Shaw v. Murphy, No. 99-1613 (U.S. 04/18/2001)

[1] SUPREME COURT OF THE UNITED STATES


[2] No. 99-1613


[4] April 18, 2001


[5] ROBERT SHAW, ET AL., PETITIONERS
v.
KEVIN MURPHY, RESPONDENT


[6] SYLLABUS BY THE COURT


[7] OCTOBER TERM, 2000


[8] SHAW v. MURPHY


[9] NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.


[10] SUPREME COURT OF THE UNITED STATES


[11] SHAW et al. v. MURPHY


[12] Certiorari To The United States Court Of Appeals For The Ninth Circuit


[13] No. 99-1613.


[14] Argued January 16, 2001


[15] Decided April 18, 2001


[16] While respondent Murphy was incarcerated in state prison, he learned that a fellow inmate had been charged with assaulting a correctional officer. Murphy decided to assist the inmate with his defense and sent him a letter, which was intercepted in accordance with prison policy. Based on the letter's content, the prison sanctioned Murphy for violating prison rules prohibiting insolence and interfering with due process hearings. Murphy then sought declaratory and injunctive relief under 42 U. S. C. §1983, alleging that the disciplinary action violated, inter alia, his First Amendment rights, including the right to provide legal assistance to other inmates. In granting petitioners summary judgment, the District Court applied the decision in Turner v. Safley, 482 U. S. 78, 89 -- that a prison regulation impinging on inmates' constitutional rights is valid if it is reasonably related to legitimate penological interests -- and found a valid, rational connection between the inmate correspondence policy and the objectives of prison order, security, and inmate rehabilitation. The Ninth Circuit reversed, finding that inmates have a First Amendment right to give legal assistance to other inmates and that this right affected the Turner analysis.


[17] Held:


[18] 1. Inmates do not possess a special First Amendment right to provide legal assistance to fellow inmates that enhances the protections otherwise available under Turner. Prisoners' constitutional rights are more limited in scope than the constitutional rights held by individuals in society at large. For instance, some First Amendment rights are simply inconsistent with the corrections system's "legitimate penological objectives," Pell v. Procunier, 417 U. S. 817, 822, and thus this Court has sustained restrictions on, e.g., inmate-to-inmate written correspondence, Turner, supra, at 93. Moreover, because courts are ill equipped to deal with the complex and intractable problems of prisons, Procunier v. Martinez, 416 U. S. 396, 404-405, this Court has generally deferred to prison officials' judgment in upholding such regulations against constitutional challenge. Turner reflects this understanding, setting a unitary, deferential standard for reviewing prisoners' claims that does not permit an increase in the constitutional protection whenever a prisoner's communication includes legal advice. To increase the constitutional protection based upon a communication's content first requires an assessment of that content's value. But the Turner test simply does not accommodate valuations of content. On the contrary, it concerns only the relationship between the asserted penological interests and the prison regulation. Moreover, prison officials are to remain the primary arbiters of the problems that arise in prison management. 482 U. S., at 89. Seeking to avoid unnecessarily perpetuating federal courts' involvement in prison administration affairs, the Court rejects an alteration of the Turner analysis that would entail additional federal-court oversight. Even if this Court were to consider giving special protection to particular kinds of speech based on content, it would not do so for speech that includes legal advice. Augmenting First Amendment protection for such advice would undermine prison officials' ability to address the complex and intractable problems of prison administration. Id., at 84. The legal text could be an excuse for making clearly inappropriate comments, which may circulate among prisoners despite prison measures to screen individual inmates or officers from the remarks. Pp. 4-8.


[19] 2. To prevail on remand on the question whether the prison regulations, as applied to Murphy, are reasonably related to legitimate penological interests, he must overcome the presumption that the prison officials acted within their broad discretion. P. 8.


[20] 195 F. 3d 1121, reversed and remanded.


[21] Thomas, J., delivered the opinion for a unanimous Court. Ginsburg, J., filed a concurring opinion.


[22] Court Below: 195 F. 3d 1121


[23] David L. Ohler, Special Assistant Attorney General of Montana, argued the cause for petitioners. With him on the briefs were Joseph P. Mazurek, Attorney General, and Diana Leibinger-Koch, Special Assistant Attorney General. Patricia A. Millett argued the cause for the United States as amicus curiae urging reversal. With her on the brief were Solicitor General Waxman, Assistant Attorney General Ogden, Deputy Solicitor General Underwood, Gregory G. Garre, Barbara L. Herwig, and John Hoyle. Jeffrey T. Renz argued the cause and filed a brief for respondent. Briefs of amici curiae urging reversal were filed for the State of Florida et al. by Robert A. Butterworth, Attorney General of Florida, Thomas E. Warner, Solicitor General, and Cecilia Bradley, Assistant Attorney General, and by the Attorneys General for their respective States as follows: Bill Pryor of Alabama, Mark Pryor of Arkansas, M. Jane Brady of Delaware, James E. Ryan of Illinois, Thomas J. Miller of Iowa, Carla J. Stovall of Kansas, Richard P. Ieyoub of Louisiana, Thomas F. Reilly of Massachusetts, Don Stenberg of Nebraska, Philip T. McLaughlin of New Hampshire, Heidi Heitkamp of North Dakota, Betty D. Montgomery of Ohio, W. A. Drew Edmondson of Oklahoma, Jan Graham of Utah, William H. Sorrell of Vermont, and Mark L. Earley of Virginia; and for the Criminal Justice Legal Foundation by Kent S. Scheidegger and Charles L. Hobson. Daniel L. Greenberg, John Boston, Elizabeth Alexander, Margaret Winter, David C. Fathi, and Stephen Bright filed a brief for the Legal Aid Society of the City of New York et al. as amici curiae urging affirmance.


