Lawson v. Singletary

PUBLISH

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

No. 94-4663

D. C. Docket No. 83-8409-CIV-SMA

ROBERT LEE LAWSON, on behalf of himself
and all others similarly situated,

Plaintiffs-Appellees,

versus

HARRY K. SINGLETARY, Secretary, Florida Department
of Corrections; S.W. SPROUSE, Superintendent, Hendry
Correctional Institution; WILLIAM E. COUNSELMAN,
Educational Supervisor; STEPHEN SPENCER, Chaplain,
Hendry Correctional Institution; and
PAUL COBURN, Assistant Superintendent, Hendry
Correctional Institution,

Defendants-Appellants.

Appeal from the United States District Court
for the Southern District of Florida

(May 29, 1996)

Before ANDERSON and BARKETT, Circuit Judges, and YOUNG*, Senior
District Judge.

PER CURIAM:

________________________
*Honorable George C. Young, Senior U.S. District Judge for the
Middle District of Florida, sitting by designation.
 This case began as a pro se complaint by plaintiff-appellee Robert

Lawson, filed in 1983. Counsel was appointed, and a class certified. The
plaintiff class represented by Lawson (hereinafter "Hebrew Israelites" or

"plaintiffs") is made up of members of the Hebrew Israelite faith currently

serving time in the Florida prison system. The basis for their original

complaint was that officials of the defendant-appellant, the Florida
Department of Corrections (hereinafter "the Department"), refused to

allow certain religious texts, published by the Hebrew Israelites at their
headquarters, the "Temple of Love," into the prisons so that Hebrew
Israelite inmates could have access to them. The plaintiffs seek

injunctive relief. The Department claimed that the Hebrew Israelite texts
at issue contain "highly-charged, anti-white, racism" and thus presented
a serious threat to security and order within Florida's prisons.

Soon after this litigation began, the Department, through head
chaplain Counselman, attempted to create an informal redaction policy
similar to the law now in place that would allow prison chaplains to

remove the most objectionable portions of incoming religious materials.

See Lawson v. Wainwright, 641 F.Supp. 312, 320-321 (S.D.Fla. 1986). The
materials at issue in this case were returned by Counselman to Yahweh

ben Yahweh, the leader of the Hebrew Israelites, and ben Yahweh was

asked to remove those statements that the Department thought were a

threat to prison order and security. Once these sections were removed,

2
Counselman assured ben Yahweh, the materials would be allowed into

the prisons. Id. at 321. This original redaction policy, however, was
poorly defined and sporadically enforced, and at times entire documents
were excluded when only portions of those documents presented a

threat to prison order and security. Id. at 317-319.

This case has a tortured procedural history. In 1986, the district
court held that the Department's outright ban of these religious texts

violated the plaintiffs' Free Exercise rights under the First Amendment.

Lawson v. Wainwright, 641 F.Supp. 312 (S.D. Fla. 1986) (hereinafter
Lawson I). The primary concern in the first appeal to this Court was the
determination of the proper standard by which to evaluate the plaintiffs'

Free Exercise claims. Lawson v. Dugger, 840 F.2d 779 (11th Cir. 1987)
(hereinafter Lawson II). Following this Court's 1987 decision, the

Supreme Court rendered its decision in Thornburgh v. Abbott, 490 U.S.
401, 109 S.Ct. 1874 (1989), in which the Court reiterated the principle that

prisoner constitutional rights claims are to be evaluated under the

rational basis standard. The Department's petition for certiorari in this
case was granted, and the 1987 opinion of this Court was vacated and

the case remanded for further consideration in light of Thornburgh.
Dugger v. Lawson, 490 U.S. 1078, 109 S.Ct. 2096 (1989) (hereinafter

"Lawson III"). This Court in turn remanded to the district court. Lawson
v. Dugger, No. 86-5774 (11th Cir. Feb. 1, 1990). Again, however, a change

3
in the law affected the relevant standard. A few days before the district

court held its status hearing on remand, Congress passed the Religious
Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. (hereinafter

"RFRA"), which purports to reestablish through statute the compelling
interest test for neutral laws that incidentally but substantially burden the

free exercise of religion.1 Upon review, the district court interpreted the

relevant official activity in this case to be an outright ban on certain
incoming religious materials. Then, applying the "least restrictive

means" prong of the new RFRA test to the outright ban, the district court

held that the Department's activity violated RFRA. Lawson v. Dugger,
844 F.Sup. 1538, 1542 (S.D. Fla. 1994) (hereinafter "Lawson IV").
Our primary task is to flesh out the meaning of the new RFRA

standard as it applies in the prison context, and in particular as it applies
to this case.2 Two interrelated preliminary matters require discussion:

