No. 99-1613 

In the Supreme Court of the United States 

ROBERT SHAW, ET AL., PETITIONERS 

v. 

KEVIN MURPHY 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT 

BRIEF FOR THE UNITED STATES 
AS AMICUS CURIAE SUPPORTING REVERSAL 

SETH P. WAXMAN 

Solicitor General 

Counsel of Record 

DAVID W. OGDEN 

Assistant Attorney General 

BARBARA D. UNDERWOOD 

Deputy Solicitor General 

GREGORY G. GARRE 

Assistant to the Solicitor 

General 

BARBARA L. HERWIG 
JOHN HOYLE 

Attorneys 

Department of Justice 
Washington, D.C. 20530-0001 
(202) 514-2217 

QUESTION PRESENTED 

Whether the court of appeals erred in holding that 
respondent’s conduct was protected by a First Amend- 
ment right of prison inmates to provide legal assistance 
to other inmates. 

(I) 

TABLE OF CONTENTS 

Page 

Interest of the United States ...................................................... 
1 

Statement ........................................................................................ 2 

Summary of argument .................................................................. 
9 

Argument: 

The court of appeals erroneously held that respon- 
dent’s conduct was protected by an independent 

First Amendment right to assist other inmates 

in legal matters ...................................................................... 

12 

A. Prisoners do not enjoy a First Amendment 

right to assist other inmates in legal matters ........ 

14 

B. Respondent’s First Amendment claim is 

governed by a conventional Turner analysis ......... 

24 

Conclusion ....................................................................................... 30 

TABLE OF AUTHORITIES 

Cases: 

Bell v. Wolfish, 441 U.S. 520 (1979) ......................... 

13, 14, 15 

Block v. Rutherford, 468 U.S. 576 (1984) .......................... 

15 

Bounds v. Smith, 430 U.S. 817 (1977) ...................... 

10, 16, 18 

Gassler v. Rayl, 862 F.2d 706 (8th Cir. 1988) ................... 

24 

Gibbs v. Hopkins, 10 F.3d 373 (6th Cir. 1993) .................. 

24 

Goff v. Nix, 113 F.3d 887 (8th Cir. 1997) ............................ 

24 

Hudson v. Palmer, 468 U.S. 517 (1984) ......................... 

14, 18 

Johnson v. Avery, 393 U.S. 483 (1969) ........................... 

9, 14, 

16-17, 21, 22, 24 
Jones v. North Carolina Prisoners’ Labor Union, 

Inc., 433 U.S. 119 (1977) ................ 

10, 14, 15, 20, 21, 23, 24 

Lewis v. Casey, 518 U.S. 343 (1996) ......................... 

10-11, 16, 

17, 18-19, 21, 23, 24, 26 
NAACP v. Button, 371 U.S. 415 (1966) .................. 

10, 19, 20 

O’Lone v. Estate of Shabazz, 482 U.S. 342 

(1987) .................................................................................... 14, 15 

(III) 

IV 

Cases—Continued: Page 

Pell v. Procunier, 417 U.S. 817 (1974) ..................... 

12, 14, 15 

Perry Educ. Ass’n v. Perry Local Educators’ 

Ass’n, 460 U.S. 37 (1983) ..................................................... 

28 

Price v. Johnston, 334 U.S. 266 (1948) ............................... 

14 

Primus, In re, 436 U.S. 412 (1978) ........................................ 

20 

Rizzo v. Dawson, 778 F.2d 527 (9th Cir. 1985) ............... 

7, 19 

Sandin v. Conner, 515 U.S. 472 (1995) .............................. 

14 

Schenck v. Edwards, 921 F. Supp. 679 (E.D. 

Wash. 1996), aff ’d, 133 F.3d 929 (9th Cir. 1998) ............... 

22 

Smith v. Maschner, 899 F.2d 940 (10th Cir. 

1990) ......................................................................................... 24 

Tighe v. Wall, 100 F.3d 41 (5th Cir. 1996) ......................... 

24 

Thomas v. Collins, 323 U.S. 516 (1945) ............................. 

21 

Thornburgh v. Abbott, 490 U.S. 401 (1989) ............... 

passim 

Turner v. Safley, 482 U.S. 78 (1987) ........................... 

passim 

United Transp. Union v. State Bar of Mich., 

401 U.S. 576 (1971) ............................................................ 

19, 20 

Walters v. National Ass’n of Radiation Survivors, 

473 U.S. 305 (1985) ................................................................ 

20 

Weaver v. Toombs, 756 F. Supp. 335 (W.D. Mich. 

1989), aff ’d, 915 F.2d 1574 (6th Cir. 1990) ......................... 

22 

Williams v. Nix, 1 F.3d 712 (8th Cir. 1993) ...................... 

24 

Wolff v. McDonnell, 418 U.S. 539 (1974) ....................... 

14, 15, 

17, 28 

Constitution, statutes and regulation: 

U.S. Const. Amend. I ....................................................... 

passim 

Civil Rights of Institutionalized Persons Act, 

42 U.S.C. 1997 et seq. ............................................................. 

2 

42 U.S.C. 1983 ............................................................................ 

6 

28 C.F.R.: 

Pt. 540: 

Sections 540.10-540.25 ...................................................... 

1 

Section 540.15 .................................................................... 

2 

Section 540.15(5) ................................................................ 

26 

Section 540.16 .................................................................... 2 

V 

Regulations—Continued: Page 

Section 540.17 .................................................................... 

2 

Section 540.18 .................................................................... 

2 

Section 540.19 .................................................................... 

2 

Pt. 541: 

Section 541.13 ................................................................. 

5, 26 

Pt. 543 ...................................................................................... 

5 

Sections 543.10–543.16 ..................................................... 

1 

Section 543.11(f)(1) .......................................................... 

2, 23 

Section 543.11(f)(4) .......................................................... 

2, 23 

Miscellaneous: 

G. Camp & C. Camp, U.S. Dep’t of Justice, Prison 

Gangs: Their Nature and Impact on Prisons 
(1985) ........................................................................................ 26 

62 Fed. Reg. 4890 (1997) .......................................................... 26 

In the Supreme Court of the United States 

No. 99-1613 

ROBERT SHAW, ET AL., PETITIONERS 

v. 

KEVIN MURPHY 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT 

BRIEF FOR THE UNITED STATES 
AS AMICUS CURIAE SUPPORTING REVERSAL 

INTEREST OF THE UNITED STATES 

The question presented in this case is whether a 
prison inmate has a First Amendment right to provide 
assistance with pending criminal charges to another 
inmate who is represented by appointed defense coun- 
sel. The United States has a substantial interest in the 
resolution of that question. First, the Federal Bureau 
of Prisons (BOP) operates more than 90 penal institu- 
tions across the country, and has adopted regulations 
governing inmate legal activities, see 28 C.F.R. 543.10- 
543.16, and inmate correspondence on legal and other 
matters, see 28 C.F.R. 540.10-540.25.1 The Court’s 

1 For example, BOP regulations permit inmates to provide 
legal assistance to other inmates in the same institution, but 
provide that “[t]he Warden at any institution may impose limita- 

(1) 

2 

decision in this case could bear on the constitutionality 
of those provisions or their enforcement, and affect the 
ability of BOP to advance legitimate penological inter- 
ests by regulating such inmate activities. Second, the 
Attorney General is charged with protecting the con- 
stitutional rights of prisoners under the Civil Rights of 
Institutionalized Persons Act, 42 U.S.C. 1997 et seq. 
The Court’s decision in this case could affect that inter- 
est as well. 

