NOTES

Restricting the Right of Correspondence in the Prison Context:
Thornburgh v. Abbott and its Progeny
INTRODUCTION

In the 1974 landmark decision, Procunier v. Martinez,) the
United States Supreme Court held that certain prison regulations on
inmates' personal correspondence,2 under an intermediate scrutiny
standard of review, violated the First Amendment to the United
States Constitution. 3 In recent years, however, the Supreme Court
has employed an increasingly deferential approach when evaluating
restrictions on First Amendment rights in the prison context. 4 One
result of the Court's more deferential approach has been the acceptance of increasingly restrictive limitations on the rights of prison
inmates. 5 Yet, the restrictions upheld by the Court often affect not
only the rights of the prisoners but those of free citizens as well.

1. 416 U.S. 396 (1974), overruled in part by Thornburgh v. Abbott, 490 U.S. 401
(1989).
,
2'. The regulations prohibited inmates Jrom writing letters in which they "unduly
complain" or "magnify grievances," defined as contraband writings "expressing inflammatory political, racial, religious or other views or beliefs," and stated that inmates "may not
send or receive letters that pertain to criminal activity; are lewd, obscene or defamatory;
contain foreign matter, or are otherwise inappropriate." 416 U.S. at 399-400 (quotations
omitted).
3. 416 U.S. 396.
4. Compare id. at 413 (applying the intermediate scrutiny standard) with Turner v.
Safley, 482 U.S. 78, 89 (1987) (holding it sufficient that restrictions on inmate-ta-inmate
correspondence and inmate marriages be only "reasonably related to legitimate
penological interests") and Thornburgh v. Abbott, 490 U.S. 401,413-14 (1989) (upholding prison restrictions on incoming publications under a reasonableness test and limiting
the intermediate scrutiny standard to outgoing mail only).
5. See, e.g., Abbott, 490 U.S. at 404-05 (upholding prison regulations authorizing
prison officials to intercept publications sent to prisoners which threaten the institution's
"security, good order, or discipline"); Turner, 482 U.S. at 91 (upholding prison restrictions
on inmate-to-inmate correspondence).

891

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For example, limitations on correspondence between prisoners and
nonprisoners also restrict the free speech of those outside of the
prisons. 6
In Thornburgh v. Abbott,? the Supreme Court upheld the constitutionality of regulations that allowed prison officials to reject certain publications sent by publishers to prisoners. 8 Finding the regulations reasonably related to legitimate penological interests,9 the
Court for the first time applied a reasonableness standard to restrictions that directly affected the First Amendment rights of
nonprisoners. 1O
In Abbott, the Court justified the application of a reasonableness
standard by noting a number of potential security problems that
may arise when certain publications are sent into the prisons. II
However, by limiting the applicability of the Martinez intermediate
scrutiny standard to only outgoing personal correspondence from
prisoners. the. Court opened the door to evaluating restrictions on
incoming personal correspondence under a mere reasonableness
standard. 12 Notably, the Court's holding in Abbott did not distinguish between incoming publications and other incoming mail. 13
As a result, lower and intermediate courts have subsequently ap.plied a reasonableness standard to restrictions on all categories of
incoming prison mail, including both publications and personal
letters. 14
More recently, the United States Courts of Appeals .for the
Fifth l5 and Eighth l6 Circuits have both held that. under Abbott, the
6. See Martinez, 416 U.S. at 408 (restrictions on inmate personal mail affect the First
Amendment rights of inmates' nonprisoner correspondents); see also Abbott, 490 U.S. at
407 (restrictions on incoming publications affect the First Amendment rights of publishers).
7. 490 U.S. 401 (1989).
8. [d. at 404.
9. [d.

10. C/ Martinez, 416 U.S. at 408-14 (applying the intermediate scrutiny standard to
restrictions affecting the First Amendment rights of nonprisoners).
II. Abbott, 490 U.S. at 411-13.
12. See id. at 413-14.
13. See id.; see also infra notes 86-87 and accompanying text.
14. See discussion infra part II.B.1.
15. See Brewer v. Wilkinson, 3 F.3d 816 (5th Cir. 1993), cert. denied, 114 S. Ct.
1081 (1994).
16. See. e.g., Smith v. Delo, 995 F.2d 827 (8th Cir. 1993), cert. denied, 114 S. Ct.

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reasonableness standard should be applied to correspondence sent
by inmates as well. I? A number of other courts, however, including the United States Courts of Appeals for the Firse s and Sixth 19
Circuits, have cited Abbott to hold that the intermediate scrutiny
standard articulated in Procunier v. Martinez remains valid for
restrictions on outgoing correspondence. 2o
This Note argues that the reasoning of the courts that continue
to follow the Martinez intermediate scrutiny standard for outgoing
mail is sound because the facts and holding in Abbott involved
exclusively incoming mail. 21 The approach of the Fifth and Eighth
Circuits, applying the mere reasonableness standard, represents yet
another stage of increased and undesirable deference that a number
of courts have accorded prison officials in enacting regulations that
implicate the constitutional rights of both prisoners and free citizens.
Part I of this Note briefly reviews the instrumental Supreme
Court decisions addressing First Amendment rights in the prison
context. This Part traces the development of the standard of review
for prison regulations that restrict First Amendment freedoms for
both prisoners and nonprisoners. It concludes with a general discussion of Thornburgh v. Abbott. Part IT critiques the Abbott deci'sion and analyzes the problems inherent in the Court's reasoning.
Further, this Part discusses subsequent decisions of the lower courts
that have applied Abbott to a variety of prison mail regulations and
examines the split between the circuits regarding which standard of
review should apply to restrictions on outgoing prisoner mail. This
Note concludes with a call for courts to more carefully scrutinize
prison regulations which affect the First Amendment rights of free
citizens and, specifically, to adhere to the intermediate scrutiny
standard of review for restrictions on outgoing prisoner mail.

710 (1994).
17. See
18. See
19. See
20. See
21. See

discussion infra part II.B.2.a.
Stow v. Grimaldi, 993 F.2d 1002 (1st Cir. 1993).
Burton v. Nault, 902 F.2d 4 (6th Cir.), cert. denied, 498 U.S. 873 (1990).
discussion infra part I1.B.2.b.
discussion infra part II.B.3.

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To

FIRST

A. Procunier v.' MartineZ-Setting the Intermediate Scrutiny
Standard
Commentators agree that, prior to the 1974 decision in
Procunier v. Martinez,22 courts deciding the constitutionality of
prison regulations generally used a "hands-off' approach to prisoners' claims, which resulted in "absolute deference to prison officials.,,23 In Martinez, prisoners challenged the constitutionality of
prisoner mail regulations issued by the Director of the California
Department of Corrections. 24 Among the many restrictions were
rules that inmates should not write letters in which they "unduly
complain" or "magnify grievances."25 In addition, writings were
considered contraband if they were found to be "expressing inflammatory political, racial, religious or other views or beliefs.,,26 Finally, the rules stated that inmates "may not send or receive letters
that pertain to criminal activity; are lewd, obscene, or defamatory;
contain foreign matter, or are otherwise inappropriate.,,27
In Martinez, the United States District Court for the Northern
District of California held that these regulations violated the First
Amendment because they allowed censorship of protected expres-

22. 416 U.S. 396 (1974).
23. See Lorijean Golichowski Oei. Note. The New Standard of Review for Prisoners'
Rights; A "Turner" for the Worse? Turner v. Safley, 33 VILL. L. REV. 393, 399-401 &
nn.29-30 (1988); see also Barry R. Bell, Note, Prisoners' Rights, Institutional Needs, and
the Burger Court. 72 VA. L. REV. 161. 161-62 (1986) (stating that before the 1960s,
"[m]ost judges assumed that prisoners. by the fact of conviction. had lost their constitutional rights" and that "[e]ven in the face of barbarous and arbitrary mistreatment of
prisoners, most judges deferred to prison administrators"); Megan M. McDonald. Note,
Thornburgh v. Abbott: Slamming the Prison Gates on Constitutional Rights. 17 PEPP. L.
REV. 1011, 1013 & nn.17-18 (1990) (stating that federal courts' "broad hands-off attitude"
prior to Martinez "[e]ssentially ... functioned as a jurisdictional bar to prisoners' constitutional complaints brought to the federal courts, as the courts effectively declared that
prisoners had no constitutional rights").
24. Martinez. 416 U.S. at 398.
25. Id. at 399 (quotation omitted).
26. Id. (quotation omitted).
27. Id. at 399-400 (quotation omitted).

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sion without adequate justification.28 For this and other reasons,
the court enjoined further enforcement of the regulations. 29
On appeal, the United States Supreme Court considered, as a
matter of first impression, the appropriate standard of review for
prison regulations which restricted freedom of speech. 30 District
and circuit courts had previously adopted a wide range of inconsistent approaches due to the tension between the traditional policy of
judicial restraint regarding prison regulations and the importance of
protecting constitutional rights. 3 ! The Court noted that this lack of
an accepted standard caused not only inconsistent and incomplete
protection of prisoners' rights, but also unnecessary litigation and
federal court involvement in prison administration. 32
Before suggesting a standard for review, the Court stated that
its analysis would be different from that of the federal courts which
had previously discussed prisoners' First Amendment rights. 33 The
Court noted that because correspondence includes at least two parties, the analysis did not have to address the question of what rights
are retained by incarcerated prisoners. 34 Instead, the Court's discussion focused on the broader rights of the nonprisoner, whose
freedom of speech is affected by restrictions on the prisoner's correspondence with that nonprisoner. 35
28. Martinez v. Procunier, 354 F. Supp. 1092, 1095-97 (N.D. Cal. 1973).
29. /d. at 1099. For a detailed description of the procedural history of Martinez, see
Dei, supra note 23, at 403-06 & nn.45-59.
30. Martinez, 416 U.S. at 406.
31. /d. at 406-07. The Court observed that some courts had adopted a "hands-off
posture," id. at 406 (citing McCloskey v. Maryland, 337 F.2d 72 (4th Cir. 1964»,or
required that censorship of personal prison correspondence find support "in any rational
and constitutionally acceptable concept of a prison system," id. (quoting Sostre v.
McGinnis, 442 F.2d 178, 199 (2d Cir. 1971), cert. denied sub nom. Oswald v. Sostre, 405
U.S. 978 (1972». Other courts required a compelling state interest, id. at 406-07 (citing
Jackson v. Godwin, 400 F.2d 529 (5th Cir. 1968», or a "clear and present danger," id.
at 407 (quoting Wilkinson v. Skinner, 462 F.2d 670, 672-73 (2d Cir. 1972». Finally,
some courts adopted intermediate positions, such as requiring regulations to "be related
both reasonably and necessarily to the advancement of some justifiable purpose," id.
(quoting Carothers v. Follette, 314 F. Supp. 1014, 1024 (S.D.N.Y. 1970».
32. /d. at 407.
33. /d. at 407-08.
34. /d. at 408.
35. /d. at 408-09.

