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Northern Kentucky Law Review - False Teeth, 1990

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Alphonse A. Gerhardstein*


Prison rules are easy to create. "Once established, rules have great
success at survival.... By ...accumulations of permanent rules

passed in reaction to episodic disturbances, many prisons have
evolved into places of extreme regimentation."'
While not all rules trace their roots to a specific incident, many
restrictions imposed on prisoners are in fact premised on a belief
by the administration that relaxation of a particular restriction
would pose a threat to security or create administrative chaos.
Prisoners challenge these rules on their face and as applied in
a wide variety of cases, alleging that the rules abridge constitutional rights. 2 For the last decade prisoner rights litigation has
been marked by a determined effort to exclude what some believe
are inappropriate prisoner rights claims from federal court. The
Supreme Court, in search of a standard for reviewing these
claims, has generally, regardless of the substantive constitutional
right invoked by the prisoner, balanced the need for deference

B.A., Beloit College; J.D., New York University. Mr. Gerhardstein is a private civil

rights attorney and Adjunct Professor of Law at Salmon P. Chase College of Law,
Northern Kentucky University. Appreciation is extended to Robbie Nichols who assisted
with the research of this article.

When a disturbance occurs, for example, as men are going from one place to
another, it is decreed that if any group of five or more men is moving from one
building or area to another, they must walk in a line and be accompanied by an
officer. Later an argument between two men in such a line escalates to a fist fight,
and henceforth no talking is allowed in line. Someone is attacked with a "shiv"
made from a table knife smuggled into a cell and sharpened to a point, and
henceforth no forks or knives may be used by inmates in the dining hall. Id.
2. See generally Project: Eighteenth Annual Review of CriminalProcedure: United States
Supreme Court and Courts of Appeals 1987-1988, VI. Prisoners'Rights, 77 GEO. L.J. 1339
(1989) [hereinafter Project].



to prison administrators against the constitutional deprivations
claimed by the prisoner.3 The result has been an overall reduction
in the type of prisoner rights claims that remain viable.
Several recent decisions from the Supreme Court have excluded certain prisoner claims from court altogether. For example, in Kentucky Dept. of Corrections v. Thompson, prisoners
sought a hearing to challenge the exclusion of certain persons
from inmate visitation. 5 The Supreme Court, after reviewing the
state regulations setting out inmate visitation rules, held that
the prisoners had no liberty interest in receiving visitors that
was protected by the Due Process Clause.6 The inmates were
therefore not entitled to sue over the exclusion of certain visitors.
Similarly, in Parrattv. Taylor, a prisoner suffering a property
loss was not permitted to sue in federal court since a state tort
claims procedure existed to redress deprivations caused by random, unauthorized acts by state officials. 7 Congress has further
acted to cut back on prisoner cases in federal court by requiring
a 90-day continuance of prisoner rights cases if the trial court
believes it appropriate.8 During this period a prisoner must
exhaust grievance procedures in those states such as Ohio where
procedures have been approved by the United States Attorney
The growing number of theories that exclude prisoners from
court will not stop prisoner rights litigation completely. The
courtroom remains the only place that prisoners can fight for
their rights outside of their own institutions. Prisoners have no
political clout. Non-litigatory avenues for advocacy are closed to
them. 10 Thus, carefully applying the standard of review for those

3. See generally Note, The New Standard of Review for Prisoners' Rights: A "Turner"
for the Worse? Turner v. Safley, 33 VILL. L. REV. 393 (1988); Note, Prisoner's Rights,
InstitutionalNeeds and the Burger Court, 72 VA. L. REv. 161 (1986).
4. See Eastman, Draining the Swamp: An Examination of Judicial and Congressional
Policies Designed to Limit Prisoner Litigation, 20 COLUM. HUM. RTS. L. REV. 61 (1988)
[hereinafter Draining the Swamp]. See also Project, supra note 2.
5. Kentucky Dep't of Corrections v. Thompson, 109 S. Ct. 1904, 1907 (1989).
6. Id. at 1911.
7. Parratt v. Taylor, 451 U.S. 527, 543-44 (1981).
8. 42 U.S.C. S 1997e (1982).
9. Id. See Lay, Exhaustion of Grievance Procedures for State Prisoners Under S 1997e
of the Civil Rights Act, 71 IOWA L. REV. 935, 936 (1986). See also Eastman, Draining the
Swamp, supra note 4.
10. See Rhodes v. Chapman, 452 U.S. 337, 358 (1981) (Brennan, J., concurring).



claims that remain viable carries heightened importance.
The standard now used and reaffirmed this past term by the
Court for challenges to inmate restrictions based upon the First
Amendment requires that regulations be "reasonably related to
legitimate penological interests."'" That standard of review, we
are told, is not "toothless.."12 Dissenters warn, however, that this
"4reasonableness" standard is "manipulable" because speculation
may be accepted by the trier of fact over concrete, documented
reasons for the restrictions.
This article explains the emerging standard of review in cases
challenging prison regulation of Free Exercise and First Amendment rights. A return to a modified doctrine of overbreadth is
urged for reviewing regulations subjected to attack on their face
and as applied. This article further argues that deference to
prison administrators should not cause courts to accept watereddown evidence in support of challenged regulations. Finally, as
it is written by a practitioner, this article emphasizes that thorough discovery and presentation of the facts will ensure a vigorous inquiry under the current standard.



