Lawson v. Singletary ( 1996 )


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  •                    United States Court of Appeals,
    
                              Eleventh Circuit.
    
                                No. 94-4663.
    
     Robert Lee LAWSON, on behalf of himself and all others similarly
    situated, Plaintiffs-Appellees,
    
                                     v.
    
          Harry K. SINGLETARY, Secretary, Florida Department of
    Corrections;   S.W. Sprouse, Superintendent, Hendry Correctional
    Institution;    William E. Counselman, Educational Supervisor;
    Stephen Spencer, Chaplain, Hendry Correctional Institution; and
    Paul Coburn, Assistant Superintendent, Hendry Correctional
    Institution, Defendants-Appellants.
    
                                May 29, 1996.
    
    Appeal from the United States District Court for the Southern
    District of Florida. (No. 83-8409-CIV-ARONOVITZ), Sidney M.
    Aronovitz, Judge.
    
    Before ANDERSON and BARKETT, Circuit Judges, and YOUNG*, Senior
    District Judge.
    
         PER CURIAM:
    
         This case began as a pro se complaint by plaintiff-appellee
    
    Robert Lawson, filed in 1983.   Counsel was appointed, and a class
    
    certified.   The plaintiff class represented by Lawson (hereinafter
    
    "Hebrew Israelites" or "plaintiffs") is made up of members of the
    
    Hebrew Israelite faith currently serving time in the Florida prison
    
    system.   The basis for their original complaint was that officials
    
    of the defendant-appellant, the Florida Department of Corrections
    
    (hereinafter "the Department"), refused to allow certain religious
    
    texts, published by the Hebrew Israelites at their headquarters,
    
    the "Temple of Love," into the prisons so that Hebrew Israelite
    
    inmates could have access to them.    The plaintiffs seek injunctive
    
         *
          Honorable George C. Young, Senior U.S. District Judge for
    the Middle District of Florida, sitting by designation.
    relief.    The Department claimed that the Hebrew Israelite texts at
    
    issue    contain   "highly-charged,      anti-white,        racism"    and     thus
    
    presented a serious threat to security and order within Florida's
    
    prisons.
    
          Soon after this litigation began, the Department, through head
    
    chaplain Counselman, attempted to create an informal redaction
    
    policy similar to the law now in place that would allow prison
    
    chaplains to remove the most objectionable portions of incoming
    
    religious materials.        See Lawson v. Wainwright, 
    641 F. Supp. 312
    ,
    
    320-321 (S.D.Fla.1986).       The materials at issue in this case were
    
    returned by Counselman to Yahweh ben Yahweh, the leader of the
    
    Hebrew    Israelites,   and    ben   Yahweh    was   asked    to    remove   those
    
    statements that the Department thought were a threat to prison
    
    order and security.        Once these sections were removed, Counselman
    
    assured    ben   Yahweh,    the   materials    would   be    allowed    into    the
    
    prisons. Id. at 321. This original redaction policy, however, was
    
    poorly defined and sporadically enforced, and at times entire
    
    documents were excluded when only portions of those documents
    
    presented a threat to prison order and security.               Id. at 317-319.
    
          This case has a tortured procedural history.                  In 1986, the
    
    district court held that the Department's outright ban of these
    
    religious texts violated the plaintiffs' Free Exercise rights under
    
    the   First   Amendment.      Lawson   v.     Wainwright,     
    641 F. Supp. 312
    
    (S.D.Fla.1986) (hereinafter Lawson I ). The primary concern in the
    
    first appeal to this Court was the determination of the proper
    
    standard by which to evaluate the plaintiffs' Free Exercise claims.
    
