with whom Judge BAUER joins, dissenting.
The original panel’s opinion was firmly rooted in the Supreme Court’s long-standing rule that a prison regulation infringing on an inmate’s constitutional rights is valid only if “it is reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). When a prisoner challenges a prison policy on constitutional grounds, the government must put forward a “legitimate” government interest to justify the restriction. Id. Suppressing speech because government officials find the content offensive is not a legitimate penological interest. Id. at 90, 107 S.Ct. 2254. The original panel concluded that David Paul Hammer presented evidence that created a question of material fact that the district court overlooked: is the jailhouse-celebrity concern articulated by the warden “legitimate,” or is it simply a convenient explanation to justify a policy designed to control the speech content of a particular subset of prisoners? Given the fact dispute, the original panel reached the limited—indeed, even pedestrian—conclusion that a trier of fact must resolve the conflict.
Today’s en banc opinion is almost entirely unmoored from the original panel’s narrow treatment of the issues presented in this appeal. With scarcely a reference to Turner, today’s opinion holds that a ban on face-to-face interviews in the prison system is justified if a judge can “imagine” a legitimate basis for its existence, glosses over facts regarding the application of the relevant policies, and concludes with the astonishing proposition that the government may limit a prisoner’s access to the media based on its distaste for the anticipated content of the prisoner’s speech. The en banc opinion thus authorizes the government to deny the public a chance to hear directly from prisoners who can offer a glimpse of situations that may embarrass the government, such as torture and prisoner abuse, by invoking pretexthal justifications for policies that are unrelated to security. For the reasons set forth in the original panel’s opinion, I dissent. I write separately only to memorialize my additional disagreement with the unexpected breadth of the en banc opinion.
Let me begin with the most troubling aspect of today’s opinion: the majority’s *806willingness to push aside Attorney General Ashcroft’s statement that “as an American who cares about our culture” and is “concerned about the irresponsible glamorization of a culture of violence,” he wanted to prevent death-row inmates, and only death-row inmates, from engaging in face-to-face interviews with the media on any subject. This rationale for censorship assumes that what death-row inmates have to say, if broadcast outside the prison, necessarily corrodes American culture. But First Amendment jurisprudence is grounded in the idea that the government may not prevent a person, including a prisoner, from speaking merely because it disapproves of the speaker or what the speaker might say. See, e.g., R.A.V. v. City of St. Paul, 505 U.S. 377, 382, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992) (noting that “content-based restrictions are presumptively invalid”); Turner, 482 U.S. at 90, 107 S.Ct. 2254 (stating that prison regulations that infringe on inmates’ First Amendment rights must operate “in a neutral fashion, without regard to the content of the expression”); Regan v. Time, Inc., 468 U.S. 641, 648-49, 104 S.Ct. 3262, 82 L.Ed.2d 487 (1984) (“Regulations that permit the Government to discriminate on the basis of the content of the message cannot be tolerated under the First Amendment.”). Indeed, this court has recognized that the government may not pass speech restrictions in an effort to preserve its own notions of valued American culture: See American Booksellers Ass’n, Inc. v. Hudnut, 771 F.2d 323, 330 (7th Cir.1985) (Easterbrook, J.). Yet Attorney General Ashcroft said publicly that preserving his version of American culture is exactly why the Bureau decided to limit death-row inmates’ access to the media.
Racial bigotry, anti-semitism, violence on television, reporters’ biases-these and many more influence the culture and shape our socialization. None is directly answerable by more speech, unless that speech too finds its place in the popular culture. Yet all is protected as speech, however insidious. Any other answer leaves the government in control of all of the institutions of culture, the great censor and director of which thoughts are good for us.
In order to circumvent this problem, the majority applies its own interpretive spin to Attorney General Ashcroft’s statements and decides that the Attorney General meant that “criminals should not be allowed to benefit from their deeds.” The majority thus concludes that Attorney General Ashcroft articulated a legitimate penological purpose to the interview ban because he saw restricting face-to-face interviews as a form of punishment or deterrence. But that is a question for a fact finder, who might reject this post-hoc rationalization and instead take Attorney General Ashcroft at his word and conclude that what actually “shaped” his mind in enacting the ban is his desire to prevent death-row prisoners from influencing our “culture.” That desire is not a legitimate penological purpose.
The majority’s comparison of this case to United States v. Benson, 561 F.3d 718 (7th Cir.2009), is unhelpful. In Benson we held that a convicted tax offender may not market materials that encourage other people to evade tax laws. Benson dealt with commercial speech, which occupies its own niche in First-Amendment jurisprudence, see Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York, 447 U.S. 557, 562-63, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980), and concluded that it is permissible to enjoin a person from making false statements in connection with the sale of a product, Benson, 561 F.3d at 725-26. Even accepting the majority’s assumption that Attorney General Ashcroft wanted to prevent inmates from encouraging violence, the parallel to Benson is un*807persuasive. Deceiving the public into buying a product designed to evade payment of required taxes is illegal, see 26 U.S.C. § 6700(a); advocating unpopular ideas is not, see Brandenburg v. Ohio, 395 U.S. 444, 448-49, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969).1
The original panel was also concerned that the Special Confinement Unit’s prohibition on face-to-face interviews does not leave sufficient alternatives for death-row inmates to access the media. Today’s opinion concludes that the alternatives are sufficient because death-row inmates have 15 minutes of telephone time each day that they can use to speak with reporters, and because they are entitled to unlimited correspondence. But the government concedes that death-row inmates are not allowed—through any method of communication—to discuss other inmates with members of the media. I am particularly troubled by this aspect of the policy because it may prevent inmates from reporting prison abuse. Under the current policies an inmate could be disciplined for informing the media—whether on the phone or by letter—that another inmate is being abused by a guard. When this concern was raised at the en banc argument, counsel for the defendants asserted that a victimized inmate could report the abuse himself. But that suggestion ignores the reality that any guard who abuses an inmate is likely to pressure his victim not to disclose the abuse, and such threats are particularly effective.