[24] The opinion of the court was delivered by: Justice Thomas


[25] On Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit


[26] Under our decision in Turner v. Safley, 482 U. S. 78 (1987), restrictions on prisoners' communications to other inmates are constitutional if the restrictions are "reasonably related to legitimate penological interests." Id., at 89. In this case, we are asked to decide whether prisoners possess a First Amendment right to provide legal assistance that enhances the protections otherwise available under Turner. We hold that they do not.


[27] I.


[28] While respondent Kevin Murphy was incarcerated at the Montana State Prison, he served as an "inmate law clerk," providing legal assistance to fellow prisoners. Upon learning that inmate Pat Tracy had been charged with assaulting Correctional Officer Glen Galle, Murphy decided to assist Tracy with his defense. Prison rules prohibited Murphy's assignment to the case,*fn1 but he nonetheless investigated the assault. After discovering that other inmates had complained about Officer Galle's conduct, Murphy sent Tracy a letter, which included the following:


[29] "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 harass [sic] inmates. He has made homo-sexual [sic] advances towards certain inmates and that can be brought up into the record. There are petitions 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 filing a suit with everyone in Close I and II named against him. So you can use that too!


[30] "Another poiont [sic] is that he grabbed you from behind. You tell your lawyer to get ahold of me on this. Don't take a plea bargain unless it's for no more time." App. 50.


[31] In accordance with prison policy, prison officials intercepted the letter, and petitioner Robert Shaw, an officer in the maximum-security unit, reviewed it. Based on the accusations against Officer Galle, Shaw cited Murphy for violations of the prison's rules prohibiting insolence, interference with due process hearings, and conduct that disrupts or interferes with the security and orderly operation of the institution. After a hearing, Murphy was found guilty of violating the first two prohibitions. The hearings officer sanctioned him by imposing a suspended sentence of 10 days' detention and issuing demerits that could affect his custody level.


[32] In response, Murphy brought this action, seeking declaratory and injunctive relief under Rev. Stat. §1979, 42 U. S. C. §1983. The case was styled as a class action, brought on behalf of himself, other inmate law clerks, and other prisoners. The complaint alleged that the disciplining of Murphy violated due process, the rights of inmates to access the courts, and, as relevant here, Murphy's First Amendment rights, including the right to provide legal assistance to other inmates.


[33] After discovery, the District Court granted petitioners' motion for summary judgment on all of Murphy's claims. On the First Amendment claim, the court found that Murphy was not formally acting as an inmate law clerk when he wrote the letter, and that Murphy's claims should therefore "be analyzed without consideration of any privilege that law clerk status might provide." App. to Pet. for Cert. 24. The District Court then applied our decision in Turner v. Safley, 482 U. S. 78 (1987), which held that a prison regulation impinging on inmates' constitutional rights is valid "if it is reasonably related to legitimate penological interests," id., at 89. Finding a "valid, rational connection between the prison inmate correspondence policy and the objectives of prison order, security, and inmate rehabilitation," the District Court rejected Murphy's First Amendment claim. App. to Pet. for Cert. 25.


[34] The Court of Appeals for the Ninth Circuit reversed. It premised its analysis on the proposition that "inmates have a First Amendment right to assist other inmates with their legal claims." 195 F. 3d 1121, 1124 (1999). Murphy enjoyed this right of association, the court concluded, because he was providing legal advice that potentially was relevant to Tracy's defense. The Court of Appeals then applied our decision in Turner, but it did so only against the backdrop of this First Amendment right, which, the court held, affected the balance of the prisoner's interests against the government's interests. Concluding that the balance tipped in favor of Murphy, the Court of Appeals upheld Murphy's First Amendment claim.


[35] Other Courts of Appeals have rejected similar claims. See, e.g., Gibbs v. Hopkins, 10 F. 3d 373, 378 (CA6 1993) (no constitutional right to assist other inmates with legal claims); Smith v. Maschner, 899 F. 2d 940, 950 (CA10 1990) (same); Gassler v. Rayl, 862 F. 2d 706, 707-708 (CA8 1988) (same). To resolve the conflict, we granted certiorari. 530 U. S. 1303 (2000).


[36] II.