    Lawson v. Dugger, 
    840 F.2d 779
     (11th Cir.1988) (hereinafter Lawson
    II ).     Following this Court's 1987 decision, the Supreme Court
    
    rendered its decision in Thornburgh v. Abbott, 
    490 U.S. 401
    , 
    109 S. Ct. 1874
    , 
    104 L. Ed. 2d 459
     (1989), in which the Court reiterated
    
    the principle that prisoner constitutional rights claims are to be
    
    evaluated under the rational basis standard.            The Department's
    
    petition for certiorari in this case was granted, and the 1987
    
    opinion of this Court was vacated and the case remanded for further
    
    consideration in light of Thornburgh.        Dugger v. Lawson, 
    490 U.S. 1078
    , 
    109 S. Ct. 2096
    , 
    104 L. Ed. 2d 658
     (1989) (hereinafter "Lawson
    
    III").    This Court in turn remanded to the district court. Lawson
    
    v. Dugger, No. 86-5774, 
    897 F.2d 536
     (11th Cir. Feb. 1, 1990).
    
    Again, however, a change in the law affected the relevant standard.
    
    A few days before the district court held its status hearing on
    
    remand, Congress passed the Religious Freedom Restoration Act, 42
    
    U.S.C. § 2000bb et seq. (hereinafter "RFRA"), which purports to
    
    reestablish    through   statute   the   compelling   interest   test   for
    
    neutral laws that incidentally but substantially burden the free
    
    exercise of religion.1 Upon review, the district court interpreted
    
    the relevant official activity in this case to be an outright ban
    
    on certain incoming religious materials. Then, applying the "least
    
    restrictive means" prong of the new RFRA test to the outright ban,
    
    the district court held that the Department's activity violated
    
    RFRA.     Lawson v. Dugger, 
    844 F. Supp. 1538
    , 1542 (S.D.Fla.1994)
    
    (hereinafter "Lawson IV").
    
         Our primary task is to flesh out the meaning of the new RFRA
    
    standard as it applies in the prison context, and in particular as
    
         1
            RFRA was signed into law on November 16, 1993.
    it applies to this case.2   Two interrelated preliminary matters
    
        2
          However, because we conclude that Rule 33-3.012 on its face
    passes even the most restrictive compelling interest test that
    Congress may have contemplated in drafting RFRA, we need not and
    do not today resolve the question of RFRA's constitutionality.
    See Jay S. Bybee, Taking Liberties with the First Amendment:
    Congress, Section 5, and the Religious Freedom Restoration Act,
    48 VAND.L.REV. 1539 (1995) (questioning whether RFRA is an
    unconstitutional application of federal power to the states not
    authorized by § 5 of the Fourteenth Amendment); Christopher L.
    Eisgruber & Lawrence G. Sager, Why the Religious Freedom
    Restoration Act is Unconstitutional, 69 N.Y.U.L.REV. 437 (1994)
    (questioning whether RFRA violates the separation of powers
    doctrine, the Establishment Clause, and § 5 of the Fourteenth
    Amendment, and noting that, "RFRA not only defies [Employment
    Div., Dept. of Human Res. v. Smith, 
    494 U.S. 872
    , 
    110 S. Ct. 1595
    ,
    
    108 L. Ed. 2d 876
     (1990) ], it misreads the Supreme Court's
    jurisprudence prior to Smith; and RFRA not only gives religious
    believers far more than their constitutional due, it does so in a
    fashion that is itself constitutionally objectionable precisely
    in terms of religious freedom."); Scott C. Idleman, The
    Religious Freedom Restoration Act: Pushing the Limits of
    Legislative Power, 73 TEX.L.REV. 247 (1994) (suggesting that RFRA
    may violate the Establishment Clause of the First Amendment to
    the Constitution, in part because it expands the bounds of Free
    Exercise beyond the point which the Court has in the past taken
    it, by establishing a preference for religiosity over
    non-religiosity); see also Everson v. Board of Ed. of Ewing
    Twp., 
    330 U.S. 1
    , 15, 
    67 S. Ct. 504
    , 511, 
    91 L. Ed. 711
     (1947)
    ("The "establishment of religion' clause of the First Amendment
    means at least this: Neither a state nor the Federal Government
    can set up a church. Neither can pass laws which aid one
    religion, aid all religions, or prefer one religion over another
    ...") (emphasis added); Torcaso v. Watkins, 
    367 U.S. 488
    , 495,
    
