articles are entertaining and educational. Some of them appear to have actually produced worthwhile results. Martin's writing style is light, concise, and easily readable. Many legal writers, scholars, attorneys -- and yes, judges -- could well imitate his style.
Writing by prisoners also appears to be worthwhile for rehabilitation, particularly if a prisoner such as Martin is able to use it as a base for a future career outside the prison. Writing is a healthy use of time. The writing of published articles could provide a good role model for other prisoners. And such articles, even if critical of the prison system, may provide a nonviolent means to defuse tensions within a prison. The public appears to be interested in the subject of life in prison; and light and air, literally or figuratively, are generally healthy to any institution.
But this court's role is not that of a senior editor or a censor. The task of running the federal prisons has been delegated by Congress to the Bureau of Prisons, not to the courts. The Bureau has attempted to strike a balance between freedom of expression and prison security. This court's function is limited to determining whether that balance is consistent with the constitution.
VI. BURDEN OF PROOF
Who has the burden of proof in applying the requirements of the constitution to the regulations and to the acts of the parties?
Both the burden of going forward with the evidence and the ultimate burden of proof usually lie with plaintiffs. However, plaintiffs here assert that the burden of proof is on defendants to demonstrate the constitutionality of the regulations. Such a shifting of the burden is proper where the regulations at issue restrict the speech of the general public. Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 777, 89 L. Ed. 2d 783, 106 S. Ct. 1558 (1986). Plaintiffs also rely on Pepperling v. Crist, 678 F.2d 787 (9th Cir. 1982), subsequent appeal dismissed, 739 F.2d 443 (9th Cir. 1984) a decision of this circuit involving prisoners' challenges to state prison guidelines.
However, this court believes that plaintiffs' arguments and Pepperling have been superseded by recent decisions of the United States Supreme Court. That Court appears to place the burdens upon the prisoners who challenge the constitutionality of prison regulations. See O'Lone v. Estate of Shabazz, 482 U.S. 342, 350, 96 L. Ed. 2d 282, 107 S. Ct. 2400 (1987); Washington v. Harper, 494 U.S. 210, 110 S. Ct. 1028, 1039-40, 108 L. Ed. 2d 178 (1990); Turner v. Safley, 482 U.S. 78, 96 L. Ed. 2d 64, 107 S. Ct. 2254 (1987); Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 128, 53 L. Ed. 2d 629, 97 S. Ct. 2532 (1977); Bell v. Wolfish, 441 U.S. 520, 551, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979).
The most direct recent discussion of the burdens of proof by the Supreme Court is Thornburgh v. Abbott, 490 U.S. 401, 109 S. Ct. 1874, 1882, n. 12, 104 L. Ed. 2d 459 (1989). The Court said that it was not expressly passing on the evidentiary burdens or on the shifting of those burdens. But the Court extended deference to the procedures used by the district court, which applied a shifting of the procedural burdens with the ultimate burden of proof being on the prisoners.
This court believes that the initial burden is upon plaintiffs to establish a prima facie case that the regulations or the acts of defendants violated plaintiffs' claimed constitutional rights. The burden of going forward with the evidence then shifts to defendants to articulate a reasonable relationship between the regulations, their acts, and some legitimate penological objective. The burden of going forward with the evidence, and the ultimate burden of proof, is then on plaintiffs to refute that showing, or to otherwise invalidate the regulations and acts. Plaintiffs may attempt to do so on grounds such as pretext, other alternatives, irrational conduct, or arbitrary conduct. For example, "a regulation cannot be sustained where the logical connection between the regulation and the asserted goal is so remote as to render the policy arbitrary or irrational." Turner, 482 U.S. at 89-90. Further, the regulations must operate in a neutral fashion without regard to the content of the expression. Id. at 90.
Recent Supreme Court cases might be read as defining the burden of proof to be evidence which is "substantial" or "conclusive". However, this court need not define or apply those higher measures of proof here, since it concludes that plaintiffs have not carried their burden of proof by the measure of a preponderance of the evidence.
VII. CONSTITUTIONAL STANDARDS
The question of whether the regulations meet constitutional requirements is of course governed by the Supreme Court's decisions defining the rights, primarily the first amendment rights, of prisoners. It is clear that prisoners do have first amendment rights. But those rights must be balanced with their status as prisoners and with legitimate penological objectives. As stated by the Supreme Court in Pell v. Procunier, 417 U.S. 817, 822, 41 L. Ed. 2d 495, 94 S. Ct. 2800 (1974):
[A] prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system. Thus, challenges to prison restrictions that are asserted to inhibit First Amendment interests must be analyzed in terms of legitimate policies and goals of the corrections system, to whose custody and care the prisoner has been committed in accordance with due process of law.
See also Hudson v. Palmer, 468 U.S. 517, 523, 82 L. Ed. 2d 393, 104 S. Ct. 3194 (1984).
In recent first amendment cases, the Court has extended considerable deference and discretion to the decisions of prison administrators. The Court said in Turner v. Safley,
Running a prison is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. Prison administration is, moreover, a task that has been committed to the responsibility of those branches, and separation of powers concerns counsel a policy of judicial restraint.