STATEMENT 

1. This case arises from a state prison inmate’s effort 
to communicate with a fellow inmate about criminal 
charges pending against the latter. In 1995, respondent 
was incarcerated at the Montana State Prison in Deer 
Lodge, Montana, where he was confined in the high 
security compound. As part of a prison program, re- 
spondent was trained as an “inmate law clerk” and, in 
that capacity, provided assistance with various matters 
to other inmates, including inmate Pat Tracy. In early 
1995, respondent learned that Tracy had been charged 
by state authorities with the felony assault of a prison 
guard, Officer Glen Galle. The State had appointed a 
lawyer to represent Tracy, and prison authorities had 

tions on an inmate’s assistance to another inmate in the interest of 
institution security, good order, or discipline.” 28 C.F.R. 
543.11(f )(1) and (4). Correspondence between inmates at the same 
institution may be restricted with respect to inmates placed in 
segregation or presenting security risks. 28 C.F.R. 540.15, 540.16. 
Correspondence between inmates at separate institutions is not 
allowed unless inmates are immediate family members or wit- 
nesses or parties in the same legal action. 28 C.F.R. 540.17. 
Incoming correspondence from courts or attorneys is treated as 
“special mail” and may be inspected but generally is not read or 
copied by prison officials; outgoing special mail from inmates to 
courts or attorneys is labeled as such and neither screened nor 
opened by prison officials. See 28 C.F.R. 540.18, 540.19. 

3 

transferred him to the prison’s maximum security unit 
while the charges were pending. See Pet. App. 2-3, 19, 

46. 
Tracy requested respondent’s assistance in defending 
against the charges. Pet. App. 3, 49. Prison officials 
denied that request because prison policy prohibited 
high security inmates, including respondent, from meet- 
ing with maximum security inmates, including Tracy. 
Id. at 3, 19. Prison officials sent a low security inmate 
law clerk to confer with Tracy, but Tracy declined to 
meet with him. Id. at 49. Respondent learned that 
Tracy had requested his assistance and began his own 
investigation into the altercation with Officer Galle. Id. 
at 3. On February 16, 1995, respondent sent Tracy the 
following letter: 

Dear Pat: 

How ya doing? I haven’t wrote before now. I 
been busy fighting my charges. Finally got every- 
thing taken care of. I can’t come up to max any- 
more. [T]he lowside clerks go up there now. [T]hat’s 
why I haven’t called you out like I used to. I do 
want to help you with your case against Galle. It 
wasn’t your fault and I know he provoked whatever 
happened! Don’t plead guilty because we can get at 
least 100 witnesses to testify that Galle is an over 
zealous guard who has a personal agenda to punish 
and harrass [sic] inmates. He has made homo- 
sexual advances toward certain inmates and that 
can be brought up into the record. There are peti- 
tions against him and I have tried to get the Unit 
Manager to do something about what he does in 
Close II, but all that happened is that I received two 
writeups from him myself as retaliation. So we 
must pursue this out of the prison system. I am 

4 

filing a suit with everyone in Close I and II named 
against him. So you can use that too! 

Another poiont is [sic] that he grabbed you from 
behind. You tell your lawyer to get ahold [sic] of me 
on this. Don’t take a plea bargain unless it’s for no 
more time. 

I seen Damie for a little while when I was out. I 
never came over to Butte much. Lenny is living in 
lower D still and I don’t speak to him much. His 
sister did something to Ted from what I heard. I 
don’t know what. Well I will write again when I get 
this thing against Galle finished. 

Later. . . . 

Murph 

Id. at 46-47 (bracketed material in original). 

The letter was intercepted in accordance with prison 
policy and read by petitioner Robert Shaw, an officer in 
the maximum security unit. Pet. App. 4.2 On the basis 
of this letter, Shaw reported respondent for violations 
of three rules contained in the Inmate Disciplinary 
Policy (J.A. 6-33): “Insolence” (Rule 009); “Interference 
with Due Process Hearings” (Rule 022); and “Conduct 
Which Disrupts or Interferes with the Security or 

2 Under the prison’s Inmate Correspondence Policy (J.A. 34- 

51), “[m]ail from other correctional facilities and mail to prisoners 
in Maximum Security and Administrative Segregation may be 
read.” J.A. 46; see J.A. 97. This policy sets forth special provisions 
governing “privileged correspondence” with “licensed attorneys” 
and certain public officials. J.A. 34-36. But correspondence with 
“inmate law clerks” is not subject to those provisions. See J.A. 97. 

5 

Orderly Operation of the Institution” (Rule 025).3 In 
his report, Shaw stated that the letter “accused CO 
Galle of being an over zealous guard who punishes and 
harasses inmates for a personal pleasure”; “accused CO 
Galle of making homo-sexual advances towards in- 
mates”; and stated “that CO Galle retaliated against 
[respondent] by writing him up.” J.A. 52. Shaw also 
reported that the letter “trie[d] to persuade Inmate 
Tracy to pursue certain actions that may disrupt a 
court hearing in which [respondent] is no part of,” and 
that “[t]here is no evidence of any of the statements in 
th[e] letter to be fact.” J.A. 54. 

Following a hearing, respondent was found guilty of 
violating Rules 009 and 022 (but not Rule 025), and 
given a suspended sentence of 10 days’ detention along 
with three reclassification points. Pet. App. 4. The 
Rule 009 violation was based on a finding that the letter 
states that “c/o Galle retaliated against inmate Mur- 
phy,” and that this “statement indicates unprofessional 
actions which stand to intimidate the employee.” J.A. 

60. The Rule 022 violation was based on a finding that 
the statement in the letter “referring to c/o Galle mak- 
ing homo sexual advances to another inmate would 
result in disciplinary action against [the] stated em- 

3 The prison’s rules are set forth at J.A. 10, 14, and 15, along 
with other provisions of the Inmate Disciplinary Policy. BOP’s in- 
mate disciplinary policy is set forth at 28 C.F.R. Pt. 541. Under 
that policy, inmates may be disciplined for similar misconduct, 
including “[i]nsolence towards a staff member” (Code 312); “[l]ying 
or providing a false statement to a staff member” (Code 313); 
“[u]sing abusive or obscene language” (Code 404); “[u]nauthorized 
use of mail” (Code 406); and “[c]onduct which disrupts or interferes 
with the security or orderly running of the institution” (Code 499). 
28 C.F.R. 541.13 (Table 3). 

