(dissenting):
I disagree with so much of the majority opinion as overturns the trial judge’s dismissal of the complaint in respect to the appellant’s right to receive Muhammad, Speaks and Message to the Black-man. His ruling is not premised, as the majority opinion intimates, upon incarceration as effecting a loss of “all of [a convict’s civil rights]”, forfeiture of “every protection of law” or a shedding of the first amendment. In this cause no one avows these tenets. Certainly, penitentiary discipline which limits prisoners’ rights can be constitutionally measured only in terms of a necessity commensurate with the protection of the public, the maintenance of institutional order, the safety of the administrators and the advantages of all of the inmates, not just the protestants.
Save in exceptional instances the regimen should be left to the officials without judicial interference. Conceding for argument only that the burden is upon the custodian to prove the particular necessity for the regulation in suit, the obligation has been fulfilled here. As the opinion notes, Abernathy v. Cunningham, 393 F.2d 775 (4 Cir. 1968) condemned these very publications. Consequently, I do not see how it can be said that the respondent still has the duty to justify their ban from the prison. If there has been a correction of their sinister character as found by Abernathy, I think the appellant should be required to aver and prove it. He has not even attempted to do so, and hence on that head his case fails.
Otherwise, the jailor would have to keep current on the periodical issues of Muhammad Speaks. Unless a specific showing is made of a deprivation of innocuous reading matter — constantly and not simply in one edition of the magazine — his custodial hours should not be shifted to an occupation of reading. Message to the Blackman has not been changed — at least we are not told of it —and the appellant has not pleaded why it is now acceptable when it was not so two years ago.
Nor can I agree with the Court that the administrative authorities should consider “the use to which plaintiff proposes to put his publications if he obtains them”. The suggestion is, I take it, that he could be restricted in passing them or their contents to other prison*1234ers. To me this consideration is utterly impracticable. Unless a guard is to be placed beside the prisoner at reading time, or reads to his ward, the publication would be easily broadcast to defeat the regulation.
If the superintendent is unfair to those committed to his care, the remedy is an appeal to those above him. The Virginia prison system is under the general supervision of the Director of the Department of Welfare & Institutions. Va.Code § 53-3. Complaints concerning internal discipline and administration should properly be reviewed by the administrative hierarchy. At least that resort ought to be demanded of the complaint before the courts impose visitations upon the jails, penitentiaries and their keepers. Cf. Paden v. United States, 430 F.2d 882 (5 Cir. 1970).