David Hammer v. John Ashcroft ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 06-1750
D AVID P AUL H AMMER,
Plaintiff-Appellant,
v.
JOHN D. A SHCROFT, et al.,
Defendants-Appellees.
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. IP 01-0558-C-T/G—John Daniel Tinder, Judge.
A RGUED S EPTEMBER 10, 2008—D ECIDED JUNE 25, 2009
Before E ASTERBROOK , Chief Judge, and B AUER, P OSNER,
K ANNE, R OVNER, W OOD , E VANS, and SYKES, Circuit Judges.^
E ASTERBROOK, Chief Judge. “[N]ewsmen have no con-
stitutional right of access to prisons or their inmates
beyond that afforded to the general public.” Pell v.
Procunier, 417 U.S. 817, 834 (1974). The Supreme Court
^
Circuit Judges Flaum, Williams, and Tinder did not partici-
pate in the consideration or decision of this appeal.
2 No. 06-1750
applied that principle in Saxbe v. Washington Post Co., 417
U.S. 843 (1974), when holding that the Federal Bureau
of Prisons did not violate the Constitution by preventing
face-to-face interviews between reporters and inmates.
In the years after Washington Post the Bureau authorized
some in-prison interviews. By the late 1990s reporters
could talk to prisoners throughout the federal system. See
Program Statement 1480.05 (News Media Contacts)
(promulgated Sept. 21, 2000, and in force since). That
changed in 2001, however, for inmates housed in some
of the Bureau’s most-secure locations—including the
“Special Confinement Unit” at the prison in Terre Haute,
Indiana, which houses most federal prisoners under
sentence of death, plus some others in administrative
detention for disciplinary or security reasons.
Program statements generally applicable to federal
prisons may be modified by institution-specific supple-
ments. See Program Statement 1480.05(13) (applying this
exception-making power to media contacts in particular).
The Warden of Terre Haute proposed, and the Bureau’s
Director approved, Institution Supplement THA
1480.05A, which bans person-to-person meetings between
reporters and inmates of the Special Confinement Unit,
though it allows phone calls and correspondence. (The
current revision, THA 1480.05B, contains the same rule;
for simplicity we refer only to THA 1480.05A.) Phone
calls with reporters are subject to Program Statement
1480.05(7)(d), which provides that “[a] representative
of the news media may not obtain and use personal
information from one inmate about another inmate
No. 06-1750 3
who refuses to be interviewed.” Correspondence is unlim-
ited; an inmate’s letters to reporters are not subject to
inspection or censorship. “All properly identified and
labeled correspondence from an inmate who is not on
restricted mail status to qualifying representatives of the
news media shall be sealed and forwarded without in-
spection, directly and promptly.” Program Statement
5265.11(17)(a) (July 9, 1999).
David Paul Hammer, who was sentenced to death for
killing another federal prisoner, contends in this suit
under Bivens v. Six Unknown Federal Narcotics Agents,
403 U.S. 388 (1971), that he is entitled to money damages
from former Attorney General Ashcroft and other public
officials who drafted or approved THA 1480.05A. Relying
on Pell and Washington Post, the district court granted
summary judgment for the defendants. 2006 U.S. Dist.
L EXIS 9306 (S.D. Ind. Feb. 23, 2006). A panel of this court
reversed, 512 F.3d 961 (7th Cir. 2008), and that decision
was vacated in turn by the order granting defendants’
petition for rehearing en banc.
Hammer’s attempt to obtain damages has complicated
matters. The validity of federal administrative rules
usually is resolved in actions under the Administrative
Procedure Act seeking prospective relief, not in suits
for money against officials whose positions and roles
generally entitle them to qualified if not absolute immu-
nity. A district judge held the policy valid, after all.
Although the panel thought that, on an enlarged record,
Hammer might yet prevail, “[i]f judges . . . disagree on
a constitutional question, it is unfair to subject [public
4 No. 06-1750
officials] to money damages for picking the losing side of
the controversy.” Wilson v. Layne, 526 U.S. 603, 618 (1999).
Accord, Pearson v. Callahan, 129 S. Ct. 808, 823 (2009).
Indeed, a Bivens action is improper when statutes
specify how administrative deeds are reviewed. See
Wilkie v. Robbins, 127 S. Ct. 2588, 2597–2605 (2007). But
because we agree with the district court that THA 1480.05A
is valid, we sidestep the complications introduced by
Hammer’s quest for damages. (Hammer’s death sentence
was set aside in 2005, United States v. Hammer, 404 F. Supp.
2d 676 (M.D. Pa. 2005), but he remains in the Special
Confinement Unit pending appeal, now under advise-
ment in the Third Circuit, and so has an ongoing interest
in the rule’s constitutionality. His other sentences
exceed 1,200 years’ imprisonment, so release is not immi-
nent.)