[37] In this case, we are not asked to decide whether prisoners have any First Amendment rights when they send legal correspondence to one another. In Turner, we held that restrictions on inmate-to-inmate communications pass constitutional muster only if the restrictions are reasonably related to legitimate and neutral governmental objectives. 482 U. S., at 89. We did not limit our holding to non-legal correspondence, and petitioners do not ask us to construe it that way. Instead, the question presented here simply asks whether Murphy possesses a First Amendment right to provide legal advice that enhances the protections otherwise available under Turner. The effect of such a right, as the Court of Appeals described it, 195 F. 3d, at 1127, would be that inmate-to-inmate correspondence that includes legal assistance would receive more First Amendment protection than correspondence without any legal assistance. We conclude that there is no such special right.


[38] Traditionally, federal courts did not intervene in the internal affairs of prisons and instead "adopted a broad hands-off attitude toward problems of prison administration." Procunier v. Martinez, 416 U. S. 396, 404 (1974). Indeed, for much of this country's history, the prevailing view was that a prisoner was a mere "slave of the State," who "not only forfeited his liberty, but all his personal rights except those which the law in its humanity accords him." Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U. S. 119, 139 (1977) (Marshall, J., dissenting) (quoting Ruffin v. Commonwealth, 62 Va. 790, 796 (1871)) (alterations and internal quotation marks omitted). In recent decades, however, this Court has determined that incarceration does not divest prisoners of all constitutional protections. Inmates retain, for example, the right to be free from racial discrimination, Lee v. Washington, 390 U. S. 333 (1968) (per curiam), the right to due process, Wolff v. McDonnell, 418 U. S. 539 (1974), and, as relevant here, certain protections of the First Amendment, Turner, supra.


[39] We nonetheless have maintained that the constitutional rights that prisoners possess are more limited in scope than the constitutional rights held by individuals in society at large. In the First Amendment context, for instance, some rights are simply inconsistent with the status of a prisoner or "with the legitimate penological objectives of the corrections system," Pell v. Procunier, 417 U. S. 817, 822 (1974). We have thus sustained proscriptions of media interviews with individual inmates, see id., at 833-835, prohibitions on the activities of a prisoners' labor union, see North Carolina Prisoners' Labor Union, Inc., supra, at 133, and restrictions on inmate-to-inmate written correspondence, see Turner, supra, at 93. Moreover, because the "problems of prisons in America are complex and intractable," and because courts are particularly "ill equipped" to deal with these problems, Martinez, supra, at 404-405, we generally have deferred to the judgments of prison officials in upholding these regulations against constitutional challenge.


[40] Reflecting this understanding, in Turner we adopted a unitary, deferential standard for reviewing prisoners' constitutional claims: "[W]hen a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." 482 U. S., at 89. Under this standard, four factors are relevant. First and foremost, "there must be a `valid, rational connection' between the prison regulation and the legitimate [and neutral] governmental interest put forward to justify it." Ibid. (quoting Block v. Rutherford, 468 U. S. 576, 586 (1984)). If the connection between the regulation and the asserted goal is "arbitrary or irrational," then the regulation fails, irrespective of whether the other factors tilt in its favor. 482 U. S., at 89-90. In addition, courts should consider three other factors: the existence of "alternative means of exercising the right" available to inmates; "the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally;" and "the absence of ready alternatives" available to the prison for achieving the governmental objectives. Id., at 90.


[41] Because Turner provides the test for evaluating prisoners' First Amendment challenges, the issue before us is whether Turner permits an increase in constitutional protection whenever a prisoner's communication includes legal advice. We conclude that it does not. To increase the constitutional protection based upon the content of a communication first requires an assessment of the value of that content.*fn2 But the Turner test, by its terms, simply does not accommodate valuations of content. On the contrary, the Turner factors concern only the relationship between the asserted penological interests and the prison regulation. Id., at 89.


[42] Moreover, under Turner and its predecessors, prison officials are to remain the primary arbiters of the problems that arise in prison management. Ibid.; see also Martinez, 416 U. S., at 405 ("[C]courts are ill equipped to deal with the increasingly urgent problems of prison administration and reform"). If courts were permitted to enhance constitutional protection based on their assessments of the content of the particular communications, courts would be in a position to assume a greater role in decisions affecting prison administration. Seeking to avoid " `unnecessarily perpetuat[ing] the involvement of the federal courts in affairs of prison administration,' " Turner, 482 U. S., at 89 (quoting Martinez, supra, at 407) (alteration in original), we reject an alteration of the Turner analysis that would entail additional federal-court oversight.


