disruption caused by
children in particular,” and disciplining prisoners who abused drugs all
provided reasonable justifications for the challenged policies.84
The Supreme Court’s most recent pronouncement regarding the
First Amendment rights of prisoners came in 2006 in Beard v. Banks.85
The case involved a challenge to conditions in Pennsylvania’s Long
Term Segregation Unit (“LTSU”), a tier designed to hold some forty
prisoners, deemed by the corrections department to be the “most incorrigible, recalcitrant inmates” in the state.86 When it came to communications with the outside world, restrictions were severe: phone
calls were banned except in emergencies; prisoners could receive but
one visit each month; and newspapers and magazines were off-limits.87
The prison authorities contended that these severe restrictions were
necessary to incent better behavior.88 By improving their conduct,
these “incorrigible” prisoners could ascend a ladder of expanding
privileges.89
The case did not produce a majority opinion, and the judgment
was cobbled together from a plurality opinion by Justice Breyer
(joined by Chief Justice Roberts, Justice Kennedy, and Justice Souter)
79
80
81
82
83
84
85
86
87
88
89

Id. at 130.
Id. at 129.
Id. at 130.
Id. at 131, 133–34, 137.
Id. at 131–32.
Id. at 133–34.
Beard v. Banks, 548 U.S. 521 (2006).
Id. at 525 (citation omitted).
Id. at 526.
Id. at 531.
Id. at 526, 531.

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and a concurring opinion by Justice Thomas (joined by Justice
Scalia).90 Justice Stevens, joined by Justice Ginsburg, dissented, and
Justice Alito took no part in the decision.91
The plurality opinion held that Pennsylvania’s rehabilitative goals
justified the severe restrictions on the First Amendment interests of
LTSU prisoners.92 As the opinion acknowledged, the posture by
which Beard came to the Court was somewhat unique.93 When the
prisoners opposed summary judgment, they did not submit “any factbased or expert-based refutation”—so the plaintiffs were stuck on appeal with the defendants’ version of the facts.94
In his concurrence, Justice Thomas expanded on an earlier concurrence in Overton, setting forth the view that the First Amendment
has no role to play in the judicial review of prison policies.95 In Justice
Thomas’s view, the Constitution does not provide any “implicit definition of incarceration,” leaving the states “free to define and redefine
all types of punishment, including imprisonment, to encompass various types of deprivations,” subject to only one constraint—the Eighth
Amendment.96 In short, if a prison policy does not constitute cruel
and unusual punishment, the policy must stand, for constitutional provisions external to the Eighth Amendment do not apply behind bars.
Justice Thomas complained of “the shortcomings of the Turner framework,” suggesting that he (and Justice Scalia, who joined the opinion)
would overrule Turner if given the chance.97
While Justices Thomas and Scalia spurned Turner, six Justices
wrote or joined opinions that applied and endorsed Turner—the plurality opinion by Justice Breyer and the dissents by Justices Stevens
and Ginsburg.98 These opinions deserve a careful reading because
they shed light on a question central to this Article: according to a
majority of the Supreme Court, in its most recent ruling on the First
Amendment in prisons, how much bite does the Turner standard
have?
See id. at 524, 536.
See id. at 536, 542.
92 See id. at 530–32.
93 Id. at 527–28.
94 Id. at 534.
95 Id. at 537–40 (Thomas, J., concurring) (quoting Overton, 539 U.S. at 139 (Thomas, J.,
concurring)).
96 Id. at 537.
97 See id. at 540–41 (Thomas J., concurring).
98 See, e.g., id. at 555 (Ginsberg, J., dissenting) (“Turner deference can and should be incorporated into the evaluation of a motion for summary judgment . . . .”).
90
91

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The answer that emerges from the case is that the Turner standard, although deferential to prison administrators, is not meant to be
devoid of rigor. Although the plurality voted for entry of summary
judgment against the prisoners before them, their opinion asserted
that the Turner standard is not an insurmountable barrier for all
prisoners:
[W]e do not suggest that the deference owed prison authorities makes it impossible for prisoners or others attacking a
prison policy like the present one ever to succeed or to survive summary judgment. After all, the constitutional interest
here is an important one. Turner requires prison authorities
to show more than a formalistic logical connection between a
regulation and a penological objective. A prisoner may be
able to marshal substantial evidence that, given the importance of the interest, the Policy is not a reasonable one. Cf.
[Turner,] 482 U.S. at 97–99 . . . (striking down prison policy
prohibiting prisoner marriages).99
In short, as far as the Beard plurality was concerned, Turner review, although deferential, is also meaningful and should result in the
invalidation of at least some regulations. That, after all, is precisely
what happened with the marriage ban in Turner, as the Beard plurality underscored above.100
The dissenting Justices, of course, would have struck down the
LTSU regulations and therefore advanced an even more robust form
of Turner review than the plurality. Justice Stevens, joined by Justice
Ginsburg, opined that “the record is insufficient to conclude, as a matter of law,” that the Turner standard was satisfied.101 Justice Ginsburg, writing a separate dissent as well, asserted that “prison officials
‘cannot avoid court scrutiny by reflexive, rote assertions,’” and that
“[t]raditional deference does not mean that courts [are to] abdicat[e]
their duty to protect those constitutional rights that a prisoner retains.”102 In her view, Turner requires prison officials to do more
when confronted with a First Amendment challenge than “to say, in
our professional judgment the restriction is warranted.”103 In short,

99

Id. at 535–36 (plurality opinion).

100

See id.

101

Id. at 552 (Stevens, J., dissenting).

Id. at 554–55 (Ginsburg, J., dissenting) (first quoting Shimer v. Washington, 100 F.3d
506, 510 (7th Cir. 1996); then quoting Banks v. Beard, 399 F.3d 134, 140 (3d Cir. 2005)).
102

103

Id. at 556.

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six of the eight Justices who participated in Beard described Turner
review as more than a rubber stamp.104
Although Justices Thomas and Scalia, as noted above, believe
that prisoners should receive no First Amendment protection, they,
too, agree that the standard, as it now exists, has at least some bite. In
Johnson v. California,105 the Supreme Court held that strict scrutiny
applies to racial discrimination claims brought by prisoners.106 Justice
Scalia joined Justice Thomas in dissent, arguing that Turner should
apply to such claims, and that Turner does not require absolute
deference:
[T]he majority presents a parade of horribles designed to
show that applying the Turner standard would grant prison
officials unbounded discretion to segregate inmates throughout prisons. But we have never treated Turner as a blank
check to prison officials. Quite to the contrary, this Court
has long had “confidence that . . . a reasonableness standard
is not toothless.”107
II.

TURNER

IN THE

LOWER COURTS

Turner is not meant to be toothless, but, as this Part shows, decisions by the lower federal courts sometimes render it so. Prison
speech restrictions do not always survive Turner review in the lower
courts, nor do all judges misapply the standard. The point, rather, is
this: regulations founded on flimsy rationales get upheld frequently
enough, and the reasoning is often poor enough that there is cause for
alarm. The analysis in this section adds further support to the view of
Clay Calvert and Kara Carnley Murrhee that prisoners face a “steep,
uphill battle . . . when fighting for their First Amendment
rights . . . .”108
104 Others have argued that Beard sounded the death knell for any meaningful review
under Turner. See Burns, supra note 20, at 1253–58 (arguing that Beard distorted Turner and
applied too much deference by treating rehabilitation, as opposed to only safety, as a legitimate
penological interest); Stanley Wu, Note, Persona Non Grata in the Courts: The Disappearance of
Prisoners’ First Amendment Constitutional Rights in Beard v. Banks, 28 WHITTIER L. REV. 981,
1001, 1005–06 (2007) (arguing that Beard was incorrectly decided and overly deferential to
prison administrators). As shown above, however, a majority of the Beard Court reaffirmed the
proposition that Turner requires a genuine connection between a regulation and a penological
interest.
105 Johnson v. California, 543 U.S. 499 (2005).
106 Id. at 509.
107 Id. at 524, 547 (Thomas, J., dissenting) (quoting Thornburgh v. Abbott, 490 U.S. 401,
414 (1989)).
108 Calvert & Murrhee, supra note 20, at 269.

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A. Hatch v. Lappin (First Circuit)
Richard Hatch was the winner in the first season of Survivor, a
reality television show, and the victory brought him a large monetary
award.109 But fortune turned when he was convicted of evading taxes
on the payout.110 After serving a period in federal prison, he was
placed on house arrest for the balance of his sentence.111 NBC received permission from the Federal Bureau of Prisons to interview
Hatch in his home, where Hatch complained to the media that he had
been wrongfully convicted and that prosecutors had engaged in misconduct.112 Later in the day, an attorney who prosecuted Hatch went
on the air with a local radio station and responded to Hatch’s comments made in the NBC interview.113 Hatch then called into the radio
station.114 The federal authorities responded by taking Hatch back to
prison for the rest of his sentence, on the grounds that he lacked authorization to engage with the media, save for a single interview with
NBC’s Today Show.115
Hatch sought a writ of habeas corpus returning him to house arrest, and the district court refused.116 The court found that the rule
requiring preauthorization of media interviews was justified by a legitimate “interest in enforcing a rule that prohibits inmates in home confinement from being in the presence of a person with a criminal
record or someone possessing a deadly weapon and/or controlled substances.”117 The court did not even acknowledge that Hatch’s call to
the radio station hardly placed him in another’s presence—he made
the call from his house.118 In a one-paragraph order, the First Circuit
affirmed the ruling.119
109 See Kelly Phillips Erb, Once a Survivor, Always a Survivor: Richard Hatch Speaks Out
on Taxes, IRS, FORBES (May 2, 2012, 9:16 AM), http://www.forbes.com/sites/kellyphillipserb/
2012/05/02/once-a-survivor-always-a-survivor-richard-hatch-speaks-out/.
110 Hatch v. Lappin, 660 F. Supp. 2d 104 (D. Mass. 2009); see Erb, supra note 109.
111 See ‘Survivor’ Hatch Behind Bars for TV Interviews, TODAY NEWS (Aug. 19, 2009, 5:10
PM), http://www.today.com/id/32468188/ns/today-today_news/t/survivor-hatch-behind-bars-tvinterviews/#.VNVWHivF9jY.
112 See id.
113 See id.
114 See id.
115 Hatch v. Lappin, 660 F. Supp. 2d 104, 107 (D. Mass. 2009) (describing that NBC sent
three “units” to each interview Hatch: the Today Show, Access Hollywood, and the station’s
local affiliate); see also Erb, supra note 109.
116 See Hatch, 660 F. Supp. 2d at 107.
117 Id. at 109.
118 See id. at 107.
119 Hatch v. Lappin, No. 09-2361, slip op. at 1 (1st Cir. Oct. 7, 2009).

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B. Munson v. Gaetz (Seventh Circuit)
James Munson had an array of medical conditions, and prison
doctors prescribed him a complex cocktail of medications that staff
distributed to him.120 However, for nearly two weeks, a staff member
accidentally administered another prisoner’s medication to Munson—
an error that could have resulted in serious complications, or even
death, due to drug interactions.121 Munson therefore educated himself
at the prison library about drug interactions and side effects.122 Because he found that access to the library was limited, and that he had
to wait long periods of time to check out books, he ordered his own
copies of several medical publications, including the Physicians’ Desk
Reference, from a vendor authorized by the prison.123
The prison refused to deliver the Physicians’ Desk Reference, memorializing the reason for rejection—“DRUGS”—on a standard
form.124 This was sufficient for the appellate court: “Quite simply, the
prison gave the books’ drug-related content as one of the reasons justifying its decision to restrict Munson’s access to the books and we
don’t need to look beyond the books’ titles and the content of Munson’s complaint to know that the books contain information about
drugs.”125
The court acknowledged, but then brushed aside, a fact that
threw the consistency of the prison’s policies into serious question: the
same publication was available to prisoners in the library, but, as the
court posited, “[a]llowing reduced access does not mean that barring
unfettered access is illegitimate, even if restricted access creates an
appearance of inconsistency.”126 The court went on to unanimously
affirm the dismissal of Munson’s complaint under Federal Rule of
Munson v. Gaetz, 673 F.3d 630, 631 (7th Cir. 2012).
Id.
122 Id.
123 Id. at 631–32.
124 Id. at 632. The prison also refused to deliver another book, the Complete Guide to
Prescription & Nonprescription Drugs 2009, for the same reasons as the Physicians’ Desk
Reference:
[The] publication review officer Lisa Shemonic decided Munson could not have the
[two books]. To justify the decision, Shemonic provided three reasons for both
books. Shemonic simply checked the available boxes for the first two reasons: the
books were “listed on the Disapproved Publications List,” and the books contained
material deemed “otherwise detrimental to security, good order, rehabilitation, or
discipline, or it might facilitate criminal activity or be detrimental to mental
health.”
Id.
125 Id. at 633.
126 Id. at 637.
120
121

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Civil Procedure 12(b)(6).127 In the court’s view, in other words, even
drawing all reasonable inferences in Munson’s favor, no rational person could fail to conclude that prohibiting delivery of a book available
in the library was reasonable under Turner.128
C. Singer v. Raemisch (Seventh Circuit)
Kevin Singer enjoyed the role-playing game Dungeons & Dragons, and incarceration in a Wisconsin prison did not dampen his passion for the game.129 For two years, he ordered and received
Dungeons & Dragons materials while in prison, all “without incident.”130 But the prison employed a gang specialist, Muraski, who received an anonymous letter from another prisoner suggesting that
Singer was attempting to form a “gang” centered on Dungeons &
Dragons.131 Muraski, alarmed, resolved to “check into this gang
before it gets out of hand.”132 Muraski confiscated an array of books
and magazines related to the game from Singer’s cell.133 Muraski told
Singer that going forward, “inmates are not allowed to engage in or
possess written material that details rules, codes, dogma of games/activities such as ‘Dungeons and Dragons’ because it promotes fantasy
role playing, competitive hostility, violence, addictive escape behaviors, and possible gambling.”134
After bringing suit, Singer obtained affidavits from eleven prisoners and three experts in role playing games, all of which made, in substance, the same point: Dungeons & Dragons bears no relationship to
gang activity.135 Indeed, as some of the affidavits continued, the game
may even “help[ ] rehabilitate inmates and prevent[ ] them from joining gangs and engaging in other undesirable activities.”136 Prison, after all, is a monotonous place in which forced idleness can breed
agitation and restlessness; distractions are therefore often salutary.
The “inmate affiants—who collectively served over 100 years in
prison—all testified that they had never heard of any gang-related or
127

Id. at 638.