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Turning then to what standard should be used for a restriction
on free citizens' First Amendment rights in the prison context, the
Martinez Court posited an intermediate scrutiny standard. This
standard is to be applied through a two-pronged test: (1) the regulation must "further an important or substantial governmental interest" (in the instant case, the interests of security, order and rehabilitation); and (2) "the limitation of First Amendment freedoms must
be no greater than necessary or essential to the protection of the
particular governmental interest.,,36 Referring to the second criterion, the Court elaborated that the restriction on inmate correspondence, even if it furthers an important or substantial interest, is
invalid if unconstitutionally broad.37
Applying this intermediate scrutiny standard, the Court affirmed
the district court's decision and held that the broad restrictions on
prisoners' correspondence were not shown to be necessary to further a governmental interest. 38 The Court rejected the suggestion
that the restrictions were necessary to prevent dangers to prison
security.39 It noted that the regulations were not narrow enough to
restrict only material that could lead to violence. 4o
In a concurring opinion, Justice Marshall expressed the view

that prisoners retain all First Amendment rights "except those expressly, or by necessary implication, taken from [them] by law.,,41
The concurring opinion found that the blanket authority granted to
prison officials to read all prison correspondence, without reason
to believe that a specific letter poses security concerns, seriously
infringed upon prisoners' rights to free expression. 42 Justice Marshall argued that it was important for prisoners to be able to express their views to nonprisoners without the fear that their jailers

36. Jd. at 413.
37.· Jd. at 413-14.
38. Jd. at 415.
39. [d. at 416.
40. Jd.
41. Jd. at 422-23 (Marshall, 1., concurring) (quoting Coffin v. Reichard, 143 F.2d

443,445 (6th Cir. 1944)).
42. Jd. at 423 (Marshall, 1., concurring).

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would read their letters. 43 Justice Douglas, in his concurring opinion, added that he considered it "abundantly clear that foremost
among the Bill of Rights of prisoners in this country . . . is the
First Amendment. Prisoners are ... entitled to all constitutional
rights unless their liberty has been constitutionally curtailed by
procedures that satisfy all of the requirements of due process.,,44

43. [d. at 423-27 (Marshall, J., concurring).
44. [d. at 428 (Douglas, J., concurring in the judgment).
Less than two months after Martinez, the United States Supreme Court decided Pell
v. Procunier, 417 U.S. 817 (1974). In Pelt, four California prison inmates and three

professional journalists challenged a section of the California Department of Corrections
Manual which stated that "[p]ress and other media interviews with specific individual
inmates will not be permitted," arguing that this section violated their constitutional rights.
[d. at 819. Dismissing the inmates' challenge, the Court emphasized the fact that many
alternative manners of communication were still open to the inmates, such as communication by mail and personal contact with members of their family, the clergy, their attorneys
and friends of prior acquaintance. [d. at 824-25. Restrictions on face-to-face communication were found to be valid, as they were obviously related to security and administrative
problems and other legitimate policy concerns of the corrections systems. [d. at 826.
Dismissing the claims of the journalists, the Court stressed that the press simply does not
have "a constitutional right of special access to information not available to the public
generally." [d. at 833, 835 (quoting Branzburg v. Hayes, 408 U.S. 665, 684 (1972».
The more extensive opinion in Pell was the dissent, written by Justice Douglas,
which discussed the importance of the press as an informer of the people. Justice Douglas quoted the Court's view in Mills v. Alabama, 384 U.S. 214 (1966), that the press is
the institution that "[t]he Constitution specifically selected ... to play an important role
in the discussion of public affairs." Pell, 417 U.S. at 841 (Douglas, J., dissenting) (quoting Mills, 384 U.S. at 219). He thereby rejected the majority's justification of the restrictions-that they did not restrict the media any more than they restricted the general
public-since "[t]he average citizen is most unlikely" to seek information about prisoners
by conducting interviews with them. [d. at 841 (Douglas, J., dissenting). Rather, in a
society that values a free press, an interested citizen will ordinarily rely on the media for
such information. [d. (Douglas, J., dissenting).
The dissent further emphasized the rights of the prisoners and found that the restrictions on prisoners' rights were "grossly overbroad" and unconstitutional. [d. at 837
(Douglas, J., dissenting). Citing from his own concurring opinion in Martinez, Justice
Douglas again wrote that prisoners retain their constitutional rights; thus, their free speech
could not be denied without satisfying due process requirements. [d. (Douglas, J., dissenting) (citing Martinez, 416 U.S. at 428-29 (Douglas, J., concurring in the judgment».
Again pointing to the practical difficulties involved in disseminating information regarding
prison administration, the dissent found that the restriction on prisoner contact with the
press "flatly prohibits interview communication with the media on the government's penal
operations by the only citizens with the best knowledge and real incentive to discuss
them." [d. at 839 (Douglas, J., dissenting). See Daniel M. Donovan, Jr., Note, Constitu-

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B. Turner v. Safley-Establishing a Reasonableness Standard
for Restrictions on Prisoners' First Amendment Rights
It was not until 1987, in Turner v, Safley,45 that the United
States Supreme Court explicitly resolved the question that it had
left open in Martinez' regarding the standard for restricting prisoners' First Amendment rights. 46 Turner involved regulations by the

tionality of Regulations Restricting Prisoner Correspondence With the Media, 56
FORDHAM L. REV. 1151, 1153 (1987-1988) (advocating that prisoner correspondence with
the media be classified as privileged and warning that a finding to the contrary could
possibly have a "chilling effect ... on both prisoners and their correspondents"); see also
Doretha M. Van Slyke, Note, Hudson v. McMillian and Prisoners' Rights: The Court
Giveth and the Court Taketh Away, 42 AM. U.L. REV. 1727, 1727 (1992-1993) (stating
that because "[t]he general public hears little about inmates' suffering except in the most
severe cases ... daily horrors and small infringements of prisoners' rights go virtually
unnoticed").
Notably, the Supreme Court in Pell v. Procunier did not properly and precisely apply
the intermediate scrutiny standard articulated in Martinez. Rather, its analysis of the
restrictions on the media was incomplete and overly deferential to prison officials. In
Pell, the Court pointed out the alternative means of gathering information open to the
media, which were sometimes beyond those available to the general public. 417 U.S. at
830-31. The Court also reviewed cases which held that the media does not necessarily
have a right of access to information beyond that of the general public. Id. 833-35.
These contentions, however, did not relate to the question of whether the regulations met
the criteria of the Martinez intermediate scrutiny test, in particular, whether the limitation
was "no greater than necessary." See Seth L. Cooper, Note, The Impact of Thornburgh
v. Abbott on Prisoners' Access to the Media, and on the Media's Access to Prisoners, 16
NEW ENG. 1. ON CRIM. & CIv. CONFINEMENT 271, 277 (1990) (suggesting that "[olne
explanation for the divergent holding reached in Pell as compared to Martinez, is that the
media's right of access was at issue in Pell, rather than the media's right to receive
information which was at issue in Martinez," but noting that "the Court abandoned complete denial of relief to the media based on the 'right of access' doctrine in Thornburgh
v. Abbott, and substituted a reasonableness standard"); JeffW. Norris, Note, Constitutional
Law-Reasonable Versus Intermediate Standard: Reviewing Prisoners' Constitutional
Claims-Goodwin v. Turner, 908 F.2d 1395 (8th Cir. 1990), 64 TEMP. L. REV. 1109,
1113-14 n.41 (1991) (noting that unlike the emphasis in Martinez that the regulation
affected free citizens as well as inmates, "this consideration was only reticently addressed
in Pelt"); Oei, supra note 23, at 408 n.68 (citing the suggestion that "Pell does not discuss
the least restrictive alternative means requirement because prisoners' First Amendment
rights alone do not warrant such a limitation").
45. 482 U.S. 78 (1987).
46. Id. at 89. The Court in Martinez stressed that it was setting a standard for
restrictions not on prisoners' rights but on the rights of free citizens. Martinez, 416 U.S.
at 408. The basis of the Court's justification for a new standard in Turner was the fact
that Turner-and not Martinez-was setting the standard regarding prisoners' rights. One

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Missouri Division of Corrections which restricted inmate-to-inmate
correspondence and inmate marriages. 47 The correspondence regulation generally permitted correspondence with "immediate family
members who are inmates in other correctional institutions" and
correspondence between inmates "concerning .legal matters.,,48
Correspondence between inmates in non-legal matters was permitted only if "the classification/treatment team of each inmate deems
it in the best interest of the parties involved."49
The United States District Court for the District of Western
Missouri found both regulations unconstitutional. 50 Applying the
intermediate scrutiny standard established in Martinez, the court
ruled that marriages were restricted more than what was reasonable
or essential to protect the state interests of security and rehabilitation and that the security problems resulting from inmate-to-inmate
correspondence could have been overcome by less restrictive
means. 51 The United States Court of Appeals for the Eighth Circuit
affirmed. It too found that the Martinez standard had not been met
because the state had not used the least restrictive method of
achieving its security goals. 52
The Supreme Court, however, first found that prison administration requires a specialized expertise and use of resources applica-

article has suggested that Pell v. Procunier "was widely regarded as establishing a 'reasonable relationship' test." See Ronald L. Kuby & William M. Kunstler, Silencing the
Oppressed: No Freedom 0/ Speech/or Those Behind the Walls, 26 CREIGHTON L. REV.
1005,1008 (1992-1993). However, there was no such statement in Pell itself, and further,
the Court did not expressly establish the reasonableness standard until Turner.
47. Turner, 482 U.S. at 81. For a detailed description of the factual setting and
procedural history of Turner, see, e.g., Oei, supra note 23, at 417-26 & nn.112-58.
48. 482 U.S. at 81 (quotations omitted).
49. Id. at 81-82 (quotations omitted). The marriage regulation permitted inmates to
marry only with the approval of the superintendent of the prison, which was to be granted
only "when there are compelling reasons to do so." Id. at 82 (quotations omitted). For
a description and analysis of restrictions on prison marriage prior to Turner, see generally
Virginia L. Hardwick, Note, Punishing the Innocent: Unconstitutional Restrictions on
Prison Marriage and Visitation, 60 N.Y.U. L. REV. 275 (1985).
50. Safley v. Turner, 586 F. Supp. 589 (W.D. Mo. 1984), aff'd, 777 F.2d 1307 (8th
Cir. 1985), aff'd in part and rev'd in part, 482 U.S. 78 (1987).
51. 586 F. Supp. at 594-96.
52. 777 F.2d at 1313, 1315-16. Although the court of appeals used the term "strict
scrutiny," it applied the Martinez test, which is usually referred to as an intermediate
scrutiny standard.