[43] Finally, even if we were to consider giving special protection to particular kinds of speech based upon content, we would not do so for speech that includes legal advice.*fn3 Augmenting First Amendment protection for inmate legal advice would undermine prison officials' ability to address the "complex and intractable" problems of prison administration. Turner, supra, at 84. Although supervised inmate legal assistance programs may serve valuable ends, it is "indisputable" that inmate law clerks "are sometimes a menace to prison discipline" and that prisoners have an "acknowledged propensity ... to abuse both the giving and the seeking of [legal] assistance." Johnson v. Avery, 393 U. S. 483, 488, 490 (1969). Prisoners have used legal correspondence as a means for passing contraband and communicating instructions on how to manufacture drugs or weapons. See Brief for State of Florida et al. as Amici Curiae 6-8; see also Turner, supra, at 93 ("[P]risoners could easily write in jargon or codes to prevent detection of their real messages"). The legal text also could be an excuse for making clearly inappropriate comments, which "may be expected to circulate among prisoners," Thornburgh v. Abbott, 490 U. S. 401, 412 (1989), despite prison measures to screen individual inmates or officers from the remarks.


[44] We thus decline to cloak the provision of legal assistance with any First Amendment protection above and beyond the protection normally accorded prisoners' speech. Instead, the proper constitutional test is the one we set forth in Turner. Irrespective of whether the correspondence contains legal advice, the constitutional analysis is the same.


[45] III.


[46] Under Turner, the question remains whether the prison regulations, as applied to Murphy, are "reasonably related to legitimate penological interests." Turner, supra, at 89. To prevail, Murphy must overcome the presumption that the prison officials acted within their "broad discretion." Abbott, supra, at 413. Petitioners ask us to answer, rather than remand, the question whether Murphy has satisfied this heavy burden. We decline petitioners' request, however, because we granted certiorari only to decide whether inmates possess a special First Amendment right to provide legal assistance to fellow inmates.


[47] The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.


[48] It is so ordered.


[49] Justice Ginsburg, concurring.


[50] I agree with the Court that the Ninth Circuit erred in holding that the First Amendment secures to prisoners a freestanding right to provide legal assistance to other inmates. I note, furthermore, that Murphy does not contest the prison's right to intercept prisoner-to-prisoner correspondence. But Murphy's §1983 complaint does allege that the prison rules under which he was disciplined -- rules forbidding insolence and interference with due process hearings -- are vague and overbroad as applied to him in this case. The Ninth Circuit passed over that charge when it ruled, erroneously, that an inmate's provision of legal assistance to another inmate is an activity specially protected by the First Amendment. 195 F. 3d 1121, 1128 (1999). The remand for which the Court provides should not impede Murphy from reasserting claims that the Court of Appeals so far has left untouched.


[51] The rule forbidding insolence defines "insolence" as "[w]ords, actions or other behavior which is intended to harass or cause alarm in an employee." Mont. State Prison Policy No. 15-001, Inmate Disciplinary Policy, Rule 009 (App. 10) (emphasis added). The policy includes the following examples of insolence: "Cursing; abusive language, writing or gestures directed to an employee." Ibid. (emphasis added). The disciplinary report citing Murphy for violating the rule against insolence contains no finding that Murphy's letter was "directed to" Officer Galle or that the letter was "intended to harass" Officer Galle. App. 52. Although Murphy undoubtedly knew that his letter to Tracy would be read by prison officials, there is no record evidence contesting Murphy's sworn statement that he "did not believe that Officer Galle would read the letter." Murphy Affidavit ¶ ;10 (App. 88).



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Opinion Footnotes

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[52] *fn1 Tracy had requested that Murphy be assigned to his case. App. 84. Prison officials, however, denied that request because prison policy forbade high-security inmates, such as Murphy, from meeting with maximum-security inmates, including Tracy. App. to Pet. for Cert. 19. Prison officials offered Tracy another law clerk to assist him. App. 84.


[53] *fn2 The Court of Appeals made such an assessment when it "balance[d] the importance of the prisoner's infringed right against the importance of the penological interest served by the rule." See 195 F. 3d, 1121, 1127 (CA9 1999) (quoting Bradley v. Hall, 64 F. 3d 1276, 1280 (CA9 1995)).


[54] *fn3 Murphy suggests that the right to provide legal advice follows from a right to receive legal advice. However, even if one right followed from the other, Murphy is incorrect in his assumption that there is a freestanding right to receive legal advice. Under our right-of-access precedents, inmates have a right to receive legal advice from other inmates only when it is a necessary "means for ensuring a `reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts.' " Lewis v. Casey, 518 U. S. 343, 350-351 (1996) (quoting Bounds v. Smith, 430 U. S. 817, 825 (1977)).


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Murphy v. Shaw, 195 F.3d 1121, 99 Cal. Daily Op. Serv. 8846 (9th Cir. 11/04/1999)

[1] U.S. Court of Appeals, Ninth Circuit


[2] No. 97-35989


[4] November 04, 1999


[5] KEVIN MURPHY, PLAINTIFF-APPELLANT,
V.
ROBERT SHAW, UNIT SERGEANT; LARRY BEARLEY, HEARINGS OFFICER; MICHAEL MAHONEY, BUREAU WARDEN; MYRON BEESON, BUREAU WARDEN; AND RICHARD S. DAY, DIRECTOR, DEPARTMENT OF CORRECTIONS, DEFENDANTS-APPELLEES


[6] D.C. No. CV 95-00062-CCL


[7] Counsel Jeffrey T. Renz, Montana Defender Project, University of Montana School of Law, Missoula, Montana, for the plaintiff appellant. David L. Ohler, Assistant Attorney General, Montana Department of Corrections, Helena, Montana, for the defendants appellees.


