I. Constitutional Law: F. Freedom of Speech and Expression

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1. Application to Incarcerated Persons--Inmate Access to Print Media.--The Supreme Court's steady retreat over the years from the high-water mark of protecting prisoners' constitutional rights has been well documented. (1) In Turner v. Safley, (2) the Court directed federal courts to take a deferential stance toward prison practices, ostensibly in recognition of prison officials' expertise and the courts' relative inability to understand the problems of prison administration. (3) Yet less than two years ago, the Court suggested that lower courts should defer to prison officials on policies that infringe on constitutional rights only after determining, as a threshold matter, that the asserted right is inconsistent with proper prison administration. (4) This move potentially signaled to lower courts that they should more vigorously protect prisoners' constitutional rights. (5) Last Term, in Beard v. Banks, (6) the Court rejected the Third Circuit's attempt to do so, reinstating summary judgment for Pennsylvania's prison system in a challenge to its practice of denying the worst prisoners access to nearly all books, newspapers, magazines, and photographs. (7) Though not an express doctrinal shift, the Court's reasoning reduced the protections offered prisoners and failed to resolve a tension in the doctrine on judicial review of prison practices. Developing a justification for judicial intervention to promote prison accountability is both desirable and necessary for future judicial enforcement of prisoners' constitutional rights.

Ronald Banks, serving a life sentence in Pennsylvania state prison, filed a class action lawsuit challenging the constitutionality of the conditions in the prison's highest-security unit. (8) The Long Term Segregation Unit Level 2 (LTSU-2) houses a population of about forty of the prison's most difficult inmates (9)--those who are "too disruptive, violent or problematic" to be placed elsewhere. (10) Prisoners in the LTSU-2 are kept in solitary confinement for twenty-three hours a day and are limited to one family visit per month. (11) Regulations for the LTSU-2 also provide that prisoners cannot possess any magazines, newspapers, or books, except two paperbacks from the prison library and books of a legal or religious nature; cannot possess photographs of friends or family members; cannot access radio or television broadcasts; and cannot make telephone calls except in emergencies or when related to legal representation. (12) Prisoners in the LTSU-2 have the opportunity to "graduate" to a higher level of privilege and eventually to rejoin the general prison population but may stay in the LTSU-2 indefinitely at the discretion of prison personnel. (13)

Banks sued the Secretary of the Department of Corrections for declaratory and equitable relief, arguing that the denial of nearly all print media in the LTSU-2 violated the prisoners' First Amendment rights. (14) The district court granted the Secretary summary judgment, finding that the practice reasonably related to the legitimate penological interests of rehabilitation and security by encouraging compliance with prison rules and depriving prisoners of material from which to fashion weapons. (15)

A divided panel of the Third Circuit reversed and remanded. Writing for the majority, Judge Fuentes (16) held that, even under the deferential standard established in Turner, (17) the connection between the challenged policies and the asserted penological interests was too attenuated. (18) The court found that the Secretary's justification did not satisfy Turner's first factor; although both security and rehabilitation are valid objectives, Judge Fuentes opined, the Secretary had produced no evidence showing a rational connection between the long duration and selective nature of the LTSU-2's deprivations and those objectives. (19) Next, the court found that with respect to Turner's second factor, there was no reason to believe that the LTSU-2 inmates had alternative means of exercising the burdened right. …