1
RFRA was signed into law on November 16, 1993.
2
However, because we conclude that Rule 33-3.012 on its face
passes even the most restrictive compelling interest test that
Congress may have contemplated in drafting RFRA, we need not and
do not today resolve the question of RFRA's constitutionality.
See Jay S. Bybee, Taking Liberties with the First Amendment:
Congress, Section 5, and the Religious Freedom Restoration Act,
48 VAND.L.REV. 1539 (1995) (questioning whether RFRA is an
unconstitutional application of federal power to the states not
authorized by § 5 of the Fourteenth Amendment); Christopher L.
Eisgruber & Lawrence G. Sager, Why the Religious Freedom
Restoration Act is Unconstitutional, 69 N.Y.U.L.REV. 437 (1994)
(questioning whether RFRA violates the separation of powers
doctrine, the Establishment Clause, and § 5 of the Fourteenth
Amendment, and noting that, "RFRA not only defies [Employment
Div., Dept. of Human Res. v. Smith, 494 U.S. 872, 110 S.Ct. 1595
(1990)], it misreads the Supreme Court's jurisprudence prior to

4
Smith; and RFRA not only gives religious believers far more than
their constitutional due, it does so in a fashion that is itself
constitutionally objectionable precisely in terms of religious
freedom."); Scott C. Idleman, The Religious Freedom Restoration
Act: Pushing the Limits of Legislative Power, 73 TEX.L.REV. 247
(1994) (suggesting that RFRA may violate the Establishment Clause
of the First Amendment to the Constitution, in part because it
expands the bounds of Free Exercise beyond the point which the
Court has in the past taken it, by establishing a preference for
religiosity over non-religiosity); see also Everson v. Board of
Ed. of Ewing Twp., 330 U.S. 1, 15, 67 S.Ct. 504 (1947)("The
'establishment of religion' clause of the First Amendment means
at least this: Neither a state nor the Federal Government can
set up a church. Neither can pass laws which aid one religion,
aid all religions, or prefer one religion over another
...")(emphasis added); Torcaso v. Watkins, 367 U.S. 488, 495, 81
S.Ct. 1680 (1961)("We repeat and again reaffirm that neither
a State nor the Federal Government can constitutionally force a
person to profess a belief or disbelief of any religion. Neither
can constitutionally pass laws or impose requirements which aid
all religions as against non-believers ...")(internal quotation
omitted)(emphasis added); Lemon v. Kurtzman, 403 U.S. 602, 91
S.Ct. 2105 (1971)(statute must have secular legislative purpose,
and must primarily neither advance nor inhibit religion, nor
foster excessive government-religion entanglement, to avoid reach
of Establishment Clause); County of Allegheny v. ACLU, 492 U.S.
573, 109 S.Ct. 3086 (1989)(same); Texas Monthly, Inc. v. Bullock,
489 U.S. 1, 109 S.Ct. 890 (1989)(invalidating, on Establishment
grounds, Texas law granting sales tax exemption to religious
publications); Board of Ed. of Kiryas Joel v. Grumet, ___ U.S.
___, 114 S.Ct. 2481, 2487 (1994)("A proper respect for both the
Free Exercise and the Establishment Clauses compels the State to
pursue a course of neutrality toward religion, favoring neither
one religion over others nor religious adherents collectively
over nonadherents.")(internal citations omitted). The Fifth
Circuit in Flores v. City of Boerne, 73 F.3d 1352 (5th Cir.
1996), rejected an argument that RFRA on its face violates the
Establishment Clause, noting that the statute expressly limits
its application such that the Establishment Clause shall not be
affected. See 42 U.S.C. § 2000bb-4, cited in Flores, 73 F.3d at
1364; but see Sable Communications of California, Inc. v. F.C.C.,
492 U.S. 115, 129, 109 S.Ct. 2829 (1989)("To the extent that the
federal parties suggest that we should defer to Congress'
conclusion about an issue of constitutional law, our answer is
that while we do not ignore it, it is our task in the end to
decide whether Congress has violated the Constitution. This is
particularly true where the Legislature has concluded that its
product does not violate the First Amendment."). Because we
conclude that Rule 33-3.012 on its face passes the RFRA test, we
need not address whether RFRA violates the Establishment Clause.

5
Florida's new Rule 33-3.0123 governing the admissibility into Florida

prisons of publications, including religious materials; and the propriety
of our consideration in this appeal of the Rule's redaction policy.