128

See id. at 632–33 (summarizing standards to be applied).

129

Singer v. Raemisch, 593 F.3d 529, 531–32 (7th Cir. 2010).

130

Id. at 532.

131

Id.

132

Id.

133

Id.

134

Id.

135

See id. at 533.
Id.

136

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other violent activity associated with [Dungeons & Dragons]
gameplay or paraphernalia.”137
The prison agreed with Singer that Dungeons & Dragons had
never caused a gang problem.138 The prison responded to Singer’s evidence with one affidavit—Muraski’s—and moved for summary judgment.139 Muraski made a series of poorly supported assertions:
[Muraski] explained that the policy was intended to promote
prison security because co-operative games can mimic the
organization of gangs and lead to the actual development
thereof. Muraski elaborated that during [Dungeons & Dragons] games, one player is denoted the “Dungeon Master.”
The Dungeon Master is tasked with giving directions to
other players, which Muraski testified mimics the organization of a gang. At bottom, his testimony about this policy
aim highlighted [the prison’s] worries about cooperative activity among inmates, particularly that carried out in an organized, hierarchical fashion. Muraski’s second asserted
governmental interest in the [Dungeons & Dragons] ban was
inmate rehabilitation. He testified that [Dungeons & Dragons] can “foster an inmate’s obsession with escaping from
the real life, correctional environment, fostering hostility, violence and escape behavior,” which in turn “can compromise
not only the inmate’s rehabilitation and effects of positive
programming but also endanger the public and jeopardize
the safety and security of the institution.140
The court accepted all of these arguments, granted summary
judgment, and upheld the regulation under Turner.141
D. Hause v. Vaught (Fourth Circuit)
Stephen Hause, confined in a county jail in South Carolina, challenged a policy that forbade detainees from receiving any books or
periodicals in the mail.142 The prison argued that publications could
be used for smuggling contraband into the jail, and that publications
contain paper, which can be used to set fires.143 As for the “fires”
rationale, detainees were allowed to receive (equally flammable) let137
138
139
140
141
142
143

Id. at 536.
Id.
Id. at 533.
Id. at 535.
Id. at 537–40.
Hause v. Vaught, 993 F.2d 1079, 1081 (4th Cir. 1993).
Id. at 1082–83.

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ters from friends and family.144 The court explained away this inconsistency: “[I]n our view the efforts of prison administrators to
accommodate First Amendment rights by allowing inmates to receive
correspondence should not be weighed against them in considering
other measures adopted in the interest of security.”145 But the correct
question under Turner was not what should be “held against” a jail,
but whether the prohibition of books and magazines, considered in
light of the fact that letters were permitted, furthered a penological
interest.146
Addressing the smuggling rationale, the court dismissed the possibility that the jail could allow detainees to receive publications only
from publishers.147 The court speculated, without any evidence in the
record beyond the fact that Hause himself was not incarcerated at the
jail for long, that “most publications sent from publishers and book
clubs will arrive after a detainee has been transferred to another facility or released from confinement.”148 The appellate court then affirmed the district court’s grant of summary judgment for the jail.149
E. Prison Legal News v. Livingston (Fifth Circuit)
The Texas prison system refused to deliver to prisoners five books
distributed by Prison Legal News, and Prison Legal News brought
suit.150 One of the books, Women Behind Bars, a monograph on the
treatment of women in prison, was censored in its entirety based on a
single sentence: “The dark secret of her life was that she had been
forced to perform fellatio on her uncle when she was just four years
old.”151 Delivery was refused because a prison official believed the
sentence in question “could impair the rehabilitation of sex offenders
or cause disruptive outbursts by prisoners who were similarly
victimized.”152
The official later changed her mind.153 As the court recognized,
“[p]resumably, the decision to approve the book indicates that [she]
does not believe the once-censored passage actually poses a threat to
144
145
146
147
148
149
150
151
152
153

Id. at 1083–84.
Id. at 1083.
Turner v. Safley, 482 U.S. 78, 89 (1987).
Hause, 993 F.2d at 1083.
Id.
Id. at 1086.
Prison Legal News v. Livingston, 683 F.3d 201, 207 (5th Cir. 2012).
Id. at 210.
Id. at 217.
Id.

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[the prison system’s] legitimate goals.”154 Despite this rather significant fact in the plaintiff’s favor, the court posited that “this reassessment alone does not establish that the past exclusion was necessarily
unreasonable.”155 The court itself deemed it “unlikely” that the passage would cause any problems, but went on to hold that censorship of
the entire book still satisfied the standards set forth in Turner and
Thornburgh:
Though it seems unlikely that the brief, non-explicit passage
in Women Behind Bars would create a significant threat to a
prison’s legitimate goals, in light of the Supreme Court’s recognition in Thornburgh that “prison officials may well conclude that certain proposed interactions, though seemingly
innocuous to laymen, have potentially significant implications for . . . order and security,” [Prison Legal News] must
do more to meet its burden than merely assert that [the] policy is unreasonable. As with the other books, [Prison Legal
News] has not produced evidence that contradicts the rationality of [the] exclusion of Women Behind Bars.156
The court then upheld Texas’s decision to ban the book throughout all
of its prisons and affirmed the lower court’s grant of summary
judgment.157
All of the cases discussed above, but perhaps Singer most starkly,
raise a troubling question: If the Dungeons & Dragons ban and similar
restrictions survived Turner review, what could flunk it? After all, the
plaintiff in Singer put forth what the court called “an impressive trove
of affidavit testimony”—all of which disclaimed any connection between the game and the formation of gangs—and there was no evidence that Dungeons & Dragons had ever contributed to gang
incidents or gang formation.158 The prison put forth one witness, albeit a gang specialist, who speculated about negative effects he associated with the game.159 In the appellate panel’s unanimous view, this
did not even create an issue of fact under Turner and warranted summary judgment for the prison160—meaning that no rational person
could doubt that the constitutional standard was satisfied.161
154
155
156
157
158
159
160
161

Id.
Id.
Id. (citations omitted).
Id. at 224.
See Singer v. Raemisch, 593 F.3d 529, 536 (7th Cir. 2010).
See id. at 533.
See id. at 538.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (stating that for a plaintiff

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It also bears mention that in most of the cases cited in Part II
(Hause, Livingston, Munson, Singer), the defendant prevailed despite
a procedural posture supposedly generous to the plaintiff (summary
judgment or a motion to dismiss).162 In these decisions, the Turner
standard, deferential in theory, became toothless in practice.
III. TURNER

ON THE

GROUND

Although the lower court decisions discussed in the previous Part
accord excessive deference to speech restrictions, the picture on the
ground in prisons and jails—evident in policies and practices that may
never see the inside of a courtroom—is even more concerning. The
examples cited in this section demonstrate that corrections officials
abuse, with some frequency, the discretion granted to them by Turner
and its progeny. If the purpose of Turner was to strike a reasonable
balance between the challenges of administering a correctional institution and the free speech interests of prisoners, the examples below
suggest that recalibration is necessary.
A. Challenging a Jail’s Censorship of Bible Passages
In 2009, a woman sent letters to her son, who was incarcerated at
the Rappahannock Regional Jail in Virginia.163 These letters often
quoted passages from the Bible.164 Upon receiving the letters, the jail
cut out the biblical passages with scissors or a hobby knife, delivering
to the son missives with large holes.165 For example, because the jail
excised Biblical passages, in one instance, all the son received of a
three-page letter from his mother was the salutation, the first paragraph of the letter, and the closing, “Love, Mom.”166 The written reason given by jail staff for censorship of this nature was sometimes
“Internet Pages” and sometimes “Religious Material from Home.”167
While working as an attorney for the American Civil Liberties
Union, I wrote a public letter to the superintendent of the jail comto survive summary judgment there need only “be evidence on which the jury could reasonably
find for the plaintiff”).
162 Sharon Dolovich has found that on the Supreme Court level, deference in prison cases
has been used to “justify the altering of existing procedural rules.” Dolovich, supra note 20, at
246.
163 Letter from David M. Shapiro, Staff Counsel, Nat’l Prison Project of the Am. Civil
Liberties Union, et al., to Joseph Higgs, Jr., Superintendent of Rappahanock Regional Jail 1
(July 9, 2009), https://www.aclu.org/files/pdfs/prison/lettertosuperintendenthiggs.pdf.
164 Id.
165 Id.
166 Id.
167 Id.

R

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plaining of the censorship, and was joined by various religious groups:
the Becket Fund for Religious Liberty, the Friends Committee on National Legislation, the Prison Fellowship, the Rutherford Institute,
and the Virginia Faith Center for Public Policy.168 The Reverend Pat
Robertson then featured the issue on his show, the 700 Club, and declared on national television, “This is horrible. It’s happening in Virginia of all places, and whoever did that in that jail needs to get fired.
Just that simple, needs to be fired.”169 Other media outlets carried the
story as well.170 Ultimately, in response to the public pressure, the jail
backed down and changed its policy.171
B. Case Law and Medical Textbooks Prohibited
In Arizona, a prisoner had copies of legal decisions sent to him
while working to appeal his criminal conviction.172 However, the cases
were prohibited by the mailroom as contraband because “he was not a
party in the cases and they involved prisoners other than him, and the
decisions detailed facts about other prisoners’ crimes.”173 The same
prisoner’s mother sent him copies, through an approved outside vendor, of medical books, including Gray’s Anatomy.174 He wanted these
books because they related to anatomical and medical issues germane
to his appeal.175 The prison prohibited these books for two reasons.176
First, if the prisoner “became more knowledgeable about his medical
conditions, he might request more health care.”177 Second, some anatomical diagrams in the books were deemed “sexually explicit.”178
The prisoner proposed removing the “sexually explicit” pages so he
See id. at 5.
Charlene Aaron, ACLU, Religious Groups Question Jail Censorship, CBN NEWS (July
16, 2009), http://www.cbn.com/cbnnews/us/2009/July/ACLU-Religious-Groups-Question-JailCensorship (video at link for Pat Robertson’s comments beginning at 3:20).
170 See, e.g., Jail Removes Bible Verses from Letters to Inmate; ACLU on Case, USA TODAY (July 16, 2009, 1:25 PM), http://usatoday30.usatoday.com/news/religion/2009-07-16-aclu-bi
ble-prison_N.htm; Rappahannock Regional Jail Lets God Back In, NBC WASHINGTON (Aug. 10,
2009, 5:36 PM), http://www.nbcwashington.com/news/local/Rappahannock-Regional-Jail-LetsGod-Back-In-52907247.html.
171 Press Release, Am. Civil Liberties Union, Virginia Jail Ends Censorship of Religious
Material After ACLU Letter (Aug. 10, 2009), https://www.aclu.org/prisoners-rights_religion-be
lief/virginia-jail-ends-censorship-religious-material-after-aclu-letter.
172 E-mail from Corene Kendrick, Staff Att’y at Prison Law Office, to David Shapiro (Aug.
25, 2014, 14:45 EST) (on file with author).
173 Id.
174 Id.
175 Id.
176 See id.
177 Id.
178 Id.
168
169