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ble only to legislative and executive branches of government.53
The Court further noted that the Martinez decision did not resolve
the question of which standard to apply to restrictions on prisoners'
First Amendment rights but dealt exclusively with the rights of
nonprisoners. 54
Therefore, the Turner Court cited prior Supreme Court decisions that did discuss prisoners' rights,55 and concluded that if they
"have not already resolved the question posed in Martinez [regarding which standard to apply], we resolve it now.,,56 Thus, the
Court articulated a standard stating that "the regulation is valid if
it is reasonably related to legitimate penological interests."S? To
justify this relatively lenient reasonableness standard, the Court
emphasized the importance of leaving this level of discretion in
prison administration in the hands of the prison officials, rather
than giving the courts discretion in such matters.58
The Court listed four factors, gleaned from its earlier decisions,
relevant in determining whether a particular regulation is reasonable. First, there must be a "valid, rational connection" between
the regulation and the legitimate state interest.59 The second factor
is whether inmates retain the ability to exercise the right through
alternative means. 60 The third factor is the impact that accommodation of the right would have on guards, inmates, and the general
prison administration. 61 Finally, the courts must consider whether

53. 482 U.S. at 84-85:
54. [d. at 85-86.
55. [d. at 86-87 (citing Block v. Rutherford, 468 U.S. 576 (1984) (holding county

jail's blanket prohibition against contact visits was reasonable response to legitimate
security interests); Bell v. Wolfish, 441 U.S. 520 (1979) (holding prohibition against
inmates' receipt of packages from outside the penal institution did not deny due process);
Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119(1977) (holding bans
on inmate group meetings were rationally related to reasonable objectives of prison
administration); Pell v. Procunier, 417 U.S. 817 (1974) (upholding restrictions prohibiting
media interviews with specific individual inmates».
56. [d. at 86-89.
57. [d. at 89.
58. [d.
59. [d. at 89 (quoting Block, 468 U.S. at 586).
60. [d. at 90 (citing Jones, 433 U.S. at 131; Pell, 417 U.S. at 827).
61. [d. (citing Jones, 433 U.S. at 132-33).

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an alternative regulation exists for the prison to achieve the same
goal. 62 Applying these four factors, the Turner Court upheld the
restriction on inmate correspondence but held that the restriction on
inmate marriage was unconstitutional. 63

62. ld. (citing Block, 468 U.S. at 587). See Cheryl Dunn Giles, Note, Turner v.
Safley and Its Progeny: A Gradual Retreat to the "Hands-Off" Doctrine?, 35 ARIZ. L.
REV. 219, 230-31 (1993) (criticizing the "incorrect formulation" of the fourth prong of
the Turner test, as a result of which "courts are given much latitude to uphold prison
regulations that severely restrict inmate rights even when there are viable, less intrusive
alternatives," and therefore advocating that the fourth prong be formulated to state that
"the presence of reasonable and available alternatives is rebuttable proof that the regulation is unconstitutional").
63. Turner, 482 U.S. at 91. For further analysis of the holding in Turner, see generally Oei, supra note 23.
Just eight days after the Turner decision, the Supreme Court, in O'Lone v. Estate of
Shabazz, 482 U.S. 342 (1987), decided a different facet of prisoners' First Amendment
rights: freedom of religion, which requires the same constitutional protection as free
speech. In o 'Lone, prisoners of the Islamic faith in New Jersey's Leesburg State Prison
challenged prison policies that prevented them from attending Jumu'ah, a weekly Muslim
congregational service. The Supreme Court concluded that these restrictions were reasonable in light of the factors listed in Turner. ld. at 350-51. For a detailed description of
the facts and holding in O'Lone, see generally Matthew P. Blischak, Note, O'Lone v.
Estate of Shabazz: The State of Prisoner.~' Religious Free Exercise Rights, 37 AM. U. L.
REV. 453 (1987-1988).
The same four justices who dissented in Turner, Justices Stevens, Brennan, Marshall
and Blackmun, dissented in o 'Lone. ld. at 354-68 (Brennan, J., dissenting). The dissenters found that the reasonableness test was "inadequate" because it is "categorically deferential, and does not discriminate among degrees of deprivation." ld. at 356 (Brennan, 1.,
dissenting). Instead, they proposed, as they had in Turner, a less deferential standard.
ld. at 358 (Brennan, J., dissenting). Finally, the dissenters found that even under the new,
more deferential standard articulated by the majority, the restrictions were unconstitutional. ld. l1t 359 (Brennan, J., dissenting). See Abraham Abramovsky, First Amendment
Rights of Jewish Prisoners: Kosher Food, Skullcaps, and Beards, 21 AM. J. CRIM. L.
241, 255~59 (1994) (describing the ill-effects of Turner and 0 'Lone on the religious rights
of Jewish prisoners to wear a beard and criticizing the United States Courts of Appeals
for the Second and Ninth Circuits for relying on these decisions to accord prison officials
with increased deference); see also Blischak, supra, at 483 (stating that the application
of the reasonableness standard, "coupled with the Court's unquestioning acceptance of the
views of prison officials in Shabazz, ... abolish[es] many basic religious rights of the
incarcerated" and calling for "some form of heightened scrutiny" in place of the reasonableness standard"); Geoffrey S. Frankel, Note, Untangling First Amendment Values: The
Prisoners' Dilemma, 59 GEO. WASH. L. REV. 1614, 1645 (1991) (advocating that
"[p]rison authorities should be required to show a compelling justification for direct
regulation of prisoners' religious practices"). But see Mary A. Schnabel, Comment, The
Religious Freedom Restoration Act: A Prison's Dilemma, 29 WILLAMETTE L. REV. 323,

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The dissent in Turner first stated that there did not seem to be
a great difference between a standard requiring that a regulation not
be "needlessly broad"-as the one applied by the lower
courts-and a standard asking whether a regulation is "reasonably
related to legitill).~te penologic,al intere~ts.,,64 It was concerned,
though, with the majority'S allowing the standard to be satisfied by
a "logical connection" between the regulation and a legitimate
penological concern. 65 The dissent found that the majority's standard allowed restrictions to be based more on "administrative concerns and speculation about possible security risks" than on "evidence that the restrictions are needed to further an important governmental interest.,,66 It praised the opinion of the Court of Appeals for the Second Circuit, ruling in a similar case, for "mak[ing]
a more careful attempt to strike a fair balance between legitimate

341 (1993) (advocating that the Religious Freedom Restoration Act, requiring a strict
scrutiny standard for governmental regulations that substantially burden religious practices, be amended to exclude prison regulations and that "[pJrison inmates' ability to exercise their religious beliefs freely should remain at status quo, and courts should continue
to apply the current standard set forth in the Turner and 0 'Lone decisions").
64. Turner, 482 U.S. at 100 (Stevens, 1., concurring in part and dissenting in part).
65. Id. at 100-01 (Stevens, 1., concurring in part and dissenting in part). See T. Joe
Snodgrass, Note, Constitutional Law-A Call fo~ Strict Scrutiny: Eighth Circuit Denies
Inmate's Requestfor Artificial Insemination-Goodwin v. Turner, 908 F.2d /395 (8th Cir.
1990), 17 WM. MITCHELL L. REV. 883, 910 (1991) (stating that "[t]he weakness of the
Turner standard of review shows the need for the utilization of the strict scrutiny standard
of review, especially where fundamental privacy rights ... are at issue" and offering both
legal theory and policy considerations to support strict scrutiny); Todd M. Turner, Note,
Constitutional Law-Prisoners' Rights-Prison Regulations Denying 1nmate the Right to
Artificially Inseminate Wife Held Conuitutional. Goodwin v. Turner, 908, F.2d 1395 (8th
Cir. 1990), 13 U. ARK. LIITLE ROCK L.J. 671, 690 (1990-1991) (commenting that as a
. result of the Turner standard, "prison regulations have become increasingly difficult to
effectively challenge ... even in cases ... where a prisoner's otherwise fundamental
constitutional right has been implicated").
66. Turner, 482 U.S. at 101 n.l (Stevens, 1., concurring in part and dissenting in
part). The dissent was particularly concerned with what it considered to be the majority's
rejection of primary findings of fact by the district court. It cited the district court's
holding that the prison authorities "failed to demonstrate that the needs of [the prison] are
sufficiently different to justify greater censorship than is applied by other well-run institutions." Id. at 109 (Stevens, 1., concurring in part and dissenting in part). Moreover, the
dissent pointed out that in addition to being an "excessive response" according to the
district court, the prohibition was inconsistent with a consensus of expert opinion. Id. at
112 (Stevens, 1., concurring in part and dissenting in part).

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penological concerns and the well-settled proposition that inmates
do not give up all constitutional rights by virtue of incarceration. ,,67
Finally, the dissent pointed to an inconsistency in the majority's
own reasoning, by which the majority accepted both the rehabilitative value of marriage and' the 'district court's analysis of the marriage restriction, but rejected both of these factors regarding the
correspondence regulation. 68 It noted the difficulty in maintaining
such reasoning, particularly because the right to communication is
more clearly protected in the text of the Constitution than is the
right to marriage. 69
C. Thornburgh v. Abbott-Applying the Reasonableness Standard to Restrictions on Publications Sent to Prisoners
In 1989, the United States Supreme Court decided Thornburgh
v. Abbott.70 Abbott involved Federal Bureau of Prisons regulations
authorizing prison officials to intercept a publication sent to a prisoner "only if it is determined detrimental to the security, good
order, or discipline of the institution or if it might facilitate criminal activity.'>71 The regulations did place limitations on the authority of a warden. They proscribed the rejection of a publication
"solely because its content is religious, philosophical, political,
social or sexual, or because its content is unpopular or repug-

67. [d. (Stevens, 1., concurring in part and dissenting in part) (citing Abdul Wali v.
Coughlin, 754 F.2d lOIS (2d Cir. 1985)). In Abdul WaH, the Second Circuit formulated
a "tripartite standard" by which to consider restrictions on a prisoner's First Amendment
rights. The factors involved in deciding which of these standards to apply include "the
nature of the right being asserted by prisoners, the type of activity in which they seek to
engage, and whether the challenged restriction works a total deprivation on the exercise
of that right." Abdul WaH, 754 F.2d at 1033 (parenthetical omitted); see O'Lone v. Estate
of Shabazz, 482 U.S. 342, 358 (1987) (Brennan, 1., dissenting) (endorsing the Abdul Wali
standard); Oei, supra note 23, at 432 & n.189 (same); see also Norris, supra note 44, at
1121-23 (proposing a combination of the Abdul Wali and Turner standards). For a more
detailed discussion of the Abdul Wali standard, see Oei, supra, at 432-33 nn.l89-93.
68. Turner, 482 U.S. at 113-14 (Stevens, 1., concurring in part and dissenting in
part).
69. [d. at 116 (Stevens, J., concurring in part and dissenting in part).
70. 490 U.S. 401 (1989).
71. Abbott, 490 U.S. at 404 (quoting 28 C.F.R. § 540.7l(b) (1988)).