I. RULE 33-3.012 AND REDACTION

In addition to the passage of RFRA, another significant change in

the complexion of this case occurred after remand to the district court.
On December 17, 1991, Florida amended Rule 33-3.012, inter alia, to
incorporate a formal and more precise redaction policy. The portions of
the Rule relevant to this case are as follows:
(4) Inmates shall be permitted to receive publications except
when the publication is found to be detrimental to the
security, order or disciplinary or rehabilitative interests of the
institution or when it is determined that the publication might
facilitate criminal activity. Publications shall be
rejected when one of the following criteria are met:

...

(e) It depicts, describes or encourages activities which may
lead to the use of physical violence or group disruption;
...

(h) It otherwise presents a threat to the security, order or
rehabilitative objectives of the correctional system or the
safety of any person. If only a portion of a publication meets
one of the above criteria for rejection, the entire publication
shall be rejected unless the reading material is of a religious
nature. In the case of religious material, the inmate shall be
advised that he may receive the materials only after the

See Ashwander v. Tennessee Valley Authority, 297 U.S 288, 341, 56
S.Ct. 466 (1936)(Brandeis, J., concurring).
3
FLA. ADMIN. CODE ANN. § 33-3.012 (1995).

6
 inadmissible portion is removed. The inmate shall make the
decision whether to return the material to the sender or to
receive the admissible portions after the institution has
excised the inadmissible material, and the inmate may appeal
the institution's determination that the material must be
excised or returned. The institution shall not take any action
to excise or return inadmissible reading material until the
inmate's appeal is concluded or the time for appeal has
passed.

FLA. ADMIN. CODE § 33-3.012(4)(1995)(emphasis added).4 Appeals from
decisions to redact certain sections from religious materials are heard by
a literature review committee made up of the Assistant Secretary of

Operations, one superintendent, one security administrator, the library

services administrator and one institutional librarian. FLA. ADMIN. CODE §
33-3.012(2).

The plaintiffs contend that the Department did not specifically
argue redaction in its briefs to the district court at the original trial nor on
remand, and did not do so until the Department's motion for rehearing.

The plaintiffs argue accordingly that the Department has waived the
issue. The district court agreed with the plaintiffs and denied the
Department's motion for rehearing. The district court declined to

consider redaction, relying instead on the procedures in use by the

Department when this litigation began in 1983, which the district court

4
Rule 33-3.012 is similar in some respects to federal prison
regulations governing the admissibility of reading materials.
See 28 C.F.R. § 540.71. However, the Federal regulations do not
have a special exception for religious materials permitting
redaction as opposed to total exclusion.

7
construed to be an outright ban on the religious materials introduced at

trial.
This Court interprets the Department's motion for rehearing on the

redaction issue as a Fed.R.Civ.P. 59(e) motion. McGregor v. Bd. of
Com'rs of Palm Beach County, 956 F.2d 1017, 1020 (11th Cir. 1992). We

review the district court's denial of the Department's motion for
rehearing for abuse of discretion. O'Neal v. Kennamer, 958 F.2d 1044,
1047 (11th Cir. 1992); American Home Assur. Co. v. Glen Estess &

Assoc., Inc., 763 F.2d 1237, 1238-39 (11th Cir. 1985). In American Home,
we affirmed a district court's denial of a Rule 59(e) motion that raised for

the first time a choice of law issue. American Home, 763 F.2d at 1239.
We noted that, "[t]he decision to alter or amend judgment is committed

to the sound discretion of the district judge and will not be overturned on
appeal absent an abuse of discretion." Id. at 1238-39.

Several reasons persuade us that the district court abused its

discretion by failing to consider redaction, which stands at the core of

the current Florida regulation. In our judgment, it would be impossible to
evaluate the facial constitutionality of Rule 33-3.012, and its compatibility

with RFRA, without considering redaction, which is the essence of the
Rule's policy toward religious publications. This case involves only

injunctive relief. Therefore, the only viable issues are the facial validity

8
of Rule 33-3.012, and its validity as applied.5 Because these issues

cannot be intelligently assessed without considering redaction, justice
requires that we do so.