Pell v. Procunier and Saxbe v. Washington Post establish
that the Bureau of Prisons could enforce a system-wide
rule against personal or video interviews between prison-
ers and reporters. Hammer contends, however, that by
curtailing press access to some prisoners but not others, the
Bureau offends the equal-protection component of the
due process clause in the Constitution’s fifth amend-
ment. Yet it is hard to understand why all prisoners
should be treated the same. Some are in minimum-security
prisons and others in more secure confinement; no one
thinks these differences unconstitutional. The Justices
observed in Pell and Washington Post that the principal
reason for limiting press contacts is the maintenance of
security; this implies that the greater the need for
security at a given prison (or unit within a prison), the
No. 06-1750 5
easier it is to justify limits on meetings between
reporters and prisoners. By the time the Court decided
Washington Post, the Bureau of Prisons had begun to
allow reporters to interview inmates of minimum-
security prisons. See 417 U.S. at 844 & n.2. The Justices
did not perceive any problem in this distinction. It is
easier to justify limiting press contacts at the few places
holding the most incorrigible prisoners (USP Florence
and the Special Confinement Unit at Terre Haute) than
at all medium- and maximum-security prisons.
Hammer’s argument amounts to a contention that, once
a prison system starts to allow access more liberally, it
must go all the way; any intermediate position violates
equal-protection principles. That understanding is incon-
sistent with many established doctrines. For example,
thirty years ago a court held that Congress had violated
equal-protection limits by subjecting members of the
diplomatic service, but not other federal workers, to
mandatory retirement. The Justices held, however, that
it is possible to draw such lines as long as a rational
basis for them may be imagined; the basis need not be
supported in the record. Vance v. Bradley, 440 U.S. 93 (1979).
Just as it was possible to imagine a rational basis for
distinguishing diplomats from postal carriers, so it is
possible to imagine a rational basis for distinguishing
the nation’s most secure institutions from others. Indeed,
to state the distinction is to furnish the justification:
security.
The security justification that carried the day in Pell
and Washington Post was that interviews with the press
6 No. 06-1750
make celebrities of some inmates. This increases tensions
within prisons (those who don’t receive public attention
may react with envy); and if some inmates use the press
to disparage others (or their beliefs, or the organizations
to which they belong), the tensions will be greater. More:
the interviewed prisoners get swelled heads and “tend to
become the source of substantial disciplinary problems
that can engulf a large portion of the population at a
prison.” Washington Post, 417 U.S. at 848–49. Prisons for
tax evaders and credit-card forgers may tolerate such
tensions; prisons for killers are more explosive, and the
need to prevent lighting the fuse to the powder keg is
compelling.
Hammer maintains that prisons must use the least-
restrictive available options and that the Bureau’s experi-
ence since Washington Post shows that the risks
associated with interviews are manageable. This line of
argument marks a transition from equal protection to the
first amendment, for it incorporates elements of both
bodies of doctrine. But this, too, is a tired theme. It has
been made in several cases dealing with press interviews
and correspondence among prisoners, and the Justices
have rejected it. See, e.g., Thornburgh v. Abbott, 490 U.S. 401,
409–14 (1989); cf. Shaw v. Murphy, 532 U.S. 223 (2001).
The question is not whether prisons could find ways to
accommodate one or another change. It is whether the rule
that the prison chooses to implement is “reasonably
related to legitimate security interests.” Turner v. Safley,
482 U.S. 78, 91 (1987). And the Court has held in Pell
and Washington Post that a no-interview policy is “rea-
sonably related to legitimate security interests.” The
No. 06-1750 7
Justices added that an attempt to be “less restrictive” by
making individual decisions could undermine security:
“such a selective policy would spawn serious discipline
and morale problems of its own by engendering hostility
and resentment among inmates who were refused inter-
view privileges granted to their fellows.” Washington
Post, 417 U.S. at 849.
Hammer maintains, however, that the Bureau has
engaged in content or viewpoint discrimination by silenc-
ing inmates on death row. This may well be true of a
selective (or “less restrictive”) approach; wardens who
allow some prisoners but not others to invite the press
into their cells might well take account of what they
expect the inmates to say or the reporters to relate to the
public. But a blanket ban—no inmate in a given prison or
unit may meet face-to-face with any reporter—is neutral
with respect to both content and viewpoint. This is one
reason why the Justices approved the policies at issue
in Pell and Washington Post, giving the exception-free
quality of the policies as proof that the decisions were
not based on content. See Pell, 417 U.S. at 825–26.
Perhaps Hammer’s point is not that the rule employs
content or viewpoint as a ground of decision, but that
those who adopted or approved THA 1480.05A took
content or viewpoint into account when deciding to
change the rules for some federal prisoners but not
others. This line of argument starts with the fact
that reporters freely interviewed inmates of the Special
Confinement Unit, including Hammer himself, for the
first nine months of the Unit’s existence—until shortly
8 No. 06-1750
after an interview with Timothy McVeigh was broadcast
by CBS on “60 Minutes” in March 2000. (The Special
Confinement Unit was established in July 1999; Hammer
and McVeigh were among its first inmates.) McVeigh
had been sentenced to death for killing 168 people by
bombing the Murrah Federal Building in Oklahoma City.