    81 S. Ct. 1680
    , 1683, 
    6 L. Ed. 2d 982
     (1961) ("We repeat and again
    reaffirm that neither a State nor the Federal Government can
    constitutionally force a person to profess a belief or disbelief
    of any religion. Neither can constitutionally pass laws or
    impose requirements which aid all religions as against
    non-believers ...") (internal quotation omitted) (emphasis
    added); Lemon v. Kurtzman, 
    403 U.S. 602
    , 
    91 S. Ct. 2105
    , 
    29 L. Ed. 2d 745
     (1971) (statute must have secular legislative
    purpose, and must primarily neither advance nor inhibit religion,
    nor foster excessive government-religion entanglement, to avoid
    reach of Establishment Clause); County of Allegheny v. ACLU, 
    492 U.S. 573
    , 
    109 S. Ct. 3086
    , 
    106 L. Ed. 2d 472
     (1989) (same); Texas
    Monthly, Inc. v. Bullock, 
    489 U.S. 1
    , 
    109 S. Ct. 890
    , 
    103 L. Ed. 2d 1
     (1989) (invalidating, on Establishment grounds, Texas law
    granting sales tax exemption to religious publications); Board
    of Ed. of Kiryas Joel v. Grumet, --- U.S. ----, ----, 
    114 S. Ct. 2481
    , 2487, 
    129 L. Ed. 2d 546
     (1994) ("A proper respect for both
    the Free Exercise and the Establishment Clauses compels the State
                                                                3
    require discussion:      Florida's new Rule 33-3.012            governing the
    
    admissibility   into    Florida   prisons   of    publications,     including
    
    religious materials;      and the propriety of our consideration in
    
    this appeal of the Rule's redaction policy.
    
                        I. RULE 33-3.012 AND REDACTION
    
         In addition to the passage of RFRA, another significant change
    
    in the complexion of this case occurred after remand to the
    
    district court.     On December 17, 1991, Florida amended Rule 33-
    
    3.012, inter    alia,    to   incorporate   a    formal   and   more   precise
    
    redaction policy.      The portions of the Rule relevant to this case
    
    are as follows:
    
         (4) Inmates shall be permitted to receive publications except
         when the publication is found to be detrimental to the
         security, order or disciplinary or rehabilitative interests of
         the institution or when it is determined that the publication
         might facilitate criminal activity.     Publications shall be
         rejected when one of the following criteria are met:
    
    
    
    to pursue a course of neutrality toward religion, favoring
    neither one religion over others nor religious adherents
    collectively over nonadherents.") (internal citations omitted).
    The Fifth Circuit in Flores v. City of Boerne, 
    73 F.3d 1352
     (5th
    Cir.1996), rejected an argument that RFRA on its face violates
    the Establishment Clause, noting that the statute expressly
    limits its application such that the Establishment Clause shall
    not be affected. See 42 U.S.C. § 2000bb-4, cited in Flores, 73
    F.3d at 1364; but see Sable Communications of California, Inc.
    v. F.C.C., 
    492 U.S. 115
    , 129, 
    109 S. Ct. 2829
    , 2838, 
    106 L. Ed. 2d 93
     (1989) ("To the extent that the federal parties suggest that
    we should defer to Congress' conclusion about an issue of
    constitutional law, our answer is that while we do not ignore it,
    it is our task in the end to decide whether Congress has violated
    the Constitution. This is particularly true where the
    Legislature has concluded that its product does not violate the
    First Amendment."). Because we conclude that Rule 33-3.012 on
    its face passes the RFRA test, we need not address whether RFRA
    violates the Establishment Clause. See Ashwander v. Tennessee
    Valley Authority, 
    297 U.S. 288
    , 341, 
    56 S. Ct. 466
    , 480, 
    80 L. Ed. 688
     (1936) (Brandeis, J., concurring).
         3
          FLA.ADMIN.CODE ANN. § 33-3.012 (1995).
                              .      .         .      .         .
    
