Can a Prison Constitutionally Deprive Ill-behaved Prisoners of Access to Newspapers, Magazines, and Photographs? The Supreme Court Will Soon Decide

On March 27, the Supreme Court heard oral argument in the First Amendment case of Beard v. Banks. The case raises the question whether Pennsylvania may punish its prisoners for bad behavior by placing them in a special, separate unit, and depriving them of access to newspapers, magazines, and photographs -- including photographs of members of their families. The only exceptions made to the ban are for religious and legal materials, and paperback books from the prison library. (The prisoners may also receive letters from their families.)

A 2-1 majority of a three-judge panel of the U.S. Court of Appeals for the Third Circuit held that this punishment was unconstitutional. But, interestingly, then-Judge and now-Justice Samuel Alito disagreed.

Alito argued that the majority had misapplied a crucial Supreme Court precedent, Turner v. Safley. Turner commands courts to impose a relaxed standard when evaluating prison regulations that affect constitutional rights - asking only if the regulations are "reasonably related to legitimate penological interests." Given this relaxed standard, Alito argued, the regulations at issue passed muster.

In this column, I'll argue that, despite Turner's relaxed standard, the majority was correct, and then-Judge Alito was wrong. I'll also contend that this case is more complicated than the Third Circuit acknowledged - and that it calls for more than just the routine application of Turner.

The First Factor: Connecting the Regulation and the Government Interest

In addition to setting down the basic "reasonable relationship" standard, the Turner Court set forth four factors that courts should look to in applying its test to a particular prison regulation. I will go through them, one by one, and note, in each case, the majority's and then-Judge Alito's points about how each factor ought to apply.

First, the court examines if there is a "valid, rational" connection between the regulation and the "legitimate governmental interest put forth to justify it." The "regulation" in this instance is the prison's prohibition of printed news media and photographs.

The prison put forth several interests to justify its policy - chief among them, the interest in rehabilitation. The idea is simple: Prisoners can, and will, get back their newspaper and magazine subscriptions if they improve their behavior.

The Third Circuit panel majority did not find sufficient evidence in the record for the claim that this "deprivation theory of behavior modification had any basis in real human psychology," or had proven effective with the inmates at issue. It also feared that to "isolat[e] prisoners from the goings on in the outside world" might actually work against their rehabilitation.

(The majority also dismissed some other claimed government interests which it found - rightly, I think - unpersuasive: interests in stopping prisoners from setting fires, hurling waste, concealing contraband, or creating weapons. As the majority pointed out, other possessions prisoners were allowed, including the prison's own handbook, could serve the very same purposes.)

Justice Alito disagreed with the majority on this first factor. Seeing the Turner requirement of a "rational" relationship as quite minimal, he deemed "rational" the prison's belief that the deprivation of newspapers and magazines would motivate prisoners to behave better so they could get them back. And he stressed that this kind of "logical connection" was all that the Turner test required.

On this point, I find Justice Alito persuasive - despite my view that Turner is a harsh and incorrect ruling that I would love to see overruled. But Turner's minimal requirement -- of a merely logical connection between the prison's interest and its policy -- was satisfied here.

The Second Factor: Alternative Means to Exercise First Amendment Rights

Applying Turner's second factor, the court looks to whether inmates, despite the regulation, still have alternative means of exercising the constitutional right at issue.

The prison argued that the prisoners' alternative was to improve their behavior, and get transferred out of the unit - to another unit where they could get their magazine and newspaper subscriptions back.

But the Third Circuit panel noted that there was good reason to think getting transferred upon good behavior was far from automatic - and pointed out that, as long as inmates were in the special unit, the regulation operated as an absolute ban.

Judge Alito found "troubling" the prison's decision to broadly cut off all access to newspapers, magazines, and family photographs, but did not find them "absolute," since the prisoners could still receive letters and read books from the prison library.

In my view, this factor must be applied with great caution when First Amendment rights are at issue. The idea that the chance to read whatever books a meager prison library may stock, is an acceptable "alternative" to reading the magazine or newspaper of one's choice, is absurd.