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could receive the remainder of the publications.179 The prison
refused.180
The prisoner attempted to have his mother photocopy and send
him the five most relevant pages of Gray’s Anatomy.181 The prison
rejected this solution as well, “in the interest of upholding federal
law.”182 The prison was concerned that the mother’s copying of the
pages “might be a violation of copyright law.”183
C. Lunar Maps Deemed to Create Escape Risk
It is common for prisoners to prohibit maps because they may
prove useful to prisoners who manage to escape from the walls of
their institution. But a New York prison took this concern to an extreme—it “deemed all maps to present risks of escape, and pursuant
to this edict maps of the Moon and other planets were removed from
the prison library.”184
D. Crime Novels and Malcom X Biography Forbidden
A jail in Washington, D.C. bans The Autobiography of Malcom X
on the grounds that it promotes racial antagonism.185 The same jail
prohibits detective novels by George Pelecanos because they deal
with crime.186
E. President’s Books Rejected as a National Security Threat
The Federal Bureau of Prisons refused two requests by a prisoner, who was convicted of being a member of Al Qaeda and planning
to assassinate George W. Bush, to receive two of President Obama’s
books, Dreams From My Father and The Audacity of Hope.187 The
Bureau’s rejections stated that the contents of the books were “potenId.
Id.
181 Id.
182 Id.
183 Id.
184 See Brief of the Correctional Association of New York as Amicus Curiae Supporting
Respondent at 13 n.14, Thornburgh v. Abbott, 490 U.S. 401 (1989) (No. 87-1344), 1988 WL
1025666, at *14 n.14.
185 E-mail from Deborah Golden, Project Dir., D.C. Prisoners’ Project, to David Shapiro
(Aug. 25, 2014, 15:15 EST) (on file with author).
186 Id.
187 See Obama Books OK’d for Inmates, L.A. TIMES (July 11, 2009), http://articles.latimes.com/2009/jul/11/nation/na-briefs11.S2.
179
180

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tially detrimental to national security.”188 The Bureau later reversed
course.189
F. Cat Picture Banned
In New York, a prisoner was forbidden to receive “a glossy, largeformat publication” about political prisoners.190 An attorney pressed
the prison, unsuccessfully, to change course:
[T]he prisoner appealed and I wrote a letter in support,
pointing out that what the publication actually advocated
was . . . communicating with public officials and elected representatives to advocate executive clemency or parole for the
individuals involved. On appeal, the central office media review committee struck down all the justifications for censorship save one—the presence of a photo, no larger than two
inches square, of the famous Lowndes County Black Panther
Party poster depicting a large black feline stalking toward
the viewer. This, they said, was a gang symbol. I wrote further to point out (a) the Black Panthers were not a gang,
(b) they have been defunct for some decades, and (c) the
New Black Panther Party has nothing to do with it and indeed has been denounced by many of its survivors. This was
all to no avail.191
G. Journals Censored for Summaries of Judicial Decisions
The federal Supermax prison in Florence, Colorado prohibits any
material sent by mail to a prisoner in the facility that references another prisoner in the facility.192 This rule has been applied to ban entire issues of the legal information journal Prison Legal News that
contain summaries of judicial decisions involving other prisoners.193
For example, the entire July 2013 issue of Prison Legal News was
banned due to an article entitled Tenth Circuit: No Section 2241 Jurisdiction for BOP Supermax Challenge; Claims Must be Brought as Bivens Action.194
Id.
Id.
190 E-mail from John Boston, Project Dir., Prisoners’ Rights Project, Legal Aid Society, to
David Shapiro (Aug. 25, 2014, 13:15 EST) (on file with author).
191 Id.
192 See Complaint at 5–6, Prison Legal News v. Fed. Bureau of Prisons, No. 15-cv-2184 (D.
Colo. filed Oct. 1, 2015). The author of this Article was counsel for Prison Legal News in this
litigation.
193 See id. at 6–8.
194 See id. at 6, 8; Tenth Circuit: No Section 2241 Jurisdiction for BOP Supermax Challenge;
188
189

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H. Complete Newspaper and Magazine Ban
Despite numerous cases invalidating total bans on prisoners’ receipt of newspapers and magazines, some jails continue to impose
such bans anyway.195 The jail in Reno County, Kansas banned all
newspapers until the Tenth Circuit invalidated the rule in 1999.196 The
proffered reason for the restriction—paper can be used to start fires—
was unpersuasive to the court because prisoners were allowed Bibles
and other paperback books that could be used for the same purpose.197 The next year, the Fifth Circuit rejected a jail’s attempt to use
similar rationales to justify a ban on all magazines sent by mail.198
From 2008 to 2010, the Berkeley County Jail in South Carolina refused to deliver books and magazines, writing “no magazines” and
“books not allowed” on the returned items.199
In some jails, the rules are so unclear that de facto publication
bans result. Indeed, as one district court wrote in 2013 about a large
jail in Arizona:
Despite the absence of a formal policy governing magazines
and newspapers, the practice in the mailroom was to ban
them. Detention Aides McBirnie, Hensley-Salisberry, and
Claims Must Be Brought as Bivens Action, PRISON LEGAL NEWS (July 15, 2013), https://www.
prisonlegalnews.org/news/2013/jul/15/tenth-circuit-no-section-2241-jurisdiction-for-bopsupermax-challenge-claims-must-be-brought-as-bivens-action/.
195 See, e.g., Johnson v. Forrest Cty. Sheriff’s Dep’t, No. 98-60556, 2000 WL 290118, at *1
(5th Cir. Feb. 15, 2000) (per curiam) (“A blanket ban on newspapers and magazines on the basis
that they constitute a fire hazard or pose a threat to plumbing violates the First Amendment.”);
Thomas v. Leslie, Nos. 97-3346, 97-3361, 1999 WL 281416, at *7 (10th Cir. Apr. 21, 1999) (finding
that an “absolute ban on newspapers” violates the First Amendment); Crofton v. Roe, 170 F.3d
957, 960–61 (9th Cir. 1999) (striking down prison ban on gift publications); Sizemore v. Williford,
829 F.2d 608, 610 (7th Cir. 1987) (noting that prisoners have a “First Amendment right to receive
and to read newspapers and periodicals”); Green v. Ferrell, 801 F.2d 765, 772 (5th Cir. 1986)
(holding that jail’s prohibition on newspapers violates First Amendment); Mann v. Smith, 796
F.2d 79, 82 (5th Cir. 1986) (finding a “policy that forbade inmates to receive or possess newspapers and magazines” violated First Amendment); Wilkinson v. Skinner, 462 F.2d 670, 673 n.5 (2d
Cir. 1972) (noting that “refusal to deliver a newspaper would ordinarily be interference with
appellant’s First Amendment rights”); Parnell v. Waldrep, 511 F. Supp. 764, 768 (W.D.N.C.
1981) (“The prohibition of virtually all reading materials deprives the inmates of their First
Amendment right to receive information and ideas.”); Hutchings v. Corum, 501 F. Supp. 1276,
1299 (W.D. Mo. 1980) (concluding that “defendants absolute denial of access to newspapers
violates the inmates’ First Amendment guarantees”); U.S. ex rel. Manicone v. Corso, 365 F.
Supp. 576, 577 (E.D.N.Y. 1973) (ordering jail to “permit petitioner reasonable access to current
newspapers”); Payne v. Whitmore, 325 F. Supp. 1191, 1193 (N.D. Cal. 1971) (striking down jail’s
total prohibition on receiving newspapers and magazines by mail).
196 See Thomas, 1999 WL 281416, at *5, *7–8.
197 See id. at *5, *7.
198 See Johnson, 2000 WL 290118, at *1.
199 See infra Part IV.

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Romero all believed newspapers and magazines were
banned. Likewise, Sergeant Delgado and Lieutenant Rushing believed that newspapers and magazines were contraband and should be immediately rejected.200
In 2014, yet another federal court, this time in Georgia, struck
down a policy prohibiting prisoners from receiving publications by
mail.201 Meanwhile, in Allen County, Kansas, a detainee inquired
about the jail’s publication policies, and an official responded: “The
jail does not allow newspapers or magazines no exceptions!!!!!!”202
I. Mail Rejected for Incoherent Reasons
A mail log obtained from the Berkeley County Detention Center
in South Carolina revealed that the facility rejected mail sent to detainees for various unnecessary and contradictory reasons.203 On July
22, 2010, a staff member refused to deliver mail, writing “photo to
small.”204 Eight days later, a staff member wrote the opposite reason,
“photo 2 big.”205 Other reasons for rejection of mail included: “‘photo
of a dog,’ ‘business card,’ ‘pamphlets not allowed,’ ‘dictionary,’ ‘bookmark,’ and ‘sonogram’ (presumably sent by a pregnant loved one).”206
Between 2008 and 2011, the jail rejected mail at least sixteen times for
containing jokes, at least nine times for containing song lyrics, and
more than three hundred times for containing tri-fold cards.207
J. Publication Censored for Containing Certain Pages Then
Censored for Not Containing the Same Pages
The Movement is a publication that contains “legal news, political
analysis, human rights reports, interviews with and articles by community activists and professionals, academic essays, [and] letters and arti200 Prison Legal News v. Babeu, 933 F. Supp. 2d 1188, 1197 (D. Ariz. 2013), reconsideration
denied, No. CV 11-01761-PHX-GMS, 2013 WL 1832080 (D. Ariz. May 1, 2013), aff’d mem., 552
F. App’x 747 (9th Cir. 2014).
201

Prison Legal News v. Chapman, 44 F. Supp. 3d 1289, 1311 (M.D. Ga. 2014).

Letter from Doug Bonney, Chief Counsel & Legal Dir., Am. Civil Liberties Union
Found. of Kan., to Alan D. Weber, Allen Cty. Counselor (Apr. 3, 2014), https://aclukansas.org/
wp-content/uploads/2014/04/2014.04.03-Allen-County-newspaper-magazine-ban-demand.pdf.
202

203 See Plaintiffs’ Memorandum in Support of Motion for Preliminary Injunction at 25–26,
Prison Legal News v. DeWitt, No. 2:10-cv-02594-MBS (D.S.C. filed May 4, 2011).
204

Id. at 25.

205

Id.

206

Id.

207

Id. at 25–26.

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cles by prisoners and their families . . . .”208 One issue of the
publication was censored by a Pennsylvania prison on the ground that
five particular pages inter alia, advocated violence or were racially inflammatory.209 The publisher then re-sent the issue with the five offending pages removed.210 The second mailing was also rejected—this
time, the rationale was that a sender is forbidden to alter a
publication.211
K. Postcard-Only Policies
In recent years, many jails have imposed “postcard only” policies,
under which prisoners may send and receive only postcards, rather
than letters contained in envelopes.212 In the view of some jail officials, such policies save staff time by removing the need to open envelopes and search for contraband.213 In 2014, an ACLU attorney
mailed letters in envelopes to twenty-five detainees in the Livingston
County Jail in Michigan, seeking to communicate with prisoners in
building a legal challenge to the jail’s postcard-only policy.214 The jail,
in turn, confiscated the letters under the postcard-only policy, even
though they were clearly marked “Legal Mail.”215 The district court
granted a preliminary injunction striking down the jail’s postcard-only
policy as applied to legal mail.216 Meanwhile, in California, a jail applied its postcard-only policy to prevent detainees from receiving copies of legal cases sent by mail.217
208 Complaint at 16, Holbrook v. Jellen, No. 3:14-cv-00028 (M.D. Pa. filed Oct. 17, 2014).
The author is counsel for the plaintiffs in this litigation.
209

Id. at 17, 19.

210

Id. at 20.

Id. at 21. The author is counsel for the plaintiffs in the case challenging these restrictions. Holbrook v. Jellen, No. 3:14-cv-0028, 2015 WL 3540774 (M.D. Pa. June 3, 2015).
211

212 See Mail Policy, GWINNETT CTY. SHERIFF’S OFF., http://www.gwinnettcountysheriff.com
/index.php/mail-policy/ (last visited June 23, 2016); Bill Oram, Jails to Limit Inmate Mail to Postcards Only, OREGONIAN (Dec. 29, 2009, 4:57 PM), http://www.oregonlive.com/washington
county/index.ssf/2009/12/jails_to_limit_inmate_mail_to.html; Jessica Vander Velde, Gripes Over
Hillsborough Jail’s Postcard-Only Policy Subside, TAMPA BAY TIMES (Jan. 12, 2014, 7:37 PM),
http://www.tampabay.com/news/publicsafety/gripes-over-hillsborough-jails-postcard-only-policysubside/2160713.
213

See Oram, supra note 212; Vander Velde, supra note 212.

See Am. Civil Liberties Union Fund of Mich. v. Livingston Cty., 23 F. Supp. 3d 834, 837
(E.D. Mich. 2014).
214

215

Id.

216

Id. at 843.

