(dissenting).
The question presented by this interlocutory appeal is whether, pending the conclusion of the trial, plaintiff should be prevented from corresponding with his wife’s sister.1 The answer to that question depends on whether the record presented to the district court by de*1345fendant adequately justified his subordinates’ refusal to permit any communication between those two persons.
Defendant explained the prohibition as based on (1) § 53.09 of the Wisconsin statutes ;2 (2) written regulations in the Wisconsin Division of Correction’s Manual of Adult Institution Procedures (revised January, 1971) ;3 and (3) the contents of a letter dated November 29, 1970, from Morales to Steffes “which was confiscated as evidence of an illicit affair which plaintiff obviously desired to keep from his wife.”4 The decision to place Steffes on “plaintiff’s deny list was based on our recent awareness that he had fathered her child, Joseph, and that his wife Sandra, her sister, was unaware of this information.” 5
The scholarly opinions which Judge Pell and Judge Doyle have written convincingly demonstrate that the legal issues engendered by this pathetic family situation are of far-reaching import. I cannot accept Judge Doyle’s broad conclusion that the fact of conviction is not itself a sufficient basis for some differential in the treatment of the fundamental interests of those who have, as opposed to those who have not, been convicted of crime. In my opinion his reliance on the Equal Protection Clause as requiring the state to justify any such differential by a “compelling state interest” is misplaced. Nevertheless, I am persuaded that his disposition of the specific issue raised by the response to the plaintiff’s application for a temporary injunction was correct.
Before discussing each of the three aspects of defendant’s justification, a preliminary comment on the state of the record, and some of its deficiencies, is appropriate. It does not contain the precise regulations which were in effect when Steffes was placed on the “deny list”; indeed, it does not even contain the regulations as revised in January, 1971. The relevant regulations “as revised” in February, 1971, are before us. Since Defendant’s brief implies that they are controlling, I make that assumption.
The record contains only fragments of information about plaintiff’s rather complex family relationships. In addition to his wife and mother (with whom he corresponds in Spanish), his family includes at least one brother, three half brothers and three half sisters. Apparently he married Sandra in 1966, not long after moving to Milwaukee. Shortly thereafter he initiated proceedings to adopt her illegitimate daughters. On at least one occasion during his incarceration in 1968 her prolonged failure to correspond or to visit him caused him to enlist the assistance of the Correctional Department to inquire about the welfare of his children. I do not find that the record discloses the age of plaintiff’s illegitimate son, Joseph, or whether his affair with Steffes preceded or followed his marriage to Sandra. Portions of his letter to Steffes evidence a genuine concern about the welfare of Joseph.6
Addresses in the file indicate that his wife and sister-in-law were neighbors as *1346well as sisters. Whether the family situation is such that a complete termination of any association between plaintiff and Steffes would be a desirable or feasible condition to parole is not indicated. There is nothing in the record to indicate that the relationship between Morales and Steffes had any connection with his possession of heroin, for which he was convicted.
When issue was joined in the district court, the record contained little information about plaintiff’s prospects for rehabilitation.7 It is reasonable to infer that Steffes was placed on plaintiff’s “deny list” for reasons related to rehabilitation, but that conclusion is not expressly articulated in the record; nor is there any evidence that correction officials considered less drastic alternatives, such as censorship of plaintiff’s correspondence with Steffes, before banning all communication between them.
I.
The record would clearly be adequate to support defendant’s position if § 53.-09 of the Wisconsin statutes could be enforced literally. For that statute may be read to authorize a total prohibition against any communication by an inmate. The Wisconsin Supreme Court has held, however, that the statute must be read more narrowly because such a total prohibition would be unconstitutional. It has construed § 53.09 “to require reasonable regulations which effectuate legitimate administrative objectives without infringing the First Amendment rights of prisoners.” State ex rel. Thomas v. State, 55 Wis.2d 343, 357, 198 N.W.2d 675, 683.