Summary of Developments Leading to Turner

Prisoner rights have been on a pendulum in the courts. Historically judges followed a hands-off doctrine, refusing to hear
any complaints about prison regulations. The movement away
from that doctrine accelerated in the 1960s, tracking two related
trends: first, the expansion of rights for persons charged with
crime and, second, the rise of S 1983 litigation after the decision
in Monroe v. Pape.14 During the 1970s, prisoners won Supreme
Court victories regarding censorship of mail 15 and procedural due
process in disciplinary matters.16 The Court also recognized a

11. Thornburgh v. Abbott, 109 S. Ct. 1874, 1876 (1989) (quoting Turner v. Safley, 482
U.S. 78, 89 (1987)).
12. Id. at 1882.
13. Id. at 1889.
14. See generally Note, The New Standard of Review for Prisoners'Rights: A "Turner"
for the Worse? Turner v. Safley, 33 VILL. L. REV. 393 (1988); Monroe v. Pape, 365 U.S.
167 (1961).
15. Procunier v. Martinez, 416 U.S. 396 (1974).
16. Wolff v. McDonnell, 418 U.S. 539 (1974).



constitutionally based right to medical care. 17 During that decade,
the "big" prison cases flourished. Major correctional institutions
and even entire prison systems in many jurisdictions came under
court order.18 In contrast, the pendulum began swinging in the
other direction during the 1980s. The Court re-established deference to prison administrators as the major factor in prisonerconditions cases. 19
B. Turner v. Safley
1. The Turner Standard
The current standard for review in prisoner First Amendment
cases was generally set out in Turner v. Safley.20 The Court had
before it regulations affecting the right of prisoners to correspond
with each other and to marry while incarcerated. The Court set
out two principles in formulating a standard. First, prisoners do
indeed have constitutional rights: "Prison walls do not form a
barrier separating prison inmates from the protections of the
Second, courts should give deference to prison
administrators. 22 These principles reflect the fact that "[r]unning
a prison is an inordinately difficult undertaking that requires
expertise, planning, and the commitment of resources, all of which
are peculiarly within the province of the legislative and executive
branches of government."28 Judicial restraint was therefore re24
The balance between these principles caused the Court to
establish a reasonable-relation test to determine the validity of
a prison regulation challenged on First Amendment grounds:

17. Estelle v. Gamble, 429 U.S. 97 (1976).
18. See I. ROBBINS, PRISONERS AND THE LAW App. B-13 (1989); Rhodes v. Chapman, 452
U.S. 337, 353 n.1 (Brennan, J., concurring).
19. See, e.g., Bell v. Wolfish, 441 U.S. 520, 561 (1979) ("restrictions and practices were
reasonable responses by MCC [Metropolitan Correctional Center] officials to legitimate
security concerns"); Rhodes v. Chapman, 452 U.S. 337, 352 (1981) ("courts cannot assume
that ...prison officials are insensitive to the requirements of the Constitution or the
perplexing sociological problems of how best to achieve the goals of the penal function
in the criminal justice system ...").
20. Turner v. Safley, 482 U.S. 78 (1987).
21. Id. at 84.
22. Id. at 85.
23. Id. at 84-85.
24. Id. at 85.



"[W]hen a prison regulation impinges on inmates' constitutional
rights, the regulation is valid if it is reasonably related to
legitimate penological interests.."
Four factors are to be applied in making determinations under
this test. First, there must be a valid, neutral governmental
purpose for the prison regulation and a "rational connection"
between that purpose and the regulation.2 6 Second, the court will
look at whether alternative means of exercising the constitutional
right remain available to the prisoner.27 Third, the court will
examine the impact that accommodation of the right will have
on other inmates, staff, and prison resources. 28 Fourth, the court
will determine whether obvious alternatives to the regulation
exist. In that event, the regulation might be an "exaggerated
response" to prison administration concerns. 29 The availability of
alternatives that fully accommodate the prisoner's rights at little
or no cost will weigh heavily toward a finding that the reasonablerelationship test is not met. 30
Turner did not overrule Procunier v. Martinez.31 That case
struck down California regulations authorizing censorship of letters that "unduly complain," "magnify grievances," or express
"inflammatory ... views.."32 Those regulations were held to be
facially overbroad.13 The Martinez standard has been described
as weaker than strict scrutiny but not "undemanding." The
standard allowed "censorship if it furthered 'an important or
substantial governmental interest unrelated to the suppression
of expression' and 'the limitation of First Amendment freedoms
[was] no greater than [was] necessary or essential.' "1 Martinez
was distinguished in Turner as a case turning on the "First and
3 5
Fourteenth Amendment Rights of those who are not prisoners."

