Procunier v. Martinez

416 U.S. 396, 94 S. Ct. 1800, 40 L. Ed. 2d 224, 1974 U.S. LEXIS 132, 71 Ohio Op. 2d 139

Opinions

Mr. Justice Powell

delivered- the opinion of the ' Court.

This case concerns the constitutionality of certain regulations promulgated by appellant Procunier in his. capacity as Director of the California Department of Corrections. Appellees brought a class action on behalf of themselves and. all other inmates of penal institutions under the Department’s jurisdiction to challenge the rules relating to censorship of prisoner mail and the ban against the use of law' student's and legal paraprofessionals to conduct attorney-client, interviews with inmates. Pursuant to 28 U. S. C. § 2281 a three-judge United States District Court was convened to hear appellees’ request for declaratory and injunctive relief. That court entered summary judgment enjoining continued enforcement of the rules in question and ordering appellants to submit new regulations for the court’s approval. 354 F. Supp. 1092 (ND Cal. 1973). Appellants’ first revisions resulted in counterproposals by appellees.and a court order issued May 30, 1973, requiring further modification of the proposed rules. The second set of revised regulations was approved by the District Court on July 20, 1973, over appellees’ objections. While the first proposed revisions of the Department’s regulations were pending before the District Court, appellants brought this appeal to contest that court’s decision holding the original regulations unconstitutional.

We noted probable jurisdiction. 412 U. S. 948 (1973). We affirm.

I

- First we consider the constitutionality of the Director’s rules restricting the personal correspondence of prison inmates. Under • these regulations, correspondence between inmates of California penal institutions and persons other than licensed attorneys and holders of public office was censored for nonconformity to certain standards. Rule 2401 stated the Department’s general premise that personal correspondence by prisoners is “a privilege, not a right . . . .”¹ More detailed regulations implemented the Department’s policy. Rule 1201 directed inmates not to write letters in which they “unduly complain” or “magnify grievances.” ² Rule 1205 (d) defined as contraband writings “expressing inflammatory political', racial, religious or other views or beliefs . ...”³ Finally, Rule 2402 (8) provided that inmates “may not send or receive letters that pertain to criminal activity; are lewd, obscene, or defamatory; contain foreign matter, or are otherwise inappropriate.”⁴

Prison employees screened both incoming and outgoing personal mail for violations of these regulations. No further criteria were provided to help members' of the mailroom staff decide' whether a particular letter contravened any prison rule or policy. When a prison employee found a letter objectionable, he could take one or more of the following actions: (1) refuse to mail or deliver the letter and return it to the author; (2) submit a disciplinary report, which could lead to suspension of mail privileges, or other sanctions; or (3) place a copy of the letter or a summary of its contents in the prisoner’s file, where it might be a factor in determining the inmate’s work and housing assignments and in setting a date for parole eligibility.

The District Court held that the regulations relating to prisoner mail authorized censorship of protected expression without adequate justification in violation of the First Amendment and that they were void for vagueness. The. court also noted that the regulations failed to provide minimum procedural safeguards against error and arbitrariness in the censorship of inmate correspondence. Consequently, it enjoined their continued enforcement.

Appellants contended that the District Court should have abstained from deciding these questions. In that court appellants advanced no reason for abstention other than the assertion that the federal court should defer to the California courts on the basis of comity. The District Court properly rejected this suggestion, noting’ that the mere possibility that a state court might declare the prison regulations unconstitutional is no ground for abstention. Wisconsin v. Constantineau, 400 U. S. 433, 439 (1971).

Appellants now contend that we should vacate the judgment and remand the case to the District Court with instructions to abstain on the basis of two arguments not presented to it. First, they contend that any vagueness challenge to an uninterpreted state statute or regulation is a proper case for abstention. According to appellants, “[t]he very statement'by the district court that the regulations are vague constitutes a compelling reason for abstention.” Brief for Appellants 8-9. As this Court made plain in Baggett v. Bullitt, 377 U. S. 360 (1964), however, not every vagueness challenge to an uninterpreted state statute or regulation constitutes a proper case for abstention.⁵ But we need- not decide whether appellants’ contention is controlled by the analysis in Baggett, for the short answer to their argument is that these regulations were neither challenged nor invalidated solely on the ground of vagueness. Appellees also asserted, and the District Court found, that the rules relating to prisoner mail permitted censorship of constitutionally protected expression without adequate justification. In light of the successful First Amendment attack on these regulations, the District Court’s conclusion that they were also unconstitutionally vague hardly “constitutes a compelling reason for abstention.”