[8] Before: Betty B. Fletcher, Stephen Reinhardt, and Sidney R. Thomas, Circuit Judges.


[9] The opinion of the court was delivered by: B. Fletcher, Circuit Judge


[10] FOR PUBLICATION


[11] Appeal from the United States District Court for the District of Montana Charles C. Lovell, District Judge, Presiding


[12] Argued and Submitted March 12, 1999--Seattle, Washington


[13] OPINION


[14] Plaintiff-Appellant Kevin Murphy ("Murphy") is an inmate law clerk at the Montana State Prison ("Prison"). In early 1995, he sent a letter containing legal advice to fellow inmate Pat Tracy ("Tracy"). Murphy was subsequently disciplined based on the content of that letter. In this action, Murphy alleges that the discipline imposed by the Prison violated his First Amendment rights, his right as an inmate to access to the courts, and his rights under the Due Process Clause. The district court granted summary judgment in favor of the defendants on all his claims. Because the provision of legal assistance to fellow inmates is an activity protected by the First Amendment, and because the prison regulations challenged here are "an exaggerated response" to otherwise legitimate security concerns, we reverse and remand with instructions that summary judgment be entered in Murphy's favor.


[15] FACTS AND PROCEDURAL HISTORY


[16] In early 1995, Murphy, who had been trained as an inmate legal clerk by the Prison, became aware that Tracy, a fellow inmate, had been charged with assaulting Correctional Officer Glen Galle ("CO Galle"). Murphy had provided legal assistance to Tracy on several prior occasions, and learned that Tracy had requested his assistance in connection with the assault charge. Because Tracy had been transferred to the maximum security wing of the Prison, however, Murphy could not visit him directly. Murphy also knew that counsel had been appointed to represent Tracy. Nevertheless, Murphy began investigating the assault incident, and discovered that other inmates had previously complained about CO Galle's conduct.


[17] On February 16, 1995, Murphy wrote a letter to Tracy which included the following:


[18] . . . 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 harass inmates. He has made homosexual advances towards certain inmates and that can be brought up into the record. There are petitions 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 filing a suit with everyone in Close I and II named against him. So you can use that too! Another poiont [sic] is that he grabbed you from behind. You tell your lawyer to get ahold of me on this. Don't take a plea bargain unless it's for no more time. . . .


[19] Murphy knew that the letter would be read by prison officials pursuant to prison regulations. The letter was, in fact, intercepted and read by defendant Robert Shaw.*fn1


[20] As a result of the February 16 letter, Murphy was "written up." Defendant Shaw completed three Major Misconduct Violation Reports (also known as "Class IIs") charging Murphy with violating the following Prison regulations: Rule 009 (Insolence), Rule 022 (Interference with Due Process Hearings), and Rule 025 (Conduct which Disrupts or Interferes with the Security or Orderly Operation of the Institution). After a hearing, defendant Larry Bearley found Murphy guilty of violating Rules 009*fn2 and 022.*fn3 Murphy was given a suspended sentence of 10 days detention and received three "reclassification points." Murphy's appeal was denied by defendant Michael Mahoney.


[21] In October 1995, Murphy filed a complaint against Robert Shaw, Larry Bearley, Michael Mahoney, Myron Beeson, and Richard Day, all employees of the Montana Department of Corrections (collectively, "Defendants"). The complaint, filed as a class action on behalf of all inmate law clerks at the Prison, seeks injunctive and declaratory relief pursuant to 42 U.S.C. S 1983. The complaint alleges that the Prison's imposition of discipline on Murphy (1) violated the First Amendment; (2) abridged the right of inmates to access to the courts and to present habeas petitions; and (3) relied on prison regulations that are void for vagueness on their face and as applied to legal advice rendered by law clerks.


[22] The case was referred for recommendation to a magistrate Judge, and Murphy and Defendants subsequently filed crossmotions for summary judgment. Murphy also filed a motion to certify the class. The magistrate Judge recommended that Defendants' motion for summary judgment be granted as to Murphy's "right of access to the courts" claims, and that all other motions be denied. Murphy and Defendants each timely filed objections to the magistrate's recommendation. On de novo review, the district court concluded that Defendants' motion for summary judgment should be granted in its entirety, and that Murphy's motion for class certification should be denied.*fn4 Final judgment was entered by the district court on September 23, 1997. This appeal followed.


[23] ANALYSIS


[24] The district court granted summary judgment in favor of Defendants. A grant of summary judgment is reviewed de novo. See Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir. 1998). We have jurisdiction pursuant to 28 U.S.C.S 1291 and must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there exist any genuine issues of material fact and whether the district court correctly applied the substantive law. See id.