25. Id. at 89.
26. Id.
27. Id. at 90.
28. Id.
29. Id.
30. Id. at 91.
31. Procunier v. Martinez, 416 U.S. 396 (1974).
32. Id. at 415.
33. Id.
34. Id. at 413.
35. Turner v. Safley, 482 U.S. 78, 85 (1987) (quoting Martinez, 416 U.S. at 409) (emphasis
added by the Turner Court).



As stated above, the inmate plaintiffs in Turner challenged the
Missouri prison restrictions on prisoner correspondence and inmate marriages. Only the marriage rule implicated non-prisoners.
The Court stated that this fact may have been sufficient to
support application of the Martinez test, which it viewed as more
stringent that the reasonableness test.36 The Court did not apply

Martinez at all in Turner, however, as the marriage rule even
fell short of the reasonableness test.
2. Application of the Standard to the CorrespondenceRule
The Missouri regulation considered in Turner prohibited correspondence between inmates in different institutions, but allowed exceptions for correspondence with immediate family
members, for correspondence concerning legal affairs, or if the
treatment team at each institution deemed such correspondence
to be in the best interests of the inmate.38 The Court held that

this regulation, on its face, did not violate the First Amendment
rights of the inmates.

The Court found that the valid penological purpose behind the
regulation was security. Prison officials had testified about a
growing gang problem and stated that restricting correspondence
reduced the ability of violent inmates to "communicate escape
plans and arrange assaults.."40 This reason served as a logical

connection between the restriction and the purpose, so the first
factor was satisfied. The second factor was also satisfied since
the restriction did not deprive inmates of all means of expression- only communication with a narrow group of persons: other
inmates presently incarcerated. 41 No obvious alternative was seen
by the majority since the prison officials testified that it would
be impossible to read and monitor all inmate-to-inmate correspondence if the regulation were changed. 42 Nor was the rule,
therefore, an exaggerated response to the problem.


Turner, 482 U.S. at 97.
Id. at 81-82.
Id. at 99.
Id. at 91.
Id. at 92.
Id. at 93.
Id. at 100.



Though the rule survived a facial challenge, the Court did
remand the case for trial as to whether the correspondence
regulation had been "applied by prison officials in an arbitrary
and capricious manner."
3. Application of the Standard to the MarriageRule
State officials had also imposed a nearly complete ban on
inmate marriages. 45 This regulation was held in Turner to be
facially invalid.48 Prison officials had cited security and rehabilitation as rationales for the rule. The security argument rested
on an effort to avoid "love triangles.."47 The rehabilitation rationale focused on the female inmates' need for developing selfreliance. 48 The first factor was satisfied by these rationales, but
the Court found the regulation to be an "exaggerated response"
to these reasons. "Common sense," the Court stated, "suggests
that there is no logical connection between the marriage restriction and the formation of love triangles.."49 Rivalries over female
prisoners would likely be the same whether marriage restrictions
existed or not.5° Furthermore, rehabilitation concerns about the
development of self-reliance in female prisoners offered no justification for this broad regulation, which also restricted male
prisoner marriages. 51 Thus, the Court held the marriage regula52
tion to be "facially invalid.."
C. O'Lone v. Estate of Shabazz
Eight days later, the Court decided O'Lone v. Estate of Shabazz. The challenged regulations in that case prohibited Muslim
inmates on work details from returning to the institution to
participate in weekly Jumu'ah, a prayer service considered central to and obligatory in the Muslim religion.5 The Court applied


Id. at 82.
Id. at 99-100.
Id. at 97.
Id. at 97-98.
Id. at 85.
Id. at 99.
O'Lone v. Estate of Shabazz, 482 U.S. 342 (1987).
Id. at 345.



the Turner standard55 and affirmed the regulation.56 Security
concerns supported the assignment of inmates to work details
that served to relieve tension within the institution and to reduce
overcrowding while the inmates were on detail." The additional
policy of prohibiting returns to the institution during the day
also was supported by a valid purpose -relieving congestion at
the main gate, a high-risk area. 58 Another goal served was re-

habilitation because the policy simulated working conditions within
society.59 The Court held that alternative means for exercising
their religious rights existed for the Muslim prisoners. 0 Although
all Jumu'ah attendance was foreclosed for certain Muslim inmates, other Muslim practices were permitted which, the Court
held, was sufficient under the standard." Finally, the Court held
that accommodating any alternatives would unduly drain prison
resources.62 Therefore, there were no "obvious, easy alternatives"
to the rule adopted by the state.63