As a second ground for abstention appellants rely on Cal. Penal Code § 2600 (4), which assures prisoners the right to receive books, magazines, and periodicals.⁶ Although they did not advance this argument to- the District Court, appellants now contend that the interpretation of the .statute by the state courts and its application to the regulations governing prisoner mail might avoid or modify the constitutional questions decided below. Thus appellants seek to establish the essential prerequisite for .abstention — “an uncertain issue of state law,” the resolution of which may eliminate or materially alter the federal constitutional question.⁷ Harman v. Forssenius, 380 U. S. 528, 534 (1965). We are not persuaded.

A state court interpretation of § 2600 (4) would not avoid or substantially modify the constitutional question presented here. That statute does not contain any provision purporting to regulate censorship of personal correspondence. It only preserves the right of inmates to receive “newspapers, periodicals, and books” and authorizes prison officials to exclude “obscene publications or writings, and mail containing information concerning where, how, or from whom such matter may' be ob-. tained . . (emphasis added). And the plain meaning of the language is reinforced by recent legislative history. In 1972, a bill was introduced in the California Legislan ture to restrict censorship of personal correspondence by adding an entirely, new subsection to § 2600. The legislature passed the bill, but it was vetoed by Governor Reagan. In light of this history, we think it plain that no reasonable interpretation of § 2600 (4) would avoid or modify the federal constitutional question decided below. Moreover, we are mindful of the high cost of abstention when the federal constitutional challenge concerns facial repugnance to the First Amendment. Zwickler v. Koota, 389 U. S. 241, 252 (1967); Baggett v. Bullitt, 377 U. S., at 379. We therefore proceed to the merits.

A

Traditionally, federal courts have adopted a broad hands-off attitude toward problems of prison administration. In part this policy is the product of various limitations on the scope of federal review of conditions in state penal institutions.⁸ More fundamentally, this attitude springs from complementary perceptions about the nature of the problems and the efficacy of judicial intervention. Prison administrators are responsible for maintaining-internal order and discipline, for securing their institutions against unauthorized access or escape, and for rehabilitating, to the extent that human nature and inadequate resources allow, the inmates placed in their custody. The Herculean obstacles to effective discharge of these duties are too apparent to warrant explication. Suffice it to say that the problems of prisons in America are complex and intractable, and, more to the point, they are not readily susceptibly of resolution by decree. Most require expertise, comprehensive' planning, and the commitment of resources, all of which are peculiarly within .the province. of the legislative and executive branches of .''government. For all of those reasons, courts are ill equipped to deal with the increasingly urgent problems of prison administration and reform.⁹ Judicial recognition of that fact reflects no more than a healthy sense of realism. Moreover, where state penal institutions are involved, federal courts have a further reason for deference to the appropriate prison authorities. ,

But a policy of judicial restraint cannot encompass any failure to take cognizance of valid constitutional claims whether arising in a federal or státe institution. When a .prison regulation or practice offends á fundamental constitutional guarantee, federal courts will discharge their duty to protect constitutional rights. Johnson v. Avery, 393 U. S. 483, 486 (1969). This is such a case. Although the District Court found the regulations relating to prisoner mail deficient in several respects, the first and principal basis for its decision was the constitutional, command of the First Amendment, as applied to the States by the Fourteenth Amendment.¹⁰.

The issue before us is the. appropriate standard of review for prison regulations restricting fr.eedom of speech. This Court has not previously addressed this question, and the tension between the traditional policy of judicial restraint regarding prisoner complaints and the need to protect constitutional rights has led the' federal courts to adopt a variety of widely inconsistent approaches to the problem. Some have maintained a hands-off posture in the face of constitutional challenges to censorship' of prisoner mail. E. g., McCloskey v. Maryland, 337 F. 2d 72 (CA4 1964); Lee v. Tahash, 352 F. 2d 970 (CA8 1965) (except insofar as mail censorship rules are applied to discriminate against a particular racial or religious group); Krupnick v. Crouse, 366 F. 2d 851 (CA10 1966); Pope v. Daggett, 350 F. 2d 296 (CA10 1965). Another, has required only that censorship of personal correspondence not lack support “in any rational and constitutionally- acceptable concept of a prison system.” Sostre v. McGinnis, 442 F. 2d 178, 199 (CA2 1971), cert. denied sub nom. Oswald v. Sostre, 405 U. S. 978 (1972). At the other extreme some courts have- been willing tp require demonstration of a “compelling state interest” to justify censorship of' prisoner mail. E. g., Jackson v. Godwin, 400 F. 2d 529 (CA5 1968) (decided on both equal protection and First Amendment grounds); Morales v. Schmidt, 340 F. Supp. 544 (WD Wis. 1972); Fortune Society v. McGinnis, 319 F. Supp. 901. (SDNY 1970). Other .courts phrase the standard in similarly demanding terms of “clear and present danger.” E. g., Wilkinson v. Skinner, 462 F. 2d 670, 672-673 (CA2 1972). And.there are various intermediate positions, most notably the view that a “regulation or practice which restricts the right of Tree expression that a prisoner would have enjoyed if he had not been imprisoned must be related both reasonably and necessarily. to the advancement of some justifiable purpose.” E. g., Carothers v. Follette, 314 F. Supp. 1014, 1024 (SDNY 1970) (citations omitted). See also Gates v. Collier, 349 F. Supp. 881, 896 (ND Miss. 1972); LeMon v. Zelker, 358 F. Supp. 554 (SDNY 1972).