He used the forum of national TV to justify and extol
terrorism. Shortly after the interview was broadcast,
Byron Dorgan, who represents North Dakota in the
Senate, wrote to Kathleen Hawk-Sawyer, Director of the
Bureau of Prisons, complaining about the interview.
Senator Dorgan stated, among other things:
The American people have a right to expect that
the incarceration of a convicted killer will not only
remove him physically from society, but will also
prevent him from further intrusion in our lives
through television interviews and from using
those forums to advance his agenda of violence.
About a month after Senator Dorgan sent that letter,
Attorney General Ashcroft and Director Hawk-Sawyer
announced arrangements for closed-circuit telecasting of
McVeigh’s execution and took some questions. Ashcroft
also announced that the Bureau would replace its case-by-
case evaluation system with a prohibition on in-person
interviews of inmates at the Special Confinement Unit.
Hammer finds telling these statements:
I am aware that several media outlets have re-
quested access to interview inmate McVeigh. As an
American who cares about our culture, I want to
restrict a mass murderer’s access to the public
No. 06-1750 9
podium. On an issue of particular importance to
me as Attorney General of the United States, I do
not want anyone to be able to purchase access to
the podium of America with the blood of 168
innocent victims.
...
I’m concerned about irresponsible glamorization
of a culture of violence, and that concern has
shaped our approach to these issues profoundly.
On April 15, 2001, three days after the press conference,
Harley Lappin, the Warden of Terre Haute, issued In-
stitution Supplement THA 1480.05A.
Hammer wants discovery during which former
Attorney General Ashcroft, former Director Hawk-
Sawyer, and former Warden Lappin must explain under
oath why they adopted the policy in question. If a belief
that terrorists should not be able to obtain publicity
by committing murder played a role in the decision,
Hammer contends, the motivation for the policy is
infirm, and the policy itself would fall with the bad motive.
It is not clear why one bad motive would spoil a rule
that is adequately supported by good reasons. See
Mueller v. Allen, 463 U.S. 388, 394–95 (1983). The Supreme
Court did not search for “pretext” in Turner; it asked
instead whether a rule is rationally related to a
legitimate goal. That’s an objective inquiry. If motive
matters, why examine the thoughts of those who
adopted the rule to the exclusion of those who have
maintained it in force?—Attorney General Gonzales,
10 No. 06-1750
Solicitor General Clement (who authorized the petition
for rehearing en banc), Attorney General Mukasey
(who was in office when the Department of Justice de-
fended the policy before the en banc court), and Attorney
General Holder, who could revoke THA 1480.05A with
one sentence plus a signature but has not done so.
(There is no special burden to justify a change of admin-
istrative policy. See FCC v. Fox Television Stations, Inc.,
129 S. Ct. 1800, 1810–11 & n.2 (2009).)
Nor do we see how a demand that a Cabinet officer give
testimony about his thinking could be squared with United
States v. Morgan, 313 U.S. 409 (1941), and PBGC v. LTV
Corp., 496 U.S. 633 (1990). These decisions hold that courts
evaluating the validity of an administrative action may
not enlarge the administrative record by demanding that
the people who proposed or approved the rule testify
about their thinking. See also Richard J. Pierce, Jr., I
Administrative Law Treatise §8.6 (2002).
For current purposes, however, we assume that Attorney
General Ashcroft’s successors share his views. There’s
nothing unconstitutional about them, so we need not
decide whether they led to the policy’s adoption and
maintenance, how motivation could be proved consistent
with Morgan, or what role it plays in evaluating a policy’s
validity. Opposing a “culture of violence” is an ordinary,
and desirable, goal for a criminal prosecutor. Attorney
General Ashcroft’s statements combine the idea that
criminals should not be allowed to benefit from their
deeds (see Simon & Schuster, Inc. v. New York Crime
Victims Board, 502 U.S. 105 (1991) (a state may apply all of
No. 06-1750 11
a criminal’s income, including royalties from books, to
satisfy restitution awards, though it can’t pick and
choose among books)) with variations of propositions
that can be found in Pell and Washington Post.
One of the reasons that state and federal prison adminis-
trators gave for curtailing press access was that they did
not want people to become celebrities by committing
crimes. The Justices thought this a good basis to curtail
press access, not a constitutionally infirm one. See Wash-
ington Post, 417 U.S. at 848–50. This is a reason why prison-
ers are separated from society: Most prisons are
remote, and access to them tightly controlled, not simply
to make escape difficult, but because solitude is a legiti-
mate part of punishment. Becoming a celebrity makes
crime more attractive—and if not so attractive as to
outweigh the costs of prison, still anything that reduces
the (effective) punishment for crime is of legitimate
concern to Attorneys General and prison officials. For
murderers on death row or serving life sentences, celebrity
is especially attractive, as these persons do not expect to
return to the civilian world. They will receive few other
rewards in life.