D. Turner and O'Lone Dissents
In Turner, four Justices concurred on the marriage regulation
and dissented from the ruling on the facial validity of the correspondence regulation. 4 Those same four also dissented from
the holding in O'Lone.65 First, these justices disagreed with the
standard. They preferred a standard that varied the degree of
scrutiny applied to prison regulations according to "the nature
of this right being asserted by prisoners, the type of activity in
which they seek to engage, and whether the challenged restriction works a total deprivation (as opposed to a mere limitation)

55. Id. at 349.
56, Id. at 353.
57. Id. at 350-51.
58. Id. at 351.
59. Id. Note, however, that in civilian working situations, the employer would have a
duty to reasonably accommodate the sincerely held religious beliefs of the employee, as
long as there were no undue hardships on the employer's business. See 42 U.S.C. S
2000e(j) (1982) and Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60 (1986).
60. O'Lone v. Estate of Shabazz, 482 U.S. 342, 352 (1987).
61. Id.
62. Id. at 352-53.
63. Id. at 353 (quoting Turner v. Safley, 482 U.S. 78, 93 (1987)).
64. See Turner, 482 U.S. at 100 (separate opinion of Justice Stevens, with whom Justices
Brennan, Marshall, and Blackmun concurred).
65. O'Lone v. Estate of Shabazz, 482 U.S. 342, 354 (1987).



on the exercise of that right."66 Under this alternative standard,
if the exercise of the asserted right is not "presumptively dangerous" and if the prison has completely deprived prisoners of
the right, then prison officials would be required to demonstrate
that the restriction furthers an "important governmental interis limited to the extent necessary
est" and that the restriction
to effectuate that interest.
Thus, in O'Lone, the dissenters would have held for the prisoners because many alternatives existed to denying inmates on
work detail the right to attend Jumu'ah.6 8 Further, since the
regulation worked a complete deprivation of important Muslim
religious practices, higher scrutiny would apply.
The application of the more stringent standard, however, was
not the focus of the dissent in Turner.70 With respect to the
correspondence restrictions, the dissent stated that "the actual
showing that the court demands of the State in order to uphold
the regulation" is far more important to the outcome of a prisoners' rights case than the standard of review adopted by that
court.7 1 Nevertheless, the Turner dissent attacked the "openended reasonableness standard" utilized by the majority because
it made it much too easy to uphold restrictions on prisoners'
First Amendment rights on the basis of "administrative concerns
and speculation about possible security risks rather than on the
basis of the evidence that the restrictions are needed to further
an important governmental interest. ' 72 Instead of findings of fact
describing actual security risks, the dissent argued that the
majority opinion permits the "disregard for inmates' constitutional rights whenever the imagination of the warden produces
a plausible security reason.."
The dissent demonstrated that the inmates in Turner attacked
the correspondence regulation as it was applied, 74 while the

66. Id. at 358 (Brennan, J., dissenting) (quoting Abdul Wali v. Coughlin, 754 F.2d 1015,
1033 (2d Cir. 1985)).
67. O'Lone, 482 U.S. at 358 (Brennan, J., dissenting).
68. See id. at 363-67.
69. Id. at 359.
70. Turner v. Safley, 482 U.S. 78, 100 (1987) (Stevens, J., dissenting).
71. Id.
72. Id. at 101 n.1.
73. Id.. at 100-101.
74. Id. at 102.



majority, viewing it mainly as a facial challenge,75 chose to remand
for analysis of the "applied" arguments. 7 The dissent showed
that the evidence of escape concerns and other security problems
was "backed only by speculation,"' 77 and that the Court was
markedly inconsistent in its analysis of the correspondence restrictions as compared with the marriage ban that it did strike
down .

E. Thornburgh
The Court revisited this debate during this past term in
Thornburgh v. Abbott. 79 At issue was the validity of the Federal
Bureau of Prisons regulations authorizing prison officials to exclude incoming publications from the institutions. 80 The regulation
was affirmed on its face, but the case was remanded for trial on
the application of the rule to the 46 publications excluded by
prison officials .

Justice Blackmun, in the minority on Turner and O'Lone, wrote
the opinion for the Court.8 2 His opinion makes it clear that the
prison regulation was attacked both on its face and as applied,8 3
a distinction glossed over by the majority in Turner. He states
that the majority adopts the Turner standard in this case "with
confidence ... [that] a reasonableness standard is not toothless.."1 4
He rejects application of the Martinez standard to these incoming publications even though the censorship clearly impacts on