         (e) It depicts, describes or encourages activities which may
         lead to the use of physical violence or group disruption;
    
                              .      .         .      .         .
    
         (h) It otherwise presents a threat to the security, order or
         rehabilitative objectives of the correctional system or the
         safety of any person.    If only a portion of a publication
         meets one of the above criteria for rejection, the entire
         publication shall be rejected unless the reading material is
         of a religious nature. In the case of religious material, the
         inmate shall be advised that he may receive the materials only
         after the inadmissible portion is removed. The inmate shall
         make the decision whether to return the material to the sender
         or to receive the admissible portions after the institution
         has excised the inadmissible material, and the inmate may
         appeal the institution's determination that the material must
         be excised or returned. The institution shall not take any
         action to excise or return inadmissible reading material until
         the inmate's appeal is concluded or the time for appeal has
         passed.
    
    FLA.ADMIN.CODE § 33-3.012(4) (1995) (emphasis added).4                  Appeals from
    
    decisions to redact certain sections from religious materials are
    
    heard by a literature review committee made up of the Assistant
    
    Secretary   of    Operations,        one       superintendent,         one   security
    
    administrator,     the    library      services         administrator        and    one
    
    institutional librarian.        FLA.ADMIN.CODE § 33-3.012(2).
    
         The    plaintiffs     contend         that       the       Department   did    not
    
    specifically argue redaction in its briefs to the district court at
    
    the original trial nor on remand, and did not do so until the
    
    Department's     motion   for    rehearing.                 The    plaintiffs      argue
    
    accordingly that the Department has waived the issue. The district
    
    court agreed with the plaintiffs and denied the Department's motion
    
         4
          Rule 33-3.012 is similar in some respects to federal prison
    regulations governing the admissibility of reading materials.
    See 28 C.F.R. § 540.71. However, the Federal regulations do not
    have a special exception for religious materials permitting
    redaction as opposed to total exclusion.
    for rehearing.    The district court declined to consider redaction,
    
    relying instead on the procedures in use by the Department when
    
    this litigation began in 1983, which the district court construed
    
    to be an outright ban on the religious materials introduced at
    
    trial.
    
           This Court interprets the Department's motion for rehearing
    
    on the redaction issue as a Fed.R.Civ.P. 59(e) motion. McGregor v.
    
    Bd. of Com'rs of Palm Beach County, 
    956 F.2d 1017
    , 1020 (11th
    
    Cir.1992).       We   review     the   district    court's       denial    of    the
    
    Department's motion for rehearing for abuse of discretion.                  O'Neal
    
    v. Kennamer, 
    958 F.2d 1044
    , 1047 (11th Cir.1992);                 American Home
    
    Assur. Co. v. Glen Estess & Assoc., Inc., 
    763 F.2d 1237
    , 1238-39
    
    (11th Cir.1985).      In American Home, we affirmed a district court's
    
    denial of a Rule 59(e) motion that raised for the first time a
    
    choice of law issue.       American Home, 763 F.2d at 1239.               We noted
    
    that, "[t]he decision to alter or amend judgment is committed to
    
    the   sound   discretion    of   the   district     judge   and    will    not    be
    
    overturned on appeal absent an abuse of discretion."                Id. at 1238-
    
    39.
    
             Several reasons persuade us that the district court abused
    
    its discretion by failing to consider redaction, which stands at
    
    the core of the current Florida regulation.               In our judgment, it
    
    would be impossible to evaluate the facial constitutionality of
    
    Rule 33-3.012, and its compatibility with RFRA, without considering
    
    redaction,    which   is   the   essence   of     the   Rule's    policy    toward
    
    religious publications. This case involves only injunctive relief.
    
    Therefore, the only viable issues are the facial validity of Rule
                                                     5
    33-3.012, and its validity as applied.                 Because these issues
    
    cannot be intelligently assessed without considering redaction,
    
    justice requires that we do so.
    