Some criminal acts are both costly to society and poten-
tially attractive to imitators; the most notorious criminals
can be trend-setters. Timothy McVeigh was such a person.
He had a following, and one of his admirers was recently
convicted of threatening to blow up a federal building
in Milwaukee. See United States v. Parr, 545 F.3d 491(7th Cir. 2008). Other “cause” criminals want to recruit;
think of those who blow up abortion clinics and kill
12 No. 06-1750
physicians. Social interests in curtailing and punishing
crime support keeping these prisoners in seclusion. No
one doubts—at least, no one should doubt—that a person
serving time for tax evasion may be prevented from
using the prison print shop to run off tracts advocating
the proposition that the sixteenth amendment is
invalid and no one need pay a penny of taxes. See
United States v. Benson, 561 F.3d 718 (7th Cir. 2009) (affirm-
ing an injunction that prevents a convicted tax evader
from selling a “16th Amendment Reliance Package” that
purports to give other tax protesters a means to avoid
both payment and criminal liability). If what Attorney
General Ashcroft said in April 2001 evinces an uncon-
stitutional motive, much of what this court wrote in
Benson suffers from the same failing.
Naturally, Hammer insists that he is no McVeigh and
would not use the press to promote murder. He wants to
speak instead about prison conditions, his current pro-
fessed respect for life, and what he sees as misconduct by
guards and wardens. A system of rules that permitted
prison administrators to conceal beatings or starvation of
prisoners, violations of statutes and regulations, and other
misconduct would be intolerable. The Court said as much
in Pell and Washington Post. It was important to both
decisions that all prisoners could correspond freely with
reporters, even though face-to-face interviews were
impossible. See Pell, 417 U.S. at 824–28; Washington Post,
417 U.S. at 847–48. Hammer sees this as an opening,
because (he says) the Bureau of Prisons does not allow
any uncensored channel of communication to the press.
No. 06-1750 13
This line of argument relies on Program Statement
1480.05(7)(d), which we quoted at the outset of this opin-
ion. It provides: “A representative of the news media
may not obtain and use personal information from one
inmate about another inmate who refuses to be inter-
viewed.” As far as we can tell, this rule applies to inter-
views (in person or by telephone) but not to correspon-
dence. Program Statement 5265.11(17)(a), which sets
out the rules for written exchanges, says that “[a]ll prop-
erly identified and labeled correspondence from an
inmate who is not on restricted mail status to qualifying
representatives of the news media shall be sealed and
forwarded without inspection, directly and promptly.”
That’s exactly the sort of uncensored outgoing correspon-
dence that the Court deemed adequate in Pell and Washing-
ton Post. (Hammer does not contend that persons held
in the Special Confinement Unit are “on restricted
mail status” or that the prison has ever red-penciled any
letter he sent to a reporter.) The limit on information
about other inmates deals only with oral interviews.
And if Hammer were to prevail in this suit, he would not
be rid of Program Statement 1480.05(7)(d), for it covers in-
person and televised interviews as well as phone inter-
views.
To the extent that Hammer may be contesting the
validity of Program Statement 1480.05(7)(d) as applied to
phone calls with the press (the only way it affects him),
he has not established any constitutional problem. The
restriction is a rational one, for reasons covered in Pell
and Washington Post. Telling tales about fellow inmates
may make them angry (if the tales are defamatory) or may
14 No. 06-1750
make yet other inmates envious (if the tales are flattering).
In either event, disorder may follow. As the district court
put it, “insults or provocations, real or imagined, can
result in inmate-on-inmate violence and thus can have
dire consequences for inmates, penitentiary staff, and
the public at large.” 2006 U.S. Dist. L EXIS 9306 at *11–*12.
Defamation is less likely if the other inmate agrees to
talk to the press; Hammer may discuss such inmates by
phone with reporters. And if, to take the worst case,
another inmate is beaten and unable to talk, Hammer
remains free to send a letter informing a reporter
about that event. Pell and Washington Post held that free
correspondence supplies the needed channel of com-
munication; Hammer has that plus 15 minutes of tele-
phone time a day.
Correspondence is not the only way to expose miscon-
duct by guards and administrators. Prisoners are free to
file lawsuits, and papers sent to courts (or lawyers) cannot
be censored. See Bounds v. Smith, 430 U.S. 817 (1977);
Procunier v. Martinez, 416 U.S. 396 (1974). So the limit in
Program Statement 1480.05(7)(d) is not going to conceal
any misconduct in which the public has a legitimate
interest.
Institution Supplement THA 1480.05A is consistent with
the Constitution, and the judgment of the district court is
AFFIRMED .