75. Turner v. Safley, 482 U.S. 78, 99 (1987).
76. Id. at 100.
77. Turner, 482 U.S. at 109 (Stevens, J., dissenting).
78. Id. at 112-13.
79. Thornburgh v. Abbott, 109 S. Ct. 1874 (1989).
80. Id. at 1877. In part, the regulations state that the "Bureau of Prisons permits an
inmate to subscribe to or to receive publications without prior approval." 28 C.F.R.
S 540.70(a) (1989). "The Warden may reject a publication only if it is determined detrimental to the security, good order, or discipline of the institution or if it might facilitate
criminal activity." 28 C.F.R. S 540.71(b) (1989). See also Thornburgh, 109 S. Ct. at 1877 n.5.
81. Thornburgh, 109 S. Ct. at 1884-85. The Court's previous, more deferential standard
continues to apply to regulations concerning outgoing correspondence to non-prisoners.
Id. at 1879. That standard, set out in Procunier v. Martinez, 416 U.S. 396 (1974), required
the practice to further an important governmental interest "unrelated to the suppression
of expression." Id. at 413. The regulation must impose no greater restriction to expression
than is necessary to protect the governmental interest. Id.
82. Thornburgh, 109 S. Ct. at 1876.
83. Id.
84. Id. at 1882 (quoting Pet. for Cert. 17, n.10).



the rights of nonprisoners to communicate. 5 Martinez is specifically limited by the Thornburgh decision to "regulations concerning outgoing correspondence. '86 Security implications for outgoing
correspondence are of lesser magnitude than regulations govern87
ing material coming into the prison.
Blackmun applied the four factors from Turner. The first
factor is satisfied by the Bureau of Prisons censorship regulations
since the regulations are supported by security concerns, a purpose, "central to all other corrections goals."8 8 The Court also
holds that the regulations are "neutral" even though content is
weighed in the determination of what to censor.8 9 Under the rule,
prison officials may censor only where it serves an important
governmental interest unrelated to the suppression of speech. 9°
The second factor is also satisfied since the right at issue must
be viewed expansively. 91 Though the Bureau of Prisons rule
completely deprives inmates of access to certain publications, this
factor is satisfied because inmates still have access to many other
publications not affected by the regulations.
The third factor, the impact of accommodation on others, is
also satisfied.93 Only publications found to be "potentially detri94
mental to order and security" are to be excluded by the warden.
The "prospect" of a "ripple effect" caused by circulation of such
material impacts on the safety of other staff and inmates.
Finally, the rule -is not seen as an "exaggerated response" since
no easy alternative was proposed by the plaintiff. 96 The Court
applies this conclusion even to the "all-or-nothing" rule, which
permits the prison officials to exclude an entire publication even
if only one page is determined to pose the potential threat.
In dissent, Justices Stevens, Brennan, and Marshall are not
satisfied. The Turner standard itself is still under attack: "[Tihe

Thornburgh, 109 S. Ct. at 1881.
Id. at 1882 (quoting Pell v. Procunier, 417 U.S. 817, 823 (1974)).
Thornburgh, 109 S. Ct. at 1882.

90. Id.
91. Id. at 1883.
92. Id. at 1884.
93. Id.

94. Id.
95. Id.
96. Id.
97. Id.



Court applies a 'manipulable' reasonableness standard to a set of
regulations that too easily may be interpreted to authorize arbitrary rejections of literature addressed to inmates."98 The dissent urges continuation of the more demanding standard set out
in Procunierv. Martinez."
The dissent concludes that the Turner standard is, indeed,
toothless. 00 No connection between the goal of maintaining security and such unrestrained censorship is presented by these
regulations. The dissent insists that the regulations permitting
publications to be rejected if the contents are "detrimental" to
"security, good order or discipline," or "might facilitate criminal
activity" provide no check on or guidance to prison administrators
making censorship decisions.' 0 The dissent takes particular issue
with the court's approval of the "all-or-nothing" rule, finding no
burden to administrators if they simply clip the offending material rather than toss the entire publication: "[Ilf, as the regulations' text seems to require, prison officials actually read an
article before rejecting it, the incremental burden associated with
clipping out the offending matter could not be of constitutional


F. Turner, O'Lone, Thornburgh and Overbreadth
In drawing the distinction between facial invalidity and invalidity as applied, the Court is modifying traditional overbreadth
doctrine without mentioning the doctrine at all. The Court, in
Martinez, struck down the California correspondence/censorship
rules as overbroad on their face.0 3 In that case, the Court stated
that even a "restriction on inmate correspondence that furthers
an important or substantial interest of penal administration will
nevertheless be invalid if its sweep is unnecessarily broad."'

In Thornburgh, the Court noted that Martinez had held regulations "facially overbroad,"' 0 5 but in restricting the application

98. Id. at 1874, 1889 (Stevens, J., dissenting).
99. Id.
100. Id. at 1892 n.18.
101. Id. at 1889.
102. Id. at 1892.
103. Procunier v. Martinez, 416 U.S. 396, 415 (1974).
104. Id. at 413-14 (emphasis added).
105. Thornburgh v. Abbott, 109 S. Ct. 1874, 1881 n.11 (1989).