[25] I. Murphy's First Amendment claim


[26] The viability of Murphy's First Amendment claim turns on the application of two established legal principles. First, this court has held that inmates have a First Amendment right to assist other inmates with their legal claims. See Rizzo v. Dawson, 778 F.2d 527, 531 (9th Cir. 1985). Second, where a prison regulation, otherwise generally justifiable, implicates a constitutional interest when applied to a protected class of expression, this court applies a balancing test to insure that the regulation is not an "exaggerated response. " See Bradley v. Hall, 64 F.3d 1276, 1280 (9th Cir. 1995) (quoting Turner v. Safley, 482 U.S. 78, 89-90 (1987)). From these two principles flows the Conclusion that the district court erred in entering summary judgment in favor of Defendants here.


[27] A. Was Murphy acting as a law clerk?


[28] Defendants focus their attention on what they perceive as a threshold issue. In their view, Murphy was not acting as a law clerk when he wrote and sent the February 16 letter to Tracy. Defendants accordingly argue that this case involves merely an unremarkable instance of discipline for inmate-toinmate correspondence, comfortably within the general rule that prisons may, in the pursuit of the interest of prison security, intercept and confiscate inmate-to-inmate correspondence without running afoul of the First Amendment. See Turner v. Safley, 482 U.S. at 89 (inmate-to-inmate correspondence may be banned so long as the policy is rationally related to a legitimate penological interest).


[29] To support their view, Defendants point out that Murphy was not formally assigned by the Prison's law librarian to serve as Tracy's law clerk. Moreover, Murphy was aware that he could not visit Tracy in the maximum security wing, and that counsel had been appointed for Tracy in connection with the assault charge. The district court also noted that Murphy had not been trained to handle criminal cases. Murphy, in response, notes that Tracy specifically asked for his legal assistance. It is undisputed that Murphy had served as Tracy's law clerk on several occasions in the past. Murphy also contends that law clerk assignment procedures were considerably more informal than indicated by the regulations, and that Murphy responded to Tracy's request for assistance in the usual manner.*fn5 The contents of the February 16 letter, moreover, plainly relate to Tracy's assault charge, suggesting to Tracy a self-defense theory that he might raise.


[30] On the basis of the undisputed facts, we reject Defendants' threshold argument that Murphy was not acting as a law clerk when he wrote the February 16 letter. Murphy was a trained inmate law clerk responding to a legal inquiry from a fellow inmate, an inmate he had advised on several prior occasions. The letter he sent to Tracy was plainly related to the pending assault charges, and conveyed both factual and legal information that was potentially relevant to Tracy's defense. As will be discussed below, this circuit in Rizzo v. Dawson, 778 F.2d 527, 531 (9th Cir. 1985), recognized that the provision of legal assistance to a fellow inmate is an activity protected by the First Amendment. The undisputed facts here are enough to raise the First Amendment right recognized in Rizzo. Cf. Rizzo, 778 F.2d at 531 (plaintiff offered legal advice informally, outside any "inmate law clerk" program sponsored by the prison).


[31] B. Does the Prison's conduct implicate Murphy's First Amendment rights?


[32] The Prison's imposition of discipline on Murphy implicates his First Amendment rights for at least two reasons. First, the letter itself constitutes speech that, outside of the prison context, would doubtless enjoy the protection of the First Amendment. The fact that the speech occurs inside the prison walls means that prison authorities may, in appropriate circumstances, regulate the speech, but does not take it outside the reach of the First Amendment altogether. The Supreme Court, for example, has held that censorship of inmate-to-inmate correspondence must be reasonably related to legitimate penological interests in order to pass constitutional muster. See Turner, 482 U.S. at 91 (applying "reasonably related to legitimate penological interests" test to challenged regulation of inmate-to-inmate correspondence).


[33] Second, as noted above, the Prison's discipline of Murphy implicates the First Amendment right recognized by this court in Rizzo. In that case, we held that the provision of legal assistance to fellow inmates is an activity protected by the First Amendment. See Rizzo, 778 F.2d at 531; see also Pratt v. Rowland, 65 F.3d 802, 806-07 (9th Cir. 1995) (reaffirming vitality of Rizzo after the Supreme Court's decision in Sandin v. Conner, 115 S. Ct. 2293 (1995)). Rizzo involved a claim by a "jailhouse lawyer" that prison authorities had reassigned him out of a prison vocational program in retaliation for his assisting other inmates with habeas petitions and civil rights actions. See id. We held that his legal activities on behalf of other inmates implicated associational rights protected by the First Amendment. See id. To the extent such a right exists,*fn6 the Prison's decision to discipline Murphy in the instant case undoubtedly interferes with that right.


[34] C. Is the infringement of First Amendment rights justified under the Turner v. Safley test?