Finally, a federal court order dictating the security-related activities

of state prison officials raises serious comity concerns. The

maintenance of prison security, which is central to this case, is a matter
of immense importance to the State of Florida and, of course,

responsibility for prison security is committed to the State. Even if the
Department's deficiencies in the presentation of this issue to the district
court might lead us to impose waiver in some other context, interests of

comity combine with the foregoing factors to persuade us otherwise in
this case.6 Assuming, as we hold below, that Florida's Rule 33-3.012,
with its redaction policy, is facially valid, it would constitute manifest

injustice to enjoin state prison officials from the exercise of their duties
to maintain prison security based on the technicality that their attorneys

5
Plaintiffs' efforts in this litigation have focussed only
on obtaining injunctive relief, either because that is their only
real interest or because of the likelihood that qualified
immunity will bar any claim for damages. Injunctive relief is,
of course, prospective, and thus only Rule 33-3.012 is at issue.
The validity of the Department's application of its prior policy,
with its informal, imprecise and sporadically enforced redaction
policy, is moot.
6
We can discern no prejudice to the plaintiffs as a result
of our consideration of the Department's current redaction policy
embodied in Rule 33-3.012, because they have had a full
opportunity in brief and oral argument to discuss the effect of
redaction on the facial validity of the Rule.

9
failed to present an issue to the district court with sufficient clarity. We

conclude that the district court abused its discretion in failing to
consider the redaction issue.7

II. THE RELIGIOUS FREEDOM AND RESTORATION ACT ("RFRA")

Having established that the issue in this case is the redaction
policy found in Rule 33-3.012, we turn to our primary task of evaluating

the validity of the Rule in light of RFRA. To understand how RFRA's

compelling interest standard should be applied in the prison context, it is
necessary to understand both the legal landscape at the time it was
enacted and congressional intent as evidenced by the statute itself and

its legislative history. We first address congressional intent and the case
law to which Congress intended courts to look for guidance.
A. Congressional Intent and the Case Law Background

7
We recognize that the district court in Lawson I summarily
rejected the Department's reliance on its previous, informal
redaction policy. Lawson I, 641 F.Supp. at 329. The district
court relied on the requirement set forth in Miller v.
California, 413 U.S. 15, 93 S.Ct. 2607 (1973), that allegedly
obscene publications be evaluated as a whole. It was error to
rely on Miller, a case involving the First Amendment rights of
non-incarcerated persons. By contrast, prison inmates retain
only such First Amendment rights as are not inconsistent with
their status as prisoners. Pell v. Procunier, 417 U.S. 817, 822,
94 S.Ct. 2800 (1974). There is clearly no per se bar to
censorship of incoming prisoners' mail. See Thornburgh v.
Abbott, 490 U.S. 401, 109 S.Ct. 1874 (1989); Turner v. Safely,
482 U.S. 78, 107 S.Ct. 2254 (1987); Procunier v. Martinez, 416
U.S. 396, 94 S.Ct. 1800 (1974); Abbott v. Meese, 824 F.2d 1166
(D.C. Cir. 1987), vacated by Thornburgh v. Abbott, 490 U.S. 401,
4407-408, 109 S.Ct. 1874 (1989); McCorkle v. Johnson, 881 F.2d
993 (11th Cir. 1989).

10
 The stated purpose of RFRA is to restore the broad applicability of

the compelling interest test established in Sherbert v. Verner, 374 U.S.
398, 83 S.Ct. 1790 (1960), and Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct.

1526 (1972), which was substantially circumscribed by Employment Div.,
Dep't of Human Resources v. Smith, 494 U.S. 872, 110 S.Ct. 1595 (1990).

The Act states:
(b) Purposes

The purposes of this chapter are --
(1) to restore the compelling interest test as set
forth in Sherbert v. Verner, 374 U.S. 398 (1963), and
Wisconsin v. Yoder, 406 U.S. 205 (1972), and to
guarantee its application in all cases where free
exercise of religion is substantially burdened ...

42 U.S.C. § 2000bb(b).
(b) Exception

Government may substantially burden a person's exercise of
religion only if it demonstrates that application of the burden
to the person --

(1) is in furtherance of a compelling governmental
interest; and

(2) is the least restrictive means of furthering that
compelling governmental interest.

42 U.S.C. § 2000bb-1(b). Congress was obviously attempting to create a
statutory buffer around a more limited constitutional right. Cf.
Katzenbach v. Morgan, 384 U.S. 641, 653-54, 86 S.Ct. 1717 (1966)

(implying that Congress has the power to create rights not recognized by

11
the Supreme Court). That intent was manifest in the statutory language

restoring the compelling interest test.
The text of RFRA, however, does not elaborate on how the

compelling interest test is to be applied. Nowhere in the statute does

Congress state that the test is to be construed in precisely the same

manner in varying factual scenarios and contexts. By referring to the
"compelling interest test," Congress obviously intended for courts to

look for guidance to those cases employing that term. Astoria Fed. S & L
Ass'n v. Solimino, 501 U.S. 104, 108, 111 S.Ct. 2166 (1991) (Congress
legislates against the background of federal common law principles).

