Hammer v. Ashcroft

WOOD, Circuit Judge,

dissenting.

Although I agree with much of Judge Rovner’s dissent, I write separately in order to highlight my own concerns with the majority’s opinion. Briefly put, they are as follows: first, the record does not support certain key assumptions made in the majority’s opinion; second, and related to the first point, it was error to grant summary judgment in favor of the defendants without permitting the plaintiff, David Hammer, to develop the record properly; and third, the majority has erred by adopt*809ing a rule permitting wholesale censorship in prisons—one that goes much farther than anything the Supreme Court sanctioned in Pell v. Procunier, 417 U.S. 817 (1974), or Saxbe v. Washington Post Co., 417 U.S. 843, 94 S.Ct. 2811, 41 L.Ed.2d 514 (1974).

First, we must look at the record. Central to the majority’s analysis is the assumption that inmate “[cjorrespondence is unlimited; an inmate’s letters to reporters are not subject to inspection or censorship.” Ante at 800. In support of this proposition, the majority cites Bureau of Prisons (“BOP”) Program Statement (“PS”) 5265.11(17)(a) (July' 9, 1999). It then goes on to say that “[pjhone calls with reporters are subject to [PS] 1480.05(7)(d), which provides that ‘[a] representative of the news media may not obtain and use personal information from one inmate about another inmate who refuses to be interviewed.’ ” What the majority brushes over, however, is the fact that there is nothing in paragraph 7(d) of the Program Statement (or any other part of that Statement) that limits this restriction to information collected through telephone calls. In fact, materials in the record suggest strongly that the prohibition extends to all forms of communication. For example, the record includes a letter from Warden Lappin to a lawyer who published a news release that included statements that inmate Hammer made about other inmates. (Plaintiffs Appendix at A169.) The Warden’s letter rebukes the lawyer and informs him that 28 C.F.R. § 540.61(d) prohibits this publication. That regulation applies to all collection of information by the media, not just to telephone calls. Id. In a memorandum of December 22, 2000, from the Warden directly to Hammer, the Warden reprimands Hammer for providing information concerning other inmates “during a recent news media interview.” (Plaintiffs Appendix at A171.) The memorandum says nothing about the form the interview took. Two weeks later, in response to Hammer’s request for clarification, Warden Lappin replies “You are hereby ordered not to provide any information concerning other inmates during news media interviews, social calls, or correspondence with the media.” (Plaintiffs Appendix at A172; emphasis added.)

At oral argument before this court, counsel for the governmental defendants did not endorse the narrow rule that the majority has postulated. To the contrary, counsel said that all mail sent by inmates in the Special Confinement Unit (where Hammer is incarcerated) must be given to prison officials unsealed for inspection before it is mailed. Although this might seem to conflict with PS 5265.11(17)(a), which provides that properly identified and labeled correspondence from an inmate not on restricted mail status to qualifying representatives of the news media “shall be sealed and forwarded without inspection, directly and promptly,” that rule is not unqualified. Most importantly, mail from inmates on restricted special mail status is subject to inspection, and PS 5265.11(17) is expressly made subject to the Program Statement on News Media Contacts—that is, to PS 1480.05. The record does not establish whether Hammer was on restricted mail status, but it indicates that he may have been. (It would not surprise me if everyone in the Special Confinement Unit were subject to additional restrictions.) Furthermore, it is still necessary to reconcile 28 C.F.R. § 540.61(d), PS 5265.11(17), and PS 1480.05(7)(d). It seems most consistent with all of these materials (and consistent with both Warden Lappin’s interpretation and the government’s representation) to conclude that if a prisoner wrote a letter to a representative of the media that conveyed information about a fellow inmate, the letter would be confiscated. Without the linchpin provided by its assumption *810that correspondence is free, the majority’s rationale collapses.