Prison Legal News v. Cty. of Ventura, No. CV 14-773-GHK (Ex), 2014 WL 2519402, at
*1 (C.D. Cal. May 29, 2014).
217

R

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L. Federal Prisons Censor Maimonides
The Federal Bureau of Prisons sought to remove any books that
could “incite violence” from chapel libraries (which are libraries of
religious works maintained at federal prisons).218 Soon, however, “the
list grew to the tens of thousands” and became unmanageable.219 The
Bureau then changed course: rather than listing unacceptable works,
officials generated a list of acceptable works—and purged what remained.220 In a federal prison in New York, the project “resulted in
the removal of three-quarters of the Jewish books . . . ranging from
the Zohar to the works of 12th-century Jewish scholar Moses Maimonides to Rabbi Harold Kushner’s When Bad Things Happen to
Good People.”221
News of the Standardized Chapel Library Project resulted in a
massive outcry from religious leaders and conservative Republican
legislators, who declared in a letter to the head of the Bureau: “We
must ensure that in America the federal government is not the undue
arbiter of what may or may not be read by our citizens.”222 Ultimately, Congress banned the Standardized Chapel Library Project
through federal legislation, which provided that “[n]ot later than 30
days after the date of enactment of this Act, the Director of the Bureau of Prisons shall discontinue the Standardized Chapel Library
project . . . .”223
M. Solitary Confinement for Facebook Posts
In South Carolina, nearly 400 prisoners have been disciplined
over the past four years for violating a rule against posting anything
on social media sites.224 Forty of them have been sentenced to two or
more years in solitary confinement.225 One prisoner was sentenced to
over thirty-seven years of disciplinary detention in 2013 for thirty218 See Neela Banerjee, Prisons to Restore Purged Religious Books, N.Y. TIMES (Sept. 27,
2007), http://www.nytimes.com/2007/09/27/washington/27prison.html?_r=0.
219 Id.
220 Id.
221 See Michael Gerson, Opinion, Prison Library Purge, WASH. POST (Sept. 14, 2007), http:/
/www.washingtonpost.com/wp-dyn/content/article/2007/09/13/AR2007091301414.html.
222 See Laurie Goodstein, Critics Right and Left Protest Book Removals, N.Y. TIMES (Sept.
21, 2007), http://www.nytimes.com/2007/09/21/us/21prison.html?ref=washington.
223 Second Chance Act of 2007: Community Safety Through Recidivism Prevention, Pub.
L. No. 110-199, § 214(a), 122 Stat. 657 (2008).
224 See Dave Maass, Hundreds of South Carolina Inmates Sent to Solitary Confinement
Over Facebook, ELECTRONIC FRONTIER FOUND. (Feb. 12, 2015), https://www.eff.org/deeplinks/
2015/02/hundreds-south-carolina-inmates-sent-solitary-confinement-over-facebook.
225 Id.

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eight Facebook posts.226 Another prisoner lost 875 days of goodtime
for posting on Facebook, extending his period of incarceration by
more than two years.227
N. No to John Updike, Yes to Porn
The following example, and those that follow, are instances in
which courts struck down speech restrictions under the Turner standard. Again, not all courts that have applied Turner treat it as a rubber stamp.228 These examples, however, illustrate restrictions that
prison and jail authorities thought they could impose under the legal
standard, even if incorrectly. While these restrictions ultimately did
not survive scrutiny, the fact that officials tried to implement them at
all provides further support for the view that Turner’s ability to deter
constitutional violations at the outset is limited.
In Cline v. Fox,229 the district court considered a purge of a prison
library, which resulted in the removal of 259 books, which, in the view
of the prison, constituted “obscene material.”230 Prison staff were instructed to read every book in the library and “to eliminate any book
that contained language that might arouse the reader.”231 Books
purged from the shelves included “William Styron’s Sophie’s Choice,
Gore Vidal’s Myra Breckinridge, and a number of works by John Updike.”232 The court noted that “[t]he prohibition also applies regardless of the context of the depiction or the content of the work as a
whole. Therefore, literary classics like George Orwell’s 1984 and religious texts like the Bible technically violate this regulation.”233
Meanwhile, prisoners were allowed to receive commercial pornography, including such magazines as Playboy and Maxim.234 Based on
this inconsistency, the court struck down the regulation under
Turner.235

226

Id.

227

Id.

228

See supra Part I, discussion of Beard v. Banks, 548 U.S. 521 (2006).

229

Cline v. Fox, 319 F. Supp. 2d 685 (N.D. W.Va. 2004).

230

See id. at 688, 696.

231

Id. at 689.

232

Id.

233

Id. at 692 (footnote omitted).

234

Id. at 693.

235

Id. at 696.

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O. Internet Printouts Banned
The California Department of Corrections implemented a statewide policy that forbid prisoners from receiving “mail containing material that has been downloaded from the internet” but permitted
anything typed or copied into a word processing document.236 In
Clement v. California Department of Corrections,237 prison officials put
forth two justifications for the regulation.238 First, the regulation reduced the overall volume of mail for the prison to process.239 Internet
mail, however, was a drop in the bucket—the prison received no more
than 500 pieces of Internet mail each month, compared to 300,000 letters.240 Second, the rule against Internet mail was said to reduce opportunities to hide coded messages in documents, but there was no
showing that embedding secret codes in Internet printouts was any
easier or more prevalent than hiding codes in word-processed documents.241 The court invalidated the rule.242
P. Internet Printouts Banned (Again)
Various “prison pen pal” sites create Internet pages for prisoners.243 Because a prisoner generally does not have direct access to the
Internet while incarcerated, these sites create an online profile for a
prisoner and forward the prisoner hard copies of any email messages
sent to the prisoner’s profile.244
A Wisconsin prison implemented a rule prohibiting prisoners
from receiving copies of emails sent to such “prison pen pal” sites.245
The prison claimed that the rule helped conserve resources by reducing the volume of mail and prevented prisoners from manipulating
people through online profiles.246 The appellate court reversed the
district court’s grant of summary judgment, finding that a genuine issue of material fact existed as to the validity of the prison’s rationales
for the policy. The first rationale was a potentially arbitrary way of
236
237
238
239
240
241
242
243

Clement v. Cal. Dep’t of Corr., 364 F.3d 1148, 1150–51 (9th Cir. 2004).
Clement, 364 F.3d 1148 (9th Cir. 2004).
Id. at 1152.
Id.
Id. at 1151.
Id. at 1152.
Id.
E.g., WRITEAPRISONER.COM, http://www.writeaprisoner.com/ (last visited June 23,

2016).
244 See, e.g., FAQs: Writing an Inmate, WRITEAPRISONER.COM, http://www.writeaprisoner.
com/faq.aspx#Can_I_e-mail_a_prisoner_you_have_listed (last visited June 23, 2016).
245 See Jackson v. Pollard, 208 F. App’x 457, 459 (7th Cir. 2006).
246 See id.

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reducing the overall volume of mail that would need to be tried on
remand.247 As for protecting the public, the court noted that the regulation was underinclusive because prisoners were permitted other
means of contacting the public, including by maintaining websites and
exchanging correspondence.248
Q. Ulysses Banned
In Couch v. Jabe,249 the district court struck down a policy on
sexually explicit content so broad and amorphous that officials refused
to let a prisoner order Lady Chatterley’s Lover and James Joyce’s
Ulysses.250 The court was particularly doubtful that Joyce’s dense and
esoteric style would have any effect on prison security: “It strains credulity to believe that limiting a prisoner’s access to Lady Chatterley’s
Lover could have any effect on the security, discipline, and good order
of the prison. Likewise, it would be patently incredible to assert that
reading Joyce’s Ulysses will somehow threaten the rehabilitation of a
prisoner.”251
IV.

THE REALITIES

OF

LITIGATING UNDER TURNER

The regulations discussed in the previous section implicitly raise
the question: how hard is it to eliminate such limitations on prisoner
speech through litigation? After all, the harm of such regulations
could be minimal if they were easy to remove. Much of the time,
however, upending even a poorly justified regulation requires resources far beyond what a prisoner can muster. The result of this reality is that many prison regulations, including some of the examples
cited in the previous section, remain on the books even though a very
strong argument can be made that they violate the Turner standard.252
The practical realities that make litigation under the Turner standard difficult are illustrated below with a case study drawn from my
legal practice. In this case, altering an indefensible policy required
full-blown litigation and major expenditures: full discovery, expert
witnesses, the intervention of the United States Department of Justice, and hundreds of thousands of dollars of attorney time. The litigation, Prison Legal News v. DeWitt,253 involved restrictions imposed on
247
248
249
250
251
252
253

See id. at 461.
Id. at 460–61.
Couch v. Jabe, 737 F. Supp. 2d 561 (W.D. Va. 2010).
See id. at 562.
Id. at 569.
Compare Turner v. Safley, 482 U.S. 78, 89 (1987), with supra Parts I–III.
Prison Legal News v. DeWitt, No. 2:10-cv-02594 (D.S.C. filed Oct. 6, 2010).

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publications sent by mail to detainees at the Berkeley County Detention Center in South Carolina.254 The jail’s shifting claims regarding
what policies were in place, and its shifting rationales for those policies, made litigation protracted and expensive.255 Although the litigation ultimately succeeded, the resources necessary to succeed were
quite high—and any number of equally problematic restrictions likely
remain in force in other localities due to prisoners’ inability to challenge them.256
The plaintiffs in the case—Prison Legal News and the Human
Rights Defense Center—comprised a nonprofit organization (under
section 501(c)(3) of the Internal Revenue Code) and published an
award-winning fifty-six page monthly journal titled Prison Legal
News.257 The journal provides information about legal issues such as
access to courts, disciplinary hearings, prison conditions, excessive
force, and religious freedom.258 Prison Legal News, which has been
continuously published since 1990 had, at the time of the litigation,
over seven thousand subscribers in the United States and abroad, including prisoners, attorneys, journalists, public libraries, and judges.259
The plaintiffs also distributed approximately forty-five legal and selfhelp books on topics ranging from legal research to writing a business
letter.260
After numerous instances in which the Detention Center returned to sender and refused to deliver plaintiffs’ publications, Prison
Legal News editor Paul Wright inquired about the jail’s mail policies.261 On July 12, 2010, the Detention Center responded in writing:
“Our inmates are only allowed to receive soft back bibles in the mail
directly from the publisher. They are not allowed to have magazines,
newspapers, or any other type of books.”262
Just two days before plaintiffs filed their complaint, the jail’s commanding officer and second in command confirmed the “Bible only”
policy in a brief submitted through their counsel in another case: “De254 See generally Plaintiffs’ Memorandum in Support of Motion for Preliminary Injunction
at 5, Prison Legal News v. DeWitt, No. 2:10-cv-02594-MBS (D.S.C. filed Oct. 6, 2010) [hereinafter Support Mem.]. Because the author of this Article wrote this memorandum, some language
from the memorandum reproduced in this Article is left unquoted.
255 See generally id. at 2–11.
256 See infra Part V.
257 Support Mem., supra note 254, at 2.
258 Id.
259 Id.
260 Id.
261 Id.
262 Id.

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tention Center policy does not deprive the Plaintiff of all books,
magazines, and reading material. Rather, it merely limits the amount
and types of reading material he may possess. The Plaintiff can possess his primary religious book and legal materials.”263 On the day
plaintiffs filed Prison Legal News v. DeWitt, the Detention Center
“confirmed” for an Associated Press reporter that “the only reading
material its . . . inmates are allowed to have are paperback Bibles.”264
Shortly after confirming the “Bible only” policy for the Associated Press, the jail presented a new rationale for the censorship.265
The defendants’ counsel sent an email to another reporter, claiming
that the email in which the Detention Center admitted the “Bible
only” policy, “was simply mistaken.”266 The defendants then claimed
that the Detention Center never had a “Bible only” policy, merely a
rule against publications that contain staples.267 The defendants then
pursued the “no staples” theory in the case, asserting that “Prison Legal News is not an allowed publication due to its staples.”268
Staples were not the real reason that the jail banned plaintiffs’
publications—or at least not the reason most of the time.269 The
staples rationale turned out mainly to be a litigation strategy. Indeed,
the jail maintained a mail log that listed each rejected piece of mail,
including the reason for rejection.270 Detention Center staff repeatedly wrote reasons for rejection of the plaintiffs’ publications that included “magazine,” “book,” “newspaper,” and “no newspapers.”271
The mail log never referred to staples as a reason for rejecting Prison
Legal News until March 16, 2011—more than five months after the
plaintiffs filed the case.272 The Detention Center also rejected numerous books sent by the plaintiffs, even though none of the books contained staples.273 Even after Prison Legal News brought suit,
Detention Center staff continued to reject other publications for reasons that included: “Book not allowed,” “GED Book,” “newspaper,”
263 Id.
Williams v.
264 Id.
265 Id.
266 Id.
267 Id.
268 Id.
269 Id.
270 Id.
271 Id.
272 Id.
273 Id.

at 3 (quoting Response in Opposition to Plantiffs’ Motion for Summary Judgment,
Habersham, No. 9:10-cv-01571 (D.S.C. Jun 18, 2010)).
(alteration in original).

at 3, 3 n.6.
at 4.