of Martinez, no discussion of that doctrine is pursued. This failure
to explore the doctrinal foundation of the First Amendment's
application to the case is serious. Already earmarked as an
exception to normal First Amendment doctrine, prison cases will
completely escape a constitutional tether if the basic constitu1°
tional rules are not stated before exceptions are defined. 6
A law or regulation challenged under the First Amendment is
invalid on its face under the overbreadth doctrine if it "does not
aim specifically at evils within the allowable area of control [by
the government] but ...sweeps within its ambit other [consti-

tutionally protected] activities."'0 7 In Broadrick v. Oklahoma,0 1
the doctrine was first extended to civil laws. In that case, the
Court rejected an attack on the facial validity of a state law
prohibiting civil service employees from engaging in a variety of

106. The constitutional tether may have been broken. Just before this article went to
the printer, the Supreme Court issued its decision in Washington v. Harper, 110 S. Ct.
1028 (1990). In that case, the plaintiff prisoner had been forced to take psychiatric
medication without first receiving a judicial hearing. The Washington Supreme Court
had held that a judicial hearing was necessary before forcing medication. Harper v. State,
110 Wash. 2d 873, 759 P.2d 358 (1988). The U.S. Supreme Court rejected that view and
held that the "standard of reasonableness" set out in Turner should be applied to these
facts. The Washington Supreme Court had rejected the Turner standard as limited to
.First Amendment issues. A wholesale expansion of the Turner standard into areas outside
the First Amendment causes prisoner claims to be decided first by where the violation
has occurred, rather than by what right is at stake. Such analysis 'will surely dilute
constitutional rights within prisons.
None of these developments, however, may affect challenges to regulations that
subject inmates to discipline. Many regulations that are challenged do expose inmates to
discipline in the event of violation. If the regulation fails to give fair notice to an inmate
that certain conduct is prohibited, the regulation may be vulnerable under the vagueness
doctrine. Laws should "give a person of ordinary intelligence a reasonable opportunity
to know what is prohibited so that he may act accordingly." United States v. Thompson,
603 F.2d 1200, 1203 (5th Cir. 1979).
In Adams v. Gunnell, 729 F.2d 362 (5th Cir. 1984), a prison rule that prohibited "conduct
which disrupts the orderly running of the institution" was held to be vague as applied
to inmates who circulated a petition alleging racial discrimination. Id. at 363. The doctrine
was also utilized in Rios v. Lane, 812 F.2d 1032 (7th Cir. 1987), to hold a rule prohibiting
gang activity vague as applied to conduct consisting of passing a note card listing radio
stations and revolutionary slogans to a known gang member. Id. at 1034-38.
Another related theory not directly addressed by the trilogy is retaliation. Inmates
who are punished in response to their exercise of First Amendment rights state a claim
for relief. See Newsom v. Norris, 888 F.2d 371 (6th Cir. 1989); Jackson v. Cain, 864 F.2d
1235 (5th Cir. 1989). See, e.g., Abernathy, Section 1988 and Constitutional Torts, 77 GEO.
L.J. 1441 (1989).
107. Thornhill v. Alabama, 310 U.S. 88, 97 (1940).
108. Broadrick v. Oklahoma, 413 U.S. 601 (1973).



political activities. 10 9 The Court agreed that the statute could be
read to reach clearly protected conduct, such as wearing a campaign button, 110 but held that such applications were insubstantial
compared with the large amount of unprotected conduct that the
statute legitimately reached."' The Court concluded that facial
invalidity depended on overbreadth that was both "real" and
"substantial" compared to a statute's legitimate reach. 1 2
The doctrine was recently applied by the Court to strike down
as facially invalid a Lakewood, Ohio, law giving the Mayor unbridled discretion to grant or deny licenses for newspaper vend3
ing boxes."
The four factors set out in the Turner trilogy, thus, are what
courts should look to when determining, in the prison context,
whether overbreadth is "real" and "substantial" when compared
to the legitimate reach of the challenged regulation."' This is
essentially what the court did when it invalidated the marriage
rule in Turner. The Court conceded that some legitimate security
risks justify placing restrictions on the right of some inmates to
marry. 15 However, the broad language of the regulation allowed
prison officials to prohibit almost all marriages even though such
prohibition would likely have no effect on the professed goal of
preventing violence."' Furthermore, the Court held that even
though rehabilitation was a legitimate penological objective, this
near-complete ban on inmate marriage swept "much more broadly"
than necessary. 1 7 The principles of overbreadth, though not stated,
did guide the Court in Turner.
Ignoring those principles and the doctrine of overbreadth,
however, led to a serious error in Thornburgh. The all-or-nothing
aspect of the rules permitted entire publications to be seized
even though only one article or picture might be objectionable." 8
Traditional overbreadth cases support the notion that the Court


Id. at 602.
Id. at 618.
Id. at 615.
City of Lakewood v. Plain Dealer Publishing Co., 108 S. Ct. 2138, 2145 (1988).
Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973).
Turner v. Safley, 482 U.S. 78, 97 (1987).
Id. at 98.
Thornburgh v. Abbott, 109 S. Ct. 1874, 1884 (1989).