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nant.,m Nevertheless, the statute provided that materials subject to
the warden's discretion "include but are not limited to" publications
depicting or encouraging various violent or criminal activities or
sexually explicit material which "poses a threat to the security,
good order, or discipline of the institution, or facilitates criminal
activity.,,73
A class of inmates and certain publishers challenged these regulations in the United States District Court for the District of Columbia as an unconstitutional restriction on their First Amendment
rights under Martinez. 74 Instead of applying the Martinez standard,
however, the court used an approach more deferential to the prison
authorities and upheld the regulation. 75 The United States Court of
Appeals for the District of Columbia reversed and remanded, holding that the regulations did not meet the Martinez standard. 76 The
United States Supreme Court granted prison officials certiorari in
order to determine the appropriate standard of review. 77
The Supreme Court in Abbott first noted that "[t]here is little
doubt that the kind of censorship" authorized by the regulations
"would raise grave First Amendment concerns outside the prison
context.,,78 Furthermore, the Court cited a number of prior Supreme Court decisions to support the notion that "[p]rison walls do
not form a barrier separating prison inmates from the protections
of the Constitution,,79 and that free citizens retain their constitutional rights to contact those who are incarcerated. 8o Nevertheless, the

72. Jd. at 405 (quoting 28 C.F.R. § 540.71(b».
73. Jd. at 405 n.5 (quoting 28 C.F.R. § 540.71(b».
74. /d. at 403 n.2. The prisoners filed the lawsuit in May 1973, and the case was
certified as a class action in 1974. In 1978, three publishers, The Prisoners' Union,
Weekly Guardian Associates, and The Revolutionary Socialist League, joined as plaintiffs.
Individual claims for damages were severed in 1979. In 1981, a bench trial was held on
the claims for injunctive relief, with a memorandum opinion and accompanying order
issued by the district court in September 1984. Jd. For a detailed description of the
factual setting and procedural history of Abbott, see, e.g., McDonald, supra note 23.
75. Abbott, 490 U.S. at 403.
76. Jd. at 403-04 (citing Abbott v. Meese, 824 F.2d 1166 (D.C. Cir. 1987».
77. Jd. at 404 (citing Meese v. Abbott, 485 U.S. 1020 (1988».
78. Jd. at 407.
79. Jd. (quoting Turner v. Safley, 482 U.S. 78, 84 (1987».
80. Jd. (citing Turner, 482 U.S. at 94-99; Bell v. Wolfish, 441 U.S. 520 (1979);

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Court stressed the difficulties arising in prison administration and
recognized the "delicate balance" prison officials must maintain
between the security of the prison and the rights and demands of
those free citizens seeking access to the prison environment.81
Recognizing that "publishers who wish to communicate with those
who, through subscription, willingly seek their point of view have
a legitimate First Amendment interest in access to prisoners,"82 the
Court described its role as deciding what standard of review should
be applied to regulations limiting that access. 83
Despite referring to Martinez, the Abbott Court found that subsequent decisions had articulated a "different standard" of review
from that in Martinez. 84 Quoting Turner, it ruled that the question
was whether the restrictions were "reasonably related to legitimate
penological interests.,,85 The Court held that "regulations affecting
the sending of a 'publication' ... to a prisoner must be analyzed
under the Turner reasonableness standard.,,86 Furthermore, the
Court limited Martinez "to regulations concerning outgoing correspondence."8?
Jones v. North Carolina Prisoners' Labor Union, Inc., 443 U.S. 119 (1977); Pell v.
Procunier, 417 U.S. 817 (1974)).
81. [d. at 408.
82.
83.
84.
85.

[d.
[d.
[d.
[d.
86. [d.
87. [d.

at 409.
at 404 (quoting Turner v. Safley, 482 U.S. 78, 89 (1987)).
at 413.
As noted by JUdge Bennett in Lyon v. Grossheim, 803 F. Supp. 1538, 1555
n.21 (S.D. Iowa 1992), prior to this holding in Abbott, many courts held that Martinez
involved the First Amendment free speech rights of nonprisoners and Turner addressed
the rights of prisoners. Therefore, these courts applied the Martinez standard to all cases
of restrictions on prison correspondence affecting the rights of free citizens. See Lawson
v. Dugger, 840 F.2d 781 (11th Cir. 1987) (prOhibition against Hebrew Israelite literature
is overbroad under Martinez), vacated, 490 U.S. 1078 (1989); Valiant-Bey v. Morris, 829
F.2d 1441 (8th Cit. 1987) (reversing dismissal of claim that religious publications were
intercepted and confiscated by prison officials in violation of the minimum procedural
requirements set forth in Martinez); Abbott v. Meese, 824 F.2d 1166 (D.C. Cir. 1987)
(Martinez standards applicable to censorship of publications to which inmates subscribed),
vacated sub nom. Thornburgh v. Abbott, 490 U.S. 401 (1989); Murphy v. Missouri Dep't
of Corrections, 814 F.2d 1252 (8th Cir. 1987) (prison mail policy that operated as a total
ban on white supremacist material was overly restrictive under Martinez); Brooks v.
Seiter, 779 F.2d 1177 (6th Cir. 1985) (prisoners claim that it was unconstitutional to

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The Abbott Court supported its conclusion by distinguishing
between the security concerns involved in outgoing correspondence.
which was restricted in Martinez. from those that may result froin
incoming mail. such as the magazines rejected by prison officials
in the case at hand. 88 According to the Court. outgoing prisoner
correspondence was not likely to pose a danger to those inside the
prison. and dangerous outgoing correspondence was "more likely
to fall within readily identifiable categories:·89 It described these
concerns as being "of a categorically lesser magnitude than the
implications of incoming materials.,,90
In contrast. the Abbott Court found that publications sent to
individual prisoners but intended for a general audience "may be
expected to circulate among prisoners. with the concomitant potential for coordinated disruptive conduct. .,91 It expressed further
concern for the possibility that a prisoner who would observe these
publications in the possession of another prisoner may draw inferences about the latter's beliefs. sexual orientation. or gang affiliations "and cause disorder by acting accordingly."92
,

,

Having limited the holding in Martinez to regulations concerning outgoing prisoner correspondence. the Court proceeded to con-

prohibit them from receiving certain mail order publications was not frivolous when
considered in light of Martinez); Pepperling v. Crist, 678 F.2d 787 (9th Cir. 1982) (blanket prohibition against prisoners' receipt of nude pictures of wives and girlfriends and
Hustler and High Times magazines was contrary to the restrictive rule in Martinez);
Guajardo v. Estelle, 580 F.2d 748 (5th Cir. 1978) (follows Martinez in prOhibiting prison
officials from censoring publications critical of their penal philosophy and their activities);
Aikens v. Jenkins, 534 F.2d 751 (7th Cir. 1976) (prison censorship regulations overbroad
under Martinez); Morgan v. LaVallee, 526 F.2d 221 (2d Cir. 1975) (Martinez is controlling in cases involving censorship of prisoners' materials); Dooley v. Quick, 598 F. Supp.
607 (D.R.I. 1984) (managers may limit expression pursuant to Martinez), a!f'd, 787 F.2d
579 (1st Cir. 1986); Hopkins v. Collins, 411 F. Supp. 831 (D. Md. 1976) (a full hearing
requirement before censorship of a newspaper was not necessary to meet the procedural
due process standards under Martinez), a!f'd in relevant part, 548 F.2d 503 (4th Cir.
1977); see also Lyon, 803 F. Supp. at 1555 n.21 (identifying and summarizing these
decisions).
88. Abbott, 490 U.S. at 411.
89. ld. at 411-12.
90. ld. at 413.
91. ld. at 412.
92. ld. at 412-13.

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sider the regulations in question under the Turner reasonableness
standard. 93 Applying the four factors delineated in Turner,94 the
Court held that the regulations were facially valid under that standard. 9s
The dissent in Abbott consisted of only threejustices, as Justice
Blackmun not only joined the majority, but wrote the majority
opinion. 96 The dissenting opinion, written by Justice Stevens, again
criticized the "manipulable 'reasonableness' standard" applied by
the majority.97 Justice Stevens quoted from his partially dissenting
opinion in Turner what he considered to be the dangers that such
a standard posed. 98

93. [d. at 414.
94. [d. at 414-19; see supra notes 59-62 and accompanying text.
95. 49O·U.S. at 419.
96. The approach of Justice Blackmun in the Supreme Court decisions affecting First
Amendment rights in the prison context is puzzling. Justice Blackmunjoined the majority
opinions in Procunier v. Martinez, 416 U.S. 396 (1974), and Pell v. Procunier, 417 U.S.
817 (1974), then joined the dissent in Turner v. Safley, 482 U.S. 78 (1987) and O'Lone
v. Estate of Shabazz, 482 U.S. 342 (1987), but finally re-joined the majority in Abbott,
writing the majority opinion.
In Martinez and Pell, Justice Blackmun may have agreed with each majority's
standard for restrictions on the rights of nonprisoners because the issue of prisoners' rights
was not relevant to the ruling in those cases. See supra notes 34-37 and accompanying
text and note 44. When faced in Turner, however, with a mere reasonableness standard
to be applied to prisoners' rights, Justice Blackniun may have agreed with the dissent
because the standard suggested was too broad. Indeed, in Block v. Rutherford, Justice
Blackmun expressed concern for what he called "the Court's apparent willingness to
substitute the rhetoric of judicial deference for meaningful scrutiny of constitutional
claims in the prison setting." 468 U.S. 576, 593 (1984) (Blackmun, 1., concurring in
judgment). Further, in O'Lone, Justice Blackmun once again criticized the majority's
standard as being too deferential. 482 U.S. at 354 (Brennan, J., dissenting).
In Abbott, however, Justice Blackmun adopted the more deferential view. The
majority in Abbott, like in Turner and 0'Lone, applied an explicitly deferential reasonableness standard to restrictions on prisoners' rights. In light of his dissent in Turner,
Justice Blackmun's reliance on ~he majority opinion in Turner to agree with-and in fact
put forth-the view in Abbott that Martinez was partially overruled, is difficult to justify.
See Cooper, supra note 44, at 284 (noting Justice Blackmun's departure from the dissent
in Turner to the majority in Abbott and commenting that "[t]his move, whether it is meant
to be symbolic or not, further solidifies the Court and advances the certainty that a reasonableness standard will be applied in evaluating future regulations which restrict the
media's access to prisoners").
97. Abbott, 490 U.S. at 427 (Stevens, 1., concurring in part and dissenting in part).
98. [d. at 427-28 (Stevens, 1., concurring in part and dissenting in part). See Willa
E. Rucker, Note, Constitutional Law-Federal Bureau of Prisons Regulation Prohibiting

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The dissent also criticized what it called the majority's "casual
discarding ... of considered precedent," which "ill serves the orderly development of the law.,,99 It noted that although "[t]he
Turner opinion cited and quoted from Martinez more than twenty
times[,] not once did it disapprove of Martinez's holding, its standard, or its recognition of a special interest in protecting the First
Amendment rjghts of those who are not prisoners."IOO Therefore,
the dissent disagreed with the majority in Abbott that Turner had
partially overruled Martinez. Finally, Justice Stevens again concluded that even under the majority's more deferential standard, the
restriction would still be unconstitutional. 101

n.