No. 06-1750 15
R OVNER, Circuit Judge, with whom Judge Bauer joins,
dissenting. The original panel’s opinion was firmly rooted
in the Supreme Court’s long-standing rule that a prison
regulation infringing on an inmate’s constitutional rights
is valid only if “it is reasonably related to legitimate
penological interests.” Turner v. Safley, 482 U.S. 78, 89
(1987). When a prisoner challenges a prison policy on
constitutional grounds, the government must put forward
a “legitimate” government interest to justify the restriction.
Id. Suppressing speech because government officials find
the content offensive is not a legitimate penological
interest. Id. at 90. The original panel concluded that David
Paul Hammer presented evidence that created a question
of material fact that the district court overlooked: is the
jailhouse-celebrity concern articulated by the warden
“legitimate,” or is it simply a convenient explanation to
justify a policy designed to control the speech content of a
particular subset of prisoners? Given the fact dispute, the
original panel reached the limited—indeed, even pedes-
trian—conclusion that a trier of fact must resolve the
conflict.
Today’s en banc opinion is almost entirely unmoored
from the original panel’s narrow treatment of the issues
presented in this appeal. With scarcely a reference to
Turner, today’s opinion holds that a ban on face-to-
face interviews in the prison system is justified if a judge
can “imagine” a legitimate basis for its existence, glosses
over facts regarding the application of the relevant
policies, and concludes with the astonishing proposition
that the government may limit a prisoner’s access to the
media based on its distaste for the anticipated content
of the prisoner’s speech. The en banc opinion thus autho-
16 No. 06-1750
rizes the government to deny the public a chance to hear
directly from prisoners who can offer a glimpse of situa-
tions that may embarrass the government, such as
torture and prisoner abuse, by invoking pretextual justifi-
cations for policies that are unrelated to security. For
the reasons set forth in the original panel’s opinion,
I dissent. I write separately only to memorialize my
additional disagreement with the unexpected breadth
of the en banc opinion.
Let me begin with the most troubling aspect of today’s
opinion: the majority’s willingness to push aside Attorney
General Ashcroft’s statement that “as an American who
cares about our culture” and is “concerned about the
irresponsible glamorization of a culture of violence,” he
wanted to prevent death-row inmates, and only death-
row inmates, from engaging in face-to-face interviews
with the media on any subject. This rationale for censor-
ship assumes that what death-row inmates have to say,
if broadcast outside the prison, necessarily corrodes
American culture. But First Amendment jurisprudence
is grounded in the idea that the government may not
prevent a person, including a prisoner, from speaking
merely because it disapproves of the speaker or what the
speaker might say. See, e.g., R.A.V. v. City of St. Paul, 505
U.S. 377, 382 (1992) (noting that “content-based restrictions
are presumptively invalid”); Turner, 482 U.S. at 90 (stating
that prison regulations that infringe on inmates’ First
Amendment rights must operate “in a neutral fashion,
without regard to the content of the expression”); Regan
v. Time, Inc., 468 U.S. 641, 648-49 (1984) (“Regulations
that permit the Government to discriminate on the basis
No. 06-1750 17
of the content of the message cannot be tolerated under
the First Amendment.”). Indeed, this court has
recognized that the government may not pass speech
restrictions in an effort to preserve its own notions of
valued American culture:
Racial bigotry, anti-semitism, violence on televi-
sion, reporters’ biases-these and many more influ-
ence the culture and shape our socialization. None
is directly answerable by more speech, unless that
speech too finds its place in the popular culture.
Yet all is protected as speech, however insidious.
Any other answer leaves the government in
control of all of the institutions of culture, the
great censor and director of which thoughts are
good for us.
See American Booksellers Ass’n, Inc. v. Hudnut, 771 F.2d 323,
330 (7th Cir. 1985) (Easterbrook, J.). Yet Attorney General
Ashcroft said publicly that preserving his version of
American culture is exactly why the Bureau decided to
limit death-row inmates’ access to the media.
In order to circumvent this problem, the majority
applies its own interpretive spin to Attorney General
Ashcroft’s statements and decides that the Attorney
General meant that “criminals should not be allowed
to benefit from their deeds.” The majority thus con-
cludes that Attorney General Ashcroft articulated a
legitimate penological purpose to the interview ban
because he saw restricting face-to-face interviews as a
form of punishment or deterrence. But that is a question
for a fact finder, who might reject this post-hoc rationaliza-
18 No. 06-1750
tion and instead take Attorney General Ashcroft at his
word and conclude that what actually “shaped” his mind
in enacting the ban is his desire to prevent death-row
prisoners from influencing our “culture.” That desire
is not a legitimate penological purpose.
The majority’s comparison of this case to United States
v. Benson, 561 F.3d 718 (7th Cir. 2009), is unhelpful. In
Benson we held that a convicted tax offender may
not market materials that encourage other people to
evade tax laws. Benson dealt with commercial speech,
which occupies its own niche in First-Amendment juris-
prudence, see Central Hudson Gas & Elec. Corp. v. Pub. Serv.