This array , of disparate approaches áríd the absence of any generally accepted standard for testing the constitutionality of prisoner mail censorship regulations disserye both the' competing interests at stake. On the one hand, the First' Amendment interests implicated by censorship of inmate • correspondence are given only haphazard and inconsistent protection. On the other, the uncertainty of the constitutional standard makes it impossible for correctional officials to anticipate what is required of them and invites repetitive, piecemeal litigation on behalf of inmates. The result has been unnecessarily ,to perpetuate the involvement of the federal courts in ■ affairs of prison administration. Our task is to formulate a standard of review for prisoner mail censorship .that will be responsive to these concerns.

B

We begin our analysis of the proper standard of review for constitutional challenges to censorship of prisoner mail, with a somewhat different premise from that taken by the other federal courts that have considered the question. For the most part, these courts have dealt with challenges to censorship of prisoner mail as involving broad questions of “prisoners’ rights.” This case is no exception. The District Court stated the issue in general terms as “the applicability of First Amendment rights to prison inmates . . . ,” 354 F. Supp., at 1096, and the arguments of the parties reflect the assumption that the resolution of this case requires an assessment of the extent to which prisoners may claim First Amendment freedoms. In our view this inquiry is unnecessary. In determining the proper standard of review for prison restrictions on inmate correspondence, we have no occasion to consider the extent to which an individual’s right to free speech survives incarceration, for a narrower basis of decision is at hand. In the case of direct personal correspondence between inmates and those who have a particularized interest in communicating with them,¹¹ mail censorship implicates' more than the right of prisoners.

Communication by letter is not accomplished by the act of writing words on paper. Rather, it is effected only when the letter is read by the addressee. Both parties to the correspondence have an interest in securing that result, and censorship of the communication between them necessarily impinges on the interest of each. Whatever the status of a prisoner’s claim to uncensored correspondence with an -outsider, it is plain that the latter’s interest is grounded in the First Amendment’s, guarantee of freedom of speech. And this does not depend .on whether the nonprisoner correspondent is the author or intended recipient of a particular letter, for the addressee as well as the sender of direct personal correspondence derives from the First and Fourteenth Amendments a protection against unjustified governmental interference with the intended communication. Lamont v. Postmaster General, 381 U. S. 301 (1965); accord, Kleindienst v. Mandel, 408 U. S. 753, 762-765 (1972); Martin v. City of Struthers, 319 U. S. 141, 143 (1943). We do not deal here with difficult questions of the so-called “right to hear” and third-party standing but with a particular means of communication ■ in which the interests of both parties.are inextricably meshed. The wife of a prison inmate who is not permitted to read all' that her husband wanted to say to her has suffered an abridgment of her interest in communicating with him as plain as that which results from censorship of her letter to him. In either event, censorship of prisoner mail works a consequential restriction on the First and Fourteenth Amendments rights of those who are not prisoners.

Accordingly, we reject any attempt to justify censorship of inmate correspondence merely by reference to Certain assumptions about the legal status of prisoners. Into this category of argument falls appellants’ contention that “an inmate’s rights with reference to social correspondence are something fundamentally different than those enjoyed by his free brother.” Brief for Appellants 19. This line of argument and the undemanding standard of review it is intended to support fail to recognize that the First Amendment liberties of free citizens are implicated in censorship of prisoner mail. We therefore turn for guidance, not to cases involving questions of “prisoners’ rights,” but to decisions of this Court dealing with the general problem of incidental restrictions on First Amendment liberties imposed in furtherance of legitimate governmental activities.