Imagine if the government, by law, took away everyone's New York Times subscriptions, and offered a trip to the public library - which did not stock the Times -- as a viable "alternative." The truth is that when it comes to reading, there are no alternatives: First Amendment rights are not just the right to read, but the right to choose precisely what to read, too. Similarly, imagine if one were told one could write anything one wanted - except on topics the government had put off limits!

Doubtless this aspect of the second factor is what Judge Alito found "troubling." But it should have been more than troubling: It ought to have kept him up at night. On this factor, the prisoners clearly had the better of the argument.

The Third and Fourth Factors: Impact on the Prison If First Amendment Rights Were Allowed to be Exercised, and Possible Alternative Regulations

Moving on to Turner's third factor, the court asks, assuming constitutional rights were accommodated by the prison, what impact the accommodation would have on guards, other inmates, and prison resources generally. In other words, the court asks, in this case, what the cost would be if the inmates were to get their magazines, photographs, and photos back.

The Third Circuit panel majority felt that there would be little, if any, impact on the prison if the prisoners were granted "reasonable access to a limited number of periodicals and photographs." But then-Judge Alito disagreed.

Both the majority and Alito discussed the third factor along with the fourth factor in the analysis - which prompts the court to ask, Were there "ready" alternatives to the prison policy that would fully accommodate the prisoners' rights at "de minimis cost to valid penological interests."

The majority thought so. It proposed a "reasonable access" policy, which could include "reading periods" in which guards would drop off and then pick up the inmate's newspapers, magazines, and photographs.

But Alito pointed out that such a policy would take up significant resources: Occupying guards with the drop-off and pick-up of materials, he noted, would interfere with the performance of their other duties, for guards' time and attention are among the prisons' major resources. He thus felt that the cost here was not "de minimis" - that is, essentially dismissable -- but somewhat significant.

Again, on this fourth factor, as on the first factor of the test, then-Judge Alito is more persuasive than the majority: Surely giving prisoners the equivalent of "room service" when it comes to dropping off and picking up reading materials does consume significant prison resources.

Nevertheless, I think the panel majority - not Judge Alito -- made the right call on its overall balance of the factors in Turner. The rights here are too important, and the effect on the prison of honoring them too modest, to allow this First Amendment restriction to stand.

The Other First Amendment Question Here

The Third Circuit panel's opinion, though it held in favor of the prisoners, did not, I think, highlight two of the most troubling aspects of this case.

First, it's very conceivable that the exercise of First Amendment rights could have been part of what got the prisoners into the "special unit" in the first place.

Under prison rules, they got there based on a determination that, based on their prior behavior in prison, they were "too disruptive, violent, or problematic to house elsewhere." (Emphasis added.) And that determination was made by prison officials - not by any judge or jury. While there are specific criteria (such as the commission of violent acts) upon which prison officials must make this determination, one of them is a catchall: "recorded history of exerting negative influence in facility activities." (Emphasis added).

It's not hard to see how an outspoken prisoner might be deemed "problematic," or seen to have exerted a "negative influence." Imagine Malcolm X when he first got to prison: a convicted thief with a strong personality. He might have ended up quickly in the special unit under the catchall provision.

Not only do prison officials make the determination as to what prisoners must go to the special unit, they also decide who stays there. In his dissent, Judge Alito suggested he might have been more receptive to an "as-applied challenge by an inmate subjected to lengthy confinement in [the special unit] despite a record of reformed behavior." But where would this "record" come from? Records of behavior in the special unit come from the same officials who make the decisions there. And, again, an outspoken inmate - even if he violates no policies, and acts only within his First Amendment rights - may be more likely to be penalized by having his stay in the special unit extended.

Finally, I think there is a privacy component at issue here, too - though one that constitutional law doesn't currently recognize. Depriving prisoners even of family photographs not only intrudes on their First Amendment rights, but further separates them from their families. Even if they've "earned" that consequence by bad behavior, their families surely haven't. Try explaining to a second-grader why she can't send her school picture to her dad, and I doubt that she'll see a "logical connection" to a "legitimate penological interest" - even when she grows up to become a lawyer.