Comm’n of New York, 447 U.S. 557, 562-63 (1980), and
concluded that it is permissible to enjoin a person from
making false statements in connection with the sale of a
product, Benson, 561 F.3d at 725-26. Even accepting the
majority’s assumption that Attorney General Ashcroft
wanted to prevent inmates from encouraging violence,
the parallel to Benson is unpersuasive. Deceiving the
public into buying a product designed to evade payment
of required taxes is illegal, see 26 U.S.C. § 6700(a); advocat-
ing unpopular ideas is not, see Brandenburg v. Ohio, 395
U.S. 444, 448-49 (1969).1
The original panel was also concerned that the Special
Confinement Unit’s prohibition on face-to-face inter-
1
Of course the government may regulate speech that amounts
to incitement of violence, see Brandenburg, 395 U.S. at 447, but
not even today’s majority suggests that Ashcroft intended the
media ban to target that category of speech.
No. 06-1750 19
views does not leave sufficient alternatives for death-
row inmates to access the media. Today’s opinion con-
cludes that the alternatives are sufficient because death-
row inmates have 15 minutes of telephone time each
day that they can use to speak with reporters, and because
they are entitled to unlimited correspondence. But the
government concedes that death-row inmates are not
allowed—through any method of communication—to
discuss other inmates with members of the media. I am
particularly troubled by this aspect of the policy because
it may prevent inmates from reporting prison abuse.
Under the current policies an inmate could be disciplined
for informing the media—whether on the phone or by
letter—that another inmate is being abused by a guard.
When this concern was raised at the en banc argument,
counsel for the defendants asserted that a victimized
inmate could report the abuse himself. But that sug-
gestion ignores the reality that any guard who abuses
an inmate is likely to pressure his victim not to disclose
the abuse, and such threats are particularly effective.
Today the majority brushes aside this concern, because
“as far as [it] can tell,” the ban on talking about other
inmates does not apply to written correspondence. It
relies on a program statement that says that outgoing
mail to the media is sent without inspection. But at the
en banc argument, counsel for the defendants said that
all mail sent by inmates at the Special Confinement Unit
must be given to prison officials unsealed for inspection
before it is mailed. When asked what would be the con-
sequence to an inmate who sends a letter discussing
another inmate, counsel for the government had no
20 No. 06-1750
answer. Thus our original fears are unabated; on this
record we cannot tell whether there is any satisfactory
alternative for inmates at the Special Confinement Unit
to give the media any information that involves other
inmates.
Which leads to another concern that today’s opinion
glosses over completely—Hammer was denied the op-
portunity to create a full record at the summary judg-
ment stage. As discussed in the original opinion, the
government moved for summary judgment before the
close of discovery and only then responded to Hammer’s
discovery requests by objecting to them. Hammer asked
for a continuance to allow him to build an adequate
record, but the district court did not rule on his motion
before the deadline for his summary-judgment response.
To avoid missing his deadline, Hammer was forced to
respond without receiving any discovery from the defen-
dants. Today’s opinion is quick to fill in the blanks itself
in the face of ambiguity about the interests underlying
the challenged policy. That is a task that may not have
been necessary had Hammer had the chance to
conduct proper discovery or if the district court had
granted any of Hammer’s three requests for counsel.
The majority’s treatment of Hammer’s equal-protection
argument is also untethered from the governing legal
standard and the facts of this case. The majority assumes
that the media ban applies to all inmates housed in the
Special Confinement Unit and concludes that the policy
passes constitutional muster because the majority can
“imagine a rational basis for distinguishing the nation’s
No. 06-1750 21
most secure institutions from others.” But the parties
agree that the media ban applies only to those members
of the Special Confinement Unit who are under a death
sentence. It is not, as the majority assumes, a unit-wide
ban, as not all inmates at the Special Confinement Unit are
death-row inmates. That distinction casts doubt on the
legitimacy of the “jailhouse celebrity” concern articulated
by the government because, as Hammer point out, it is
irrational to distinguish among inmates based solely on
their particular sentence. Under the policy as applied by
the Bureau of Prisons, famous mafia members, leaders of
violent drug gangs, and the former governor of Illinois
may all meet face-to-face with the press. But an unknown
inmate under a death sentence may not because, the
Bureau says, such access could make them “jailhouse
celebrities.” It is unclear why speaking in-person with a
journalist would give an unknown death-row inmate
more influence over other prisoners than would, for
example, allowing Martha Stewart or George Ryan to
give face-to-face interviews during their incarceration,
which they would have been or are free to do under the
Bureau’s policies. As the majority points out, distinguish-
ing among inmates risks “engendering hostility and
resentment among inmates who were refused interview
privileges granted to their fellows.” See Saxbe v. Washington
Post Co., 417 U.S. 843, 849 (1974). Yet here the Bureau
of Prisons applies the media ban in such a way as to risk
the very dangers it says it wants to avoid.