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“only legal or religious books,” and “Not religious.”274 The defendants claimed in their answer to the complaint that they prohibited
Prison Legal News due to staples, but a staff person later admitted
that all nonreligious publications were banned until at least January
2011.275
Throughout 2008, 2009, and 2010, the Detention Center repeatedly returned copies of books and magazines to Plaintiffs with notations such as “magazines not allowed” and “book not allowed”
written on the returned items, and the few notations that mentioned
staples at all also referred to a total ban on all newspapers.276 When
detainees filed request forms regarding access to newspapers, Detention Center staff responded by citing a total ban on newspapers, not a
rule against staples.277 These responses included: “[y]ou can not get
any type of Newspaper here in jail. That’s why you have not got it,”
“[y]ou can not get Newspapers,” and “I have told you many times you
can not get Newspaper or magazine [sic].”278
Not only was the “no staples” rationale largely invented post hoc,
but the jail’s reasons for the policy shifted throughout the litigation.279
In October 2010, when the defendants announced the “no staples”
rule in the media, they cited three rationales: (1) detainees place
staples in locks, (2) detainees interfere with plumbing by flushing
staples down toilets, and (3) detainees use staples to make tattoos.280
Later, the defendants put forth a new set of rationales—staples are
used to tamper with sinks, toilets, and sprinklers; to short circuit locks;
to start fires; and to charge cell phones.281
Meanwhile, in another case also involving detainee access to
Prison Legal News, the jail’s commanding officer put forth a completely different rationale for banning staples.282 In December 2010,
during the same time period that the defendants were asserting various justifications in Prison Legal News v. DeWitt, the head of the jail
filed an affidavit in the other case, stating: “Staples have been known
to be used as weapons . . . .” The accompanying summary judgment
brief stated:
274
275
276
277
278
279
280
281
282

Id.
Id.
Id.
Id. at 4–5.
Id. at 5 (alteration in original).
See id. (alteration in original).
Id. at 5–6.
Id. at 6.
Id.

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[T]he Inmate Rules and the Inmate Hand Guide . . . clearly
state that homemade weapons or other articles that could be
used as weapons are considered contraband. Staples can be
used as weapons and are considered contraband.
Prison Legal News is a magazine that is bound with staples,
and thus, inmates in A-Pod are not allowed to possess a copy
of it.283
Not only did the jail fail to assert the “weapons” rationale in
Prison Legal News v. DeWitt, but none of the rationales identified in
that case, such as making tattoos or jamming locks, were asserted in
the summary judgment brief in the other case.284 The jail, in short,
simultaneously advanced different theories in different cases.285
An even greater flaw in the defendants’ argument was that they
admitted that through January 2011, the jail’s own commissary sold
detainees legal pads with staples.286 Although the defendants claimed
not to have known about the staples contained beneath a white strip
in the pads, their failure to investigate earlier provided some evidence
that their concern with staples in publications was pretextual.287
Partway through the litigation, the jail put forth another rationale
for banning Prison Legal News: “[Y]our publication now contains sexual content. That is going to be an issue in addition to the staples.”288
At the time of the litigation, Prison Legal News sometimes contained
advertisements for sexually explicit content. The majority of the advertisements contained no pictures, and in the rare cases when pictures were included, “these [were] barely visible; each [was] less than
one square inch; there [was] no nudity; and any clothed depictions of
breasts, buttocks, or the groin area [were] rendered invisible by a
white star.”289
The sexual content rationale was devised post hoc.290 The Detention Center had never returned to the plaintiffs a publication with a
notation regarding sexual or inappropriate content, only notations
such as “[n]o magazines allowed” and “[b]ooks not allowed.”291 Since
283 Id. at 6–7 (quoting Memorandum in Support of Defendants’ Motion for Summary Judgment, Hazel v. McElvogue, No. 2:09-cv-03276-RMG-RSC (D.S.C. 2010)).
284 Id. at 7.
285 Id.
286 Id.
287 Id.
288 Id. at 8.
289 Id. at 11.
290 Id. at 8.
291 Id. at 8–9 (alteration in original).

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2008, the mail log contained over 500 references to inappropriate content, but not a single one involved publications sent by plaintiffs.292 A
Detention Center staff person with primary responsibility for processing mail could recall no instance prior to 2011 in which she rejected
Prison Legal News due to sexual content.293
The jail’s persistent defense of its publication policies, and its
shifting rationales for its rules, drove up the time and expense of litigation. Each time the defendants put forth a new rationale, it was
necessary for the plaintiffs to serve additional written discovery requests, each of which ultimately led to motions to compel.294
Indeed, the seemingly straightforward case proceeded without
resolution for so long that the United States Department of Justice
intervened in support of the plaintiffs under the Civil Rights of Institutionalized Persons Act,295 which allows the federal government to
bring suit in its own name in cases involving prison conditions.296 Now
Id. at 9.
Id. At the time of the litigation, an array of sweeping and inconsistent Detention
Center rules applied to “sexual content.” Both the correspondence policy (HFDC 706) and the
Inmate Hand Guide stated that detainees could not receive “[a]ny photo that is considered inappropriate (i.e., pornographic, lack of clothing, drugs, weapons, alcohol, cigarettes, etc.).” Policies
left the meaning of “inappropriate” to the discretion of staff “consider[ing]” a given item. As a
Detention Center staff member testified, to determine if a photograph is “considered inappropriate” under the policy “normally we just—if we see that it is inappropriate, then we send it
back.” The term “pornographic” in the policy “would be anything that’s related to anything
sexual,” and the word “etc.” meant that the policy does not list all items that could be “considered inappropriate.” HFDC 706 and the Inmate Hand Guide separately ban[ned] “[m]aterial
that would encourage deviant sexual behavior” without defining what constitutes “deviant sexual behavior” or what expressive materials “encourage” such behavior. A Detention Center
staff person agreed that “the term ‘encourage deviant sexual behavior’ included any material
that refers to sex.” Under these rules, a publication would be banned in its entirety if it contained any depiction of a man or woman without a shirt or without pants or a skirt—even if the
person were wearing a shirt and underwear. Id. at 9–10.
When shown advertisements for underwear, alcohol, and tropical vacations that appeared in
the Washington Post and USA Today, a Detention Center staff member who processed mail
stated that she would refuse, under HFDC 706, to deliver any issue of the newspapers that
contained the advertisements. She further stated that under these policies she would ban any
publication that contained great works of art that depict nudity, including the Venus de Milo
sculpture and Botticelli’s Birth of Venus. Id.
294 E.g., Plaintiffs’ Motion to Compel Discovery at 1–3, Prison Legal News v. DeWitt, No.
2:10-cv-02594-MBS (D.S.C. filed Oct. 6, 2010); Plaintiffs’ Second Motion to Compel Discovery at
1–2, Prison Legal News v. DeWitt, No. 2:10-cv-02594-MBS (D.S.C. filed Oct. 6, 2010); Plaintiffs’
Third Motion to Compel Discovery at 1–2, Prison Legal News v. DeWitt, No. 2:10-cv-02594MBS (D.S.C. filed Oct. 6, 2010).
295 Civil Rights of Institutionalized Persons Act, 42 U.S.C. §§ 1997–1997j (2012).
296 See id. § 1997a(a) (2012) (“Whenever the Attorney General has reasonable cause to
believe that any State or political subdivision of a State, official, employee, or agent thereof, or
other person acting on behalf of a State or political subdivision of a State is subjecting persons
292
293

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facing both the ACLU and the federal government as litigation opponents, the jail continued to defend its restrictions. Department of Justice attorneys toured the jail,297 hired expert witnesses (who also
toured the jail and wrote expert reports),298 participated in depositions,299 moved to compel discovery,300 filed extensive briefs, and argued in court hearings.301
Ultimately, the plaintiffs succeeded: the case resulted in a consent
decree that fundamentally restructured the jail’s publications policy302
and a substantial damages award—$100,000.00.303 But the prolonged
and intensive litigation resulted in an award of attorneys’ fees and expenses—$499,900.00—that greatly exceeded the economic value of
the case.304 All told, eradicating the policy required:
• Tours of the jail and expert reports by five expert witnesses
(one for plaintiffs, two for defendants, and two for the United
States Department of Justice);305
• Eleven depositions;306
residing in or confined to an institution . . . to egregious or flagrant conditions which deprive
such persons of any rights, privileges, or immunities secured or protected by the Constitution or
laws of the United States causing such persons to suffer grievous harm . . . the Attorney General,
for or in the name of the United States, may institute a civil action in any appropriate United
States district court against such party for such equitable relief as may be appropriate to insure
the minimum corrective measures necessary . . . .”).
297 See, e.g., United States’ Motion to Compel Discovery at 7, Prison Legal News v. DeWitt,
No. 2:10-cv-02594-MBS (D.S.C. filed Oct. 6, 2010).
298 See, e.g., United States’ Supplemental Brief in Support of Plaintiffs’ Motion for a Preliminary Injunction, Expert Report of James E. Aiken at Ex. C 3, 6, Prison Legal News v. DeWitt, No. 2:10-02594-MBS (D.S.C. filed Oct. 6, 2010); id., Expert Report of John L. Clark at Ex.
N 3, 5.
299 See, e.g., Declaration of David Shapiro, Riley Dep. at Ex. B, Prison Legal News v. DeWitt, No. 2:10-cv-02594-MBS (D.S.C. filed Oct. 6, 2010); id. McElvogue Dep. at Ex. A.
300 See, e.g., United States’ Motion to Compel Discovery at 1, supra note 297.
301 See, e.g., Minute Entry, Prison Legal News v. DeWitt, No. 2:10-cv-02594-MBS (D.S.C.
filed Oct. 6, 2010).
302 See Consent Inj. at 3–6, Prison Legal News v. DeWitt, No. 2:10-cv-02594-SB-BM
(D.S.C. filed Oct. 6, 2010).
303 Settlement Agreement at 1, Prison Legal News v. DeWitt, No. 2:10-cv-02594-SB-BM
(D.S.C. filed Oct. 6, 2010).
304 Id.
305 See Plaintiffs’ Supplemental Brief in Support of Preliminary Injunction, Expert Report
of Toni V. Bair at Ex. S, Prison Legal News v. DeWitt, No. 2:10-cv-02594-SB-BM (D.S.C. filed
Oct. 6, 2010); Memorandum in Support of Defendant’s Motion for Summary Judgment on Plaintiffs’ Claims, Expert Report of Donald L. Leach at Att. 1, Prison Legal News v. DeWitt, No.
2:10-02594-MBS (D.S.C. filed Oct. 6, 2010); id., Expert Report of Gary DeLand at Att. 9; Aiken
Report, supra note 306; Clark Report, supra note 306.
306 See Docket, Prison Legal News v. DeWitt, No. 2:10-cv-02594-SB-BM (Docket Entry
Nos. 139, 160, 176, 178, 186, 188).

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•
•
•
•

Six motions to compel;307
Seventeen substantive motions;308
A grant of discovery sanctions against defendants’ counsel;309
At least six round trip flights (by the author and co-counsel)
from Washington, D.C. to South Carolina, with hotel stays;
one trip by the author to Salt Lake City, Utah for an expert
deposition; and at least four trips by United States Department of Justice attorneys from Washington, D.C. to Charleston, South Carolina;
• Five court hearings;310 and
• $499,900.00 in attorneys’ fees.311
As this example illustrates, even when a plaintiff (1) is challenging an indefensible First Amendment restriction and (2) has the counsel and resources necessary to fully and aggressively prosecute the
case, the road is far from easy. In the vast majority of situations, however, prisoners lack the resources and ability to litigate cases at all.
The following section discusses the barriers to litigation that prisoners
face.
V. BROADER BARRIERS

TO

PRISON CONDITIONS LITIGATION

In prison litigation, success is certainly possible when counsel
with substantial resources undertakes representation, as in the Prison
Legal News case. The reality, however, is that prisoners have great
difficulty both in obtaining counsel and in litigating cases on their
own. This Part discusses the obstacles to successful litigation that prisoners face. Most of these barriers are external to Turner. These additional impediments combine with the Turner standard to impede
litigation of First Amendment claims.
307 See Plaintiffs’ Motions to Compel Discovery, supra note 294; United States’ Motion to
Compel Discovery, supra note 297; Plaintiffs’ Renewed Motion to Compel Discovery, Prison
Legal News v. DeWitt, No. 2:10-cv-02594-SB-BM (D.S.C. filed Oct. 6, 2010); Defendants’ Motion to Compel Plaintiff to Answer Discovery, Prison Legal News v. DeWitt, No. 2:10-cv-02594SB-BM (D.S.C. filed Oct. 6, 2010).

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308 See Docket, supra note 306 (Docket Entry Nos. 23, 35, 47, 58, 85, 100, 101, 113, 114, 124,
125, 136, 143, 152, 176, 179, 189).

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309

Id. at 25 (No. 145).

310

Id. at 11, 17, 25, 28–29 (Nos. 43, 91, 145, 170, 171).