can, in some instances, sever those aspects of a rule which make
it overbroad. 119 The all-or-nothing rule should have been severed
and struck down as overbroad. Striking at least the all-or-nothing
aspect of the prison rule in Thornburgh also would have served
another purpose behind the overbreadth doctrine -reduction of
the chilling effect of overbroad rules. 120 The all-or-nothing rule
deters publishers from including any references to controversial
themes in publications sent to prisoners for fear that entire books
and magazines will be seized as a result. It also deters prisoners
from subscribing to publications that might contain such themes.
The rule deters the exercise of massive amounts of protected
The failure to anchor its analysis in overbreadth also caused
the Court in Thornburgh to needlessly leave open the question
of whether special evidentiary burdens or burden-shifting should
be utilized when applying the Turner test. 121 The district court

had required the prison only to "articulate" a relationship between its regulations and the goal of security or other corrections
purpose. Then the court shifted the burden to the plaintiffs to
prove by "substantial evidence" that the challenged action was
an "exaggerated response" to the problem identified by the
prison. 122 No basis in the overbreadth cases exists to support this
extra burden upon prisoner plaintiffs.1

Finally, the absence of serious discussion of the doctrinal foundation of overbreadth caused the Court, in Thornburgh, to provide
little direction to the trial court on remand, which must determine
the validity of the publication rule as applied to the publications.
The Thornburgh dissent discussed an article in Labyrinth magazine that detailed medical malpractice claims resulting in the
death of inmate Joseph Jones at the federal prison in Terre
Haute, Ind.124 A copy of the magazine containing that article was

119. Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 506 (1985) (term "lust" could be
struck from a statute without invalidating the entire statute).
120. Alexander, Is There an Overbreadth Doctrine?, 22 SAN DIEGO L. REV. 541, 552
121. Thornburgh, 109 S. Ct. at 1882 n.12.
122. Id.
123. Another related issue under the Turner standard is who decides fact questions.
In Siddigi v. Leak, 880 F.2d 904, 909-10 (7th Cir. 1989), this inquiry was held to be a jury
124. Thornburgh, 109 S. Ct. at 1885.



intercepted by prison officials in Marion, Ill. The officials
justified the censorship based upon that portion of the rule
permitting suppression of material that "would be detrimental
to the good order and discipline of this institution." 125 However,
Joseph Jones' story was already available within the prison.
His case came before the Supreme Court in 1980, and the Court's
decision was available in the prison library. The question is, if
the regulation relied upon by the prison officials is facially valid
under Thornburgh, what is the lower court supposed to consider
in reviewing the regulation as applied to censorship of the
Labyrinth article?
The Court did provide a small amount of guidance by footnote
in Thornburgh:
Respondents have argued that the record does not support the
conclusion that the exclusions [of publications] are in fact based on
particular events or conditions at a particular prison; they contend
that variability in enforcement of the regulations stems solely from
the censors' subjective views.... These contentions go to the
adequacy 7of the regulations as applied, and will be considered on
Thus, in challenging the exclusion of a particular publication,
prisoner plaintiffs in Thornburgh will be able to bring in past
practices and inconsistent current practices. It is inconsistent,
for example, for a prison to make copies of Joseph Jones' case
available to prisoners in a legal publication while censoring a
similar account in a magazine. Overbreadth provides a way to
evaluate such an inconsistency. First, the rule as applied clearly
chills free speech since the magazine was seized. Second, the
material clearly was protected speech. Third, the record (consisting, e.g., of evidence of the handling of this article and similar
articles) demonstrates no basis for concluding that the material
would be "detrimental ... to good order.' 128
Deference shown to the opinions of prison administrators must
be less, when the rule is challenged "as applied." The application
of the rule should be justified by the actual evidence surrounding

125. Id. at 1886. See also 28 C.F.R. S 540.71(b) (1989).
126. The lawsuit by Jones' mother was addressed by the United States Supreme Court
and reported as Carlson v. Green, 446 U.S. 14 (1980),
127. Thornburgh, 109 S. Ct. at 1883 n.15.
128. 28 S C.F.R. 540.71(b) (1989).



the challenged action and not simply by the undocumented conclusion of prison officials.
Under this formulation, a prison rule can meet the Turner
standard on its face but "sweep too broadly" as applied in light
of the relevant past and present practices within the prison.
Evidence weighed under this overbreadth standard will not be
easily "manipulable."