[35] We next ask whether the Prison's infringement of Murphy's First Amendment rights is justified in light of "legitimate penological interests." See Turner, 482 U.S. at 89. Although "[p]rison walls do not form a barrier separating prison inmates from the protections of the Constitution," see id. at 84, the courts must accord deference to prison authorities on matters within their expertise, see id. at 85. The Supreme Court has designed a special standard of review for the prison context: "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; accord Thornburgh v. Abbott, 490 U.S. 401, 409 (1989). While this standard is quite deferential, the Supreme Court has cautioned that "a reasonableness standard is not toothless." Abbott, 490 U.S. at 414.


[36] In evaluating the "reasonableness" of a prison's invasion into the constitutional rights of prisoners, the Supreme Court has instructed lower courts to evaluate four factors: (1) whether the governmental objective is legitimate and neutral, and whether the prison regulation is rationally related to that objective; (2) whether there are alternate means of exercising the rights that remain open to prison inmates; (3) what impact accommodation of inmates' rights would have on guards, other inmates, and prison resources; and (4) the availability of obvious, easy alternatives to the challenged prison regulation. See Abbott, 490 U.S. at 414-18; accord Mauro v. Arpaio, _______ F.3d _______, _______ (9th Cir. 1999) (en banc).


[37] 1. Rational relation to a legitimate, neutral governmental interest.


[38] The interest advanced by Defendants here is the general interest in security and order. It is undisputed that this interest is legitimate. See, e.g., Abbott, 490 U.S. at 415 (prison security is a purpose central to all other corrections goals). It also appears to be "neutral" in the relevant sense -- "the regulation or practice in question must further an important or substantial governmental interest unrelated to the suppression of expression." Id. Finally, it is also plain that, as a general matter, the Prison Rules at issue -- Rule 009 (Insolence) and 022 (Interference with Due Process Hearings) -- are rationally related to the Prison's stated interest.


[39] Murphy, however, is not challenging the regulations as applied to inmate correspondence generally. Rather, Murphy attacks the regulations as applied to legal correspondence between an inmate performing the functions of a law clerk and the inmate he is advising. When a prison regulation, while rationally-related to a legitimate interest in the general case, threatens constitutional interests as applied to a particular category of protected expression, we must inquire whether the prison rule is "an exaggerated response." Bradley v. Hall, 64 F.3d 1276, 1280 (9th Cir. 1995). In answering this question, the court "must balance the importance of the prisoner's infringed right against the importance of the penological interest served by the rule." Id. The court must also "examine the strength of the logical nexus between the penological purpose served and restriction of the prisoner's rights. "Id.*fn7


[40] Here, the enforcement of the prison regulations against Murphy infringes on his First Amendment right to provide legal assistance to fellow inmates. See Rizzo, 778 F.2d at 531. At the same time, 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. The Prison, for example, has little reason to enforce Rule 009 (Insolence) in this context, since it can easily shield corrections officers from any "alarming" statements contained in inmate mail. See Bradley, 64 F.3d at 1281 (prison can easily shield COs who have direct contact with inmates from contents of inmate mail). Similarly, the contents of correspondence regarding cases is unlikely in itself to cause the harms or injuries that Rule 022 is intended to prevent.


[41] Thus, it appears that the "logical nexus" here between the governmental interest and the application of the rules to law clerk correspondence is weak. The Bradley balance appears to favor Murphy, suggesting that the prison regulations, as applied to him, are an "exaggerated response."


[42] 2. Alternate means of exercising the infringed right.


[43] It does not appear that Murphy has any alternative means to exercise his right to render legal assistance to maximum security inmates who, like Tracy, he is not permitted to visit. Although Defendants suggest that Murphy could have forwarded his letter directly to Tracy's appointed counsel, there is nothing in the record indicating that Murphy had access to that lawyer's name or address.


[44] 3. Impact on prison employees, other inmates, and prison resources.


[45] Murphy asks that law clerks not be subject to discipline based on the content of the legal advice they provide. He does not suggest that law clerk correspondence be immune from interception and review. Accordingly, prison officials could continue to monitor correspondence and discipline law clerks for any improper material that does not relate to legal action. Because Prison officials already review internal inmate mail, evaluating content on a variety of criteria, Murphy's proposed solution would entail no additional burden on prison resources. Similarly, so long as corrections officers who directly interact with inmates are shielded from the mail, there is no risk of their being exposed to "alarming" statements about themselves. See Bradley, 64 F.3d at 1281 (prison's security concerns could be easily addressed by "shield[ing] those prison officials who are in direct contact with inmates from reading any insulting remarks that might be contained in . . . grievances."). We conclude that the impact on prison employees and resources would be minimal.


[46] 4. Availability of easy, obvious alternatives.


[47] As noted in the preceding section, the purposes of Rule 009 (Insolence) can easily be accommodated by shielding corrections officers who have direct contact with inmates from inmate mail. The fact that the prison officials will read the legal correspondence should be adequate protection against the implementation of any plan to interfere with Due Process Hearings (Rule 022).


[48] D. Conclusion.


[49] In light of the weak nexus between the government's stated penological interest and the category of law clerk correspondence, as well as the availability of ready alternatives, we conclude that the Prison's conduct here constitutes an "exaggerated response." See Bradley, 64 F.3d at 1280. Accordingly, we reverse the district court's grant of summary judgment in favor of Defendants with respect to Murphy's First Amendment claim.