Settlement Agreement, supra note 303. This was solely the fee award ultimately agreed
to by the parties—a substantial reduction from the value of the time that plaintiffs’ counsel
actually recorded. Moreover, it does not account for any of the time expended by defendants’
counsel and United States Department of Justice attorneys.
311

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Prison officials take on what I call “practical immunity”—effective insulation from suit that flows partly from formal immunity doctrines (such as absolute or qualified immunity) but primarily from
other obstacles that insulate potential defendants from suit. Practical
immunity likely emboldens some prison officials to maintain unconstitutional speech regulations. The effect is predictable: regulations,
such as those discussed in Part III, remain on the books even though
they would, in many cases, be invalidated if challenged by competent
counsel.
A complete analysis of the multitude of barriers to litigation that
a prisoner encounters, and that give rise to officials’ practical immunity, is beyond the scope of this Article.312 That being said, these impediments are important to the analysis here because Turner
deference cannot be understood in isolation.
A. Access to Counsel
In absolute terms, the United States imprisons more people than
any other country on earth, including Russia and China.313 Only one
312 For more on this topic, see Schlanger, Trends in Prisoner Litigation, supra note 33. That
article discusses the Prison Litigation Reform Act’s effects on prisoner claims. Specifically, the
author argues that empirical data shows the PLRA has radically shrunk the coverage of injunctive prison litigation, id. at 155, filings are more difficult for both prisoners and attorneys, see id.,
and rates of filings, after shrinking through the late 1990s, have plateaued since 2007, id. at 156.
The author also argues that the PLRA has made cases more difficult to win. Id. at 162.

In short, in cases brought by prisoners, the government defendants are winning
more cases pretrial, settling fewer matters, and going to trial less often. Those settlements that do occur are harder fought; they are finalized later in the litigation
process. Plaintiffs are, correspondingly, winning and settling less often, and losing
outright more often. Probably not all these changes were caused by the PLRA . . . .
But given the PLRA’s very definite anti-plaintiff tilt, it seems nearly certain that
the statute has caused at least some of the declining access to court remedies . . . .
Id. at 163. In another article, Margo Schlanger and Giovanna Shay explain three of the PLRA’s
hurdles: its ban on compensatory damages for nonphysical injuries, its exhaustion requirement
which “encourages prison and jail authorities to come up with ever-higher procedural hurdles in
order to foreclose subsequent litigation,” and its application to incarcerated juveniles who have
difficulty following the law’s requirements. Margo Schlanger and Giovanna Shay, Preserving the
Rule of Law in America’s Jails and Prisons: The Case for Amending the Prison Litigation Reform
Act, 11 U. PA. J. CONST. L. 139, 141 (2008). Finally, in Inmate Litigation, Schlanger discusses the
state of prison litigation both before and after the PLRA’s passage. Margo Schlanger, Inmate
Litigation, 116 HARV. L. REV. 1555 (2003). She finds that “[i]nmates fare worse than all other
federal court plaintiffs in all measures of success.” Id. at 1563. Schlanger explores PLRA’s
effects on both filings and outcomes, arguing “the PLRA did indeed reduce the quantity of
inmate lawsuits but that its interventions were far from neutral for constitutionally meritorious
cases, which it simultaneously made more difficult both to bring and to win.” Id.
313

DAVID SHAPIRO, AM. CIVIL LIBERTIES UNION, BANKING ON BONDAGE: PRIVATE PRIS-

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country—Seychelles, a nation of less than 92,000 people314—has a
higher per capita incarceration rate.315 It is a surprising reality, given
that other countries either have far more people (e.g., India), more
authoritarian governments (e.g., North Korea), or both (China).
“Over the past four decades, imprisonment in the United States has
increased explosively, spurred by criminal laws that impose steep
sentences and curtail . . . probation and parole.”316 Over the last thirty
years, the number of people incarcerated in the United States has
grown by 500%.317 Today, the United States incarcerates approximately 2.2 million people.318
Relative to this large prison population, lawyers who devote a
substantial portion of their time to prison condition cases are rare.319
Unsurprisingly, prison condition cases are overwhelmingly and disproportionately litigated pro se.320 In prisoner civil rights cases litigated
in federal court in 2012, the plaintiff represents herself 94.9% of the
time (compared to 26.1% for the entire pool of federal cases).321 The
prisoner civil rights category of federal litigation has a higher pro se
rate than any other type of case.322 The next highest pro se rate
(88.8%) is for a category that consists of habeas cases and other
“quasi-criminal” cases.323 From there, it drops to 35.4% (for immigration cases).324
There are four primary avenues through which a prisoner may
obtain an attorney: (1) retain an attorney with her own funds, (2) persuade a public interest attorney to take the case, (3) obtain court-appointed counsel, or (4) hire a private attorney, typically for a
ONS AND MASS INCARCERATION 5 (2011), https://www.aclu.org/files/assets/bankingonbondage_
20111102.pdf.
314 SEYCHELLES NAT’L BUREAU OF STAT., SEYCHELLES IN FIGURES 8 (2015), http://
www.nbs.gov.sc/wp-content/uploads/2015/12/Seychelles-in-Figures-2015-edition1.pdf.
315 See Lisa Mahapatra, Incarcerated In America: Why Are So Many People in US Prisons?
[CHARTS], INT’L BUS. TIMES (Mar. 19, 2014, 3:36 PM), http://www.ibtimes.com/incarceratedamerica-why-are-so-many-people-us-prisons-charts-1562451.
316 SHAPIRO, supra note 313, at 5.
317 Incarceration, SENTENCING PROJECT, http://www.sentencingproject.org/template/page.
cfm?id=107 (last visited June 23, 2016).
318 Id.; BUREAU OF JUSTICE STAT., CORRECTIONAL POPULATIONS IN THE UNITED STATES,
2014, 2 (Jan. 21, 2016), http://www.bjs.gov/content/pub/pdf/cpus14.pdf.
319 See Schlanger, Inmate Litigation, supra note 312, at 1609–10 (showing that nearly all
civil rights and prison conditions litigations are pro se); infra Section V.B.1.
320 Schlanger, Trends in Prisoner Litigation, supra note 33, at 166.
321 Id.
322 See id.
323 Id. at 164–66.
324 Id.

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contingent fee. As the pro se statistics above suggest, and as most
prisoners who have tried to retain counsel for a prison conditions suit
can attest, these options are usually fruitless.
B. Retained Counsel
The reality is that very few prisoners have the money to hire their
own attorneys.325 Many prisoners are also burdened with outstanding
fines or with court-imposed restitution.326 There is, of course, no constitutional right to a lawyer in a civil case, which all prison conditions
cases are.327
1. Public Interest Lawyers
Public interest lawyers who take prison conditions cases are rare
for a number of reasons. First, changes to the law regarding federally
funded Legal Services Corporations forced such organizations to jettison their prison conditions work in 1996.328 Second, in the world of
privately funded legal nonprofits, prison conditions work is a specialty
practiced by a small set of lawyers (a group that appears even smaller
relative to the nation’s 2.2 million incarcerated population).329 While
there are no statistics available on the number of “prisoners’ rights”
lawyers, the American Civil Liberties Union’s National Prison Project
is the largest nonprofit office in the country that litigates prison condi325 See, e.g., AM. CIVIL LIBERTIES UNION, IN FOR A PENNY: THE RISE OF AMERICA’S NEW
DEBTORS’ PRISONS 27 (Oct. 2010), https://www.aclu.org/files/assets/InForAPenny_web.pdf; CAROLINE WOLF HARLOW, BUREAU OF JUSTICE STAT., DEFENSE COUNSEL IN CRIMINAL CASES 1
(Nov. 2000), http://www.bjs.gov/content/pub/pdf/dccc.pdf (“At felony case termination, court-appointed counsel represented 82% of State defendants in the 75 largest counties in 1996 and 66%
of Federal defendants in 1998.”); Thomas H. Cohen, Who’s Better at Defending Criminals? Does
Type of Defense Attorney Matter in Terms of Producing Favorable Case Outcomes, at 14–15
(2011), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1876474 (noting that in 2004 and
2006, only 20% of criminal defendants charged with a felony in the 75 most populous counties
hired a private attorney); Lauren-Brooke Eisen, Paying for Your Time: How Charging Inmates
Fees Behind Bars May Violate the Excessive Fines Clause, 15 LOY. J. PUB. INT. L. 319, 328 (2014)
(estimating 80% of inmates are indigent).
326 See AM. CIVIL LIBERTIES UNION, supra note 325, at 5–10.
327 See, e.g., Farmer v. Haas, 990 F.2d 319, 323 (7th Cir. 1993) (“There is no constitutional
or for that matter statutory right to counsel in federal civil cases . . . .”).
328 Rebekah Diller & Emily Savner, Restoring Legal Aid for the Poor: A Call to End Draconian and Wasteful Restrictions, 36 FORDHAM URB. L.J. 687, 693 (2009).
329 DANIELLE KAEBLE ET AL., BUREAU OF JUSTICE STAT., CORRECTIONAL POPULATIONS
IN THE UNITED STATES, 2014, 2 (Jan. 21, 2016), http://www.bjs.gov/content/pub/pdf/cpus14.pdf
(showing the breakdown of persons currently under the supervision of the U.S. correctional
system).

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tions cases exclusively. It has a full complement of five lawyers and
three paralegals.330
2. Court-Appointed Lawyers
Court-appointed counsel is a form of relief that is often requested
but rarely granted.331 Courts do not pay lawyers who take on civil
cases, and cannot force them to do so for free.332
3. Contingent Fees
For private attorneys who earn a living by winning cases and receiving both contingent fees and statutory fee awards in constitutional
cases, the average prison conditions case is economically unattractive.
In 2012, the average damages awarded for a prison conditions case
successfully litigated to judgment was $20,815, and the total damages
recovered in prison conditions cases brought by prisoners was just
above $1,000,000 nationwide.333
4. Reasons that Prison Conditions Litigation is Economically
Unrewarding for Private Attorneys
Several provisions of the Prison Litigation Reform Act
(“PLRA”), enacted in 1996, limit the ability of both prisoners and
their attorneys to obtain substantial damage and fee awards and
thereby greatly reduce the economic viability of prison conditions litigation by private lawyers. First, the PLRA creates the following rule
for court-awarded attorneys’ fees in any damages case “brought by a
prisoner”: The court may award in fees no more than the lesser of
(1) one and a half times the damages awarded to the plaintiff (“feesdamages cap”) and (2) the number of hours reasonably billed by the
attorney, multiplied by an hourly rate capped at 150% of the rates
established by the Criminal Justice Act (“hourly rate cap”).334
Both of these constraints are quite severe. As for the fees-damages cap, damages awards in cases brought by prisoners are notoriously low—perhaps because of some judges’ and jurors’ suspicion of
330 This assertion is based on the personal experience of the author, who worked at the
ACLU National Prison Project from 2008 to 2012.
331 Schlanger, Inmate Litigation, supra note 312, at 1612 (“In general, however, counsel
appointments have been quite rare, which makes sense given that courts can neither compel
counsel to serve nor compensate them for their service.”).
332 Id.
333 Schlanger, Trends in Prisoner Litigation, supra note 33, at 167–68.
334 42 U.S.C. § 1997e(d)(2), (d)(3) (2012); see also JOHN BOSTON, THE PRISON LITIGATION
REFORM ACT 396 (2013).

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prisoner-plaintiffs.335 For the attorney, one and a half times a limited
damages award is a limited fee. To cite one example, in Nelson v.
Correctional Medial Services,336 a child died during birth because the
mother, a prisoner, was shackled by staff during labor.337 The district
court denied summary judgment to two of the defendants,338 an
Eighth Circuit panel reversed,339 but the en banc court reversed the
panel and remanded the case for trial.340 After these extensive appellate proceedings, the case proceeded to a two-day trial,341 at the conclusion of which the jury awarded a verdict of $1.00 to the plaintiff.342
The court, pursuant to the PLRA fees-damages cap, then awarded
$1.50 in attorneys’ fees.343
The hourly rate cap also diminishes a lawyer’s compensation.
The current Criminal Justice Act rate is $141.00 per hour, making the
PLRA rate $211.50.344 This is well below the rates that a plaintiff is
usually permitted to recover when she prevails in constitutional litigation, other than prison conditions litigation, under 42 U.S.C. § 1983.345
For example, an attorney with twenty or more years’ experience in the
District of Columbia will typically recover over $500.00 per hour pursuant to the customary fee schedule for civil rights cases established
by the District’s U.S. Attorneys Office.346 Of course, to be entitled to
a fee award at all, the plaintiff must win the case347—in other words,
not only are the rewards low, but the risks of no reward are
substantial.
335 See Schlanger, Inmate Litigation, supra note 312, at 1606 (“These extremely defendantfriendly standards, joined with judge and jury suspicion and dislike of incarcerated criminals,
have made inmate cases extremely hard to win.”); see also id. at 1589 (“[T]he average inmate
civil rights case took under an hour of judge time, from filing to disposition.”).
336 Nelson v. Corr. Med. Servs., No. 1:04cv00037 JMM-JWC, 2007 WL 1703562 (E.D. Ark.
June 11, 2007).
337 See id. at *2.
338 See id. at *10.
339 Nelson v. Corr. Med. Servs., 533 F.3d 958, 960 (8th Cir. 2008).
340 Nelson v. Corr. Med. Servs., 583 F.3d 522, 525 (8th Cir. 2009) (en banc).
341 Minute Entry at 1–4, Nelson v. Corr. Med. Servs., No. 1:04-cv-00037-JMM (E.D. Ark.
July 15, 2010).
342 Order at 1, Nelson v. Corr. Med. Servs., No. 1:04-cv-00037-JMM (E.D. Ark. Sept. 13,
2010).
343 Id. at 1–2.
344 See E-mail from Judy Gallant, Att’y Advisor, Defender Servs. Office, Admin. Office of
the U.S. Courts, to Bonita Tenneriello, Prisoners Legal Servs. (Jan. 13, 2014, 15:19 EST) (on file
with author).
345 42 U.S.C. § 1983 (2012).
346 See Laffey Matrix—2003–2014, U.S. ATTORNEYS OFF. FOR D.C., http://www.justice.gov/
usao/dc/divisions/Laffey_Matrix%202014.pdf (last visited June 23, 2016).
347 See 42 U.S.C. § 1988(b) (2012).