Finally, the majority is concerned that a remand in
this case could subject the former, and perhaps current,
Attorney General to discovery, and that any demand for
22 No. 06-1750
his testimony would rub up against United States v. Morgan,
313 U.S. 409 (1941). The Morgan cases hold that an
agency head should not be required in litigation to
explain all of the considerations that went into a deci-
sion that was the result of formal rulemaking or a quasi
judicial proceeding. Id. at 421-22. Administrative decisions
must be judged based on the administrative record or
evidence adduced by the parties. The Morgan principle is
not offended here because the media ban was not the
result of any formal agency process. On the contrary,
there was neither notice nor a hearing before the media
ban went into effect. Accordingly, even if on remand
Hammer sought to depose Attorney General Ashcroft—
who, after all, chose to speak publicly about the rationale
behind the media ban—such scrutiny would not upset
“the integrity of the administrative process.” Id.I believe that in the rare circumstances where a prisoner
submits evidence casting doubt on the legitimacy of the
security rationale supposedly supporting a policy,
he deserves to have the chance to create a full record to
shed light on those circumstances, and ultimately, to
have a trier of fact resolve disputes of fact. I stand by
that holding, and accordingly, I dissent.
No. 06-1750 23
W OOD , Circuit Judge, dissenting. Although I agree
with much of Judge Rovner’s dissent, I write separately
in order to highlight my own concerns with the
majority’s opinion. Briefly put, they are as follows: first,
the record does not support certain key assumptions
made in the majority’s opinion; second, and related to
the first point, it was error to grant summary judgment
in favor of the defendants without permitting the plain-
tiff, David Hammer, to develop the record properly;
and third, the majority has erred by adopting a rule
permitting wholesale censorship in prisons—one that
goes much farther than anything the Supreme Court
sanctioned in Pell v. Procunier, 417 U.S. 817 (1974), or Saxbe
v. Washington Post Co., 417 U.S. 843 (1974).
First, we must look at the record. Central to the major-
ity’s analysis is the assum ption that inm ate
“[c]orrespondence is unlimited; an inmate’s letters to
reporters are not subject to inspection or censorship.” Ante
at 3. In support of this proposition, the majority cites
Bureau of Prisons (“BOP”) Program Statement (“PS”)
5265.11(17)(a) (July 9, 1999). It then goes on to say that
“[p]hone calls with reporters are subject to [PS]
1480.05(7)(d), which provides that ‘[a] representative of
the news media may not obtain and use personal infor-
mation from one inmate about another inmate who
refuses to be interviewed.’ ” What the majority brushes
over, however, is the fact that there is nothing in para-
graph 7(d) of the Program Statement (or any other part
of that Statement) that limits this restriction to informa-
tion collected through telephone calls. In fact, materials
in the record suggest strongly that the prohibition
24 No. 06-1750
extends to all forms of communication. For example,
the record includes a letter from Warden Lappin to a
lawyer who published a news release that included
statements that inmate Hammer made about other in-
mates. (Plaintiff’s Appendix at A169.) The Warden’s
letter rebukes the lawyer and informs him that 28
C.F.R. § 540.61(d) prohibits this publication. That regula-
tion applies to all collection of information by the
media, not just to telephone calls. Id. In a memorandum
of December 22, 2000, from the Warden directly to Ham-
mer, the Warden reprimands Hammer for providing
information concerning other inmates “during a recent
news media interview.” (Plaintiff’s Appendix at A171.)
The memorandum says nothing about the form the inter-
view took. Two weeks later, in response to Hammer’s
request for clarification, Warden Lappin replies “You
are hereby ordered not to provide any information con-
cerning other inmates during news media interviews,
social calls, or correspondence with the media.” (Plaintiff’s
Appendix at A172; emphasis added.)
At oral argument before this court, counsel for the
governmental defendants did not endorse the narrow
rule that the majority has postulated. To the contrary,
counsel said that all mail sent by inmates in the Special
Confinement Unit (where Hammer is incarcerated)
must be given to prison officials unsealed for inspection
before it is mailed. Although this might seem to conflict
with PS 5265.11(17)(a), which provides that properly
identified and labeled correspondence from an inmate not
on restricted mail status to qualifying representatives
of the news media “shall be sealed and forwarded
No. 06-1750 25
without inspection, directly and promptly,” that rule is
not unqualified. Most importantly, mail from inmates on
restricted special mail status is subject to inspection, and
PS 5265.11(17) is expressly made subject to the Program
Statement on News Media Contacts—that is, to PS 1480.05.