As the Court noted in Tinker v. Des Moines School District, 393 U. S. 503, 506 (1969), First Amendment guarantees must be “applied in light of the special characteristics of the . . . environment.” Tinker concerned the interplay between the right -to freedom of speech , of public high school students and “the need for affirming the comprehensive authority of the States and of school officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools.” Id., at 507. In overruling a school regulation prohibiting .the wearing of antiwar armbands, the Court undertook a careful analysis of the legitimate requirements of orderly school administration in order to ensure that the students were afforded maximum freedom of speech consistent with those requirements. The same approach was followed in Healy v. James, 408 U. S. 169 (1972), where the Court considered the refusal of a state college to grant official recognition to a group of students who wished to organize a local chapter of the Students for a Democratic Society (SDS), a national student organization noted for political activism and campus disruption.. The Court found that neither the identification of the local student group with the national SDS, nor the purportedly dangerous political philosophy of the local group, nor the college administration’s fear of future, unspecified disruptive activities by the students could justify the incursion on the right of free association. ' The Court also found, however, that this right could be limited if necessary to prevent campus disruption, id., at 189-190, n. 20, and remanded the case for determination of whether the students had in fact refused to accept reasonable regulations governing student conduct.

In United States v. O’Brien, 391 U. S. 367 (1968), the Court dealt with incidental restrictions on free speech occasioned by the exercise of the governmental power to conscript men for military service. O’Brien had burned his Selective Service registration certificate on the steps of a courthouse in order to dramatize his opposition to the draft and to our country’s involvement in Vietnam. He was convicted of violating a provision of the Selective Service law that had recently been amended to prohibit knowing destruction or mutilation of registration certificates. O’Brien argued that the purpose and effect of the amendment were to abridge free expression and that the statutory provision was therefore unconstitutional, both as enacted and as applied to him. Although O’Brien’s activity involved “conduct” rather than pure “speech,” the Court did not define away the First Amendment concern, and neither did it rule that the presence- of a communicative intent necessarily rendered O’Brien’s actions -immune to governmental regulation. Instead, it enunciated the following four-part test:

“[A] government regulation is sufficiently justified .if.it is within the constitutional power of the Government; if it furthers an .important or substantial governmental interest; if the governmental interest is unrelated to the suppression,of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest/’ Id., at 377'.

Of course, none of these precedents directly, controls the instant case. In O’Brien the Court considered a federal statute which on its face prohibited certain conduct having no necessary connection with freedom of speech. This led the Court to differentiate between “speech” and “nonspeech” elements of a single course of conduct, a distinction that has little relevance here. Both Tinker and Heady concerned First and Fourteenth Amendment liberties in the context of state educational institutions, a circumstance involving rather different governmental interests than are at. stake here. In broader terms,' however, these precedents involved incidental restrictions on First Amendment liberties by governmental action in furtherance of legitimate and substantial state interest other than suppression of expression. In this sense these cases aré generally analogous to our present inquiry.

' The case at hand arises in the context of prisons. One of. the primary functions of government is the preservation of societal order through enforcement of the criminal íaw, and th.e maintenance of penal institutions is an essential part of that task. The identifiable governmental interests at stake in this task are the preservation of internal order and discipline,¹² the maintenance of institutional security against escape or unauthorized entry, and the rehabilitation of the prisoners. While the weightof professional opinion, seems to be that inmate freedom to correspond with outsiders advances rather than retards the goal of rehabilitation,¹³ the legitimate governmental interest in the order and security of penal institutions justifies the imposition of certain restraints on inmate correspondence. Perhaps the most obvious example of justifiable censorship of prisoner mail would be refusal to send or deliver letters concerning escape plans or containing other information concerning proposed criminal activity, whether within or without the prison. Similarly, prison officials may properly refuse to transmit encoded messages. Other less obvious possibilities come to mind, but it is not our purpose to survey the range of circumstances in which particular restrictions on prisoner mail might be warranted by the legitimate demands of prison administration as they exist from time to time in the various kinds of ,penal institutions found in this country. Our. task is to determine the proper, standard for deciding whether a particular regulation or practice relating to inmate correspondence constitutes an impermissible restraint of First Amendment liberties.

Applying the teachings of our prior decisions to the instant context, we hold that censorship of prisoner mail is .justified if the following criteria are met. First, the regulation or practice in question must further an important or substantial governmental interest unrelated to the suppression of expression. Prison officials may not censor inmate correspondence simply to eliminate unflattering or unwelcome opinions or factually inaccurate statements. Rather, they must show that a regulation authorizing mail censorship furthers one or more of the substantial governmental interests of security, order, and rehabilitation. Second, the limitation of First Amendment freedoms must be no greater than is necessary or essential to the protection of the particular governmental interest involved. Thus a restriction on inmate correspondence that furthers an important or substantial interest of penal administration will nevertheless be invalid if its sweep is unnecessarily broad. This does not mean, of course, that, prison administrators may be required to show with certainty that adverse consequences would flow from the failure to censor a particular letter. Some latitude in anticipating the probable consequences of allowing certain speech in a prison environment is essential to the proper discharge of an administrator’s duty. But any regulation or practice that restricts inmate correspondence must be generally necessary to protect one or more of the legitimate governmental interests identified above.¹⁴