             Finally, a federal court order dictating the security-related
    
    activities     of   state   prison   officials       raises   serious   comity
    
    concerns.     The maintenance of prison security, which is central to
    
    this case, is a matter of immense importance to the State of
    
    Florida and, of course, responsibility for prison security is
    
    committed to the State.      Even if the Department's deficiencies in
    
    the presentation of this issue to the district court might lead us
    
    to impose waiver in some other context, interests of comity combine
    
    with the foregoing factors to persuade us otherwise in this case.6
    
    Assuming, as we hold below, that Florida's Rule 33-3.012, with its
    
    redaction policy, is facially valid, it would constitute manifest
    
    injustice to enjoin state prison officials from the exercise of
    
    their duties to maintain prison security based on the technicality
    
    that their attorneys failed to present an issue to the district
    
    court with sufficient clarity. We conclude that the district court
    
    
    
    
         5
          Plaintiffs' efforts in this litigation have focussed only
    on obtaining injunctive relief, either because that is their only
    real interest or because of the likelihood that qualified
    immunity will bar any claim for damages. Injunctive relief is,
    of course, prospective, and thus only Rule 33-3.012 is at issue.
    The validity of the Department's application of its prior policy,
    with its informal, imprecise and sporadically enforced redaction
    policy, is moot.
         6
          We can discern no prejudice to the plaintiffs as a result
    of our consideration of the Department's current redaction policy
    embodied in Rule 33-3.012, because they have had a full
    opportunity in brief and oral argument to discuss the effect of
    redaction on the facial validity of the Rule.
    abused its discretion in failing to consider the redaction issue.7
              II. THE RELIGIOUS FREEDOM RESTORATION ACT ("RFRA")
    
         Having      established         that     the    issue     in    this   case     is   the
    
    redaction policy found in Rule 33-3.012, we turn to our primary
    
    task of evaluating the validity of the Rule in light of RFRA.                              To
    
    understand      how    RFRA's      compelling        interest       standard   should      be
    
    applied in the prison context, it is necessary to understand both
    
    the legal landscape at the time it was enacted and congressional
    
    intent as evidenced by the statute itself and its legislative
    
    history. We first address congressional intent and the case law to
    
    which Congress intended courts to look for guidance.
    
    A. Congressional Intent and the Case Law Background
    
             The    stated      purpose      of    RFRA    is    to     restore    the    broad
    
    applicability         of   the    compelling        interest      test   established       in
    
    Sherbert v. Verner, 
    374 U.S. 398
    , 
    83 S. Ct. 1790
    , 
    10 L. Ed. 2d 965
    
    (1960), and Wisconsin v. Yoder, 
    406 U.S. 205
    , 
    92 S. Ct. 1526
    , 
    32 L. Ed. 2d 15
       (1972),          which   was   substantially          circumscribed       by
    
         7
          We recognize that the district court in Lawson I summarily
    rejected the Department's reliance on its previous, informal
    redaction policy. Lawson I, 641 F.Supp. at 329. The district
    court relied on the requirement set forth in Miller v.
    California, 
    413 U.S. 15
    , 
    93 S. Ct. 2607
    , 
    37 L. Ed. 2d 419
     (1973),
    that allegedly obscene publications be evaluated as a whole. It
    was error to rely on Miller, a case involving the First Amendment
    rights of non-incarcerated persons. By contrast, prison inmates
    retain only such First Amendment rights as are not inconsistent
    with their status as prisoners. Pell v. Procunier, 
    417 U.S. 817
    ,
    822, 
    94 S. Ct. 2800
    , 2804, 
    41 L. Ed. 2d 495
     (1974). There is
    clearly no per se bar to censorship of incoming prisoners' mail.
    See Thornburgh v. Abbott, 
    490 U.S. 401
    , 
    109 S. Ct. 1874
    , 
    104 L. Ed. 2d 459
     (1989); Turner v. Safely, 
    482 U.S. 78
    , 
    107 S. Ct. 2254
    , 
    96 L. Ed. 2d 64
     (1987); Procunier v. Martinez, 
    416 U.S. 396
    ,
    