The State Supreme Court’s conclusion that a prisoner’s claimed right to communicate raises First Amendment issues is plainly correct. Whether we view the issue from the standpoint of the prisoner’s right to communicate with others, or from the standpoint of society’s right to know what is happening within a penal institution, it is perfectly clear that traditional First Amendment interests are at stake.8 It is equally clear that plaintiff’s incarceration has not completely extinguished his First Amendment rights.9
The case does not merely involve a prisoner’s right to receive incoming mail which, unlike outgoing mail, may contain contraband. Nor does it involve mere inspection or censorship of outgoing mail. It involves a total prohibition *1347of any communication with a specific individual. It thus presents an example of a “prior restraint” on the plaintiff’s freedom of expression — the kind of abridgment that normally receives the closest judicial scrutiny.
Placing the “prior restraint” label on defendant’s action does not, however, decide the case; for some kinds of prior restraint have always been tolerated. See Near v. Minnesota, 283 U.S. 697, 716, 51 S.Ct. 625, 75 L.Ed. 1357. I assume that conviction of a crime and imprisonment in a penal institution provide exceptional circumstances which. may justify prior restraint in appropriate cases. However, if the vital purposes of the First Amendment are kept in mind, it is equally clear that the state bears the burden of justifying such restraints.
Under the Wisconsin Supreme Court’s interpretation of § 53.09, that burden may not be discharged by simple reliance on the statute.
II.
The relevant regulations do not authorize the action which plaintiff challenges.
The prison regulation of “Mail Privileges” contains three relevant subpara-graphs. It is subparagraph (b) which expressly authorizes the withdrawal of outgoing correspondence privileges.10 The only specified grounds for withdrawal or restriction are “as a disciplinary or security measure.” There is nothing in the record to suggest that either of those grounds has any relevance here.
Subparagraph (c) authorizes inspection of all incoming and outgoing mail and, in addition, the nondelivery of particular communications for a variety of reasons, including “propriety, security or the welfare of the institution or inmate.” 11 Although the point is debatable, I assume that subparagraph (c) would provide adequate authority for the nondelivery of the letter of November 29, 1970, which precipitated this controversy; however, that subpara-graph does not purport to authorize the complete prohibition of communication between an inmate and others. Thus, neither subparagraph (b) nor (c) supports the action at issue.
Subparagraph (a) of the regulation is ambiguous but may be read to authorize the warden to add or subtract names from a list of permissible correspondents *1348for any reason whatsoever.12 The Thomas case indicates that such mail privileges have been forbidden for reasons unrelated to discipline, security of the institution or rehabilitation of the inmate; in that case the warden had refused to permit an ex-serviceman to write a letter to the Veterans Administration complaining of inadequate medical care. See 55 Wis.2d at p. 346, 198 N.W.2d 675. Since, however, the Wisconsin Supreme Court’s opinion forecloses an interpretation of subparagraph (a) as granting the kind of arbitrary authority that would enable the defendant to withdraw mailing privileges on a selective, completely ad hoc basis, I am persuaded that subparagraph (a) affords no more support for defendant than the statute itself.
I therefore conclude that the decision to place Steffes’ name on plaintiff’s deny list is not supported by the kind of reasonable regulation effectuating legitimate administrative objectives which is required by the State Court’s opinion.
III.
In my opinion, any action which abridges First Amendment rights bears a heavier burden of justification if it implements an ad hoc determination rather than a preformulated standard. Guidelines which evidence awareness of the conflicting considerations that should influence particular decisions are presumptively valid.13 But I am per*1349suaded that the strong presumption of regularity which normally supports state action, particularly when an exercise of discretionary authority is under attack, is not available to justify the ad hoc determination made on behalf of the defendant here.
The issue is nevertheless not easily resolved because there is a reasonable likelihood that the judgment of the experienced social worker who interviewed both plaintiff and Steffes is sound. Certainly I would not presume to characterize it as irrational, even under the test well stated in Judge Pell’s opinion. On the other hand, the record does not unambiguously establish a correlation between plaintiff’s rehabilitation and the total prevention of communication between plaintiff and the mother of his child. In view of the risks of error inherent in an ad hoc determination,14 unsupported either by preformulated guidelines or by a more complete exposition of the reasons why less drastic alternatives could not be equally effective in achieving a legitimate rehabilitative goal,15 a fair respect for the rights protected by the First Amendment requires rejection of defendant’s justification on the record developed in the court below. I would therefore affirm Judge Doyle’s order of April 6, 1972.