[50] In addition, we conclude that summary judgment should be entered in Murphy's favor on his First Amendment claim. The relevant facts are undisputed: Murphy is a law clerk; his letter to Tracy contained legal advice; as applied to legitimate law clerk correspondence, Rules 009 and 022 are an "exaggerated response" to the Prison's interest in security and order, and thus impermissibly infringe Murphy's First Amendment rights. Defendants have failed to identify any issue of material fact that would defeat this legal Conclusion.


[51] II. Right of Access to the Courts and Due Process Claims


[52] As noted at the outset, Murphy also argues that the Prison's interference with law clerk mail infringes inmates' right of access to the courts. See Lewis v. Casey, 116 S. Ct. 2174 (1996); Bounds v. Smith, 430 U.S. 817 (1977). Because we believe he is entitled to summary judgment on his First Amendment claim, we do not reach Murphy's "right of access to the courts" arguments.


[53] We must, however, address at least a portion of Murphy's due process claim. Murphy contends that Rule 009 and Rule 022, both as applied to him and on their face, are so vague as to violate principles of due process. In light of our resolution of Murphy's First Amendment claim, we do not reach his "as applied" challenge to the Prison rules at issue.


[54] As for Murphy's facial challenge to Rule 009 and 022, we begin with the proposition that "[i]t is clearly established, both by common sense and precedent, that due process requires fair notice of what conduct is prohibited before a sanction can be imposed." Newell v. Sauser, 79 F.3d 115, 117 (9th Cir. 1996). Consequently, in order to comply with the dictates of the Due Process Clause, a prison regulation must provide fair notice of what is prohibited before a sanction can be imposed. See id.; accord Rios v. Lane, 812 F.2d 1032, 1039 (7th Cir. 1987); Adams v. Gunnell, 729 F.2d 362, 36869 (5th Cir. 1984).


[55] Murphy maintains that Rules 009 and 022 do not adequately define the conduct that comes within their scope. This argument fails to persuade -- the regulations certainly provide adequate notice to prisoners generally. Rule 009, for example, applies to "words . . . intended to harass or cause alarm in an employee." This definition is supplemented by the following examples: "Cursing; abusive language, writing or gestures directed to an employee." Rule 022, while it lacks a general definition, provides a laundry list of clear examples: "Intimidating or tampering with an informant or witness; tampering with or destroying evidence; interfering with an employee in the process of writing a conduct report; making a false statement of misconduct against another inmate or staff that could result in disciplinary action." While clearer language could be imagined, the challenged regulations are the sort that every prison enforces in order to maintain order. Murphy has not produced any authority to support his facial challenge, and we reject it.


[56] CONCLUSION


[57] The district court's decision is REVERSED and the matter REMANDED with instructions to enter summary judgment in Murphy's favor and for the crafting of an appropriate remedy.



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Opinion Footnotes

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[58] *fn1 Tracy, having never seen the letter, ultimately pleaded guilty to the assault charge. It does not appear that Tracy or his counsel ever were made aware prior to the plea of the information in Murphy's letter.


[59] *fn2 Rule 009 prohibits the following: Insolence: Words, actions or other behavior which is intended to harass or cause alarm in an employee. [Examples:] Cursing; abusive language, writing or gestures directed to an employee.


[60] *fn3 Rule 022 prohibits the following: Interference with Due Process Hearings [Examples:] Intimidating or tampering with an informant or witness; tampering with or destroying evidence; interfering with an employee in the process of writing a conduct report; making a false statement of misconduct against another inmate or staff that could result in disciplinary action. (This violation should not be charged for as a retaliation for the writing of a grievance.)


[61] *fn4 Murphy has not appealed the denial of his motion for class certification.


[62] *fn5 Defendants have introduced no evidence rebutting Murphy's account of the actual operation of the law clerk assignment process.


[63] *fn6 We note that several of our sister circuits have refused to recognize a constitutional right to assist others in pressing legal claims. See, e.g., Gibbs v. Hopkins, 10 F.3d 373, 378 (6th Cir. 1993) ("[N]o constitutional right to assist exists."); Smith v. Maschner, 899 F.2d 940, 950 (10th Cir. 1990) (an inmate "does not have a protected interest in providing legal representation 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.").


[64] *fn7 The court in Bradley provided the following illustration: A prison rule requiring all inmates to shower on Tuesdays would serve the legitimate penological interest of maintaining hygienic conditions. However, it is unlikely that this Court would permit prison officials to keep a prisoner from attending a court date that happened to fall on a Tuesday. The importance of the prisoner's right to attend his own court date would outweigh the legitimate, though less pressing, prison interest in a clean, fragrant prison atmosphere. Such a rule would be an exaggerated response. Thus, our analysis does not necessarily end at the recognition that the prison rule was adopted to serve, and actually does serve, a legitimate penological interest. Bradley, 64 F.3d at 1280.