    94 S. Ct. 1800
    , 
    40 L. Ed. 2d 224
     (1974); Abbott v. Meese, 
    824 F.2d 1166
     (D.C.Cir.1987), vacated by Thornburgh v. Abbott, 
    490 U.S. 401
    , 407-408, 
    109 S. Ct. 1874
    , 1878-1879, 
    104 L. Ed. 2d 459
     (1989);
    McCorkle v. Johnson, 
    881 F.2d 993
     (11th Cir.1989).
    Employment Div., Dep't of Human Resources v. Smith, 
    494 U.S. 872
    ,
    
    
    110 S. Ct. 1595
    , 
    108 L. Ed. 2d 876
     (1990).     The Act states:
    
         (b) Purposes
    
                The purposes of this chapter are—
    
                     (1) to restore the compelling interest test as set
                forth in Sherbert v. Verner, 
    374 U.S. 398
    , 
    83 S. Ct. 1790
    ,
                
    10 L. Ed. 2d 965
     (1963), and Wisconsin v. Yoder, 
    406 U.S. 205
    , 
    92 S. Ct. 1526
    , 
    32 L. Ed. 2d 15
     (1972), and to
                guarantee its application in all cases where free
                exercise of religion is substantially burdened ...
    
    42 U.S.C. § 2000bb(b).
    
         (b) Exception
    
                Government may substantially burden a person's exercise
                of religion only if it demonstrates that application of
                the burden to the person—
    
                     (1) is in furtherance of a compelling governmental
                interest; and
    
                     (2) is the least restrictive means of furthering
                that compelling governmental interest.
    
    42 U.S.C. § 2000bb-1(b).      Congress was obviously attempting to
    
    create a statutory buffer around a more limited constitutional
    
    right.    Cf. Katzenbach v. Morgan, 
    384 U.S. 641
    , 653-54, 
    86 S. Ct. 1717
    , 1724-25, 
    16 L. Ed. 2d 828
     (1966) (implying that Congress has
    
    the power to create rights not recognized by the Supreme Court).
    
    That intent was manifest in the statutory language restoring the
    
    compelling interest test.
    
             The text of RFRA, however, does not elaborate on how the
    
    compelling interest test is to be applied.      Nowhere in the statute
    
    does Congress state that the test is to be construed in precisely
    
    the same manner in varying factual scenarios and contexts.         By
    
    referring to the "compelling interest test," Congress obviously
    
    intended for courts to look for guidance to those cases employing
    that term.      Astoria Fed. S & L Ass'n v. Solimino, 
    501 U.S. 104
    ,
    
    108,   
    111 S. Ct. 2166
    ,   2169,    
    115 L. Ed. 2d 96
       (1991)     (Congress
    
    legislates      against    the    background       of    federal   common      law
    
    principles).
    
           The Supreme Court has historically applied the compelling
    
    interest standard somewhat differently depending on the context in
    
    which the protected right arose.              Procunier v. Martinez, 
    416 U.S. 396
    , 409-410, 
    94 S. Ct. 1800
    , 1809-1810, 
    40 L. Ed. 2d 224
     (1974)
    
    ("First Amendment guarantees must be "applied in light of the
    
    special characteristics of the ... environment.' ") (quoting Tinker
    
    v. Des Moines Independent Community School District, 
    393 U.S. 503
    ,
    
    506, 
    89 S. Ct. 733
    , 736, 
    21 L. Ed. 2d 731
     (1969)).                 This is notably
    
    true in the prison context.            Indeed, the legislative history of
    
    RFRA expressly assumes that courts will apply RFRA in the prison
    
    context within the framework of prior case law. Both congressional
    
    committees charged with consideration of the legislation clearly
    
    intended the courts to continue to afford deference to the judgment
    
    of prison officials.
    