This brings me to my second point— again one that Judge Rovner has also emphasized: Hammer was blocked completely from developing a record at the summary judgment stage. The government moved for summary judgment before the close of discovery and then refused to comply with Hammer’s requests. This left Hammer with little or nothing on which to rely when he attempted to oppose the summary judgment motion. The majority here sets up a straw man, claiming that the only thing that would suffice would be direct depositions of former Attorney General John Ashcroft, former Director of the BOP Kathleen Hawk-Sawyer, and former Warden of the U.S. Penitentiary at Terre Haute Harley Lappin, in which Hammer tried to unmask their “true” reason for the new rules. The majority is worried that such untrammeled discovery would be inconsistent with United States v. Morgan, 313 U.S. 409, 61 S.Ct. 999, 85 L.Ed. 1429 (1941), and PBGC v. LTV Corp., 496 U.S. 633, 110 S.Ct. 2668, 110 L.Ed.2d 579 (1990). Its concerns are misplaced. First, it is a mistake to lump all three defendants into the same group. As the Supreme Court’s recent decision in Ashcroft v. Iqbal, — U.S. -, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), underscores, it is one thing to acknowledge that a high official has knowledge of a particular policy, or even approves of it personally; it is quite another to plead that the official was personally responsible for a violation of constitutional rights. Here, the record already includes the public statements—-reproduced ante at 802—that former Attorney General Ashcroft made about the media ban. In my opinion, the district court could easily respect the policies animating Morgan and LTV simply by limiting to publicly available information (including whatever falls within the scope of the Freedom of Information Act) any further exploration of the Attorney General’s position.

It is by no means unprecedented to seek the deposition of the Director of the BOP or the warden of a particular prison. Once again, the district court would be in a position to decide whether such a measure was necessary, or if alternatives (including production of documents or answers to interrogatories; perhaps even depositions upon written questions) would suffice. Hammer has a right to explore whether the media ban was based upon legitimate penological concerns—in which case it is legal under the well-established standards of Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987)—or if it was instead designed to stifle speech because the authorities fear that the content will be unwelcome. The latter is, unfortunately, not beyond imagination. It is likely that the military authorities running the infamous Abu Ghraib prison would not have wanted the inmates talking to the media, either about their own experiences or those of their fellow prisoners (some of whom may have been too injured, or too intimidated, to speak for themselves). Closer to home, the sad but true fact is that abuse by prison guards or police has not been entirely abolished. One prisoner might want to write letters that are self-aggrandizing, just as the authorities feared, but another might want to alert the media to the fact that human rights abuses were occurring in a place like the Special Confinement Unit. Censorship of all avenues of communication—which, as I have said, is what this record shows—would be an all-too-effective way to prevent the public from ever learning about such problems.

That leads me to the final point, which is the one that Judge Rovner has emphasized: the First Amendment implications of the media ban. While I certainly agree *811with her that there is a potential First Amendment problem here, I see this case as a textbook example of the wisdom of the rule of constitutional avoidance. It seems elementary to me that before this court, or any court, should reach an important constitutional question, the record should be developed properly and we should know what we are talking about. That has not happened in this case. The majority has filled in the gaps with speculation, both about possible loopholes that might make written correspondence an adequate outlet for prisoners despite the media rule, and about possible penological justifications for the rule. This is not the way that we should approach a question as important as the balance between First Amendment rights of prisoners—which Turner recognizes are not forfeited entirely—and the critical job of prison officials to ensure security and safety within the prison walls. It is worth noting, however, that neither Pell nor Washington Post approved a total ban on contact with the media. To the contrary, Pell relied on the existence of “alternative methods of communication that are open to prison inmates,” 417 U.S. at 827, 94 S.Ct. 2800, and Washington Post made clear that “members of the press are accorded substantial access to the federal prisons in order to observe and report the conditions they find there,” 417 U.S. at 847, 94 S.Ct. 2811. Washington Post mentioned specifically the fact that “[ojutgoing correspondence from inmates to press representatives is neither censored nor inspected.” Id. To the extent that the majority’s opinion has swept away the need to show adequate alternative avenues for communication, it has, in my view, overstepped an important boundary that the Court has drawn.

As the original panel opinion did, I would therefore reverse the grant of summary judgment and remand this case to the district court for further proceedings, along the lines I have outlined here. I therefore respectfully dissent.