Today the majority brushes aside this concern, because “as far as [it] can tell,” the ban on talking about other inmates does not apply to written correspondence. It relies on a program statement that says that outgoing mail to the media is sent without inspection. But at the en banc argument, counsel for the defendants said that all mail sent by inmates at the Special Confinement Unit must be given to prison officials unsealed for inspection before it is mailed. When asked what would be the consequence to an inmate who sends a letter discussing another inmate, counsel for the government had no answer. Thus our original fears are unabated; on this record we cannot tell whether there is any satisfactory alternative for inmates at the Special Confinement Unit to give the media any information that involves other inmates.
Which leads to another concern that today’s opinion glosses over completely— Hammer was denied the opportunity to create a full record at the summary judgment stage. As discussed in the original opinion, the government moved for summary judgment before the close of discovery and only then responded to Hammer’s discovery requests by objecting to them. Hammer asked for a continuance to allow him to build an adequate record, but the district court did not rule on his motion before the deadline for his summary-judgment response. To avoid missing his deadline, Hammer was forced to respond without receiving any discovery from the defendants. Today’s opinion is quick to fill in the blanks itself in the face of ambiguity about the interests underlying the challenged policy. That is a task that may not have been necessary had Hammer had the chance to conduct proper discovery or if the district court had granted any of Hammer’s three requests for counsel.
The majority’s treatment of Hammer’s equal-protection argument is also untethered from the governing legal standard and the facts of this case. The majority assumes that the media ban applies to all *808inmates housed in the Special Confinement Unit and concludes that the policy-passes constitutional muster because the majority can “imagine a rational basis for distinguishing the nation’s most secure institutions from others.” But the parties agree that the media ban applies only to those members of the Special Confinement Unit who are under a death sentence. It is not, as the majority assumes, a unit-wide ban, as not all inmates at the Special Confinement Unit are death-row inmates. That distinction casts doubt on the legitimacy of the “jailhouse celebrity” concern articulated by the government because, as Hammer point out, it is irrational to distinguish among inmates based solely on their particular sentence. Under the policy as applied by the Bureau of Prisons, famous mafia members, leaders of violent drug gangs, and the former governor of Illinois may all meet face-to-face with the press. But an unknown inmate under a death sentence may not because, the Bureau says, such access could make them “jailhouse celebrities.” It is unclear why speaking in-person with a journalist would give an unknown death-row inmate more influence over other prisoners than would, for example, allowing Martha Stewart or George Ryan to give face-to-face interviews during their incarceration, which they would have been or are free to do under the Bureau’s policies. As the majority points out, distinguishing among inmates risks “engendering hostility and resentment among inmates who were refused interview privileges granted to their fellows.” See Saxbe v. Washington Post Co., 417 U.S. 843, 849, 94 S.Ct. 2811, 41 L.Ed.2d 514 (1974). Yet here the Bureau of Prisons applies the media ban in such a way as to risk the very dangers it says it wants to avoid.
Finally, the majority is concerned that a remand in this case could subject the former, and perhaps current, Attorney General to discovery, and that any demand for his testimony would rub up against United States v. Morgan, 313 U.S. 409, 61 S.Ct. 999, 85 L.Ed. 1429 (1941). The Morgan cases hold that an agency head should not be required in litigation to explain all of the considerations that went into a decision that was the result of formal rulemaking or a quasi judicial proceeding. Id. at 421-22, 61 S.Ct. 999. Administrative decisions must be judged based on the administrative record or evidence adduced by the parties. The Morgan principle is not offended here because the media ban was not the result of any formal agency process. On the contrary, there was neither notice nor a hearing before the media ban went into effect. Accordingly, even if on remand Hammer sought to depose Attorney General Ashcroft—who, after all, chose to speak publicly about the rationale behind the media ban—such scrutiny would not upset “the integrity of the administrative process.” Id.
I believe that in the rare circumstances where a prisoner submits evidence casting doubt on the legitimacy of the security rationale supposedly supporting a policy, he deserves to have the chance to create a full record to shed light on those circumstances, and ultimately, to have a trier of fact resolve disputes of fact. I stand by that holding, and accordingly, I dissent.
. Of course the government may regulate speech that amounts to incitement of violence, see Brandenburg, 395 U.S. at 447, 89 S.Ct. 1827, but not even today’s majority suggests that Ashcroft intended the media ban to target that category of speech.