Most cases challenging prison rules address the application of
the rule to the plaintiff. Some raise arguments that suggest facial
invalidity as well. Thus, courts must be vigilant to hear evidence
relating to the actual enforcement of the rule by the defendant
prison officials in addition to arguments raising the application
of the four Turner factors to a prison rule. A good example of a
thoughtful and correct treatment of a First Amendment challenge
after Turner is represented by Whitney v. Brown.'-9 The Sixth
Circuit struck down a 1985 Michigan prison policy that prohibited
Jewish inmates from traveling between complexes at the State
Prison of Southern Michigan to attend weekly Sabbath services
and annual Passover services.130 The Sixth Circuit issued a stern
warning to prison administrators that a probing look at the
evidence is required under the Turner-O'Lone-Thornburghtrilogy
of cases:
Perhaps the greatest weakness in the prison officials' arguments
is their misunderstanding of Turner and O'Lone as holding that
federal courts will uphold prison policies which can somehow be
supported with a flurry of disconnected and self-conflicting points.
They seem to read Turner and O'Lone as saying that anything
prison officials can justify is valid because they have somehow.
justified it. In an argument typical of their conclusory approach
to the problem, the prison officials maintain that the Passover
Seders should be banned because "[alny time the normal routine
of an institution is altered, the good order and security of that
facility are potentially compromised." The fact remains, however,
that prison officials do not set constitutional standards by fiat.13'

129. Whitney v. Brown, 882 F.2d 1068 (6th Cir. 1989).
130. Id. at 1078.
131. Id. at 1074 (citation omitted) (emphasis added).



Both the trier of fact and the appellate court in that case took
great care to evaluate the evidence in deciding whether the
prison was justified in abandoning its 45-year rule permitting
Sabbath services. The analysis included application of the four
factors as well as a review of the history of the application of
the rule in previous years.

The Sixth Circuit has upheld prison regulations under Turner
after a less thorough but nonetheless fact-based review of the
issues. In Pollock v. Marshall,133 the court upheld a hair-length
regulation as applied to a Lakota Indian inmate.134 In Ward v.
Washtenaw County Sheriffs Dept.,1 35 the court upheld a rule that

1 36
permitted inmates to receive periodicals only from publishers.



The lesson for trial courts, from the trilogy of cases and their
application in this Circuit, is careful review of the evidence.
Great deference will be given to the trial court's factual findings.137 Since most of the evidence is in the hands of the prison

administrators, discovery rulings must make those records available to the plaintiff. Prison rules are normally found in state
statutes, state regulations, post orders (standing orders that are
posted at various stations in the prison), and institution handbooks, all of which should be open to discovery.
Evidence of past practices and the application of rules generally
can be ascertained from institution records. Logs are normally
maintained on all ranges of activities. Count sheets normally
record unusual incidents; inmate grievances and institution responses to grievances are also available. Many times, wardens
maintain files on all of the complaints they have received from
prisoners and their responses to these complaints.
All prison personnel have files covering all details of their
employment, training, and discipline on the job. Inmates also

132. Id. at 1073-74.
133. Pollock v. Marshall, 845 F.2d 656 (6th Cir. 1988).
134. Id. at 659-60. See also Fromer v. Scully, 874 F.2d 69 (2d Cir. 1989) (upheld oneinch beard rule).
135. Ward v. Washtenaw County Sheriffs Dep't, 881 F.2d 325 (6th Cir. 1989).
136. Id. at 329.
137. Kendrick v. Bland, 740 F.2d 432, 434 (6th Cir. 1984).



have extensive files that include data concerning discipline, medical care, housing unit activities, employment, education, and
counseling. Discipline is normally initiated with a written charge
or "ticket," followed by documents from a disciplinary board that
often records its hearings. All of these written records and audio
tapes are discoverable under Federal Rule of Civil Procedure 26,
although a protective order may be required for certain information that should not be freely available to inmates in the
In addition to the records described above, evidence of past
practices and pre-litigation reasons for rules can be found in
accreditation surveys, studies done for administrative reasons,
investigations by law enforcement agencies in related cases,
responses to inquiries from legislators, and affidavits presented
to courts in previous prisoner cases dealing with similar issues.
Expert witnesses are very important to the presentation of
any case in this area. All four factors identified by Turner suggest
the need for an expert, especially with respect to the question
of accommodations and alternatives. Note that in Turner the
Court compared the Missouri rules under scrutiny to those regulating similar conduct in the Federal Bureau of Prisons. Under
federal regulations, correspondence was restricted in similar fashion but the right to marry was more readily exercised than in
Missouri. 138


In its most recent trilogy of cases, the Supreme Court has
established a standard for the review of prison regulations challenged by prisoners on First Amendment grounds. The Court,
confident that the standard is not "toothless," has invalidated
one regulation under the standard and affirmed three others.
Interestingly, however, two of those three were remanded to
determine whether they were unconstitutional as applied. Some
theory is needed through which courts can test all of the actual
applications of these contested regulations to particular facts.
This article has argued that the overbreadth doctrine serves that
purpose. Further, it is evident that the Turner factors and the
reasonableness test are merely false teeth unless a solid eviden-

138. Turner v. Safley, 482 U.S. 78, 91-98 (1987).



tiary record is presented. Trial courts must insist on such a
record to ensure that First Amendment challenges to prison
regulations receive the greatest scrutiny possible.