THORNBURGH V. ABBOTT AND ITS PROGENY: ApPLYING A NEW

REASONABLENESS STANDARD TO RESTRICITONS ON CORRESPONDENCE RIGHTS IN THE PRISON CONTEXT

The Supreme Court's decision in Thornburgh v. Abbott is troubling for a number of reasons. 102 First, the majority's analysis in

Prisoners from Receiving Incoming Publications that Threaten the Security of a Penal
Institution Does Not Violate Prisoners' First Amendment Rights-Thornburgh v. Abbott,
490 U.S. 401 (1989),40 DRAKE L. REV. 451, 463 (1991) (stating that the Thornburgh
reasonableness standard "gives feeble protection to the constitutional rights of prisoners"
and "makes it too easy for a prison administrator to infringe on a prisoner's first amendment" rights based merely on an administrative concern or speculation about a possible
security risk"). But see Cooper, supra note 44, at 287 (focusing on the "continuing threat
of disruption" that "media access" to prisoners poses "to the prison environment," and
stating that "[t]hus, a more manipulable reasonableness standard which is capable of
responding to the facts of each individual case may be justified").
99. Abbott, 490 U.S. at 427 (Stevens, J., concurring in part and dissenting in part).
100. Id. at 427-28 (Stevens, J., concurring in part and dissenting in part).
101. Id. at 430-31 (Stevens, J., concurring in part and dissenting in part).
102. The Abbott decision has generated much criticism in legal scholarship. See,
e.g., The Supreme Court, 1988 Term: Leading Cases-I. Constitutional Law-A. Criminal
Law and Procedure, 103 HARV. L. REV. 137, 239-49(1989-1990) [hereinafter Harvard
Note] (endorsing Justice Stevens' criticisms of the majority opinion); see also Alphonse
A. Gerhardstein, False Teeth? Thornburgh's Claim that Turner's Standard for Determining a Prisoner's First Amendment Rights Is Not "Toothless", 17 N. Ky. L. REV. 527,
540-41 (1989·1990) (criticizing Abbott for ignoring the doctrine of overbreadth in upholding an "all-or-nothing rule," which allows an entire publication to be seized due to a
single article or picture that violates regulations and "deters publishers from including any
reference to controversial themes in publications sent to prisoners" and "prisoners from

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Abbott contains what appears to be questionable reasoning. As
discussed in the extensive dissenting opinion in Abbott, the majority misinterpreted the precedents set by Turner and Martinez and

showed little regard for the First Amendment interests of
nonprisoners. 103 Moreover, the Court's rationale for applying a
more deferential standard to incoming mail than to outgoing mail
was based on the special security concerns posed by incoming
publications. I04 Yet, the Court did not distinguish between incoming publications and personal correspondence when applying the
reasonableness test to incoming mail. 105 Thus, the Court allowed
for the application of a broad reasonableness standard for all mail
sent into prisons, regardless of its nature.
More disturbing is the reaction of lower and intermediate courts
that have applied the Abbott reasonableness standard to prisoner
mail regulations. As expected, courts have uniformly applied the
reasonableness standard to both publications and personal letters
sent into prisons, since Abbott failed to distinguish the two forms
of mail. 106 What is both surprising and disheartening, though, is
the approach of the United States Courts of Appeals for the Fifth
and Eighth Circuits, which have applied Abbott, rather than Martinez, to outgoing prisoner mail as well. I07 On the other hand, a
number of other courts, most notably the United States Courts of
Appeals for the First and Sixth Circuits, have refused to extend
Abbott beyond the facts and rationale of the Supreme Court decision. l08 As some of these courts have observed, an extension of
Abbott to outgoing prisoner mail, which suggests that outgoing mail
poses a sufficient danger to warrant its censorship based on a rea-

subscribing to publications that might contain such themes," and concluding that, in short,
U[t]he rule deters the exercise of massive amounts of protected speech").
103. See discussion infra part II.A.l; notes 99-101 and accompanying text; see also
Oei, supra note 23 (suggesting that "the deference in [Abbott] is likely to tum the tide of
prison constitutional review back to its pre-Martinez, highly deferential position"); Van
Slyke, supra note 34, at 1727-28 & n.4 (describing "[c]ontinued pressure for a return to
the 'hands-off ap,proach to prison administration" and citing scholarship suggesting that
such a return may have already begun); see generally Giles, supra note 62.
104. See supra notes 85-89 and accompanying text.
105. See discussion infra part I1.A.2.
106. See discussion infra part II.B.1.
107. See discussion infra part 1I.B.2.a.
108. See discussion infra part 1I.B.2.b.

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sonable relationship test, expressly contradicts the logic of Abbott
itself. 109
A. Problematic Aspects of the Abbott Rationale
1. Disregarding Precedent and the First Amendment Interests of Nonprisoners
In supporting its application in Abbott of a reasonableness standard to prison restrictions on incoming publications, the Supreme
Court asserted that such a standard had been used in prior cases
involving First Amendment rights "in the prison context.,,110 Turner had involved First Amendment rights in the prison context, but
a reasonableness standard was applied to regulations affecting the
rights of only prisoners, not nonprisoners. In Turner, the Court
emphasized the fact that the limitations on inmate-to-inmate correspondence at issue did not implicate the rights of nonprisoners. 111
Indeed, as noted by the dissent in Abbott, this recognition provided
the basis for the Turner majority's distinction between the limitations on inmate-to-inmate correspondence and the marriage restrictions, which could affect the constitutional rights of nonprisoners
as well. I 12 In contrast, the regulations at issue in Abbott implicated
the First Amendment rights of publishers, who sought to communicate with prisoners by sending in their magazines. I 13 Thus, the
Abbott Court's comparison of the regulations in Turner to those in
Abbott is tenuous at best. 114

109. See discussion infra part II.B.2.c.
110. Thornburgh v. Abbott. 490 U.S. 401, 409 (1989).
Ill. See Turner v. Safley. 482 U.S. 78, 85-86 (1987).
112. See Abbott. 490 U.S. at 426-27 (Stevens, 1., concurring in part and dissenting
in part).
113. See supra note 82 and accompanying text.
114. See McDonald. supra note 23. at 1042 (criticizing Abbott because "[f]ree citizens corresponding with or mailing subscriptions to prisoners will have their free speech
rights infringed by regulations that are subject to review by a standard that was formulated only for inmate-to-inmate correspondence"); Rucker. supra note 98, at 463 (harshly
criticizing the Court for finding that its decision in Abbott affected the First Amendment
rights of prisoners only. despite the fact that restrictions on incoming mail infringe on the
First Amendment rights of free citizens to communicate with a prisoner by sending a
letter. and stating that "[a}larmingly, prison administrators have been given free reign to

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The dissent further posited that the Abbott majority's analysis
was inconsistent with the reasoning of Martinez. 115 The dissenting
opinion found that "[t]he Court today abandons Martinez's fundamental premise"1l6 because "Martinez was based on a distinction
between prisoners' constitutional rights and the protection the First
Amendment affords those who are not prisoners-not between
nonprisoners who are senders and those who are receivers.,,111
In fact, the Martinez Court's conclusion that a nonprisoner
retains First Amendment rights to correspondence sent by an inmate was based on equating those rights with the rights of the
nonprisoner to send mail to the inmate. lI8 The Court in Martinez
analyzed a situation in which the wife of a prison inmate was not
permitted to read all that the inmate had written to her. ll9 The
Court stated that she "has· suffered an abridgement of her interest
in communication with him as plain as that which results from
censorship of her letter to him.,,120 Thus, the Court found it "plain"
that the free expression rights of nonprisoners are involved when
they send letters~ "as plain" as this right is the right of nonprisoners
in letters written to them. Therefore, the Court concluded that the
intermediate scrutiny standard should apply to outgoing prison
correspondence, having assumed, in dicta, that it applied to incoming correspondence.121
Thus, the Abbott Court's rationale behind partially overruling
Martinez and limiting the intermediate scrutiny standard to outgoing correspondence is unpersuasive. The regulations in Abbott, as

infringe on the First Amendment rights with little or no judicial restraint); see also Harvard Note, supra note 102, at 240 (stating that "the Court ignored the censorship policy's
infringement upon the rights of nonprisoners and further eviscerated constitutional protection in the prison context"); McDonald, supra, at 1042 n.226 (stating that the standard of
review in Abbott, which is the same as that in Turner, "does not take into account the
rights of free citizens").
115. Abbott, 490 U.S. at 427 (Stevens, J., concurring in part and dissenting in part).
116. [d. at 425 (Stevens, J., concurring in part and dissenting in part).
117. [d. at 424 (Stevens, J., concurring in part and dissenting in part).
118. See Procunier v. Martinez, 416 U.S. 396,409 (1974).
119. [d. at 409.
120. [d.
121. [d.

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those in M artineZ t implicated the First Amendment rights of
nonprisoners; the regulations in Turner did not.
2. Disregarding the Distinction Between Incoming Publications and Incoming Personal Mail
The concerns expressed by the majority in Abbott for the danger posed by magazines sent to prisoners do not seem to justify the
Court's broad conclusion that the reasonableness standard should
apply to prison regulations on all kinds of incoming mail. 122 After
all, the Court supported its finding that Martinez applied to only
outgoing correspondence by describing the particular security problems that could result specifically from certain magazines being
sent to prisons. 123
The Courtts first concern related to a magazinets audience. 124
Although magazines were requested by an individual inmate t the
court found that because they were "targeted to a general audience,u the possibility of their subsequent circulation among other
prisoners could potentially result in "coordinated disruptive condUCC'12S In contrast, personal mail is not only sent to an individual
inmate but is also inherently targeted only to that particular inmate.
Thus, subsequent circulation of a personal letter among other inmates and any resulting disruptions are less likely. The Courf s
other concern was that if other prisoners observed an individual
prisoner in possession of certain materials, they may draw inferences about that prisoner ts personal preferences and react in a disorderly manner as a result. 126 Because of the less conspicuous nature
of a personalletter t incoming correspondence generally would not

122. See supra notes 86-87 and accompanying text; Harvard Note, supra note 102,
at 245 (warning that "nothing prevents extension of the Abbott Court's distinction between
the levels of constitutional protection accorded to incoming and outgoing publications to
all incoming materials, including personal correspondence" and "[i]n the future, prison
administrators may justify substantial censorship merely by reciting talismanic incantations of security and good order").
123. Abbott, 490 U.S. at;411-12.
124. [d. at 411.
125. [d. at 412.
126. [d. at 412-13.