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A prisoner bringing a First Amendment claim for damages faces
an additional obstacle—the PLRA’s physical injury requirement. A
prisoner who has suffered a “mental or emotional injury” cannot
bring suit for damages unless she has also suffered a physical injury.348
The circuits are divided as to whether this provision bars monetary
recovery for First Amendment violations in prison where the prisoner
has not suffered a physical injury.349
In sum, a rational private attorney who wishes to recover fees
and/or a contingent portion of damages by litigating all but the strongest prison First Amendment cases will realize at the outset: (1) in several circuits, most First Amendment damages cases are barred by the
physical injury requirement; (2) even in circuits where damages can be
recovered for a nonphysical First Amendment injury, damages will
likely be low; (3) if the attorney prevails in the case, she will recover in
fees, at most, the lesser one and a half times the damages award or her
reasonable hours multiplied by $211.50; (4) the risks of losing the case,
and recovering no fees, are substantial; and (5) the attorney could
make more money pursuing almost any other type of civil case.
C. Pro Se Litigation
Most prisoners, then, litigate conditions claims without counsel.350
Representing oneself is rarely easy, but an unrepresented prisoner suing her jailers encounters several additional barriers, many of them
the result of the PLRA.
First, the PLRA requires a court immediately to dismiss any suit
brought by a prisoner who has not exhausted available administrative
remedies.351 This requirement results in the immediate dismissal of an
array of potential lawsuits because the PLRA, as interpreted by the
courts, does not excuse a prisoner who misses a prison’s administrative deadline (even a very short one) or who makes a technical mistake in submitting an administrative grievance. Administrative
remedy schemes can be so complicated or internally contradictory
See id. § 1997e(e) (2012).
Compare Allah v. Al-Hafeez, 226 F.3d 247, 250–51 (3d Cir. 2000) (finding damages
would be barred for alleged violation of First Amendment right of free religious exercise), with
Canell v. Lightner, 143 F.3d 1210, 1213 (9th Cir. 1998) (finding PLRA’s physical injury requirement did not apply to First Amendment rights violation claim). See also BOSTON, supra note
334, at 268 n.1233; JOHN BOSTON & DANIEL E. MANVILLE, PRISONERS’ SELF-HELP LITIGATION
MANUAL 621 (4th ed. 2010); Schlanger & Shay, supra note 312, at 143–47.
350 See Schlanger, Inmate Litigation, supra note 312, at 1609–10 (showing that nearly all
civil rights and prison conditions litigations are pro se).
351 42 U.S.C. § 1997e(a).
348
349

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that they invite errors. Despite having a law degree and focusing my
practice on prison conditions litigation, I myself frequently find administrative remedy schemes difficult to understand and explain to clients. Schlanger and Shay describe the state of play as follows:
[T]he PLRA’s exhaustion requirement has been held to
grant constitutional immunity to prison officials based on understandable mistakes by pro se prisoners operating under
rules that are often far from clear. Wardens and sheriffs routinely refuse to engage prisoners’ grievances because those
prisoners commit minor technical errors, such as using the
incorrect form, sending the right documentation to the
wrong official, or failing to file separate forms for each issue,
even if the interpretation of a single complaint as raising two
separate issues is the prison administration’s. Each such misstep by a prisoner bars consideration of even an otherwise
meritorious civil rights action.352
Finally, prisoners as a group have substantially lower rates of literacy and educational attainment, and substantially higher rates of
mental illness, than the population at large.353 Obviously, these factors make it even more difficult both to litigate against trained lawyers
and to successfully navigate a complex administrative exhaustion
scheme.354
To summarize, while the Turner standard is a major obstacle to
litigation challenging prison speech restrictions, it would be an error
to lay all of the blame at Turner’s doorstep. Turner is one element of
the broader regime of prison conditions law—a regime that cloaks
prison officials in the mantle of “practical immunity.”

352

Schlanger & Shay, supra note 312, at 148.

See Schlanger, Inmate Litigation, supra note 312, at 1611 n.161 (noting that “[o]nly
about a third of inmates are sufficiently literate to ‘make literal or synonymous matches between
the text and information given in the task, or to make . . . low-level inferences.’ ” (quoting and
interpreting NAT’L CTR. FOR EDUC. STATISTICS, U.S. DEP’T OF EDUC., PUB. NO. 1994-102, LITERACY BEHIND PRISON WALLS 19 tbl.2.3 (Oct. 1994), http://nces.ed.gov/pubs94/94102.pdf));
Mentally Ill Persons in Corrections, NAT’L INST. OF CORRECTIONS, http://nicic.gov/mentalillness
(last visited June 23, 2016) (“In a 2006 Special Report, the Bureau of Justice Statistics (BJS)
estimated that 705,600 mentally ill adults were incarcerated in state prisons, 78,800 in federal
prisons and 479,900 in local jails. In addition, research suggests that ‘people with mental illnesses are overrepresented in probation and parole populations at estimated rates ranging from
two to four times the general population.’ Growing numbers of mentally ill offenders have
strained correctional systems.”) (citation omitted).
353

354

See Schlanger, Inmate Litigation, supra note 312, at 1611.

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LESSONS

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RELIGIOUS EXERCISE STATUTES

The previous sections have explored the negative effects that the
Turner standard, both individually355 and combined with other factors
that give rise to “practical immunity,”356 exerts on prisoners’ freedom
of speech. That conclusion alone, however, does not demonstrate that
a different standard would be an improvement over the status quo.
Rather, a consideration of two other issues must first be undertaken:
(1) the costs of more searching review, and (2) whether the contours
of such review can be made coherent and workable. The history of
the Religious Freedom Restoration Act (“RFRA”)357 and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”)358 provide information relevant to both questions and suggest that more
rigorous review would be neither detrimental to prison security nor
practically unworkable.
A. History of RFRA and RLUIPA
In 1993, Congress passed RFRA, which created a heightened
standard of review for restrictions imposed on religious exercise by
state, local, and federal government entities.359 Specifically, RFRA
provides that any government regulation that substantially burdens
religious exercise is invalid360 unless it: “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of
furthering that compelling governmental interest.”361 The statute
makes no distinction between free exercise by prisoners and nonprisoners in imposing this heightened standard in religious access
cases.362
In 1996, however, the Supreme Court struck down RFRA in part
in City of Boerne v. Flores,363 holding that Congress had exceeded its
limited constitutional authority to enforce the Fourteenth Amend355
356
357

See supra Part II.
See supra Section V.A.
Religious Freedom Restoration Act (RFRA) of 1993, 42 U.S.C. §§ 2000bb–2000bb-4

(2012).
358 Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C.
§§ 2000cc–2000cc-5 (2012).
359 See Shann R. Jeffery, Prisoners’ Rights, 73 DENV. U. L. REV. 883, 887 (1996) (stating
that “Congress clearly intended RFRA to impose a heightened standard of review”).
360 See 42 U.S.C. § 2000bb-1(a).
361 Id. § 2000bb-1(b).
362 Jolly v. Coughlin, 76 F.3d 468, 475 (2d Cir. 1996) (“The statute itself, however, draws no
distinction between claims by prison inmates and claims by others . . . .”).
363 City of Boerne v. Flores, 521 U.S. 507 (1997).

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ment against state and local governments.364 Following City of
Boerne, RFRA continues to require heightened review of religious
claims brought against the federal government by prisoners (and nonprisoners), but the statute no longer protects individuals whose religious exercise is burdened by state and local governments.365
In 2001, Congress responded to City of Boerne by passing
RLUIPA.366 Whereas RFRA extends to all government action that
burdens religious exercise, RLUIPA, more circumscribed, applies only
to cases alleging that prison regulations or land use regulations burden
religious exercise.367 RLUIPA’s substantive legal standard, however,
is identical to RFRA’s: a burden on religious exercise is invalid unless
it is the least restrictive means of furthering a compelling governmental interest.368 In 2005, the Supreme Court held in Cutter v. Wilkinson369 that RLUIPA did not violate the Establishment Clause.370
RLUIPA and RFRA create a statutory cause of action (in addition to the constitutional free exercise claim) that a prisoner may
plead in a religious access case. The standard for the statutory cause
of action is more stringent than the standard under Turner and
O’Lone for the constitutional cause of action.371 RFRA and RLUIPA,
then, give rise to an anomaly in the legal rules that govern prisoners’
expressive rights—a bifurcated regime in which expression of a religious nature receives greater protection than secular expression.372
B. Costs of Heightened Review
The principal rationale for deferential review is, of course, prison
security—the risks inherent in judges’ second-guessing the decisions
Id. at 519.
Id. at 515–16, 536.
366 42 U.S.C. §§ 2000cc-1 to -5 (2012).
367 See id. § 2000cc-1(a).
368 See id. § 2000cc-1(a)(1)–(2).
369 Cutter v. Wilkinson, 544 U.S. 709 (2005).
370 Id. at 714–15.
371 See infra Section VI.C (examples of applying RFRA/RLUIPA standard and constitutional standard to different results).
372 The net result of the legal landscape described above is that prisoners’ religious exercise
has been protected by heightened standards of review as follows: first, the religious exercise of
federal prisoners has been continuously protected by heightened scrutiny under RFRA since the
enactment of the statute in 1993. See 42 U.S.C. § 2000bb-2(1) (2012). Second, the religious
exercise of state and local prisoners was protected by RFRA between its enactment in 1993 and
its invalidation, in 1996, as to state and local government regulations. See Cutter, 544 U.S. at
714–15. Third, state and local prisoners regained heightened scrutiny with the passage of
RLUIPA in 2001, and that protection has continued to apply ever since. Id. at 714.
364
365

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of corrections professionals.373 Because there never has been a period
of searching judicial review of prisoners’ speech clause claims, the argument that such review would compromise prison security remains
speculative—impossible to prove, but also impossible to disprove.374
RLUIPA and RFRA, however, offer the best substitute for a realworld test of the likely effects of more rigorous review of speech
claims.375 After all, these statutes already provide heightened scrutiny
to prisoners’ free exercise claims.376
More than twenty years since the enactment of RFRA, and close
to fifteen years after the enactment of RLUIPA, the evidence that
more rigorous review in free exercise cases has negatively impacted
prison security is quite limited.377 The closest approximation of a full
study occurred in 1996 when the National Association of Attorneys
General sent surveys regarding the effects of RFRA to the attorneys
general and corrections heads of fifty-six states and territories.378 The
“preliminary” results, based on a partial set of survey responses, were
summarized in a memorandum by the Attorney General of Florida,379
but it does not appear that the study was completed or that the states’
individual responses were made public. Although the Florida Attorney General’s summary noted that gangs and hate groups had attempted to use RFRA to “assert the right to wear special [gang]
clothing or medallions as expressions of religious freedom,” claimed
that RFRA “has had a disruptive effect on the operation and security
of the nation’s prisons,” and stated that prisoners used RFRA to
make “bogus or bizarre” demands for religious accommodation that
siphoned resources away from other programs, the study failed to cite
any particular examples in which RFRA had resulted in a breach of
security.380
Moreover, federal government’s amicus brief in Cutter v. Wilkinson, made it clear that heightened protection of religious exercise did
not compromise prison security:
See Nelson, supra note 30, at 2054, 2068.
See Cutter, 544 U.S. at 725; Nelson, supra note 30, at 2061.
375 See Nelson, supra note 30, at 2069–70.
376 See, e.g., id. at 2063, 2066.
377 See Cutter, 544 U.S. at 725–26.
378 See Protecting Religious Freedom After Boerne v. Flores Before the Subcomm. on the
Constitution of the H. Comm. on the Judiciary, 105th Cong., app. at 66–67 (1997) (Memorandum
from Kim Tucker, Deputy Gen. Counsel, to Robert A. Butterworth, Att’y Gen. State of Fla.
(July 19, 1996)) http://www.justice.gov/sites/default/files/jmd/legacy/2014/05/29/hear-55-1-1997
.pdf.
379 Id.
380 Id. at 66–67, 69–70.
373
374