The Supreme Court has historically applied the compelling interest
standard somewhat differently depending on the context in which the

protected right arose. Procunier v. Martinez, 416 U.S. 396, 409-410, 94
S.Ct. 1800 (1974)("First Amendment guarantees must be 'applied in light

of the special characteristics of the ... environment.'") (quoting Tinker v.
Des Moines Independent Community School District, 393 U.S. 503, 506,
89 S.Ct. 733 (1969)). This is notably true in the prison context. Indeed,

the legislative history of RFRA expressly assumes that courts will apply
RFRA in the prison context within the framework of prior case law. Both

congressional committees charged with consideration of the legislation

clearly intended the courts to continue to afford deference to the

judgment of prison officials.

12
 The intent of the act is to restore [the] traditional protection
afforded to prisoners' claims prior to O'Lone, not to impose a
more rigorous standard than the one that was applied ....
Accordingly, the committee expects that the courts will
continue the tradition of giving due deference to the
experience and expertise of prison and jail administrators in
establishing necessary regulations and procedures to
maintain good order, security and discipline, consistent with
considerations of costs and limited resources .... At the same
time, however, inadequately formulated prison regulations
and policies grounded on mere speculation, exaggerated
fears, or post-hoc rationalizations will not suffice to meet the
act's requirements.

S. REP. NO. 111, 103d Cong., 1st Sess. 10.
Therefore, the compelling governmental interest test should be
applied to all cases where the exercise of religion is substantially
burdened; however, the test should not be construed more
stringently or more leniently than it was prior to Smith . . . . Prior to
1987, courts evaluated free exercise challenges by prisoners under
the compelling governmental interest test. The courts considered
the religiously inspired exercise, as well as the difficulty of the
prison officials' task of maintaining order and protecting the safety
of prison employees, visitors and inmates. Strict scrutiny of prison
regulations did not automatically assure prisoners of success in
court.
H.R. REP. NO. 88, 103d Cong., 1st Sess. 8; see also 139 CONG. REC.
§14362-14365 (daily ed. Oct. 26, 1993)(statement of Sen. Hatch). On

June 9, 1987, the Supreme Court in O'Lone v. Estate of Shabazz, 482 U.S.
342, 107 S.Ct. 2400 (1987), articulated an unadorned rational basis test

for the evaluation of prison regulations challenged under the Free
Exercise Clause. RFRA's legislative history contains some evidence that

Congress may have intended to restore the standard for the protection of

prisoner Free Exercise rights to where it stood prior to the Court's

13
decision in O'Lone. However, even prior to O'Lone, the Supreme Court

and the lower federal courts applied the compelling interest test in the
context of prisoners' Free Exercise or Free Speech claims by recognizing

the special circumstances of the prison context, including recognition of

the state's substantial interest in prison security and order and of the

substantial deference due the judgment of prison officials with respect
thereto. The primary reason for this is the more limited nature of the

First Amendment rights enjoyed by prisoners after incarceration. In Pell
v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800 (1974), for example, the
Court noted that "[i]n the First Amendment context . . . 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." Accord Jones v. North Carolina Prisoners' Labor
Union, Inc., 433 U.S. 119, 125, 97 S.Ct. 2532 (1977). See also Cruz v. Beto,
405 U.S. 319, 321, 92 S.Ct. 1079 (1972); Price v. Johnston, 334 U.S. 266,
285, 68 S.Ct. 1049 (1948); Bradbury v. Wainwright, 718 F.2d 1538, 1540-41
(11th Cir. 1983).

In cases involving constitutional challenges to prison regulations,
including those implicating the free exercise of religion, the Supreme

Court has long made clear that Federal courts must afford substantial

deference to the judgment of prison authorities.8 See Turner v. Safley,

8
The cases discussed in the text involve First Amendment
rights, including both Free Exercise and Free Speech. In the

14
482 U.S. 78, 107 S.Ct. 2254 (1987); Bell v. Wolfish, 441 U.S. 520, 99 S.Ct.

1861 (1979); Jones, 433 U.S. 119 (1977); Pell, 417 U.S. 817 (1974);
Martinez, 416 U.S. 396 (1974); Cruz, 405 U.S. 319 (1972).9 In evaluating

prisoners' constitutional rights claims that challenge assertions by
prison officials that the inmates' rights must yield before the state's

legitimate penological interests, courts have "accorded wide-ranging

deference [to prison administrators] in the adoption and execution of
policies and practices that in their judgment are needed to preserve

internal order and discipline and to maintain institutional security." Bell,
441 U.S. at 547; accord Jones, 433 U.S. at 128; Martinez, 416 U.S. at 404-
05; Cruz, 405 U.S. at 321. Such deference is especially appropriate with
respect to the primary state interest involved in this case - the