. The order entered on April 6, 1972, from which defendant appealed, reads:
“Upon the basis of the entire record, IT IS ORDERED that the defendant’s motion for summary judgment is denied.
“IT IS FURTHER ORDERED that the defendant, his agents and those acting in concert with him, are preliminarily enjoined, until further order of the court, from preventing the plaintiff from corresponding with his wife’s sister.”
. “Coriimunication shall not be allowed between inmates and any person outside the prison except as prescribed by the f prison regulations.”
. See page 1, paragraph 4, of Exhibit A attached to the affidavit in support of defendant’s response to the order to show cause.
. Hid., paragraph 5.
. Id., page 2, paragraph 8.
. “Hope you received the money to buy my son, Joseph, a nice Xmas gift. It wasn’t much, but at least this coming Xmas my son will be getting a small gift from his true father.
* * * * * “You say in your letter that you have a part-time job and that Joseph is placed in a child care center, as to why you place him there I don’t know .... I’m sure that Sandra will take good care of him, why not give it a try. I rather have Joseph spend a half day with his brother and sister instead of being in a child care center where no one will show him love. So think about it and let me know.”
. The petition of amicus curiae suggesting that the appeal be dismissed as moot advises us that plaintiff was paroled on March 27, 1972, but it does not appear that this development was called to Judge Doyle’s attention before he made his ruling on April 6, 1972.
. Before a democratic society can effectuate drastic institutional changes, the community at large must be informed about the need for change. That there is inadequate public awareness of the nature of our penal system, and that the system as a whole needs to be changed dramatically, are propositions which correctional officials are not likely to challenge. (See, e. g., Reducing Crime and Assuring Justice, A Statement by the Research and Policy Committee, June 1972, Committee for Economic Development, at p. 40: “The entire correctional system is failing and in need of drastic reconstruction.”) If the reasons for our faith in the principles embodied in the First Amendment are valid, it is not unreasonable to infer that there is a causal connection between those two propositions.
. Wilkinson v. Skinner, 462 F.2d 670 (2d Cir. 1972); Nolan v. Fitzpatrick, 451 F.2d 545 (1st Cir. 1971). It is noteworthy that Pierce v. La Vallee, 293 F.2d 233 (2d Cir. 1961), which was decided on First Amendment rather than Equal Protection grounds, was cited with approval in Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030. See Cruz v. Beto, 405 U.S. 319, 321-322, 92 S.Ct. 1079, 31 L.Ed.2d 263. Although Mr. Justice Relinquist found no impermissible impairment of petitioner Cruz’s religious freedom, his analysis, like that of the majority, recognized that Cruz’s conviction and incarceration had not resulted in a total deprivation of the aspects of liberty protected by the First Amendment. See 405 U.S. at 324, 92 S.Ct. 1079. See, also, the cases cited by Judge Mansfield in Carothers v. Follette, 314 F.Supp. 1014, 1023-1024 (S.D.N.Y.1970).
. Subparagraph (b) provides :
“Limitations. The number of outgoing letters permitted each week shall be specified by the warden or superintendent.
The outgoing correspondence privilege may be withdrawn or restricted as a disciplinary or security measure.”
. The full text of subparagraph (c) is as follows:
“Mail Inspection. All incoming and outgoing mail for inmates shall be subject to institution inspection. If an inmate refuses to consent to inspection, he may be denied the privilege of correspondence.
All letters received for him may be returned to the sender with a proper notation or held for delivery to the inmate upon release or discharge.
“Letters to or from the Governor, Secretary of the Department of Health and Social Services, Administrator of the Division of Corrections and the members of the Health and Social Services Board are exempted from such inspection. Communications sent to these correspondents shall have the inmate’s name and number plainly written in the upper left hand corner of the envelope. Those letters received from the Secretary of the Department and Administrator of the Division will be initialed in the upper left hand corner of the envelope. In addition, inmates may send mail sealed and without inspection to the Justices of the Supreme Court of Wisconsin or to any Judge of a Court of original or competent jurisdiction.