c

On the basis of this standard, we affirm the judgment of the District Court. The regulations invalidated by that court authorized, inter alia, censorship of statements that “unduly complain” or “magnify grievances,” expression of “inflammatory political, racial, religious or other views,” and matter deemed “defamatory” or “otherwise inappropriate.” These regulations fairly invited prison officials and employees to apply their own personal prejudices and opinions as standards for prisoner mail censorship. Not surprisingly, some prison officials used the extraordinary latitude for discretion authorized by the regulations to suppress unwelcome criticism. For ex.ample, at one institution under the Department’s jurisdiction, the checklist used by the maiboom staff authorized rejection of letters “criticizing policy, rules or officials,” and the maiboom sergeant stated in a deposition that he would reject as “defamatory” letters “belittling staff or our judicial system or anything connected with Department of Corrections.” • Correspondence was also censored for “disrespectful comments,” “derogatory remarks,” and the like.

Appellants have failed to show that these broad restrictions on prisoner mail were in any way necessary to the furtherance of a governmental interest unrelated to the suppression of expression. Indeed, the heart of appellants’ position is not that the regulations are justified by a legitimate governmental interest but that they do not need to be. This misconception is not only stated affirmatively; it also• underlies appellants’ discussion of the particular regulations under attack. For example, appellants’ sole defense of the prohibition against matter that is “defamatory” or “otherwise inappropriate” is that ■it is “within the discretion of the prison administrators.” Brief for Appellants 21. Appellants contend that statements that “magnify grievances” or “unduly complain” are. censored “as a precaution against flash riots and in the' ' furtherance of inmate rehabilitatipn.” Id., at 22. But they do not suggest how the magnification of grievances or undue complaining,, which presumably. occurs in outgoing letters, could .possibly lead to flash riots, nor do they specify what contribution the-suppression of complaints makes to the rehabilitation of criminals. And appellants defend the ban against “inflammatory political, racial, religious or other views” on the ground that “[s]uch matter clearly presents a danger to prison security . . . Id., at 21. The regulation, however, is not narrowly drawn to reach only material that might be thought to encourage violence nor is its application limited to incoming letters. In short, the Department’s regulations authorized censorship of prisoner mail far broader than any legitimate interest of penal administration demands ¿nd were properly found invalid by the District Court.¹⁵

D

We also agree with the District Court that the decision to censor or withhold délivery of a particular letter must be accompanied by minimum procedural safeguards. The interest of prisoners and their correspondents in uncensored communication by letter, grounded as it is in the First Amendment, is plainly a “liberty” interest within the meaning of the Fourteenth Amendment even' though qualified of necessity by the circumstance of imprisonment. As such, it-is protected from arbitrary governmental invasion. See Board of Regents v. Roth, 408 U. S. 564 (1972); Perry v. Sindermann, 408 U. S. 593 (1972). The District Court required that an inmate be notified of the rejection of a letter written by or addressed to him, that the author of that letter be given a reasonable opportunity to protest that decision, and that complaints be referred to a prison official other than the person who originally disapproved the correspondence. These requirements do not appear to be unduly burdensome, nor do appellants so contend. Accordingly, we affirm the judgment of the District Court with respect to the Department’s regulations relating to prisoner mail.

II

The District Court' also enjoined continued enforcement of Administrative Rule MV-IV-02, which provides in pertinent part:

“Investigators for an attorney-of-record will be confined-to not more than two. Such investigators must be licensed by the State or must be members of the State Bar. Designation must be made in writing by the Attorney.”

By restricting access to prisoners to members of the bar and licensed private investigators, this regulation imposed an absolute ban on the use by attorneys of law students and legal paraprofessionals to interview inmate clients. In fact, attorneys could not even, delegate to such persons the task of obtaining prisoners’ signatures on legal documents. The District Court reasoned that this rule constituted an unjustifiable restriction on the right of access to the courts. We agree.

The' constitutional guarantee of due process of law has as a corollary the requirement that prisoners be afforded access to the courts in order to challenge unlawful convictions and to seek redress for violations of their constitutional rights. This means that inmates must have a reasonable opportunity to seek and receive the assistance of attorneys. Regulations and practices that unjustifiably obstruct the availability of professional representation or other aspects of the right of access to the courts are invalid. Ex parte Hull, 312 U. S. 546 (1941).