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cause such problems.
The Court did cite an example of a regulation on personal prison correspondence that was required to meet only the reasonableness test. l27 As the Court noted, Turner itself, which set the reasonableness standard, involved what the Court called "incoming
personal correspondence."128 Yet, the Court's use of the term "incoming" correspondence for comparing the regulations in Turner
to those in Abbott is misleading. Turner involved inmate-to~inmate
correspondence and created a reasonableness standard applicable
when the rights of only prisoners are involved. l29 There is no indication from the analysis in Turner that any correspondence involving nonprisoners could similarly be restricted by meeting a reasonableness test.
B. Abbott's Progeny-Lower Court Decisions Addressing First
Amendment Correspondence Rights in the Prison Context
Since the Supreme Court's decision in Abbott to limit the intermediate scrutiny standard to outgoing correspondence, lower courts
have followed-and, at times, extended-the level of deference
accorded to the prison administration. First, courts faced with
restrictions on publications and personal mail sent to prisoners have
universally applied the reasonableness standard articulated in
Abbott to determine their constitutionality.l3O More significantly,
some courts have recently held prison security to be so important
that even restrictions on outgoing correspondence did not have to
meet the intermediate scrutiny standard, but were valid if they met
the reasonableness test. l3l

127.
128.
129.
130.
131.

Jd. at 413.

Id.
See .~upra notes 54-57 and accompanying text.
See discussion infra part II.B.1.
See discussion infra part 1I.B.2.a.

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1. Following Abbott-Applying the Reasonableness Standard to Incoming Publications and Personal Mail
Subsequent to the decision in Abbott t lower and intermediate
courts have uniformly applied Abbott to constitutional challenges
against restrictions on publications delivered to prisoners and have
often upheld such regulations as reasonably related to legitimate
penological interests such as order rehabilitation and security.132
t

132. See, e.g., Spruytte v. Feighner, No. 93-2009, 1994 U.S. App. LEXIS 2187, *3
(6th Cir. Feb. 4, 1994) (holding that Michigan state prison officials did not violate inmate's First Amendment rights when they refused to deliver to him an unsigned greeting
card sent by his parents for his personal use because prison regulations requiring inmates
to purchase goods only from authorized vendors was reasonably related to a legitimate
security interest); Dawson v. Scurr, 986 F.2d 257, 262 (8th Cir.) (holding that Iowa state
prison regulations authorizing prison officials to exclude certain sexually explicit publications was reasonably related to the legitimate penological interests of rehabilitation and
security), cert. denied, 114 S. Ct. 232 (1993); Manning v. Abramajtys, No. 91-1450, 1992
U.S. App. LEXIS 5059, *8 (6th Cir. Mar. 17, 1992) (finding that under Abbott, a Michigan state prison's refusal to deliver a legal publication entitled Prisoners' Self-Help
Litigation Manual, following prison procedure not to deliver outside publications to
prisoners unless they were ordered through the institutionally approved vendor, was
reasonably related to a legitimate security objective); Smith v. Donohue, No. 91-1647,
1992 U.S. App. LEXIS 25066, *12-*13 (7th Cir. Sept. 24, 1992) (holding that Illinois
state prison officials' confiscation of two sexually explicit magazines sent to inmate was
reasonably related to legitimate penological interests); Harris v. Bolin, 950 F.2d 547 (8th
Cir. 1991) (holding that prison officials' screening prisoner's mail and retaining obscene
articles did not violate prisoner's First Amendment rights); Johnson v. Daniels, No. 892012, 1990 U.S. App. LEXIS 13777, *4 (6th Cir. Aug. 9, 1990) (holding that state prison
officials' denial of copies of Hustler and Club International to a prisoner was reasonably
related to legitimate security interests); Pike v. Gomez, No. C-91-2114, 1993 U.S. Dist.
LEXIS 12228, *7 (N.D. Cal. Aug. 23, 1993) (holding that California state prison officials'
confiscation of white supremacist material from prisoner's mail was reasonably related
to security interests); Avery v. Powell, 806 F. Supp. 7, 9 (D.N.H. 1992) (holding that New
Hampshire state prison restrictions against receiving greeting cards except from vendors
was reasonably related to maintaining prison security); Cox v. Embly, 784 F. Supp. 685,
688-89 (E.D. Mo. 1992) (holding that Missouri state prison officials did not deprive
prisoner of his constitutional rights by confiscating certain sexually explicit magazines,
, because prison regulations were reasonably related to prison security); Larkin v. Murphy,
No. 9l-C-0861-C, 1992 U.S. Dist. LEXIS 21573, *14 (W.O. Wis. June 12, 1992) (holding
that Wisconsin state prison policy prohibiting an inmate from possessing newspaper or
magazine clippings unless the clippings were related to the inmate's legal case were
reasonably related to prison security and order), aft'd, No. 92-2597, 1993 U.S. App.
LEXIS 18590 (7th Cir. July 19, 1993); McKown v. Schneider, No. 89-0036-C-5, 1990
U.S. Dist. LEXIS 19538, *6-*7, *10 (E.D. Mo. Jan. 24,1990) (holding that Missouri state
prison officials' confiscation of seven incoming issues of the Behold! Newsletter was

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At times, however, courts have found that certain restrictions did
not meet even the reasonableness standard. 133 For example, in
Williams v. Alameda County Sheriff Dep 't, 134 a California state
prisoner claimed that prison officials violated his constitutional
rights by confiscating a gardening magazine as well as advertising
inserts placed in another magazine. The United States District
Court for the Northern District of California granted the defendants
summary judgment. I3S
The United States Court of Appeals for the Ninth Circuit first
considered the constitutionality of the confiscation of the advertising inserts. 136 Citing Abbott, the court found that prison officials
may censor prisoner mail when their actions are reasonably related
to the penological interest of uncovering contraband. 137 Prison
officials considered the advertising inserts contraband because inmates had ordered magazines or credit cards and then defaulted on
payment. 138 Therefore, the court held that the confiscation served
the legitimate penological interest of preventing harm to the pub-

reasonably related to security interests); Lambrix v. Dugger, 610 So.2<1 1366 (Fla. Dist.
Cl. App. 1992) (holding that Florida state prison officials' interception of certain sexually
explicit photographic materials did not violate inmate's rights because the regulations
were reasonably related to security interests); Montgomery v. Coughlin, 605 N.Y.S.2d 569
(N.Y. App. Div. 1993) (holding that New York state prison policy prohibiting inmates
from receiving newspapers from nonpublisher sources was reasonably related to security
interests); In re Malik, 552 N.Y.S.2d 182, 184 (N.Y. App. Div. 1990) (holding New York
state prison officials' removal of a particular article form an issue of The Freedom Press
was reasonably related to security interests).
133. See, e.g., Williams v. Alameda County Sheriff Dep't, No. 91-16316, 1993 U.S.
App. LEXIS 6000 (9th Cir. Mar. 19, 1993) (finding no legitimate penological interest
served by California state prison officials' confiscation of gardening magazine); Nichols
v. Nix, 810 F. Supp. 1448, 1467 (S.D. Iowa 1993) (holding that Iowa state prison's
denying an inmate three religious publications was not reasonably related to a legitimate
penological interest), off'd, 16 F.3d 1228 (8th Cir. 1994); Lyon v. Grossheim, 803 F.
Supp. 1538, 1555 (S.D. Iowa 1992) (holding that Iowa state prison's denying an inmate
certain religious comic books was not reasonably related to a legitimate penological
interest).
134. No. 91-16316, 1993 U.S. App. LEXIS 6000 (9th Cir. Mar. 19, 1993).
135. Id. at *2.
136. Id. at *3.
137. Id.
138. Id.

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lic. 139
The court then considered the confiscation of the magazine,
Organic Gardening. l40 Again, citing Abbott, the court applied the
Turner reasonableness standard to prison restrictions affecting the
sending of a publication to prisoners. 141 . Applying this standard to
the confiscation of the magazine, the court reversed and remanded,
finding no legitimate penological interest served by such a confiscation. 142
Following the holding"in Abbott,143 courts have also applied the
reasonableness standard to restrictions on personal mail sent to
prisoners and have upheld such restrictions as reasonably related to
legitimate penologIcal interests. l44 For example, in In Re Rules
Adoption Regarding Inmate Mail,14S the Supreme Court of New
Jersey considered proposed New Jersey Department of Corrections
regulations regarding inmate mail to attorneys, public officials, and
news media representatives. The regulations authorized prison
officials to open and inspect incoming correspondence, other than

139. Id.
140. [d. at "'4.
141. [d. at "'8.
142. [d.
143. See supra notes 86-87 and accompanying text.
144. See, e.g., Walker v. Navarro County Jail, 4 F.3d 410 (5th Cir. 1993) (holding
that Texas state prison officials' opening and inspecting incoming mail for contraband was
reasonably related to a legitimate security interest), reh'g denied, 1993 U.S. App. LEXIS
32037 (5th Cir. Nov. 19, 1993); Arbing v. Page, No. 92-1312, 1993 U.S. App. LEXIS
8597 (7th Cir. Mar. 8, 1993) (holding that Illinois state prison officials who opened mail
sent to prisoner by clerk of the court was reasonably related to prison order and security,
and that the mail did not qualify as privileged); Noblesv. Hoffman, No. 92-2692, 1993
U.S. App. LEXIS 19958 (7th Cir. Aug. 2, 1993) (holding that confiscation of photographs
portraying gang-related symbols sent to prisoner was reasonably related to legitimate
penological objectives); Griffin v. Lombardi, 946 F.2d 604 (8th Cit. 1991) (holding the
Abbott reasonableness standard applicable to determine the constitutionality of Missouri
prison officials' refusal to deliver prisoner's original diploma from a paralegal course and
his original grade transcript), reh'g en bane denied, 1991 U.S. App. LEXIS 27988 (8th
Cir. Nov. 25,1991); Allen v. Reynolds, No. 89-6148, 1990 WL 14063 (6th Cir. Feb. 16,
1990) (finding that Tennessee state prison officials opened prisoner's incoming mail in
order to determine the proper recipient, and holding that they acted reasonably under
Abbott).
145. 576 A.2d 274 (N.J. 1990).