6 

ployee.” J.A. 62. Respondent’s administrative appeal 
was denied. Pet. App. 4-5, 21.4 

2. a. In October 1995, respondent filed this class 
action in the District Court for the District of Montana, 
seeking declaratory and injunctive relief pursuant to 42 
U.S.C. 1983. The complaint alleged that the actions of 
the named prison officials (petitioners here) in disciplin- 
ing respondent in connection with the February 16, 
1995, letter violated respondent’s First Amendment 
rights, including the right “to provide legal assistance 
to other inmates”; abridged “the rights of inmates to 
access the courts by denying them the assistance of an 
inmate law clerk”; and violated due process on the 
ground that the regulations on which the disciplinary 
action was based are unduly vague or overbroad. J.A. 
66-67. Respondent styled the suit as a class action on 
behalf of “all current and future inmates who may rely 
on inmate law clerks or ‘jailhouse lawyers,’ ” and all in- 
mates who rely on such “inmate law clerks or ‘jailhouse 
lawyers.’ ” Pet. App. 43 (quoting Pl.’s Mot. to Certify 
Class). 

b. Following discovery, the parties filed cross- 
motions for summary judgment. The magistrate judge 
(Pet. App. 28-44) recommended summary judgment for 
petitioners with respect to respondent’s “access to the 
courts” claim, explaining that, by communicating with 
Tracy, respondent “was not attempting to pursue any 
legal claims or defenses on his own behalf.” Id. at 37. 
But the magistrate judge recommended denial of sum- 
mary judgment with respect to the remaining claims, 
finding that material disputed facts existed as to 
whether petitioners’ actions were “rationally related to 

4 Tracy did not receive a copy of respondent’s letter until June 
1996, by which time he had pleaded guilty to the felony assault 
charges. Pet. App. 49. 

7 

a legitimate penological interest,” in accordance with 
the inquiry established by Turner v. Safley, 482 U.S. 78 
(1987), for reviewing constitutional challenges to prison 
regulation. Pet. App. 38; see id. at 37-40. The magis- 
trate judge further recommended denial of class certi- 
fication. Id. at 43-44. 

c. The district court (Pet. App. 25-26) granted 
summary judgment in its entirety for petitioners and 
ordered that the case be dismissed. With respect to the 
First Amendment claim, the court first found that 
“[respondent] was not acting as an inmate law clerk 
when he wrote and sent the February 16, 1995, letter to 
inmate Pat Tracy,” and that respondent’s claims ac- 
cordingly “must be analyzed without consideration of 
any privilege that law clerk status might provide.” Id. 
at 23-24. The court then held that respondent’s First 
Amendment claim failed under the “test of Turner v. 
Safley,” “find[ing] that there is a valid, rational con- 
nection between the prison inmate correspondence 
policy and the objectives of prison order, security, and 
inmate rehabilitation.” Id. at 25. The court further held 
that “[respondent’s] First Amendment right to assist 
other inmates is, in this instance, inconsistent with his 
status as a prisoner and with the legitimate penological 
objectives of [the prison].” Id. at 24-25. 

3. The Ninth Circuit reversed. Pet. App. 1-17. The 
court of appeals premised its analysis on the proposition 
that “inmates have a First Amendment right to assist 
other inmates with their legal claims.” Id. at 6 (citing 
Rizzo v. Dawson, 778 F.2d 527, 531 (9th Cir. 1985)). 
The court next concluded that the “undisputed facts” 
concerning respondent’s training as an inmate law clerk 
and his prior efforts to assist Tracy in that capacity “are 
enough to raise th[is] First Amendment right,” and that 
“the Prison’s decision to discipline [respondent] * * * 

8 

undoubtedly interferes with that right.” Id. at 8, 9.5 
Finally, applying the Turner v. Safley inquiry, the 
court of appeals held that petitioners violated this First 
Amendment right in disciplining respondent, because 
their actions were an “ ‘exaggerated response’ to the 
Prison’s interest in security and order.” Id. at 15. 

In applying Turner, the court of appeals acknowl- 
edged that “as a general matter” the regulations pur- 
suant to which respondent was disciplined are ration- 
ally related to the prison’s legitimate penological inter- 
ests in promoting “security and order,” and therefore 
might pass muster “as applied to inmate correspon- 
dence generally.” Pet. App. 11. But the court reasoned 
that the regulations must be scrutinized “as applied to 
legal correspondence between an inmate performing 
the functions of a law clerk and the inmate he is advis- 
ing,” and held that when viewed from the perspective 
of this “particular category of protected expression,” 
the regulations were an “exaggerated response” to the 
stated penological concerns. Id. at 11-13. According to 
the court, “the Prison’s interest in security and order is 
at a low ebb when the correspondence in question is 
legal advice relating to a pending or potential legal 
matter,” whereas the inmate’s “First Amendment right 

5 In his brief in opposition (at 5), respondent argued that he 
was not acting in his capacity as an “inmate law clerk” when he 
sent his letter. This argument is contradicted by respondent’s 
prior statements, see Br. in Opp. App. 2 (“On or about February 
16, 1995, I wrote a letter to Pat Tracy, in which I gave him legal 
advice concerning the charges pending against him.”); accord J.A. 
75, 78, as well as the allegations set forth in his Complaint (¶ 13), 
J.A. 65. In any event, for the reasons explained below, we agree 
that whether respondent in fact was attempting to provide legal 
assistance to Tracy is “immaterial” (Br. in Opp. 5) to the resolution 
of his First Amendment claim. 

9 

to provide legal assistance to fellow inmates” is 
squarely implicated by such communications. Id. at 12. 

The court of appeals remanded for the entry of sum- 
mary judgment in favor of respondent, and for crafting 
of “an appropriate remedy.” Pet. App. 17.6 

SUMMARY OF ARGUMENT 

One of the consequences of lawful incarceration is the 
loss of those First Amendment freedoms that are 
inconsistent with an individual’s status as a prisoner 
and the legitimate penological objectives of the State. 
Inmates retain free speech rights, but prison regulation 
of inmate expression satisfies First Amendment review 
if it is “‘reasonably related’ to legitimate penological 
objectives,” and “is not an ‘exaggerated response’ to 
those concerns.” Turner v. Safley, 482 U.S. 78, 87 
(1987). The court of appeals erred in holding that 
because respondent’s letter contained an offer of legal 
assistance, it implicated not only the general right of 
free speech, but also a special First Amendment right 
to provide legal assistance to other inmates. That 
holding finds no support in precedent or principle, and 
should be rejected. 

When inmates have no reasonable alternative to legal 
assistance from other inmates to gain access to the 
courts, a State may not prohibit inmates from providing 
such assistance. Johnson v. Avery, 393 U.S. 483 (1969). 
But even in that circumstance, this Court has recog- 
nized only a right of inmates to receive available legal 

6 The court of appeals did not reach respondent’s “‘right of 
access to the courts’ arguments.” Pet. App. 15. The court reached 
and rejected respondent’s due process challenge, concluding that 
“[w]hile clearer language could be imagined, the challenged regu- 
lations are the sort that every prison enforces in order to maintain 
order.” Id. at 16. Neither the “right of access” nor the due process 
claim is before this Court. See Pet. i. 

10 

assistance, and not a right of inmates to dispense such 
assistance. Such a right would be especially unwar- 
ranted where, as here, an inmate is attempting to assist 
an inmate who is represented by appointed counsel. 
Likewise, this Court has recognized that the State may 
not interfere with an inmate’s right of access to the 
courts by, for example, precluding access to law librar- 
ies or otherwise closing the door to judicial review. 
E.g., Bounds v. Smith, 430 U.S. 817 (1977). But Bounds 
does not create “an abstract, freestanding right to 

* * * legal assistance”; rather, it establishes a “right of 
access to the courts.” Lewis v. Casey, 518 U.S. 343, 350 
(1996). 