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[O]perational objections to RLUIPA founder in the face of
the practical experience of the federal Bureau of Prisons and
other States. For more than a decade, the federal Bureau of
Prisons has managed the largest correctional system in the
Nation under the same heightened scrutiny standard as
RLUIPA without compromising prison security, public
safety, or the constitutional rights of other prisoners.381
The Supreme Court found this portion of the amicus brief persuasive, and cited it in the decision in Cutter upholding RLUIPA.382 In
short, the history of RFRA and RLUIPA has not produced convincing
evidence that heightened review of free exercise claims significantly
impedes prison security.
In the final paragraph of O’Lone, which extended Turner to constitutional free exercise claims by prisoners, Chief Justice Rehnquist
wrote: “We take this opportunity to reaffirm our refusal, even where
claims are made under the First Amendment, to ‘substitute our judgment on . . . difficult and sensitive matters of institutional administration,’ for the determinations of those charged with the formidable task
of running a prison.”383 That statement was made in 1987, and more
evidence of its effects is available now. Given that RLUIPA has been
on the books for fifteen years without producing any clear demonstration that prison security has been compromised, it is fair to ask
whether O’Lone’s concerns about heightened review of free exercise
restrictions in prisons and jails were exaggerated. And it is reasonable
to question, for similar reasons, whether the level of deference currently afforded to restrictions on nonreligious speech under Turner is
necessary to correctional security.
Although RLUIPA has not caused clear negative effects, the statute appears to have produced its intended consequence—greater protection for prisoners’ religious rights. Indeed, it is not uncommon for
a prisoner to prevail on a RLUIPA claim while losing a free exercise
claim in the same case and on the same facts.384
381 Brief for the United States as Amici Curiae Supporting Respondents at 24, Cutter, 544
U.S. 709 (No. 03-9877), 2004 WL 2961153, at *24 (citation omitted).
382 See Cutter, 544 U.S. at 725.
383 O’Lone v. Estate of Shabazz, 482 U.S. 342, 353 (1987) (citation omitted).
384 See, e.g., Davila v. Gladden, 777 F.3d 1198, 1212, 1214 (11th Cir. 2015) (affirming grant
of summary judgment against prisoner seeking to possess religious beads and shells in free exercise claim while reversing under the RFRA/RLUIPA standard); Lovelace v. Lee, 472 F.3d 174,
188 n.3 (4th Cir. 2006) (striking down Ramadan restrictions under RLUIPA despite other case
law upholding them under the First Amendment and stating, “the inquiry under RLUIPA is
more rigorous than under the First Amendment”); Murphy v. Mo. Dep’t of Corr., 372 F.3d 979,
983–84, 988–89 (8th Cir. 2004) (affirming grant of summary judgment in congregate prayer claim

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C. Coherent Standards
The appropriate balance between deference and scrutiny for free
speech claims is not straightforward, but here, too, RFRA and
RLUIPA jurisprudence provides a helpful model. Although the
RFRA/RLUIPA standard closely tracks the language typically used to
describe strict scrutiny385—the most stringent standard of review for a
speech claim—the Supreme Court added a gloss to the RFRA/
RLUIPA standard in dicta in Cutter v. Wilkinson: “[P]rison security is
a compelling state interest, and that deference is due to institutional
officials’ expertise in this area.”386 Following Cutter, it was not entirely
clear what this relaxed form of strict scrutiny meant. Because strict
scrutiny and deference to the government are, in a sense, opposites,
there is a certain incoherence to the very notion of “strict scrutiny
with deference.” The Justices grappled with this issue recently in Holt
v. Hobbs, a case that addresses, under RLUIPA, a restriction that prevented a Muslim prisoner from growing a beard.387 During oral argument, Justice Alito inquired, “How do you reconcile deference with
the strict scrutiny that the statute requires?”388 Later in the argument,
Justice Kagan stated that “deference in the context [of RLUIPA] . . .
just seems like a contradiction in terms.”389
With its recent decision in Holt, the Court has further defined the
contours of judicial review under RFRA/RLUIPA. Conspicuously absent from the opinion, a unanimous ruling authored by Justice Alito, is
the language in Cutter, cited above, regarding “deference . . . due to
institutional officials’ expertise.”390 This omission, likely intentional,
may signal that the same skepticism that surfaced in the Justices’ questions at argument has led the Court to abandon the notion of strict
scrutiny with deference. Indeed, Holt strongly suggests that courts
under Turner, but reversing under RLUIPA); Kikumura v. Hurley, 242 F.3d 950, 956–62 (10th
Cir. 2001) (affirming denial of preliminary injunction regarding a prisoner’s request for pastoral
visit under the free exercise clause, but reversing under RLUIPA).
385 See, e.g., Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729, 2738 (2011) (“Because the Act
imposes a restriction on the content of protected speech, it is invalid unless California can
demonstrate that it passes strict scrutiny—that is, unless it is justified by a compelling government interest and is narrowly drawn to serve that interest.”) (citing R.A.V. v. City of St. Paul,
505 U.S. 377, 395 (1992)).
386 Cutter, 544 U.S. at 725 n.13.
387 Holt v. Hobbs, 135 S. Ct. 853, 859 (2015).
388 Transcript of Oral Argument at 19, Holt v. Hobbs, 135 S. Ct. 853 (2015) (No. 13-6827),
http://www.supremecourt.gov/oral_arguments/argument_transcripts/13-6827_48c4.pdf (last visited June 24, 2016).
389 Id. at 54.
390 Cutter, 544 U.S. at 725 n.13.

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should apply RLUIPA with far less deference than the dictum in Cutter had implied:
RLUIPA . . . does not permit . . . unquestioning deference.
RLUIPA . . . “makes clear that it is the obligation of the
courts to consider whether exceptions are required under the
test set forth by Congress.” . . . Prison officials are experts in
running prisons and evaluating the likely effects of altering
prison rules, and courts should respect that expertise. But
that respect does not justify the abdication of the responsibility, conferred by Congress, to apply RLUIPA’s rigorous
standard.391
At the same time, the Court made it clear that context still matters: “[C]ourts should not blind themselves to the fact that the analysis
is conducted in the prison setting.”392
Taken as a whole, Holt suggests that courts should not accept
prison officials’ decisions without a hard look, but nor should they
forget that security and management concerns unique to prison may
require restrictions that could not be justified in the free world. First,
the set of interests that are “compelling” must be defined contextually. For example, the interest in preventing escape has little applicability in free society, but certainly is a compelling interest in the
context of a prison. Second, the means necessary to accomplish compelling interests must also depend to some extent on context. For example, prohibiting ownership of heavy metal crucifixes that could be
used as a weapon in prison would not be permissible in society generally, but could serve a compelling interest in many prison settings.
This much is clear: judicial review under RFRA and RLUIPA is
searching and exceeds the rigor of Turner, but such scrutiny must also
be cabined by the realities of prison life. In short, the Supreme Court
has already developed a relatively coherent standard that reconciles
rigorous review with the context of prison. There is no apparent reason that such a standard would become incoherent if applied to
Speech Clause claims.
CONCLUSION: RETHINKING TURNER
To be sure, Turner deference does not operate in a vacuum—it is
but one stone in an edifice of “practical immunity” that makes prisoners’ First Amendment claims difficult to win. But as this Article has
demonstrated, the manner in which Turner has been applied is an im391
392

Holt, 135 S. Ct. at 864 (citation omitted).
Id. at 866.

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portant factor in the outcome of prison First Amendment cases, and
one that should be corrected. Two solutions are proposed below.
First, the Supreme Court could grant certiorari in a case involving
a truly senseless prison speech restriction and invalidate the rule. As
matters now stand, Turner was the first and last time that the Supreme
Court struck down a regulation under Turner.393 In the decades since
Turner, the high court has upheld regulations that are quite restrictive—including a severe limitation on books for the highest security
prisoners in Beard v. Banks and harsh visitation restrictions in Overton v. Bazetta.394 While reasonable people might very well disagree
that such regulations were necessary, none of these restrictions upheld
by the Supreme Court could fairly be called ridiculous—there was
some connection to a legitimate penological interest.395 Some lower
federal courts, however, have given prison officials far more deference
than Turner requires. Appellate court decisions which uphold bans,
for example, on monographs about prison conditions, Dungeons &
Dragons, and the Physicians’ Desk Reference396 invite a reminder that
regulations can be invalidated under Turner—and that the high court
meant what it said in Beard v. Banks: “Turner requires prison authorities to show more than a formalistic logical connection between a regulation and a penological objective.”397
What the Supreme Court does in these cases may send a stronger
message to lower courts than what it says. Indeed, as Justice Stevens
observed in his concurrence and dissent in Turner, “[h]ow a court describes its standard of review when a prison regulation infringes fundamental constitutional rights often has far less consequence for the
inmates than the actual showing that the court demands of the State in
order to uphold the regulation.”398 Granting certiorari for the purpose
of striking down a patently flawed regulation would send a clear message that deference does not mean the abandonment of review.
Second, the Supreme Court could revisit the Turner standard in
light of the thirty years of history and experience since the decision.
The deference the Court decided to afford to prison and jail administrators in crafting speech restrictions has often been abused. Exercising their discretion under Turner, correctional officials have done
393
394
395
396
397
398

in part).

See supra Part I.
Id.
Id.
See supra Part II.
Beard v. Banks, 548 U.S. 521, 535 (2006); supra Part I.
Turner v. Safley, 482 U.S. 78, 100 (1987) (Stevens, J., concurring in part and dissenting

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everything from prohibiting President Obama’s book as a national security threat; to using hobby knives to excise Bible passages from letters; to forbidding all nonreligious publications; to banning Ulysses,
John Updike, Maimonides, case law, and cat pictures.399 Some jailers,
it appears, believe that anything goes.
This was not the intent of Turner. Rather, the “task,” as the Supreme Court stated in Turner, was to “formulate a standard of review
for prisoners’ constitutional claims that is responsive both to the ‘policy of judicial restraint regarding prisoner complaints and [to] the
need to protect constitutional rights.’”400 The years since Turner
demonstrate that—on the ground, and as a practical reality—the standard has failed to create the balance for which it was designed.
At the same time, RFRA and RLUIPA appear to have succeeded
in expanding protection of prisoners’ expression without compromising institutional safety—the statutes accomplished the very balance of
expressive freedom and security that Turner was meant to produce.401
Holt, meanwhile, has provided the lower courts with valuable guidance about how to reconcile strict scrutiny with the prison context in
free exercise cases.402
All of this suggests that the time has come for a substantial recalibration, modeled on the RFRA/RLUIPA standard, of judicial review of prisoner Speech Clause claims. Indeed, it may now be
appropriate for the Supreme Court to overrule Turner and extend
RFRA/RLUIPA-style strict scrutiny to such claims as a matter of constitutional law.403 Under such a standard, courts would be required to
assess whether a restriction on speech is the least restrictive means of
accomplishing a compelling interest, but would not be permitted to
ignore the contextual factors unique to prison that must bear on the
analysis.404 Of course, Congress, too, could extend the standard, doing
for speech claims what RFRA and RLUIPA did for free exercise
claims.405
See supra Part III.
Turner, 482 U.S. at 85 (quoting Procunier v. Martinez, 416 U.S. 396, 406 (1974)).
401 See supra Part VI.
402 Id.
403 See supra Part II (discussing that Turner no longer successfully addresses free speech).
404 42 U.S.C. § 2000cc(a)(1).
405 This would require compiling a sufficient legislative record of First Amendment violations in prison—otherwise such a statute would be vulnerable on the ground that it purported to
extend, rather than enforce, the Fourteenth Amendment. See City of Boerne v. Flores, 521 U.S.
507, 530–31 (1997). Given the frequency with which jails and prisons violate the First Amendment, see supra Part III, such a legislative record would not be difficult to compile. Cf. Cutter v.
Wilkinson, 544 U.S. 709, 716 (2005) (“Before enacting [RLUIPA], Congress documented, in
399
400

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The history of RFRA and RLUIPA suggests that strict scrutiny is
more true to the objectives of Turner than Turner itself.406 While Turner set out to balance prison security and expressive rights, RFRA
and RLUIPA have accomplished, in free exercise cases, a more successful accommodation of the conflicting interests. Hence an ironic
state of affairs: the way to be true to Turner is to overrule it.

hearings spanning three years, that ‘frivolous or arbitrary’ barriers impeded institutionalized persons’ religious exercise.”); 146 CONG. REC. S7774–75 (daily ed. July 27, 2000) (joint statement of
Sen. Hatch and Sen. Kennedy on RLUIPA) (“Whether from indifference, ignorance, bigotry, or
lack of resources, some institutions restrict religious liberty in egregious and unnecessary
ways.”).
406 Compare Turner v. Safley, 482 U.S. 78, 85 (1987) (noting that the task of the Court is to
create a standard of review to balance judicial restraint and protection of prisoners’ constitutional rights), with supra Section VI.B (Costs of Heightened Review).