The District Court found that the rule restricting attorney-client interviews to members of the bar and licensed private investigators inhibited adequate professional representation of indigent inmates. The remoteness of many California penal institutions makes a personal visit to an inmate client a time-consuming undertaking. The court reasoned that the ban against the use of law students or other paraprofessionals for attorney-client interviews would deter some lawyers from representing prisoners who could not afford to pay for their traveling time or that of licensed private investigators. And those lawyers who agreed to do so would waste time that might be employed more efficaciously in working, on the inmates’ legal problems. Allowing law students and paraprofessionals to interview inmates might well reduce the cost of legal representation for prisoners. The District Court therefore concluded that the régulation imposed a substantial burden on the right of access to the courts.

As the District Court recognized, this conclusion does not end the inquiry, for prison administrators are not required to adopt every proposal that may be thought to facilitate prisoner access to the courts. The extent to which that right is burdened by a particular regulation or practice must be weighed against the legitimate interests of penal administration, and the proper regard that judges should give to the expertise and discretionary authority of correctional officials. In this case the ban against the use of law students and other paraprofes-. sional personnel was absolute. Its prohibition was not limited to prospective interviewers who posed some color-able threat to security or to those inmates thought to be especially dangerous. Nor was it shown that a less restrictive regulation would unduly burden the administrative task of screening and monitoring visitors.

Appellants’ enforcement of the regulation in question also created an arbitrary distinction between law students employed by practicing attorneys, and those associated with law school programs providing legal assistance to prisoners.¹⁶ While the Department flatly prohibited interviews of any sort by law students working for attorneys, it freely allowed participants of a number of law school programs to enter the prisons and meet with inmates. These largely unsupervised students were admitted without any security check other than verification of their enrollment in a school program. Of course, the fact that appellants have allowed some persons to conduct attorney-client interviews with prisoners does not mean that they are required to admit others, but the arbitrariness of the distinction between the two categories of law students does reveal the absence of any real justification for the sweeping prohibition of Administrative Rule MV-IV-02. We cannot say that the District Court erred in invalidating this regulation.

This result is mandated by our decision in Johnson v. Avery, 393 U. S. 483 (1969). There the Court struck down a prison regulation prohibiting any inmate from advising or assisting another in the preparation of legal documents. Given the inadequacy of alternative sources of legal assistance, the rule had the effect of denying to illiterate or poorly educated inmates any opportunity to vindicate possibly valid constitutional claims;. The Court found that the regulation impermissibly burdened the right of access to the courts despite the not insignificant state interest in preventing the establishment of personal power structures by unscrupulous jailhouse lawyers and the attendant problems of prison discipline that follow. The countervailing state interest in Johnson is, if anything, more persuasive than any interest advanced by appellants in the instant case.

The judgment is

Affirmed.

1 Director’s Rule 2401 provided:

“The sending and receiving of mail is a privilege, not a right, and any violation of the rules governing mail privileges either by you or by your correspondents may cause suspension of the mail privileges.”

2 Director’s Rule 1201 provided:

“INMATE BEHAVIOR: Always conduct yourself in an orderly manner. Do not fight or take part in horseplay or physical encounters except as part of the regular athletic program. Do not agitate, unduly complain, magnify grievances, or behave in any way which might lead to violence.” ••

It is undisputed that the phrases “unduly complain” and "magnify grievances” were applied to personal correspondence.

3 Director’s Rule 1205 provided:

“The following is contraband:

“d. Any writings or voice recordings expressing inflammatory political, racial, religious or other views or beliefs when not in the immediate possession, of the originator, or when the originator’s possession is used to subvert prison discipline by display or circulation.”

Rule 1205 also provides that writings ’ “not defined as contraband under this rule, but which, if circulated among other inmates, would in the judgment of the warden or superintendent tend to subvert prison order, or discipline, may be placed in the inmate’s property, to which he shall have accfes under supervision.”

4 At the time of appellees’ amended complaint, Rule 2402 (8) included prohibitions against “prison gossip or discussion of other inmates.” Before the first opinion of the District Court, these provisions were deleted, and the phrase “contain foreign matter” was substituted in their stead.

5 In Baggett the Court considered the constitutionality of loyalty oaths required of certain state employees as a condition of employment.- For the purpose of applying the doctrine of abstention the Court distinguisherhbetween two kinds of vagueness attacks. Where the case turns on the-applicability of a state statute or regulation to a particular person of a defined course of conduct, resolution of the unsettled question of state law may eliminate any need for constitutional adjudication. 377 U. S., at 376-377. Abstention is therefore appropriate. Where, however, as in this case, the statute or regulation is challenged as vague because individuals to whom it plainly applies simply cannot understand what is required of them and do not wish to forswear all activity arguably within the scope of the vague terms, abstention is not required. Id., at 378. In such a case no single adjudication by a state court could eliminate the constitutional difficulty. Rather it would require “extensive adjudications, under the impact of a variety of factual situations,” to bring the challenged statute or regulation “within the bounds of permissible constitutional certainty.” Ibid!