Outside the prison context, the Court has held that 
individuals enjoy a First Amendment right to associate 
with others for legitimate common goals and to use liti- 
gation to advance those goals. E.g., NAACP v. Button, 
371 U.S. 415 (1963). But introducing that principle to 
the prison context would be inconsistent with the dic- 
tates of prison life. In Jones v. North Carolina Prison- 
ers’ Labor Union, Inc., 433 U.S. 119, 125-126 (1977), this 
Court recognized that “[p]erhaps the most obvious of 
the First Amendment rights that are necessarily cur- 
tailed by confinement are those associational rights that 
the First Amendment protects outside of prison walls.” 
In light of that fact, Jones held that inmates do not 
enjoy a First Amendment right to engage in union 
activities, even though such conduct lies within the 
heartland of protected First Amendment activity out- 
side the prison walls. For similar reasons, the diminish- 
ment of “litigating capacity,” especially the capacity to 
litigate on behalf of others, “is simply one of the 
incidental (and perfectly constitutional) consequences of 
conviction and incarceration.” Casey, 518 U.S. at 355. 

11 

As this Court has often recognized, prisons are popu- 
lated by dangerous individuals with a demonstrated 
proclivity for anti-social behavior. When such indivi- 
duals attempt to confer with one another, regardless of 
their stated purpose for doing so, legitimate penological 
concerns are implicated. The practice of “jailhouse 
lawyering” presents particular concerns. Inmates may 
use legal assistance to gain influence over other in- 
mates, and for other means of self-aggrandizement, 
profit, or power. In addition, inmate-to-inmate corre- 
spondence on legal matters, as on other matters, can be 
used to pass contraband, form escape plans, develop or 
sustain gangs or other informal organizations, or 
threaten institutional security and safety in other ways. 
Holding that inmate legal assistance activities are 
entitled to special constitutional protection under the 
First Amendment would seriously undermine the 
ability of prison officials to address such concerns. 

While respondent’s conduct was not protected by a 
First Amendment right to dispense legal assistance, it 
does implicate the general right to free speech. Turner 

v. Safley supplies the standard for determining 
whether an inmate’s free speech rights are violated in 
this context. Inmate correspondence may be restricted 
if prison officials establish that such regulation is 
“reasonably related” to valid penological objectives, and 
is not an “exaggerated response” to those objectives. 
482 U.S. at 93. The court of appeals below purported to 
apply Turner, but it did so under the influence of its 
erroneous belief that respondent’s conduct was pro- 
tected by a First Amendment right to provide legal 
assistance to other inmates. That mistaken premise led 
the court of appeals, in effect, to treat the letter at issue 
as if it were entitled to heightened First Amendment 

12 

protection simply because it touched on a pending legal 
proceeding against another inmate. 

This Court has recognized many legitimate penologi- 
cal interests in restricting inmate correspondence. The 
fact that such correspondence concerns a legal matter 
may or may not bear on the legitimacy of the stated 
interests, or the relation between those interests and 
the particular correspondence at issue. The record 
before this Court does not conclusively demonstrate 
whether petitioners’ decision to discipline respondent 
on the basis of his letter is reasonably related to 
legitimate penological interests, or is an exaggerated 
response to those interests. Accordingly, we suggest 
that the Court should reverse the judgment below and 
remand for further consideration of respondent’s First 
Amendment claim under a conventional Turner analy- 
sis, one that is not premised on the notion that inmates 
enjoy a First Amendment right to provide legal assis- 
tance to other inmates. 

ARGUMENT 

THE COURT OF APPEALS ERRONEOUSLY HELD 
THAT RESPONDENT’S CONDUCT WAS PROTECTED 
BY AN INDEPENDENT FIRST AMENDMENT RIGHT 
TO ASSIST OTHER INMATES IN LEGAL MATTERS 

A convicted and imprisoned felon “retains those First 
Amendment rights that are not inconsistent with his 
status as a prisoner or with the legitimate penological 
objectives of the corrections system.” Pell v. Procu- 
nier, 417 U.S. 817, 822 (1974). In a series of cases, this 
Court has considered the free speech rights of inmates 
to communicate with one another and with individuals 
on the outside. In Turner v. Safley, 482 U.S. 78 (1987), 
this Court upheld a state regulation prohibiting inmates 
from corresponding with inmates at other institutions. 

13 

See id. at 91-93. As the Court explained, “when a 
prison regulation impinges on inmates’ constitutional 
rights, the regulation is valid if it is reasonably related 
to legitimate penological interests.” Id. at 89. The 
Court reached a similar result in Thornburgh v. Abbott, 
490 U.S. 401 (1989), where the Court, applying the 
Turner “reasonableness standard,” upheld a BOP regu- 
lation restricting the types of publications inmates may 
receive from the outside. Id. at 413. See also Bell v. 
Wolfish, 441 U.S. 520, 550-551 (1979) (upholding BOP 
regulation restricting incoming mail because it was a 
“rational response” to legitimate security concerns). 

As the court of appeals observed, the letter at issue 
in this case, like the correspondence restricted in 
Turner and Abbott, “itself constitutes speech that, out- 
side of the prison context, would doubtless enjoy the 
protection of the First Amendment.” Pet. App. 8-9. 
Thus, in determining whether petitioners violated 
respondent’s First Amendment rights by disciplining 
him on the basis of that letter, the court of appeals 
properly invoked the Turner standard. See id. at 10-14. 
But the court applied Turner based on an erroneous 
premise: that in addition to a general free speech right, 
prisoners enjoy a special “First Amendment right to 
assist other inmates with their legal claims.” Id. at 6. 
Based on that premise, the court of appeals reasoned 
that respondent’s letter fell into a “particular category 
of protected expression”—“legal correspondence be- 
tween an inmate performing the functions of a law clerk 
and the inmate he is advising”—and that it, in effect, 
enjoyed heightened constitutional protection. Id. at 11. 
That was error, and that error tainted the court of 
appeals’ entire Turner analysis. This Court has never 
recognized a First Amendment right of prison inmates 

14 

to assist other inmates in legal affairs, and it should not 
do so here. 

A. Prisoners Do Not Enjoy A First Amendment Right To 

Assist Other Inmates In Legal Matters 

1. “Prison walls do not form a barrier separating 
prison inmates from the protections of the Consti- 
tution.” Turner v. Safley, 482 U.S. at 84. See Bell v. 
Wolfish, 441 U.S. at 545. Thus, “[i]nmates clearly retain 
protections afforded by the First Amendment.” O’Lone 

v. Estate of Shabazz, 482 U.S. 342, 348 (1987). See Pell 

v. Procunier, 417 U.S. at 822. These protections include 
the right to free speech, Thornburgh v. Abbott, 490 U.S. 
at 407; to petition the government for the redress of 
grievances, Johnson v. Avery, 393 U.S. 483 (1969); and 
to free exercise of religion, O’Lone, 482 U.S. at 348. At 
the same time, however, “[l]awful incarceration brings 
about the necessary withdrawal or limitation of many 
privileges and rights, a retraction justified by the 
considerations underlying our penal system.” O’Lone, 
482 U.S. at 348 (quoting Price v. Johnston, 334 U.S. 
266, 285 (1948)). See also Sandin v. Conner, 515 U.S. 
472, 485 (1995); Wolff v. McDonnell, 418 U.S. 539, 555 
(1974); Hudson v. Palmer, 468 U.S. 517, 530 (1984) 
(“prisoners have no legitimate expectation of privacy 
and * * * the Fourth Amendment’s prohibition on 
unreasonable searches does not apply in prison cells”). 
Accordingly, this Court has held that, “[i]n a prison 
context, an inmate does not retain those First Amend- 
ment rights that are ‘inconsistent with his status as a 
prisoner or with the legitimate penological objectives of 
the corrections system.’ ” Jones v. North Carolina Pri- 
soners’ Labor Union, Inc., 433 U.S. 119, 129 (1977) 
(quoting Procunier, 417 U.S. at 822). The prison cell 
block is a starkly different world from the one in which 
First Amendment activity flourishes in free society. 

