(concurring and dissenting in part):
Whether detention in “C” Building at the Virginia State Penitentiary is labeled “punishment” or “maximum security segregation” affords no problem solving leverage. I would agree with Abernathy that as to him detention in “C” Building is “punishment,” see Howard v. Smyth, 365 F.2d 428 (4th Cir. 1966), but I also agree with the court that his confinement there is not unconstitutional. Obviously Abernathy is hard to handle, and the district judge’s determination that his confinement in “C” Building is not the result of discrimination based on race or religion is strongly supported by substantial evidence.
*780I am more disturbed by the district judge’s finding that an inmate of a Southern prison, by exercising discrimination, can select a non-pork, i. e., free of lard, diet and still have a balanced ration. I would have thought otherwise. But the finding is specific that prisoners have an opportunity to abstain from “food cooked with any form of pork or lard.” I would feel better about this determination of “constitutional fact” if the cooks had testified, but I concede the finding is supported by substantial evidence and I defer to the judgment of my brothers.
I dissent from the court’s holding that Abernathy is not entitled to obtain a copy of Elijah Mohammad's book, “Message to the Blackman in America,” and is not entitled to subscribe to “Mohammad Speaks,” a newspaper published in Illinois. The content of the book and the newspaper is fairly described in the court’s opinion. It is held that the literature may lawfully be denied Abernathy because it is subversive of discipline. Whose discipline? Apparently the district judge was concerned not so much with the impact of the newspaper upon Abernathy (his behavior could hardly be worse) as with the possibility of disturbance the paper might cause among other members of the prison population.1 ***It is not at all clear to me why it is impracticable to permit Abernathy to subscribe to the paper on condition that he keep it in his own cell.2 If it is to be assumed that circulation among the general prison population constitutes a clear and present danger to internal discipline, it does not follow that the only remedy is exclusion.
I would remand to make further inquiry into the possibility that the literature might be allowed Abernathy on the condition that it not be circulated among other prisoners and subject to the sanction of stopping the privilege upon violation of the condition.
. The district judge mentioned a prior district court decision in which it had been noted that “no workable method of controlling the circulation of the paper once it gets into the prison has been found.” (He was referring to the Federal Penitentiary at Petersburg, Virginia, and not to the Virginia State Penitentiary.)
. Publications that are thought to present a threat to prison discipline are sometimes permitted to be received on condition that they are not taken from the prisoners’ cells. See Sostre v. McGinnis, 334 F.2d 906, 910 (2d Cir. 1964).