maintenance of peace and security within the prison facility. Pell, 417

U.S. at 823 ("Central to all other corrections goals is the institutional

consideration of the internal security within the corrections facilities.").
The justifications for this deference include the complexity of prison

management, the fact that responsibility therefor is necessarily vested in

prison context, the Supreme Court and the lower federal courts
have held that the same deference is due the judgment of prison
officials with respect to security and other penological
concerns, whether the case involves Free Speech or Free Exercise
rights. "In the absence of a contrary indication, we assume that
when a statute uses [a term of art], Congress intended it to have
its established meaning." McDermott International, Inc. v.
Wylander, 498 U.S. 337, 342, 111 S.Ct. 807 (1991).
9
All of the cases cited were decided before O'Lone.

15
prison officials, and the fact that courts are ill-equipped to deal with such

problems. Martinez, 416 U.S. at 404-05.
The standard for evaluating prisoner constitutional rights claims
was initially articulated by the Supreme Court in 1974 in Martinez.
First, the regulation or practice in question must further an
important or substantial governmental interest unrelated to
the suppression of expression .... Second, the limitation of
First Amendment freedoms must be no greater than is
necessary or essential to the protection of the particular
governmental interest involved.
Martinez, 416 U.S. at 413. The two prongs of the Martinez standard
correspond to the two prongs of the compelling interest test as it has

been articulated by the Court in other contexts: infringement on such
constitutional rights is justified only by a compelling state interest and

only when the regulation at issue is the least restrictive means for
satisfying that interest. Because the first prong is unquestionably
satisfied in this case, and indeed is conceded by the plaintiffs, we focus

on the second prong.

The Court's holding in Martinez teaches that the compelling
interest test is to be employed by recognizing the special circumstances

of the prison context, including recognition of the state's substantial
interest in prison security and order and of the substantial deference due

the judgment of prison officials with respect thereto. Martinez, 416 U.S.

at 404-05. The Court noted that although it was applying the compelling

interest test,

16
 This does not mean, of course, that prison administrators
may be required to show with certainty that adverse
consequences would flow from the failure to censor a
particular letter. Some latitude in anticipating the probable
consequences of allowing certain speech in a prison
environment is essential to the proper discharge of an
administrator's duty.

Id. at 414.10 Similarly, in Bell v. Wolfish, the Court reemphasized the
"wide-ranging deference" to be accorded the judgment of prison
officials.

Such considerations are peculiarly within the province and
professional expertise of corrections officials, and, in the
absence of substantial evidence in the record to indicate that
the officials have exaggerated their response to these
considerations, courts should ordinarily defer to their expert
judgment in such matters.

Bell, 441 U.S. at 547-48 (quoting Pell, 417 U.S. at 827).
We recognize that, following the Martinez decision, the

constitutional standard employed by the Supreme Court continued to

evolve in the direction of a rational basis standard.11 We also recognize

10
We are aware that the result in Martinez has subsequently
been limited by Thornburgh v. Abbott, 490 U.S. 401, 4407-408, 109
S.Ct. 1874 (1989). However, in order to elaborate on what
Congress meant by using the term "least restrictive means," we
must determine its meaning in the prison context, as construed by
the courts.
11
Both prongs of the Martinez standard have evolved in
the direction of a simple rational basis standard. In Turner,
the Supreme Court discussed in detail four cases which followed
Martinez: Pell (1974), Jones (1977), Bell (1979), and Block
(1984). The Court noted that "[i]n none of these four prisoners'
rights cases did the Court apply a standard of heightened
scrutiny, but instead inquired whether a prison regulation that
burdens fundamental rights is reasonably related to legitimate
penological objectives, or whether it represents an exaggerated
response to those concerns." Turner, 482 U.S. at 87 (internal

17
that it is far from clear which precise point in this evolution Congress

intended to select as the appropriate analysis for the application of RFRA
in a prison context. We need not in this case decide this precise point,

quotations omitted). The Court then concluded:

If Pell, Jones, and Bell have not already resolved the
question posed in Martinez, we resolve it now: when a
prison regulation impinges on inmates' constitutional
rights, the regulation is valid if it is reasonably related
to legitimate penological interests.