15 

Prisons “are populated, involuntarily, by people who 
have been found to have violated one or more of the 
criminal laws established by society for its orderly gov- 
ernance.” Ibid. “Prison life, and relations between the 
inmates themselves and between the inmates and 
prison officials or staff, contain the ever-present poten- 
tial for violent confrontation and conflagation.” Id. at 
132. See McDonnell, 418 U.S. at 561-562. Not surpris- 
ingly, in this dangerous and volatile world, prisoners’ 
First Amendment rights are substantially circum- 
scribed compared with the rights enjoyed by individu- 
als on the outside. 

Taking into account the practical realities of prison 
life and the need for institutional safety and security, 
this Court has upheld under the First Amendment sub- 
stantial restrictions on inmate-to-inmate correspon- 
dence, e.g., Turner, 482 U.S. at 91-93; receipt by in- 
mates of certain types of publications, Abbott, 490 U.S. 
at 419; Wolfish, 441 U.S. at 551; inmate contacts with 
the media, Procunier, 417 U.S. at 828; inmate efforts to 
engage in union activities, Prisoners’ Labor Union, 433 
U.S. at 129-133; and inmate contact visits, Block v. 
Rutherford, 468 U.S. 576, 589 (1984). The Court has 
also upheld prison work assignment rules that have the 
effect of preventing prisoners from attending religious 
services. O’Lone, 482 U.S. at 350-353. More generally, 
the Court has emphasized that behind prison bars First 
Amendment rights “must be exercised with due regard 
for the ‘inordinately difficult undertaking’ that is mod- 
ern prison administration.” Abbott, 490 U.S. at 407 
(quoting Turner, 482 U.S. at 85). 

2. This Court has not recognized a constitutional 
right—in the First Amendment, or any other part of 
our National Charter—of prison inmates to dispense 
legal advice. As this Court has long recognized, the 

16 

Constitution does guarantee inmates a “right of access 
to the courts.” Lewis v. Casey, 518 U.S. 343, 350 (1996) 
(citing Bounds v. Smith, 430 U.S. 817 (1977)). But in 
Casey, the Court emphasized that the constitutional 
“right of access” does not confer on inmates “an ab- 
stract, freestanding right to * * * legal assistance.” 
Ibid. When prison inmates do not enjoy a “freestand- 
ing” constitutional right to receive legal assistance, it 
follows that they have no right to dispense such assis- 
tance. Inmate efforts to assist one another in legal 
affairs may be entitled to First Amendment protection 
as speech or expressive conduct. But the First Amend- 
ment does not cloak such activities with any added 
protection in the form of a constitutional right to 
practice “jailhouse law.” 

a. In Johnson v. Avery, the Court held unconsti- 
tutional a Tennessee regulation prohibiting inmates 
from assisting other inmates in “prepar[ing] Writs or 
other legal matters.” 393 U.S. at 484. In so holding, the 
Court emphasized that “Tennessee does not provide an 
available alternative to the assistance provided by 
other inmates,” such as a “public defender system.” Id. 
at 488-489. “[U]nless and until the State provides some 
reasonable alternative to assist inmates in the prepara- 
tion of petitions for post-conviction relief,” the Court 
concluded that “it may not validly enforce a regulation 

* * * barring inmates from furnishing such assistance 
to other prisoners.” Id. at 490. At the same time, 
however, the Court acknowledged that, “[e]ven in the 
absence of such alternatives, the State may impose rea- 
sonable restrictions and restraints upon the acknowl- 
edged propensity of prisoners to abuse both the giving 
and the seeking of [legal] assistance.” Ibid. (emphasis 
added). 

17 

Avery does not establish a constitutional right of 
prison inmates to provide legal assistance. Avery 
protects only the ability of inmates to gain “access 

* * * to the courts.” 393 U.S. at 485. See Casey, 518 
U.S. at 350. Because Tennessee did not make available 
to its inmates other means of legal assistance, the Court 
found that the State’s rule preventing inmates from 
assisting one another had the “effect[]” of “forbidding 
illiterate or poorly educated prisoners to file habeas 
corpus petitions.” 393 U.S. at 487. See ibid. (“For all 
practical purposes, if such prisoners cannot have the 
assistance of a ‘jail-house lawyer,’ their possibly valid 
constitutional claims will never be heard in any court.”). 
The Court therefore invalidated that rule “until the 
State provides some reasonable alternative to assist 
inmates in the preparation of petitions,” id. at 490, in 
order to ensure that inmates would be afforded 
adequate access to the courts.7 
In claiming a First Amendment right to assist other 
inmates in legal matters, respondent does not argue 

7 In Wolff v. McDonnell, supra, a prison inmate challenged a 
state regulation permitting prison authorities to open and inspect 
incoming mail from attorneys. In arguing that this practice was 
unconstitutional, the inmate relied in part on the constitutional 
right of “access to the courts” recognized in Avery. 418 U.S. at 
576. This Court rejected that rationale, stating that this right “has 
not been extended * * * to apply further than protecting the 
ability of an inmate to prepare a petition or complaint.” Ibid. The 
plaintiff in Wolff also challenged a prison regulation preventing 
inmates from assisting one another in civil actions. Drawing from 
Avery, the Court held that the key issue was whether the prison 
provided a “reasonable alternative” to inmate legal assistance in 
such actions, and remanded for a determination whether having 
one inmate serve as a “legal adviser” amounted to adequate “legal 
assistance under the reasonable-alternative standard of Avery.” 
Id. at 580. 

18 

that such assistance is necessary to ensure access to the 
courts, for himself or anyone else.8 Nor could he, inas- 
much as the inmate he sought to assist was represented 
by appointed counsel. Pet. App. 3. Instead, respondent 
claims, and the court of appeals embraced, something 
entirely different: a “First Amendment right to assist 
other inmates with their legal claims,” without regard 
to whether such assistance is necessary for them to 
enter the courts. Id. at 6. 

This right finds no support in the cases following 
Avery, affirming the “right of access to the courts.” 
Lewis v. Casey, 518 U.S. at 350. See Bounds v. Smith, 
430 U.S. at 821 (“It is now established beyond doubt 
that prisoners have a constitutional right of access to 
the courts.”).9 As this Court recently recounted in 
Casey, the Court has given effect to “that right by pro- 
hibiting state prison officials from actively interfering 
with inmates’ attempts to prepare legal documents or 
file them, and by requiring state courts to waive filing 
fees or transcript fees for indigent inmates.” 518 U.S. 

8 Respondent has raised a separate “right of access” claim, but 
that claim is not presented here. See note 6, supra. In addition, 
his request to certify this action as a class action on behalf of 
himself and other inmates was denied, Pet. App. 43-44, and also is 
not before this Court. 