“At the discretion of the warden, superintendent or designated official, the delivery or dispatch of any inmate correspondence, with the exceptions noted, may be withheld for reasons of propriety, security or the welfare of the institution or inmate. Such correspondence shall be disposed of as the warden or superintendent shall direct, having in mind the best interests of the inmate and the institution.”
. Subparagraph (a) provides:
“Approved Lists. Each inmate shall be permitted to correspond with approved persons named on the correspondence list prepared at the institution as soon as possible after the time of admission. The list of approved correspondents may be changed or revised with approval of the appropriate officer.”
. Historically, the value of carefully considered standards has been largely ignored in the corrections area because virtually all aspects of corrections were assumed to be committed to the complete discretion of executive appointees. Apparently for the first time in history, on August 23, 1972, the Association of State Correctional Ad-ininitrators adopted recommended uniform standards to guide institutional administrators and personnel. The recommended policy guidelines with respect to mail merit quotation in full:
“Correspondence with members of an inmate’s family, close friends, associates, and organizations is beneficial to the morale of all confined persons and may form the basis for good adjustment in the institution and in the community.
“Inmates should be permitted to send sealed letters to a specified class of persons and organizations. Mail to these persons from the inmates should not be opened. Mail from these persons to inmates may be opened for inspection for contraband only. The following persons should be included:
1. Judges of federal, state and local courts.
2. Officials of the confining authority.
3. Members of the paroling authority.
“Approved mail lists for general correspondence may be maintained.
“The criteria for approval of persons for general correspondence should be limited to the purposes of confinement and security of the institution. In general, all close relatives should be approved, anyone having legitimate business with the inmate may be approved, correspondence should not be limited solely on the basis of sex, existence of a criminal record should not, in and of itself, constitute a barrier to correspondence, and juveniles under the age of 18 years should have permission from parents before correspondence is allowed. Other correspondents may be permitted at the discretion of the institutional head.
“An inmate may make changes on his approved list. The number of approved correspondents should be unlimited, and there should be no limitation on the number of letters an inmate may send to or receive from them. Upon request, an individual may be removed from the inmate’s mailing list.
“All general correspondence, both incoming and outgoing, may be inspected.
“PUBLICATIONS:
“Institutions should allow inmates access to publications to the greatest degree consistent with institutional goals, internal discipline and security. Publications should be received by inmates only from *1349the publisher or distributor. In addition, institutions may subscribe to publications in sufficient quantity to give coverage in the institution and to provide for the diverse interests of the inmate population.
No publication should be prohibited solely on the basis of its appeal to a particular ethnic, racial or religious audience. As a general rule, however, institutions may restrict receipt of publications that constitute a danger of a breach of prison discipline or security, or some other substantial interference with the orderly administration of the institutions.”
. We must both respect the expertise of the correction officers who face these problems daily and also be on guard against the danger that the “rhetoric of rehabilitation” will obscure rather than identify constructive solutions to prison problems. In his illuminating paper on “The Prosaic Sources of Prison Violence,” Hans W. Mattick stated (at page 2) :
“Much more fundamental is a contradictory complex of utilitarian and religious ideas of 18th and 19th Century origin, which have been slowly debased into a melange of 20th Century ‘high school thought,’ and now serve as the basis for our penal policy. It is, for the most part, a policy of isolation and punishment, accompanied by the rhetoric of rehabilitation, which results in the chronic under-financing, inadequate staffing, deflected sexuality, and general lack of resources and poverty of imagination that characterizes our prisons and jails.”
. In Carothers, supra, for example, a letter to an inmate’s parent criticizing the competence of the prison staff served as the basis for punishment, see 314 F.Supp. at 1024-1026; consider also Wisconsin’s refusal to permit correspondence with the Veterans Administration as reflected in Thomas, supra.