           The intent of the act is to restore [the] traditional
           protection afforded to prisoners' claims prior to O'Lone, not
           to impose a more rigorous standard than the one that was
           applied....    Accordingly, the committee expects that the
           courts will continue the tradition of giving due deference to
           the experience and expertise of prison and jail administrators
           in establishing necessary regulations and procedures to
           maintain good order, security and discipline, consistent with
           considerations of costs and limited resources.... At the same
           time, however, inadequately formulated prison regulations and
           policies grounded on mere speculation, exaggerated fears, or
           post-hoc rationalizations will not suffice to meet the act's
           requirements.
    
    S.   REP. NO.   111,    103d   Cong.,    1st     Sess.   10   U.S.Code    Cong.   &
    
    Admin.News 1993 pp. 1892, 1899.
           Therefore, the compelling governmental interest test should be
           applied to all cases where the exercise of religion is
           substantially burdened;    however, the test should not be
           construed more stringently or more leniently than it was prior
           to Smith .... Prior to 1987, courts evaluated free exercise
           challenges by prisoners under the compelling governmental
           interest test. The courts considered the religiously inspired
           exercise, as well as the difficulty of the prison officials'
           task of maintaining order and protecting the safety of prison
           employees, visitors and inmates. Strict scrutiny of prison
           regulations did not automatically assure prisoners of success
           in court.
    
    H.R.REP. NO. 88, 103d Cong., 1st Sess. 8;              see also 139 CONG.REC. §
    
    14362-14365 (daily ed. Oct. 26, 1993) (statement of Sen. Hatch).
    
           On June 9, 1987, the Supreme Court in                 O'Lone v. Estate of
    
    Shabazz, 
    482 U.S. 342
    , 
    107 S. Ct. 2400
    , 
    96 L. Ed. 2d 282
     (1987),
    
    articulated an unadorned rational basis test for the evaluation of
    
    prison regulations challenged under the Free Exercise Clause.
    
    RFRA's legislative history contains some evidence that Congress may
    
    have   intended      to    restore   the    standard   for    the   protection   of
    
    prisoner Free Exercise rights to where it stood prior to the
    
    Court's decision in O'Lone.            However, even prior to         O'Lone, the
    
    Supreme Court and the lower federal courts applied the compelling
    
    interest test in the context of prisoners' Free Exercise or Free
    
    Speech claims by recognizing the special circumstances of the
    
    prison context, including recognition of the state's substantial
    
    interest in prison security and order and of the substantial
    
    deference      due   the    judgment   of    prison    officials    with   respect
    
    thereto.    The primary reason for this is the more limited nature of
    
    the    First     Amendment       rights      enjoyed     by    prisoners     after
    
    incarceration.       In Pell v. Procunier, 
    417 U.S. 817
    , 822, 
    94 S. Ct. 2800
    , 2804, 
    41 L. Ed. 2d 495
     (1974), for example, the Court noted
    
    that "[i]n the First Amendment context ... a prison inmate retains
    those First Amendment rights that are not inconsistent with his
    
    status as a prisoner or with the legitimate penological objectives
    
    of   the     corrections   system."       Accord     Jones    v.   North   Carolina
    
    Prisoners' Labor Union, Inc., 
    433 U.S. 119
    , 125, 
    97 S. Ct. 2532
    ,
    
    2535, 
    53 L. Ed. 2d 629
     (1977).           See also Cruz v. Beto, 
    405 U.S. 319
    ,
    
    321, 
    92 S. Ct. 1079
    , 1081, 
    31 L. Ed. 2d 263
     (1972);                           Price v.
    
    Johnston, 
    334 U.S. 266
    , 285, 
    68 S. Ct. 1049
    , 1060, 
    92 L. Ed. 1356
    
    (1948);         Bradbury v. Wainwright, 
    718 F.2d 1538
    , 1540-41 (11th
    
    Cir.1983).
    