9 Neither Bounds nor this Court’s subsequent cases has posi- 
tively identified the source of this constitutional right. See Lewis 

v. Casey, 518 U.S. at 367 (“We have described the right articulated 
in Bounds as a ‘consequence’ of due process, as an ‘aspect’ of equal 
protection, or as an ‘equal protection guarantee. In no instance, 
however, have we engaged in rigorous constitutional analysis of 
the basis for this asserted right.”) (Thomas, J., concurring) (cita- 
tions omitted); see also Hudson v. Palmer, 468 U.S. at 523 (“pris- 
oners have the constitutional right to petition the Government for 
redress of their grievances, which includes a reasonable right of 
access to the courts”). 

19 

at 350 (citations omitted). Respondent does not, and 
could not, claim that the State is creating any such 
interference here. Nor does respondent claim that, as a 
result of petitioners’ actions, he was actually “hindered 
[in] his efforts to pursue a legal claim,” as required by 
Casey. Id. at 351. His First Amendment claim accord- 
ingly finds no footing in Bounds. 

b. Beyond Bounds, the court of appeals suggested 
that the inmate’s right to undertake “legal activities on 
behalf of other inmates implicated associational rights 
protected by the First Amendment.” Pet. App. 9 
(emphasis added; citing Rizzo v. Dawson, 778 F.2d 527, 
531 (9th Cir. 1985)); see also Br. in Opp. 5. In particular, 
the Ninth Circuit (see Rizzo, 778 F.2d at 531) has rea- 
soned that this activity is akin to the conduct this Court 
held protected under the First Amendment in NAACP 

v. Button, 371 U.S. 415 (1963), and United Transporta- 
tion Union v. State Bar of Michigan, 401 U.S. 576 
(1971). This Court, however, has never extended the 
reasoning of Button or its progeny to the prison context 
and, as we explain, doing so here would require over- 
looking the fundamental restriction in associational 
rights that is a necessary and constitutional fact of 
lawful imprisonment. 

Button involved a challenge to a state law preventing 
the NAACP and its members and lawyers from “asso- 
ciat[ing] for the purpose of assisting persons who seek 
legal redress for infringements of their constitutionally 
guaranteed and other rights.” 371 U.S. at 428. The 
Court concluded that the activities at issue were 
“modes of expression and association protected by the 
First and Fourteenth Amendments,” and set aside the 
state law. Id. at 428-429. In doing so, the Court 
explained that “the State has failed to advance any 
substantial regulatory interest, in the form of substan- 

20 

tive evils flowing from petitioner’s activities, which can 
justify the broad prohibitions which it has imposed.” 
Id. at 444. United Transportation Union is to the same 
effect. It involved a challenge to a state decree that 
prevented a union from providing legal assistance to its 
members or their families. Drawing from Button, the 
Court held that this activity was protected by the First 
Amendment, and that the decree prohibiting it was 
invalid. 401 U.S. at 580-581, 585. See also In re Primus, 
436 U.S. 412, 434 (1978). 

Button and its progeny thus recognize a First 
Amendment right to associate with others for legiti- 
mate common goals and to use litigation to advance 
those goals. Cf. Walters v. National Ass’n of Radiation 
Survivors, 473 U.S. 305, 335 (1985) (distinguishing be- 
tween the First Amendment “right to associate collec- 
tively for the common good,” and “the individual inter- 
est in best prosecuting a claim”). But the considera- 
tions on which that principle is grounded do not readily 
apply in the prison context. Indeed, this Court has 
recognized not only that “[l]awful incarceration brings 
about the necessary withdrawal or limitation of many 
privileges and rights” enjoyed by the free, but also that 
“[p]erhaps the most obvious of the First Amendment 
rights that are necessarily curtailed by confinement are 
those associational rights that the First Amendment 
protects outside of prison walls.” Jones v. North 
Carolina Prisoners’ Labor Union, Inc., 433 U.S. at 125- 
126 (citation omitted); see also id. at 126 (an “inmate’s 
‘status as a prisoner’ and the operational realities of a 
prison dictate restrictions on the associational rights 
among inmates.”). Among the associational rights 
necessarily curtailed by lawful incarceration is the right 
to associate for the purpose of providing legal advice. 

21 

Prisoners’ Labor Union involved a First Amendment 
challenge to the actions of state prison officials prohibit- 
ing inmates from soliciting other inmates to join a 
prisoners’ labor union, barring the union from meeting, 
and blocking the bulk distribution of union publications. 
433 U.S. at 121. These activities squarely implicated 
First Amendment rights enjoyed by individuals outside 
the prison walls. See, e.g., Thomas v. Collins, 323 U.S. 
516, 537 (1945). But this Court concluded that the 
State’s ban on such activities inside the prison walls 
was permissible, and that “[t]he invocation of the First 
Amendment, whether the asserted rights are speech or 
associational, does not change this analysis.” 433 U.S. 
at 129. In so holding, the Court emphasized the impor- 
tance of considering the “prison context” in analyzing 
First Amendment challenges to prison regulation, id. at 
129, and, in particular, recognized that “numerous asso- 
ciational rights are necessarily curtailed by the realities 
of confinement” and “must give way to the reasonable 
considerations of penal management Id. at 132. 

For similar reasons, lawful imprisonment curtails the 
right of inmates to assist one another in legal matters. 
Indeed, this Court has recognized that, while prisoners 
are entitled to access to the courts to attack their own 
sentences or conditions of confinement, “[i]mpairment 
of any other litigating capacity is simply one of the 
incidental (and perfectly constitutional) consequences of 
conviction and incarceration.” Casey, 518 U.S. at 355. 
Legitimate penal objectives support that conclusion 
when it comes to the practice of “jailhouse law.” While 
supervised inmate legal assistance programs can serve 
many valuable ends, it is “indisputable” that jailhouse 
lawyers “are sometimes a menace to prison discipline,” 
and that prisoners have an “acknowledged propensity 

* * * to abuse both the giving and the seeking of 

22 

[legal] assistance.” Johnson v. Avery, 393 U.S. at 488, 
490. In his dissent in Avery, Justice White elaborated 
on these concerns: 

Many assert that the aim of the jailhouse lawyer is 
not the service of truth and justice, but rather self- 
aggrandizement, profit, and power. According to 
prison officials, whose expertise in such matters 
should be given some consideration, the jailhouse 
lawyer often succeeds in establishing his own power 
structure, quite apart from the formal system of 
warden, guards, and trusties which the prison seeks 
to maintain. Those whom the jailhouse lawyer 
serves may come morally under his sway as the one 
hope of their release, and repay him not only with 
obedience but with what minor gifts and other 
favors are available to them. When a client refuses 
to pay, violence may result, in which the jailhouse 
lawyer may be aided by his other clients. 

Id. at 499-500 (footnote omitted). 

10 

Cloaking inmate legal assistance activities with 
special First Amendment protection would raise other 
legitimate penological concerns. For example, it would 

10 See also, e.g., Schenck v. Edwards, 921 F. Supp. 679, 684 (E.D. 
Wash. 1996) (acknowledging “problems [experienced by prison 
authorities] with inmates blackmailing and extorting one another 
based on debts incurred for legal work performed,” and with “in- 
mates becoming angry and violent with inmates who drafted 
and/or filed pleadings or legal materials for inmate litigators when 
litigators’ expectations were not met or the consequences of the 
legal action turned out to be detrimental to the litigators”), aff ’d, 
133 F.3d 929 (9th Cir. 1998) (internal quotation marks omitted); 
Weaver v. Toombs, 756 F. Supp. 335, 339 (W.D. Mich. 1989) (prison 
authorities have legitimate interest in preventing “potential ex- 
ploitation” by inmates providing legal assistance), aff ’d, 915 F.2d 
1574 (6th Cir. 1990). 