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legal correspondence, for contraband, and to read it "upon [the]
prior authorization of the Superintendent or his or her designee" if
"there is reason to believe that [it] contains disapproved content."I46
The regulations' criteria for "disapproved" mail included material
leading to a variety of security concerns. 147
The public advocate challenged the regulations, proposing that
officials should not be allowed to open, read, and censor mail between inmates and public officials, government agency officials,
and media representatives, but that such mail should instead be
considered privileged legal correspondence. 148 As such, this mail
would be opened only in the presence of the inmate and referred
to corrections personnel only if there was substantial "reason to
believe" it was illegal or disapproved. 149 "
The court cited Abbott to hold the Turner reasonableness standard of review applicable for analyzing the regulations affecting
incoming inmate correspondence. ISO It proceeded to consider the
regulations under question in light 'of the four factors enumerated
in Turner isl and concluded that the regulations were valid because
they were reasonably related to legitimate penological interests. 152
2. Outgoing Prisoner Mail
Some of the commentators who have addressed the Abbott
decision expected that the Martinez intermediate scrutiny standard
would continue to be applied to regulations restricting outgoing
correspondence. This expectation was based on the Court's find-

146.
147.
148.
149.
ISO.

Id.
Id.
Id.
Id.
Id.

(quoting NJ.A.C. lOA: 18-2.6(g) (1991».
at 275-76.
at 276.

at 279. The court stated that U[c]entral to the [Abbott] Court's analysis was
that any'materials entering a prison-publications or correspondence-pose a potentially
greater risk of harm to institutional security than materials leaving a prison." Id. But see
discussion supra part II.A.2. (arguing that the rationale in Abbott is relevant specifically
to publications and that the analysis did not express a similar concern for the dangers
posed by correspondence).
151. In re Rules Adoption, 576 A.2d at 279-80.
152. Id. at 280.

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ings in Abbott that outgoing prisoner correspondence does not pose
a serious danger to prison security. 153 However, some courts have
recently extended the reasonableness standard in Turner and Abbott
to outgoing prisoner correspondence as well. 154 Since 1993, four
Eighth Circuit decisions ISS and one Fifth Circuit decision l56 upheld
prison regulations on prisoners' outgoing mail, holding that the
regulations were reasonably related to legitimate penological interests. Yet, the reasoning of these courts is questionable in light of
the dissenting opinion of an Eighth Circuit judge as well as the
holdings of the First and Sixth Circuits, which have continued to
apply the intermediate scrutiny standard articulated in MartineZ. IS ?
a. Extension of Abbott-Applying the Reasonableness
Standard to Outgoing Correspondence
The first of the Eighth Circuit cases to apply the reasonableness
standard to outgoing prisoner correspondence was Smith v. De/o. 158
Smith involved the classification by the Potosi Correctional Center
in Missouri of outgoing inmate mail addressed to members of the
media or the clergy. Prior to 1989, such mail was classified as
privileged, and thus could be sent to the prison mail room sealed. 159
After February 1989, however, this type of mail was reclassified as
not privileged. This classification required that the prisoners leave
the letters unsealed for prison officials to inspect them for threats
or evidence of illegal activity.l60 Smith, an inmate, filed suit alleging that the reclassification violated his First Amendment rights. 161

153. See Cooper, supra note 44, at 288 & n.130; see also McDonald, supra note 23,
at 1042 (criticizing the deferential reasonableness standard in Abbott, yet assuming that
in cases involving regulations on outgoing mail, the Martinez intermediate scrutiny standard would still be applied).
154. See discussion infra part II.B.2.a.
155. GassIer v. Wood, 14 F.3d 406 (8th Cir. 1994); Thongvanh v. Thalacker, 17 F.3d
256 (8th Cir. 1994); Loggins v. Delo, 999 F.2d 364 (8th Cir. 1993); Smith v. Delo, 995
F.2d 827 (8th Cir. 1993);cert. denied, 114 S. Ct.710 (1994).
156. Brewer v. Wilkinson, 3 F.3d 816 (5th Cir. 1993), cert. denied, 114 S. Ct. 1081
(1994).
157. See discussion infra part II.B.2.b.
158. 995 F.2d 827 (8th Cir. 1993), cert. denied, 114 S. Ct. 710 (1994).
159. 995 F.2d at 829.
160. [d.
161. [d.

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The magistrate judge granted the prison officials' motion for summary judgment, and the United States District Court for the Eastern
District of Missouri adopted the magistrate's report and recommendation. 162
On appeal to the Eighth Circuit, Smith argued that his case
should be considered under the Martinez test because, unlike the
regulations at issue in Turner and Abbott, the Missouri regulations
involved restrictions on outgoing mail. 163 The court of appeals
rejected this reasoning. l64 The court acknowledged Abbott's statement that "the logic of [the] analyses in Martinez . .. requires that
Martinez be limited to regulations concerning outgoing correspondence,"165 implying that even after Abbott, the Martinez intermediate scrutiny standard still applied to outgoing correspondence. Yet,
the court held, in a 2-1 decision, that the "context" of this statement in Abbott indicated that the Supreme Court distinguished
between the security risks posed by different types of correspondence, rather than the standard to apply to restrictions. on correspondence. l66 The court of appeals concluded that Abbott established the reasonableness test for all restrictions on prisoner correspondence. 167 Considering Smith's claims under the Turner reasonableness standard,168 it held that classifying mail addressed to media and the clergy as non-privileged was reasonably related to the
prison officials' legitimate interest in preventing mail containing
"contraband, threats, evidence of escape plans and other illicit activity." 169

162. rd.
163. rd.
164. rd. at 830.
165. rd. (quoting Thornburgh v. Abbott, 490 U.S. 401, 413 (1989)).
166. rd.
167. rd. Contra Bressman v. Farrier, 825 F. Supp. 231, 233 (N.D. Iowa 1993) (citing
Abbott as holding that "Martinez [is] still the correct standard in cases involving outgoing
inmate mail"); Nichols v. Nix, 810 F. Supp. 1448, 1457 n.16 (S.D. Iowa 1993) (stating
that Abbott limited the use of the Martinez test to regulations governing outgoing correspondence only and that "this court does not understand Abbott to have completely overruled Martinez"), aff'd, 16 F.3d 1228 (8th Cir. 1994) (affirming on procedural grounds);
Lyon v. Grossheim, 803 F. Supp. 1538, 1546 n.21 (S.D. Iowa 1992) (same).
168. Smith, 995 F.2d at 830-32.
169. rd. at 832.

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The Smith majority's reading of Abbott prompted a dissenting
opinion by Judge ArnoldYo Judge Arnold found that Martinez
controlled for prison regulations on outgoing mail, requiring that
"limitation of [inmates'] First Amendment freedoms must be no
greater than is necessary or essential to the protection of the particular governmental interest involved."17l Based on this standard, he
found that the Missouri regulation was not justified by a sufficient
threat to prison security. 172 Distinguishing the Missouri regulation
from those considered in Turner and Abbott,173 Judge Arnold reasoned that "[t]he same type of regulation considered generally
necessary to screen incoming mail can hardly be considered generally necessary to screen outgoing mail because the former admittedly poses a far greater threat to prison security than does the
latter."174 Judge Arnold called for a modified regulation, to "eliminate the inevitable chilling effect that the current restriction has on
inmates' exercise of their First Amendment rightS.,,175
A little over a month later, the Eighth Circuit decided Loggins
v. Delo. 176 Loggins, also an inmate at the Potosi Correctional Cen-

170. Jd. at 832-33 (Arnold, J., dissenting).
171. Jd. at 832 (Arnold, J., dissenting) (quoting Procunier v. Martinez, 416 U.S. 396,
413 (1974».
172. Jd. at 833 (Arnold, J., dissenting).
173. Jd. at 832 (Arnold, J., dissenting).
174. Jd. at 833 (Arnold, J., dissenting).
175. Jd. (Arnold, 1., dissenting). Judge Arnold's dissenting opinion is thus important
for its recognition that the language in Abbott, on its face, did not reject the Martinez
standard for outgoing mail. It should be noted, however, that his dissent was imprecise
in its citation of Martinez, failing to accurately acknowledge Turner's explanation of
Martinez. Judge Arnold's dissent inserted the word "inmates" in the key phrase it cited
from Martinez, referring to "a regulation's 'limitation of [inmates'] First Amendment freedoms.''' Jd. at 832 (Arnold, J., dissenting) (quoting Martinez, 396 U.S. at 413). In
Turner, the Supreme Court did not expressly overrule Martinez, but rather stressed that
in Martinez, the restrictions infringed on the rights of nonprisoners as well as those of
prisoners. Turner v. Safley, 482 U.S. 78, 85-86 (1987). The Court in Turner held that
because the restrictions at issue affected only prisoners' rights, the restrictions did not
have to meet as high a standard as required under Martinez. Jd. See also discussion
supra notes 54-57 and accompanying text. Thus, after Turner, the Court interpreted the
Martinez standard as applying only to prison restrictions that affected nonprisoners. Judge
Arnold was then correct in applying the Martinez standard to regulations on prisoner mail,
which was addressed to nonprisoners, but imprecise in stating that Martinez referred to
the First Amendment rights of the prisoners themselves.
176. 999 F.2d 364 (8th Cir. 1993).

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ter in Missouri, placed a letter to his brother in the outgoing prison
mail. 177 A mail room clerk discovered in the letter what she considered to be a violation of a prison rule that prohibited an inmate
from "using abusive or obscene language . . . or making a written
statement, intended to annoy, offend or threaten.,,178 Loggins was
found guilty of violating the rule and was sentenced to ten days
disciplinary detention. 179 Loggins alleged that his First Amendment
rights had been violated. 180
A magistrate judge held that "Martinez clearly established that
inmates could not be disciplined for merely insulting or derogatory
comments made in outgoing mail.,,181 The magistrate added that
Abbott and Turner did not overrule Martinez but only limited its
reasoning to "regulations concerning outgoing correspondence."182
The United States District Court for the Eastern District of Missouri accepted the magistrate's report and recommendation, holding
that the disciplinary action violated Martinez. IS )
The Eighth Circuit affirmed the district court's decision, holding that "because the language in Loggins' letter to his brother did
not implicate security concerns, the disciplinary action violated
Martinez.,,184 Despite citing Martinez, however, the Eighth Circuit
quoted its decision in Smith, which held that "Martinez is limited
to outgoing correspondence when deciding the degree of security
risk involved.,,18s Therefore, the court accepted the ruling from
Smith, holding that a regulation on outgoing mail was constitutionally valid because, under Abbott, it was "rationally related to the
prison's interest in detecting evidence of illegal activity.,,186 Thus,
the Eighth Circuit again applied Abbott to outgoing prison corre-

177. [d. at 365.

178.
179.
180.
181.
182.
183.

[d.

[d.
[d.
[d.
[d.
[d.
184. [d.

at 365-66.
at 366.
(quoting Thornburgh v. Abbott, 490 U.S. 401, 413 (1989».

at 367.
185. [d. (quoting Smith v. Delo, 995 F.2d 827, 830 (8th Cir. 1993), cert. denied, 114
S. Ct. 710 (1994)).
186. [d. at 367 n.2 (citing Smith, 995 F.2d at 832).