6 Cal. Penal Code §2600 provides that “[a] sentence of imprisonment in. a state prison for. any term suspends all the civil rights of .the person so sentenced . . . ,” and it' allows for partial restoration of those rights by the California Adult Authority. The .statute then declares, in pertinent part:

“This section shall be construed so as not to deprive such person of the following civil rights, in accordance with the laws of this state:

“ (4) To purchase, receive, and read any and ah newspapers, periodicals, and books accepted for distribution by the United States Post Office. Pursuant to the provisions of this section, prison authorities shall have the authority- to exclude obscene publications or writings, and mail containing information concerning where, how, or from whom such matter may be obtained; and any-matter of a character tending to incite murder, arson, riot, violent racism, or any other form of violence; and any matter concerning gambling or a lottery... .”

7 Appellants argue that the correctness of their abstention argument is demonstrated by the District Court’s disposition of Count II of appellees’ amended complaint. In Count II appellees challenged the mail regulations on the ground that their application to correspondence between inmates and attorneys contravened the Sixth and Fourteenth Amendments. Appellees later discovered that, a case was then pending before the Supreme Court of California in which the application of the prison rules to attorney-client mail was being attacked under subsection (2) of §2600, which provides:

“This section shall be construed so as not to deprive [an inmate] of the following civil rights, in accordance with the laws of this state:

“(2) To correspond, confidentially, with any member of the State Bar, or holder of public office, provided that the prison authorities may open and inspect such mail to search for contraband.”

The District Court did stay its hand, and the subsequent decision in In re Jordan, 7 Cal. 3d 930, 600 P. 2d 873 (1972) (holding that § 2600 (2) barred censorship of attorney-client correspondence), rendered Count II moot. This disposition of the claim relating to attorney-client mail is, however, quite irrelevant to appellants’ contention that the District Court should have abstained from deciding whether the mail regulations are constitutional as they apply to personal mail. Subsection (2) of § 2600 speaks directly to the issue of censorship of attorney-client mail but says nothing at all about personal correspondence, and appellants have not informed us of any. challenge to the censorship of ¡personal mail presently pending in the state coufts.

8 See Note, Decency and Fairness: An Emerging Judicial Role in Prison Reform, 57 Va. L. Rev. 841, 842-844 (1971).

9 They are also ill suited to act as the front-line agencies for the consideration and resolution of the infinite variety of prisoner complaints.- Moreover; the capacity of our criminal justice system to deal fairly -and fully with legitimate claims will .be impaired by a burgeoning increase of frivolous prisoner complaints. As one means of alleviating this problem, The Chief Justice has suggested that federal and state authorities explore the possibility of instituting internal administrative procedures for disposition of inmate grievances. 59 A. B. A. J. 1125, 1128 (1973). At the Third Circuit Judicial Conference meeting of October 15,1973, at which the problem was addressed, suggestions also included (i) abstention where appropriate to avoid needless consideration of federal constitutional issues; and (ii) the. use of federal magistrates who could be sent into penal institutions to conduct hearings and make findings of fact. We emphasize that- we express no view as to the merit or validity of any particular proposal, but we do think it appropriate to indicate the necessity of prompt and thoughtful consideration by responsible federal and state authorities, of this worsening situation.

10 Specifically, the District Court held that the regulations authorized restraint of lawful expression. in. violation of the First and Fourteenth Amendments, that they were fatally vague,-and that they failed to provide minimum procedural safeguards against arbitrary- - or erroneous censorship of protected speech.

11 Different considerations may come into play in the case of mass mailings. No such issue-is raised on these facts, and we intimate no view as.to its proper resolution.

12 We need not and do not address in this case the validity of a temporary prohibition of an inmate’s personal correspondence as a disciplinary sanction (usually as part of the regimen of solitary-confinement) for violation of prison rules.

13 Policy Statement 7300.1A of the Federal Bureau of Prisons sets forth the Bureau’s position regarding general correspondence by the prisoners entrusted to its custody: It authorizes all federal institutions to adopt open correspondence regulations and recognizes that any need for restrictions arises primarily from considerations of order and security rather than rehabilitation:'

“Constructive, wholesome contact with the community is a valuable therapeutic tool in the overall correctional process. At the same time, basic controls need to b.e exercised in order to protect the security of the institution, individuals and/or the community-atlárge.”

The recommended policy guideline adopted by the Association of State Correctional Administrators on August 23, 1972, echoes the view that personal correspondence by prison inmates is a generally wholesome activity:

“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 the community.”