23 

confer on inmates who provide legal assistance a type of 
special status that often is disruptive in the prison 
world, where uniformity is vital to ensuring order. Cf. 
Prisoners’ Labor Union, 433 U.S. at 127-129. And it 
would present additional opportunities for inmates— 
under the guise of providing legal assistance—to formu- 
late escape plans, pass contraband through correspon- 
dence designated as “legal,” and carry out other illegal 
activities both inside and outside the prison walls. As 
we discuss below, this Court has recognized many of 
these same concerns in upholding regulations restrict- 
ing inmate correspondence on general matters. See pp. 
25-26, infra. 

11 

At the same time, inmate legal assistance programs 
serve many salutary ends, including helping to ensure 
that illiterate or non-English speaking inmates have 
meaningful access to the courts. Prison officials may 
permit inmates to provide legal assistance to other 
inmates. Indeed, many States have adopted “inmate 
law clerk assistance” programs like that of Montana, 
and permit inmates to assist one another in legal mat- 
ters in accordance with other prison rules. Similarly, 
BOP regulations permit an inmate to provide legal 
assistance to another inmates in the same institution, 
though they provide that “[t]he Warden at any institu- 
tion may impose limitations on an inmate’s assistance to 
another inmate in the interest of institution security, 
good order, or discipline.” 28 C.F.R. 543.11(f )(1) and 
(4). Properly managed, those programs can assist 
inmates without undermining valid correctional 

11 Recognizing a First Amendment right of inmates to practice 
jailhouse law also would invite a new avenue for prisoner litigation 
challenging the adequacy of prison libraries or other legal support 
services that this Court has recently sought to quell. Cf. Lewis v. 
Casey, supra. 

24 

objectives. But whether or not such programs are 
viewed as good prison policy, the Federal Constitution 
does not guarantee inmates the right to assist other 
inmates in legal matters. Cf. Prisoners’ Labor Union, 
433 U.S. at 137 (Burger, C.J., concurring). 

12 

B. Respondent’s First Amendment Claim Is Governed By 

A Conventional Turner Analysis 

1. Prison inmates do enjoy a First Amendment right 
of free speech. See Thornburgh v. Abbott, 490 U.S. at 
407. And they retain that right when they speak on 

12 Most courts of appeals that have considered the issue agree 
that inmates do not enjoy a constitutional right to provide legal 
assistance. See, e.g., Goff v. Nix, 113 F.3d 887, 890 (8th Cir. 1997) 
(“A jailhouse lawyer has no independent right to provide legal ad- 
vice.”); Gibbs v. Hopkins, 10 F.3d 373, 378 (6th Cir. 1993) (“[T]here 
is no constitutional right to assist other prisoners with their legal 
matters.”); Smith v. Maschner, 899 F.2d 940, 950 (10th Cir. 1990) 
(inmates “do[] not have a protected interest in providing legal rep- 
resentation to other inmates”); Gassler v. Rayl, 862 F.2d 706, 708 
(8th Cir. 1988) (“[A]n inmate simply does not have the right to 
provide his fellow inmates with legal assistance.”). Accord Tighe v. 
Wall, 100 F.3d 41, 43 (5th Cir. 1996) (per curiam); Williams v. Nix, 
1 F.3d 712, 716 (8th Cir. 1993). As the Eighth Circuit reasoned in 
Gassler, “[i]t is well established that inmates have a constitutional 
right of access to the court.” 862 F.2d at 707. “ This right entitles 
inmates to receive legal assistance from fellow inmates unless 
prison officials provide reasonable alternative assistance.” Ibid. 
(citing Johnson v. Avery, supra). But “an inmate simply does not 
have the right to provide his fellow inmates with legal assistance.” 
Id. at 708. 

Similarly, there is no basis in our history or tradition for rec- 
ognizing a First Amendment right of prisoners to provide legal 
assistance to other inmates. Cf. Lewis v. Casey, 518 U.S. at 382 
(“The rise of the prison law library and other legal assistance pro- 
grams is a recent phenomenon, and one generated largely by the 
federal courts.”) (Thomas, J., concurring) (citing studies). 

25 

legal matters. As a result, there remains the question 
whether respondent was impermissibly penalized under 
the First Amendment based on the content of his letter. 
Turner v. Safley supplies the standard for analyzing 
that question. In Turner, the Court held that prison 
regulation of inmate correspondence is permissible if it 
is “reasonably related to valid corrections goals,” in- 
cluding “institutional security and safety,” and “it is not 
an exaggerated response to those objectives.” 482 U.S. 
at 93. 

13 The Turner analysis governs both “facial” and 
“as applied” challenges. See id. at 99-100 (upholding 
“facial validity” of regulation, but remanding for deter- 
mination whether regulation was valid as applied); 
Thornburgh v. Abbott, 490 U.S. at 419 (same). Respon- 
dent brings an as-applied challenge to the enforcement 
of petitioners’ disciplinary rules against him on the 
basis of the content of his February 16, 1995, letter. 
See J.A. 66 (Compl. ¶ 17); Br. in Opp. 3, 8-9. 

2. a. This Court has recognized many legitimate pe- 
nological interests in restricting, and even prohibiting, 
forms of inmate correspondence. “[C]ommunication 
with other felons is a potential spur to criminal behav- 
ior.” Turner, 482 U.S. at 91. Inmate correspondence 

13 In determining whether a regulation passes muster under 
Turner, the Court considers four criteria. First, the Court looks to 
whether there is “a valid, rational connection between the prison 
regulation and the legitimate governmental interest put forward to 
justify it.” 482 U.S. at 89 (internal quotation marks omitted). 
Second, the Court looks to whether “there are alternative means of 
exercising the right that remain open to prison inmates.” Id. at 90. 
Third, the Court considers the “impact [that] accommodation of the 
asserted constitutional right will have on guards and other in- 
mates, and on the allocation of prison resources generally.” Ibid. 
Fourth, the Court looks for “the existence of obvious, easy 
alternatives.” Ibid. See Abbott, 490 U.S. at 414-418 (discussing 
factors). 

26 

“can be used to communicate escape plans,” “arrange 
assaults and other violent acts,” and develop prison 
gangs and other “informal organizations that threaten 
the core functions of prison administration, maintaining 
safety and internal security.” Id. at 92 (citing G. Camp 
& C. Camp, U.S. Dep’t of Justice, Prison Gangs: Their 
Nature and Impact on Prisons 64-65 (1985)). Corre- 
spondence among inmates in heightened security units 
“present[s] special disciplinary and security concerns.” 
Casey, 518 U.S. at 361; see 62 Fed. Reg. 4890, 4891 
(1997) (legal assistance to inmates in special housing is 
restricted “[f ]or reasons of security, discipline, and 
good order”). In explaining the Montana inmate corre- 
spondence policy, petitioners have cited many of the 
same considerations. See J.A. 96-97. 