Id. at 89. It is clear that the Turner Court contemplated that
both prongs of the Martinez standard had so evolved. In
discussing the "ready alternatives" factor, through which courts
determine if there are available alternatives to the prison
policy at issue that satisfy the legitimate interests of the
prison administration, the Court asserted that the existence of
such alternatives may be evidence that the policy is an
"exaggerated response" rather than a reasonable regulation. But
the Court was careful to note that,

This is not a "least restrictive alternative" test: prison
officials do not have to set up and then shoot down every
conceivable alternative method of accommodating the
claimants' constitutional complaint. But if an inmate
claimant can point to an alternative that fully accommodates
the prisoner's rights at de minimis costs to valid
penological interests, a court may consider that as evidence
that the regulation does not satisfy the reasonable
relationship standard.

Id. at 90-91 (citations omitted). But see H.R. Rep. No. 88, 103d
Cong., 1st Sess. 7-8 ("Pursuant to the Religious Freedom
Restoration Act, the courts must review the claims of prisoners
. . . under the compelling governmental interest test . . .
[O]fficials must show that the relevant regulations are the least
restrictive means of protecting a compelling governmental
interest.").

As noted in the text, resolution of this case does not
require that we determine the extent to which the Martinez
standard has evolved into a rational basis analysis. It is
sufficient for the resolution of this case to apply the Martinez
standard as written, moderated by the wide-ranging deference due
the judgment of prison authorities which that opinion
contemplated.

18
because we can assume arguendo that the appropriate standard is the

one set forth in Martinez, which articulates the appropriate standard in
the formulation most favorable to the plaintiffs, as compared to the
formulation found in the cases that followed Martinez. Applying that
standard, tempered by the deference due prison officials that Martinez

commands, we readily conclude that Rule 33-3.012 passes muster under

RFRA, as discussed more fully below. Accordingly, we need not and do
not in this case decide if Congress intended a somewhat less demanding

standard like the one that evolved in the cases that follow Martinez and
predate O'Lone.
B. Facial Validity of Rule 33-3.012 Under RFRA

Because RFRA provides statutory protection for religious practice
that is broader than the core constitutional right explicated in O'Lone,

and because Martinez represents the zenith of judicial scrutiny of prison
regulations under the light of prisoner constitutional claims, we analyze

Rule 33-3.012 utilizing the Martinez standard articulated above.12
Whether the Rule comports with RFRA is a pure question of law, and is

12
Because we find that Rule 33-3.012 passes muster under
Martinez -- which represents both the statutory standard under
RFRA in the most favorable formulation for which the plaintiffs
could reasonably hope and the historical summit of the Court's
review of prisoner constitutional claims -- we conclude a
fortiori that the Rule is constitutional on its face. See O'Lone
v. Estate of Shabazz, 482 U.S. 342, 349, 107 S.Ct. 2400
(1987)(holding that a prison regulation that impinges upon
inmates' Free Exercise rights is constitutionally valid if it is
reasonably related to legitimate penological interests).

19
subject to de novo review by this Court. See Christopher v. Cutter
Laboratories, 53 F.3d 1184, 1190 (11th Cir. 1995).

It is well established that states have a compelling interest in
security and order within their prisons. Harris v. Forsyth, 735 F.2d 1235
(11th Cir. 1984); Sullivan v. Ford, 609 F.2d 197 (5th Cir.), cert. denied, 446

U.S. 469, 100 S.Ct. 2950 (1980). In the case at bar, the Hebrew Israelites
concede that Florida has a compelling interest in prison security. At

issue are the means chosen by the state of Florida to satisfy this interest,

which necessarily implicates RFRA's least restrictive means prong. As
explained above, we conclude that Congress intended this second RFRA
prong to be no more vigorous than its corresponding incarnation in

Martinez. Thus, Rule 33-3.012's "limitation of First Amendment freedoms
must be no greater than is necessary or essential to the protection of the

particular governmental interest involved." Martinez, 416 U.S. at 413. In
the application of this standard, we must accord wide-ranging deference

to the judgment of the Department. Moreover, the "prison administrators

. . . [are not] required to show with certainty that adverse consequences
would flow from the failure to censor" a particular publication. Id. at 414.

Applying the foregoing standard to Rule 33-3.012, we readily

conclude that the Rule satisfies RFRA's least restrictive means test.