14 While not necessarily controlling, the policies followed at other well-run institutions would be relevant to a determination of the need for a particular type of restriction. For example, Policy Statement 7300.1A of the Federal Bureau 'of Prisons specifies that personal. correspondence of inmates in federal prisons, whether incoming ór outgoing, may be rejected for inclusion of the following kinds of material:

“(1) Any material which might violate postal regulations, i. e., threats, blackmail, contraband or which indicate plots of escape.

“(2) Discussions of criminal activities.

“(3) NÓ inmate may be permitted to direct his business while he is in confinement. This does not go to the point of prohibiting correspondence necessary to enable the inmate to protect the property and funds that were legitimately- his . at the time he was committed 1b the institution. Thus, an inmate could correspond about refinancing a mortgage on his home or sign insurance papers, but he could not operate a mortgage or insurance -business while in the institution.

“ (4) Letters containing codes or other obvious attempts to circumvent these regulations will be subject to rejection.

“(5) Insofar as possible, all letters should be written in English, but every effort should be made to accommodate those inmates who are unable to write in English or whose correspondents would be unable to understand a letter written in English. The criminal sophistication of the inmate, the relationship of the inmate and the correspondent are factors to be considered in deciding whether correspondence in a foreign language should be permitted.”

15 After the District Court held the original regulations uncorfstitutional, revised’ regulations were developed by appellants and approved by the court. Supp to App. 194-200, 211. Although these regulations are not before us for review, tk / are indicative of one solution to the problem. The following provisions govern censorship of prisoner correspondence:

‘-‘CORRESPONDENCE

“A. Criteria- for Disapproval of Inmate Mail

“1. Outgoing Letters'

“Outgoing letters -from inmates of institutions not’ requiring approval of inmate correspondents may be disapproved for mailing only if the content falls as a whole or. in significant part into any of the following categories:

“a. The letter contains threats of physical-harm against any person or threats of criminal activity.

“b. The letter threatens blackmail \ . . or extortion. '

“c. The letter concerns sending contraband in or out of the institutions.

“d. The letter concerns plans to escape.

“e. The letter concerns plans for activities in violation of institutional rules. •

“f. The letter, concerns plans for criminal activity.

“g. The letter is in code and its contents are not understood by reader.

“h. The letter solicits gifts of goods or money from other than family.

“i. The letter is obscene.

“j. The letter contains information which if communicated would create a clear and present danger of violence and physical harm to. a human being. Outgoing letters from inmates of institutions requiring approval of correspondents may.be disapproved only for the foregoing reasons, or if the addressee is not an approved correspondent of the inmate and special permission for the letter has not been obtained.

“2. Incoming Letters

“Incoming letters to inmates may be disapproved for receipt only for the foregoing reasons, or if the letter contains material which would cause severe psychiatric or emotional disturbance to .the inmate, or in an institution requiring approval of -inmate correspondents, is from-a person who is not an approved correspondent and special permission for the letter has not been obtained.

“3. Limitations

“Disapproval of a letter on the basis that it would cause severe psyehiatpe or einptional disturbance to the inmate may be done only by- a member of the institution’s psychiatric staff after consultation • with the inmate’s caseworker.. The staff member may disapprove the letter only, upon a finding that receipt of the letter would be likely to affect prison discipline or security or the inmate’s rehabilitation, and that there is no reasonable alternative means -of ameliorating the disturbance of the inmate. Outgoing or incoming letters may hot be rejected solely upon the ground that they contain criticism of the institution or its personnel.

“4. Notice of Disapproved of Inmate Mail

“a. When an inmate is prohibited from sending a letter, the letter and a written and signed notice stating one of the authorized reasons for disapproval and indicating the portion or portions of the letter causing disapproval will be given the inmate.

• “b. When an inmate is prohibited from receiving a letter, the letter and a written and signed notice stating one of the authorized reasons for disapproval and indicating the portion or portions of the letter causing disapproval will be given the sender. The inmate will be given notice in writing that a letter has been rejected, indicating one of the authorized reasons and the sender’s name.

“c. Material from correspondence which violates the provisions of paragraph one may be placed in an inmate’s file. Other material from correspondence may not be placed in an inmate’s file unless it has been lawfully observed by an employee of the department and is relevant to assessment of the inmate’s rehabilitation. However, such material which is not in violation of the provisions of paragraph one may not be thé subject of disciplinary proceedings against an inmate. An inmate shall be notified in writing of the placing of any material from correspondence in his file.

“d. Administrative review of. inmate grievances regarding the application of this rule may be had in accordance with paragraph DP-1003 of these rules.”

16 Apparently, the Department’s policy regarding law school programs providing legal assistance to inmates, though well established, is not embodied in any regulation.