In reviewing restrictions on inmate speech, it is im- 
perative to take into account the prison context. Lan- 
guage that may be deemed simply vulgar or tasteless 
outside the prison can amount to “fighting words” 
within it. Thus, for example, BOP regulations specifi- 
cally authorize prison authorities to restrict inmate 
correspondence containing “gratuitous profanity.” 28 
C.F.R. 540.15(5); see also 28 C.F.R. 541.13 (inmates may 
be disciplined for “abusive or obscene language”) (Table 
3, Code 404); Abbott, 490 U.S. at 407 (conduct that is 
“seemingly innocuous to laymen” may “have potentially 
significant implications for the order and security of the 
prison”). Language that “draw[s] inferences about 
[others’] beliefs, sexual orientation, or gang affiliation” 
can be particularly disruptive in the prison yard. 490 
U.S. at 412. “Insolence” also threatens prison order. 28 
C.F.R. 541.13 (Table 3, Code 312). In addition, prison 
officials need not wait for disturbances to erupt; it is 
“rational” for authorities to restrict communications 
“that, although not necessarily ‘likely’ to lead to 

27 

violence, are determined * * * to create an intolerable 
risk of disorder under the conditions of a particular 
prison at a particular time.” Abbott, 490 U.S. at 417. 

“In the volatile prison environment, it is essential 
that prison officials be given broad discretion” in 
determining what steps are necessary “to prevent 

* * * disorder.” Abbott, 490 U.S. at 413. This Court 
has acknowledged “that the judiciary is ill-equipped to 
deal with the difficult and delicate problems of prison 
management,” and therefore “afford[s] considerable 
deference to the determinations of prison administra- 
tors who, in the interest of security, regulate the 
relations between prisoners and the outside world.” Id. 
at 407-408 (internal quotation marks omitted). See 
Turner, 482 U.S. at 77-78. When, as here, “a state penal 
system is involved, federal courts have * * * 
additional reason to accord deference to the appropriate 
prison authorities.” Id. at 85. 

b. Inmate-to-inmate correspondence on legal mat- 
ters may, or may not, raise the sort of legitimate 
penological concerns implicated by other types of 
inmate correspondence. As the letter at issue in this 
case demonstrates, inmate correspondence on legal 
matters can easily touch on non-legal matters. 

14 While 
routine discussion of legal matters or proceedings may 
not raise legitimate concerns, accusations, threats, 

14 Recognizing a First Amendment right of inmates to provide 
legal assistance to other inmates—and to correspond on such 
matters—would invite fact-intensive litigation over whether an 
inmate was acting in his capacity as a law clerk or assistant when 
he undertook a particular act, or whether an inmate was offering 
legal advice or assistance, and thus was entitled to such protection. 
Indeed, respondent here has taken inconsistent positions on 
whether he was in fact acting as a law clerk when he sent the 
February 16, 1995, letter. See note 5, supra. 

28 

gratuitous profanity, or other disruptive or inflamma- 
tory remarks made before, after, or in the course of 
discussing legal matters or proceedings may well raise 
legitimate concerns. Inmate correspondence on legal 
matters, like inmate correspondence on other matters, 
can also be used to pass contraband, speak in code, form 
disruptive prison alliances, or prompt illegal activity or 
prison unrest. In short, the fact that an inmate’s letter 
discusses a legal matter or proceeding, in itself, does 
not eliminate the legitimate penological concerns 
presented by inmate correspondence in general. 

15 

On the other hand, consistent with the First Amend- 
ment, prison officials may not penalize inmates simply 
because they disagree with the “content of the[ir] 
expression,” or for an “arbitrary or irrational” reason. 
Turner, 482 U.S. at 90. Cf. Perry Education Ass’n v. 
Perry Local Educators’ Ass’n, 460 U.S. 37, 46 (1983) 
(even in a nonpublic forum, government may not “sup- 
press expression merely because public officials oppose 
the speaker’s view”). This Court has held, however, 
that when prison administrators “draw distinctions” 
between different types of speech or communications 
“solely on the basis of their potential implications for 
prison security,” they are regulating in a “neutral” and, 
thus, constitutional fashion—provided that their actions 

15 This case does not present any occasion to consider whether, 
or to what extent, inmates are constitutionally entitled to corre- 
spond with licensed legal counsel outside the prison walls. The 
Court has recognized, however, that such correspondence presents 
similar concerns to those presented by inmate-to-inmate corre- 
spondence. See Abbott, 490 U.S. at 413; cf. Wolff v. McDonnell, 
418 U.S. at 575. On the other hand, incoming and outcoming cor- 
respondence with lawyers implicates the First Amendment rights 
of those who are not prisoners. BOP and virtually all States, 
including Montana, have adopted separate rules governing the 
handling of such legal mail. See notes 1, 2, supra. 

29 

are “rationally related” to asserted penological inter- 
ests such as safety or security. Abbott, 490 U.S. at 415- 
416. 

3. The court of appeals applied Turner in determin- 
ing whether petitioners properly disciplined respondent 
on the basis of his letter. See Pet. App. 10-14. But it 
did so based on the mistaken premise that respondent 
enjoyed a First Amendment right to provide legal ser- 
vices to other inmates. Thus, the court of appeals 
emphasized that it was dealing with a “particular cate- 
gory of protected expression”—“legal correspondence 
between an inmate performing the functions of a law 
clerk and the inmate he is advising.” Id. at 11. The 
court noted that “the enforcement of the prison 
regulations against Murphy infringes on [respondent’s] 
First Amendment right to provide legal assistance to 
fellow inmates.” Id. at 12. And the court observed that 
“the Prison’s interest in security and order is at a low 
ebb when the correspondence in question is legal advice 
relating to a pending or potential case.” Ibid. In short, 
the court treated respondent’s letter as if it were 
entitled to heightened constitutional protection because 
it was sent by an “inmate law clerk,” and, at the same 
time, unduly discounted the legitimate penological 
interests in restricting inmate correspondence on all 
matters, including on legal matters. 

Because the court of appeals decided respondent’s 
First Amendment claim based on an erroneous legal 
standard, we suggest that the appropriate relief is to 
reverse and remand for application of the correct legal 
standard. While petitioners have provided substantial 
reasons for adopting the inmate correspondence policy 
that permitted them to review respondent’s letter to 
inmate Tracy, see J.A. 95-98, we do not believe that the 
summary judgment record before this Court con- 

30 

clusively demonstrates the particular penological objec- 
tives relied upon by petitioners in disciplining respon- 
dent in connection with his letter, or whether under the 
circumstances petitioners’ actions amounted to an 
“exaggerated response” to those objectives. Accord- 
ingly, we do not take a position on whether, under a 
proper application of Turner, petitioners impermissibly 
disciplined respondent based on his letter. Cf. Turner, 
482 U.S. at 100 (remanding for determination whether 
“correspondence regulation had been applied by prison 
officials in an arbitrary and capricious manner”); 
Abbott, 490 U.S. at 419 (remanding for “examination of 
the validity of the regulations as applied” to particular 
publications). 

CONCLUSION 

The judgment of court of appeals should be reversed 
and the case remanded for further proceedings. 

Respectfully submitted. 

SETH P. WAXMAN 

Solicitor General 

DAVID W. OGDEN 

Assistant Attorney General 

BARBARA D. UNDERWOOD 

Deputy Solicitor General 

GREGORY G. GARRE 

Assistant to the Solicitor 

General 

BARBARA L. HERWIG 
JOHN HOYLE 

Attorneys 

NOVEMBER 2000