(dissenting).
I respectfully dissent.
This case, involving First Amendment rights of state prisoners, was dismissed by the district court without requiring a responsive pleading from prison authorities. Unless the prisoners’ pro se pleading can be deemed frivolous, the district court’s summary dismissal is contrary to the principle of Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652, 653 (1972), and the prior mandated policy of this court. See Brown v. Hartness, 485 F.2d 238 (8th Cir. 1973); Jones v. Lockhart, 484 F.2d 1192, 1193 (8th Cir. 1973). In Brown we stated:
[W]e think that allegations smacking of First Amendment deprivation are sufficient to call for the offering of supporting evidence.
485 F.2d at 239.
The pleadings demonstrate that the prisoners’ claim is far from frivolous. The majority opinion recognizes that “[ajssuming these materials are not obscene, non-prisoners would clearly have a right to receive the publications,” under Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969). Slip Op. p. 761. Thus, the only possible rationale for banning a prisoner from reading this material on this record is the prison officials’ conclusory allegation that the material would be detrimental to rehabilitation. At the very least the complaint places this question in issue, so the district court’s summary dismissal can only be sustained if federal courts are bound by the judgment of prison officials. The majority’s decision that the federal courts are so bound is a retreat to the archaic “hands off” doctrine and the abandoned idea that prisoners’ constitutional rights deserve little or no protection from arbitrary action of prison officials. Equally significant, however, is the callous disregard of the First Amendment rights of all individuals to receive information and ideas.
It is not a sufficient justification for prior restraint that these publications relate to sexual matters. In Roth v. United States, 354 U.S. 476, 487, 77 S.Ct. 1304, 1310, 1 L.Ed.2d 1498, 1508 (1957), the Supreme *764Court observed that “sex and obscenity are not synonymous.” Unless the material is legally obscene, which can be determined only by the court after viewing the material,1 no rule allows a court to take judicial notice that such material is, as a matter of law, inimical to rehabilitation. Yet this is the effect of our holding today.
I agree that courts should show deference to the expertise and judgment of prison officials in the administration of prison affairs. Nevertheless, I had assumed that when basic constitutional rights were involved, it was settled law that courts would not abdicate their responsibility to investigate, upon complaint, whether those rights were being violated. See Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974); Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974); Teterud v. Burns, 522 F.2d 357 (8th Cir. 1975).
Prison officials should be required to demonstrate by substantial evidence that the challenged material will have a detrimental effect upon rehabilitation efforts. I cannot accept their naked assertion that it does. Such unsupported acceptance is in derogation of the Supreme Court’s holding in Martinez that First Amendment rights are not dependent upon the personal prejudices of prison officials. Similarly, the decision is contrary to Teterud v. Burns, 522 F.2d 357 (8th Cir. 1975), where this court invalidated a prison rule against long hair. We held that prison officials had not supported by evidence their contention that long hair was detrimental to security and thus that the rule must yield to the First Amendment freedom of religion of Indian prisoners.
In Procunier v. Martinez, 416 U.S. 396, 413-14, 94 S.Ct. at 1811, 40 L.Ed.2d at 240 (1974) the Supreme Court suggests that before a prisoner’s First Amendment rights may be circumscribed, it is the duty of prison officials to demonstrate that no less restrictive means will safeguard legitimate institutional interests. Illustrative in the present case is a reason given by the prison board for rejecting the material: “If the book were released to the inmate, it would not remain in the private library of the inmate.” There is no showing that no less restrictive means could protect the legitimate needs of prison administration. If it could be shown that this material would indeed have an adverse effect upon prisoners other than the addressee, then prison officials could order confiscation if and when the addressee attempted to circulate it to the others. Another alternative might be to require the book to be used only in the prison library. Other similar measures might be feasible.
In Rinehart v. Brewer, 491 F.2d 705 (8th Cir. 1974), I observed:
If these men, who have obviously found it difficult to live within society’s mores, are ever to enjoy life within the law they must learn self control and discipline in an atmosphere where self respect is maintained and the human personality allowed to flourish. This cannot be achieved while the state pursues a policy which requires conformity beyond need.
491 F.2d at 707 (dissenting opinion).
If the material is obscene, it can of course be banned from circulation. However, this decision is one for the court, not the prison officials. No decision holds that nonobscene publications may be subject to prior restraint by prison officials without meeting the standards imposed by Martinez. In fact all decided cases reach a contrary result. See Gaugh v. Schmidt, 498 F.2d 10 (7th Cir. 1974); Hopkins v. Collins, 411 F.Supp. 831, 18 Crim.L.R. 2318 (D.Md.1975); Aikens v. Lash, 390 F.Supp. 663 (N.D.Ind.), modified on other grounds, 514 F.2d 55 (7th Cir. 1975), petition for cert. filed, 44 U.S.L.W. 3122 (U.S. Sept. 9, 1975) (No. 75-35); McCleary v. Kelly, 376 F.Supp. 1186 (M.D.Pa.1974); Gray v. Creamer, 376 F.Supp. 675 (W.D.Pa.1974).
This observation is apropos here, where we accept circumvention of First Amendment rights based on conclusory assertions of need.
*765I would reverse and remand for an inquiry into the bases of the prison censorship board’s judgment that the challenged material is detrimental to rehabilitation efforts and that total censorship is the least restrictive means of alleviating the problem.
. “A reviewing court must, of necessity, look at the context of the material, as well as its content.” Kois v. Wisconsin, 408 U.S. 229, 231, 92 S.Ct. 2245, 2246, 33 L.Ed.2d 312, 315 (1972).