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spondence.
Two 1994 Eighth Circuit cases also followed Smith in applying
Abbott to restrictions on outgoing prisoner mail. In Gassler v.
Wood/ 87 inmates in a Minnesota state prison claimed that prison
officials had violated their constitutional rights by providing a third
party with photocopies of their non-legal mail. The United States
District Court for the District of Minnesota granted defendants'
request for summary judgment. 18S The Eighth Circuit's extensive
analysis of the inmates' legal claim relied exclusively on Martinez. 189 Applying the intermediate scrutiny standard, the court held
that "even under a strict and literal reading of Martinez, and without reference to other cases, we have no doubt" that the officials
did not violate the inmates' constitutional rights. l90 In a footnote,
the court explained that these "other cases" were Abbott and Smith,
and pointed out that "we, of course, are bound by stare decisis" to
apply the reasonableness standard to outgoing mail. 19l Nevertheless, according to the court, "under any standard we would affirm
the judgment below."192
Finally, in Thongvanh v. Thalacker/ 93 an inmate in an Iowa
state prison challenged regulations requiring that all his correspondence, other than that with his parents and grandparents, be in
English. Relying on Smith, the Eighth Circuit held that the reasonableness standard applied to all of the inmate's mail, both incoming
and outgoing. 194 Applying this standard, the court agreed with the
holding of the United States District Court for the Northern District
of Iowa that defendants were not entitled to judgment as a matter
of law. 19S
In addition; the United States Court of Appeals for the Fifth

187. 14 F.3d 406 (8th Cir. 1994).
188. [d. at 407.
189. [d. at 408-09.
190. [d. at 409-10.
191. [d. at 410 n.6.
192. [d.

193. 17 F.3d 256 (8th Cir. 1994).
194. [d. at 259.
195. [d. at 260.

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Circuit also applied the Abbott reasonableness standard to outgoing
prisoner correspondence. In Brewer v. Wilkinson,l96 inmates
brought a civil rights action against prison officials who had
opened their incoming legal mail and inspected it for contraband
outside their presence. l97 In addition, Brewer allege.d that defendants violated his First Amendment rights on several occasions by
failing to deliver incoming and outgoing correspondence with his
wife. 198 The United States District Court for the Northern District
of Texas concluded that the inmates alleged "a violation of a clearly established constitutional right," but granted defendants' motion
for summary judgment because the inmates had failed to make out
a cognizable constitutional claim, having not alleged any harm or
prejudice resulting from the officials' conduct. 199
Similar to the reasoning of the Eighth Circuit in Smith, the Fifth
Circuit held that the Turner reasonableness standard applied to
outgoing prisoner mail as well as incoming mail.200 Although the
court acknowledged that Abbott "appeared to draw a distinction
between incoming and outgoing mail and to preserve the viability
of Martinez with respect to outgoing mail," it concluded that the
"reading" of Martinez in Abbott "suggests that Turner's 'legitimate
penological interest' test would also be applied to outgoing
mail.,,201 The Fifth Circuit offered no further explanation for its
conclusion, but it appeared to follow the analysis of the Eighth
Circuit in holding that Abbott adopted the reasonableness standard
for all inmate mail.
b. Inapplicability of Abbott-Applying Martinez to
Outgoing Correspondence
In contrast to the Eighth and Fifth Circuits, the First Circuit,202
Sixth Circuit/o3 and a number of other courts204 have held that the

196. 3 F.3d 816 (5th Cir. 1993), cert. denied, 114 S. Ct. 1081 (1994).
197. 3 F.3d at 817-18.
198. [d. at 818.
199. [d. at 819 (quoting from the district court's unpublished opinion).
200. [d. at 824.
201. Jd.

202. Stow v. Grimaldi, 993 F.2d 1002 (1st Cir. 1993).
203. Burton v. Nault. 902 F.2d 4 (6th Cir.), cert. denied, 498 U.S. 873 (1990).
204. See, e.g., Mujahid v. Sumner, CIV. No. 92-00060, 1992 U.S. Dist. LEXIS

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Martinez intermediate scrutiny standard is appropriate for restrictions on prisoners' outgoing mail. In Stow v. Grimaldi,lOS an in-

mate at New Hampshire State Prison challenged prison regulations
requiring outgoing prisoner mail to be sent unsealed, unless sent to
one of ten listed persons or entities. 206 The inmate claimed that his
mail should be considered privileged because it contained a personal matter-his grades. 2OO A magistrate judge recommended that the
complaint be dismissed, and the United States District Court for the
District of New Hampshire agreed. 208
The United States Court of Appeals for the First Circuit cited
Martinez as controlling for restrictions on outgoing prisoner correspondence and applied the intermediate scrutiny standard. In addition to quoting from Martinez itself, the court cited Abbott as
standing for the proposition that the "Martinez standard applies
when assessing the constitutionality of regulations concerning outgoing correspondence," and that the more deferential reasonableness standard should be applied only to regulations on incoming

19841 (D. Haw. Sept. 18, 1992), aff'd, No. 92-17082, 1993 U.S. App. LEXIS 16867 (9th
Cir. 1993) (holding that a state prison's regulations preventing an inmate from writing to
specific members of the news media did not violate the inmates constitutional rights
because, under Martinez, they furthered the important state interest of maintaining prison
security and were not greater than necessary to further that interest); Avery v. Powell, 806
F. Supp. 7 (D.N.H. 1992) (holding that state prison regulations prohibiting inmates from
sealing outgoing correspondence unless addressed to a recognized attorney, certain government agencies, or a court furthered the important government interest of prison order
and did not limit First Amendment freedoms more than necessary to protect that interest);
Martyr v. Mazur Hart, 789 F. Supp. 1081, 1086 (D. Or. 1992) (holding that restrictions
on patient's outgoing mail from state hospital under his plan of treatment was valid under
Martinez, and citing Abbott as holding that the Martinez standard remained valid for
censorship on outgoing mail, yet, in discussing the second part of the Martinez
test-whether the restriction is greater than necessary to protect the governmental interest--considering the first three of the factors listed in Turner); In Re Rules Adoption
Regarding Inmate Mail, 576 A.2d 274 (N.J. 1990) (holding that Abbott upheld the Martinez standard for regulations on outgoing mail, and finding that state regulations on outgoing prisoner mail failed both the Martinez analysis and the Turner reasonableness analysis).
205. 993 F.2d 1002 (lst Cir. 1993).
206. [d. at 1003.
207. [d.
208. [d.

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mail.209 The court held that under Martinez, the prison officials did
not violate the inmate's constitutional rights,z1O

In Burton v. Nault,211 an inmate in a Michigan state prison
claimed that prison officials violated his First Amendment rights
when they opened and read an unmailed letter from the inmate to
his attorney, having found the letter next to the inmate after his
attempted suicide. 212 The United States District Court for the Western District of Michigan granted the defendants summary judgment. 213
In deciding which standard to apply to the prison officials'
actions, the Sixth Circuit first quoted Martinez, holding that censorship of prisoners' mail must meet the intermediate scrutiny test. 214
Similar to the First Circuit, the court then cited Abbott's holding
that the Martinez analysis applied to censorship on outgoing prisoner mail, while the Turner reasonableness standard applied to all
incoming correspondence. 215
3. The Proper Approach Regarding Prisoner Correspondence
The decisions by the Eighth and Fifth Circuits have been disturbing in their application of the holding in Abbott to outgoing
prisoner correspondence. Their approach contradicts both the holding and the logic of Abbott. In Abbott, the Supreme Court explicitly held that the Turner reasonableness standard was appropriate for
analyzing restrictions on incoming publications but that the Martinez intermediate scrutiny standard was still appropriate for evaluating restrictions on outgoing personal correspondence,z16 Moreover,
the Court premised its limitation of Martinez to outgoing correspondence on the unique threats to prison security posed specifical-

209. [d. at 1004 (citing Thornburgh v. Abbott, 490 U.S. 401, 413 (1989».
210. [d.
211. 902 F.2d 4 (6th Cir.), cert. denied, 498 U.S. 873 (1990).

212. 902 F.2d at 4-5.
213. [d. at 4.
214. [d. at 5.
215. [d.
216. See supra notes 86-87 and accompanying text.

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[Vol. 4:891

ly by mail sent into prisons. 217 The decisions of the Eighth and
Fifth Circuits fly in the face of these conclusions in Abbott.
The First and Sixth Circuits, on the other hand, have more
carefully followed Supreme Court precedent. When faced with
restrictions on outgoing prisoner correspondence, these courts have
correctly recognized that Martinez addresses precisely this question.
Despite Abbott's modification of Martinez, these circuit courts,218
in addition to a number of other courts,219 have acknowledged that
the facts, holding and rationale in Abbott limit that case's applicability exclusively to those materials sent into the prisons. Fortunately, the decisions of these courts have helped protect against
further limitations on First Amendment rights in the prison context.
CONCLUSION

Since 1974, the Supreme Court has shown a gradual willingness
to defer to prison authorities in regulating First Amendment rights
in the prison context. In Martinez, a case involving restrictions on
the First Amendment rights of both prisoners and nonprisoners, the
Court required that such restrictions be evaluated under the intermediate scrutiny standard of review. Turner enunciated a lower
reasonableness standard for restrictions that affected the constitutional rights of prisoners only, but left intact the Martinez standard
for regulations implicating the constitutional rights of free citizens.
In Abbott, however, the Court concluded for the first time'that
regulations affecting the First Amendment rights of nonprisoners
we~e constitutional as long as they were reasonably related to legitimate penological interests.
This increasing deference to prison restrictions on the rights of
both prisoners and nonprisoners has elicited much protest, both in
concurring and dissenting Supreme Court opinions and in legal
scholarship. The holding in Abbott allows for the interpretation
that the reasonableness standard applies for all incoming mail,

217. See supra notes 86-91 and accompanying text.
218. See supra notes 202-203.
219. See supra note 204.

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including personal letters, even though the facts and analysis in
Abbott refer specifically to incoming publications. Understandably,
courts have applied the Abbott reasonableness standard to prison
restrictions on both incoming publications and incoming personal
mail.
However, the Fifth and Eighth Circuits have recently extended
the Abbott reasonableness standard to restrictions on outgoing prisoner correspondence, contradicting the holding and the logic of
Abbott itself. The decisions of these courts are both surprising and
disturbing, as they embody a new level of deference to prison restrictions on correspondence with nonprisoners.
The First and Sixth Circuits, as well as a number of other
courts, have correctly applied the Martinez intermediate scrutiny
standard to prison restrictions on outgoing mail. In the future,
courts should continue to follow in this path and prevent any further evisceration of the constitutional rights of both prisoners and
free citizens in the prison context.
Samuel J. Levine

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