The record does not establish whether Hammer was on
restricted mail status, but it indicates that he may
have been. (It would not surprise me if everyone in the
Special Confinement Unit were subject to additional
restrictions.) Furthermore, it is still necessary to reconcile
28 C.F.R. § 540.61(d), PS 5265.11(17), and PS 1480.05(7)(d).
It seems most consistent with all of these materials
(and consistent with both Warden Lappin’s interpreta-
tion and the government’s representation) to conclude
that if a prisoner wrote a letter to a representative of the
media that conveyed information about a fellow inmate,
the letter would be confiscated. Without the linchpin
provided by its assumption that correspondence is free,
the majority’s rationale collapses.
This brings me to my second point—again one that Judge
Rovner has also emphasized: Hammer was blocked
completely from developing a record at the summary
judgment stage. The government moved for summary
judgment before the close of discovery and then refused
to comply with Hammer’s requests. This left Hammer
with little or nothing on which to rely when he
attempted to oppose the summary judgment motion. The
majority here sets up a straw man, claiming that the
only thing that would suffice would be direct depositions
of former Attorney General John Ashcroft, former
Director of the BOP Kathleen Hawk-Sawyer, and former
26 No. 06-1750
Warden of the U.S. Penitentiary at Terre Haute Harley
Lappin, in which Hammer tried to unmask their “true”
reason for the new rules. The majority is worried that
such untrammeled discovery would be inconsistent with
United States v. Morgan, 313 U.S. 409 (1941), and PBGC v.
LTV Corp., 496 U.S. 633 (1990). Its concerns are mis-
placed. First, it is a mistake to lump all three defendants
into the same group. As the Supreme Court’s recent
decision in Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009), under-
scores, it is one thing to acknowledge that a high official
has knowledge of a particular policy, or even approves
of it personally; it is quite another to plead that the
official was personally responsible for a violation of
constitutional rights. Here, the record already includes the
public statements—reproduced ante at 8-9—that former
Attorney General Ashcroft made about the media ban.
In my opinion, the district court could easily respect the
policies animating Morgan and LTV simply by limiting
to publicly available information (including whatever
falls within the scope of the Freedom of Information Act)
any further exploration of the Attorney General’s position.
It is by no means unprecedented to seek the deposition
of the Director of the BOP or the warden of a particular
prison. Once again, the district court would be in a posi-
tion to decide whether such a measure was necessary, or
if alternatives (including production of documents or
answers to interrogatories; perhaps even depositions
upon written questions) would suffice. Hammer has a
right to explore whether the media ban was based upon
legitimate penological concerns—in which case it is legal
under the well-established standards of Turner v. Safley, 482
No. 06-1750 27
U.S. 78, 89 (1987)—or if it was instead designed to stifle
speech because the authorities fear that the content will
be unwelcome. The latter is, unfortunately, not beyond
imagination. It is likely that the military authorities
running the infamous Abu Ghraib prison would not
have wanted the inmates talking to the media, either
about their own experiences or those of their fellow
prisoners (some of whom may have been too injured, or
too intimidated, to speak for themselves). Closer to home,
the sad but true fact is that abuse by prison guards or
police has not been entirely abolished. One prisoner
might want to write letters that are self-aggrandizing,
just as the authorities feared, but another might want to
alert the media to the fact that human rights abuses were
occurring in a place like the Special Confinement Unit.
Censorship of all avenues of communication—which, as
I have said, is what this record shows—would be an all-
too-effective way to prevent the public from ever
learning about such problems.
That leads me to the final point, which is the one that
Judge Rovner has emphasized: the First Amendment
implications of the media ban. While I certainly agree
with her that there is a potential First Amendment
problem here, I see this case as a textbook example of
the wisdom of the rule of constitutional avoidance. It
seems elementary to me that before this court, or any
court, should reach an important constitutional question,
the record should be developed properly and we should
know what we are talking about. That has not happened
in this case. The majority has filled in the gaps with
speculation, both about possible loopholes that might
make written correspondence an adequate outlet for
28 No. 06-1750
prisoners despite the media rule, and about possible
penological justifications for the rule. This is not the way
that we should approach a question as important as the
balance between First Amendment rights of prison-
ers—which Turner recognizes are not forfeited en-
tirely—and the critical job of prison officials to ensure
security and safety within the prison walls. It is worth
noting, however, that neither Pell nor Washington Post
approved a total ban on contact with the media. To the
contrary, Pell relied on the existence of “alternative meth-
ods of communication that are open to prison inmates,”
417 U.S. at 504, and Washington Post made clear that
“members of the press are accorded substantial access to
the federal prisons in order to observe and report
the conditions they find there,” 417 U.S. at 518. Washington
Post mentioned specifically the fact that “[o]utgoing
correspondence from inmates to press representatives
is neither censored nor inspected.” Id. To the extent that
the majority’s opinion has swept away the need to
show adequate alternative avenues for communication,
it has, in my view, overstepped an important boundary
that the Court has drawn.
As the original panel opinion did, I would therefore
reverse the grant of summary judgment and remand this
case to the district court for further proceedings, along
the lines I have outlined here. I therefore respectfully
dissent.
6-25-09