Indeed, it is hard to imagine a means more specifically or more narrowly

20
addressed to the problem posed by passages of text which the

Department has determined may lead to violence or disruption, or which
otherwise pose a threat to security. Abbott v. Meese, 824 F.2d at 1172-

1173. The Rule is explicitly addressed to the penological interest at
stake, namely security. It is not vague or overbroad and it does not give

unbridled discretion to prison administrators.13 See Vodicka v. Phelps,

624 F.2d 569, 570-571 (5th Cir. 1980) (finding facially valid under Martinez
a prison regulation allowing the withholding of prisoner mail that
presents an "immediate threat" to security); see also Abbott v. Meese,

824 F.2d 1166, 1172-1173 (D.C.Cir. 1987), vacated by Thornburgh v.
Abbott, 490 U.S. 401, 4407-408, 109 S.Ct. 1874 (1989)("If a regulation were
to authorize the Warden to reject a portion of a publication only if he

found that the material would 'encourage' violence, or some other
specified type of conduct breaching security or order . . . we think that

regulation could survive the minimum Martinez tests."); Gaines v. Lane,
790 F.2d 1299 (7th Cir. 1986)(finding prison regulation, which only allows

prison officials to censor mail which presents a threat to prison security,
sufficiently narrowly-tailored to be facially valid under Martinez); George

v. Sullivan, 896 F.Supp. 895 (W.D.Wis. 1995)(upholding prison regulation

13
Under Rule 33-3.012, inmates have a right to appeal
decisions to redact certain sections from religious texts, and
these appeals are heard by a literature review committee. The
plaintiffs do not challenge the district court's ruling that the
Rule does not violate the plaintiffs' due process rights.

21
permitting banning of white supremacist religious literature, even in light

of RFRA's heightened standard of review).
The plaintiffs argue, relying on the law of the case doctrine, that

this Court's decision in this matter is dictated by our prior decision in

Lawson II, 840 F. 2d 779 (11th Cir. 1987). The law of the case doctrine
does not apply in this instance for three reasons. First, this Court's
opinion in Lawson II was vacated by the Supreme Court in Dugger v.

Lawson, 490 U.S. 1078, 109 S. Ct. 2096 (1989), with instructions to
reconsider in light of Thornburgh v. Abbott, 490 U.S. 401, 4407-408, 109

S.Ct. 1874 (1989). Accordingly, this Court is not bound by the vacated

decision. United States v. M.C.C. of Florida, 967 F.2d 1559, 1561-1562
(11th Cir. 1992). Second, the crux of the dispute in Lawson II, and indeed

in the whole first round of this litigation, was a disagreement about the

standard of review that should be applied to the Department's
regulations. Thus, the focus of the briefs submitted to this Court in

Lawson II, as well as the focus of our opinion, was not on the regulations
themselves, but instead was on whether the trend in Supreme Court

prisoner Free Exercise jurisprudence is one leading toward the
application of a rational basis test. Finally, Florida has in the interim

changed its prison regulations governing the admissibility of religious

materials. As written, Rule 33-3.012 is substantially different from its

predecessor, which we considered in Lawson II. Not only has the law

22
changed, but also the facts of the case have changed.14

C. Rule 33-3.012 As Applied
In this litigation, no court has been asked to determine which

specific portions of any particular Hebrew Israelite publication can be
redacted by the Department, operating under the authority of the new

Rule 33-3.012, consistent with the Constitution and RFRA. Indeed, it

appears that the Department may not have applied its new Rule because
of this ongoing litigation. It may be that there is no "as applied" issue in
this case. This is a question that will have to be determined on remand

in the district court. As a practical matter, an "as applied" issue will not
arise until a prisoner challenges a particular Department action. The
Department will have to identify those sections of the Hebrew Israelite

publications that it has decided must be removed pursuant to the Rule,
and the district court will then have to determine if the Department can
redact those specific portions without running afoul of the United States

Constitution and RFRA.15

14
As noted above, the validity of the Department's
application of its previous policy to the religious texts
introduced at trial is moot. The district court erred in
focusing on that issue rather than the only viable issue in the
case - the validity of Rule 33-3.012.
15
Because an "as applied" challenge might be ripe and might
be presented on remand, we provide some limited guidance to avoid
repetition of clear error. In Lawson I, 641 F.Supp. at 329, the
district court may have labored under the misconception that the
Department was required to adduce specific evidence of a causal

23
 III. CONCLUSION

Pursuant to the above discussion, we hold that Rule 33-3.012 is
facially valid under both the United States Constitution and RFRA. We

therefore reverse the decision of the district court, and remand to that

court for an exploration of any "as applied" issues that may be ripe.

REVERSED and REMANDED.

link between text that it wants to remove and actual incidents of
violence (or some other actual threat to security). To the
extent that the district court did in fact labor under any such
belief, it erred. Requiring proof of such a correlation
constitutes insufficient deference to the judgment of the prison
authorities with respect to security needs. See Procunier v.
Martinez, 416 U.S. at 414 (Prison authorities are not "required
to show with certainty that adverse consequences would flow from
the failure to censor a particular letter. Some latitude in
anticipating the probable consequences of allowing certain speech
in a prison environment is essential to the proper discharge of
an administrator's duty.").

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