               In   cases   involving    constitutional     challenges      to   prison
    
    regulations, including those implicating the free exercise of
    
    religion, the Supreme Court has long made clear that Federal courts
    
    must       afford   substantial     deference   to   the     judgment   of   prison
    
    authorities.8        See Turner v. Safley, 
    482 U.S. 78
    , 
    107 S. Ct. 2254
    ,
    
    
    96 L. Ed. 2d 64
     (1987);          Bell v. Wolfish, 
    441 U.S. 520
    , 
    99 S. Ct. 1861
    , 
    60 L. Ed. 2d 447
     (1979);           Jones, 
    433 U.S. 119
    , 
    97 S. Ct. 2532
    ,
    
    
    53 L. Ed. 2d 629
     (1977);            Pell, 
    417 U.S. 817
    , 
    94 S. Ct. 2800
    , 
    41 L. Ed. 2d 495
     (1974);         Martinez, 
    416 U.S. 396
    , 
    94 S. Ct. 1800
    , 
    40 L. Ed. 2d 224
     (1974);        Cruz, 
    405 U.S. 319
    , 
    92 S. Ct. 1079
    , 
    31 L. Ed. 2d 263
     (1972).9 In evaluating prisoners' constitutional rights claims
    
           8
          The cases discussed in the text involve First Amendment
    rights, including both Free Exercise and Free Speech. In the
    prison context, the Supreme Court and the lower federal courts
    have held that the same deference is due the judgment of prison
    officials with respect to security and other penological
    concerns, whether the case involves Free Speech or Free Exercise
    rights. "In the absence of a contrary indication, we assume that
    when a statute uses [a term of art], Congress intended it to have
    its established meaning." McDermott International, Inc. v.
    Wylander, 
    498 U.S. 337
    , 342, 
    111 S. Ct. 807
    , 811, 
    112 L. Ed. 2d 866
    (1991).
           9
            All of the cases cited were decided before O'Lone.
    that challenge assertions by prison officials that the inmates'
    
    rights    must   yield   before   the   state's    legitimate   penological
    
    interests, courts have "accorded wide-ranging deference [to prison
    
    administrators] in the adoption and execution of policies and
    
    practices that in their judgment are needed to preserve internal
    
    order and discipline and to maintain institutional security."
    
    Bell, 441 U.S. at 547, 99 S.Ct. at 1878;          accord Jones, 433 U.S. at
    
    128, 97 S.Ct. at 2539;      Martinez, 416 U.S. at 404-05, 94 S.Ct. at
    
    1807;    Cruz, 405 U.S. at 321, 92 S.Ct. at 1081.        Such deference is
    
    especially appropriate with respect to the primary state interest
    
    involved in this case—the maintenance of peace and security within
    
    the prison facility.       Pell, 417 U.S. at 823, 94 S.Ct. at 2804
    
    ("Central to all other corrections goals is the institutional
    
    consideration of the internal security within the corrections
    
    facilities.").     The justifications for this deference include the
    
    complexity of prison management, the fact that responsibility
    
    therefor is necessarily vested in prison officials, and the fact
    
    that courts are ill-equipped to deal with such problems. Martinez,
    
    416 U.S. at 404-05, 94 S.Ct. at 1807.
    
             The standard for evaluating prisoner constitutional rights
    
    claims was initially articulated by the Supreme Court in 1974 in
    
    Martinez.
    
         First, the regulation or practice in question must further an
         important or substantial governmental interest unrelated to
         the suppression of expression.... 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.
    
    Martinez, 416 U.S. at 413, 94 S.Ct. at 1811.          The two prongs of the
    
    Martinez standard correspond to the two prongs of the compelling
    interest test as it has been articulated by the Court in other
    
    contexts:   infringement on such constitutional rights is justified
    
    only by a compelling state interest and only when the regulation at
    
    issue is the least restrictive means for satisfying that interest.
    
    Because the first prong is unquestionably satisfied in this case,
    
    and indeed is conceded by the plaintiffs, we focus on the second
    
    prong.
    
         The Court's holding in Martinez teaches that the compelling
    
    interest    test   is    to   be   employed   by   recognizing   the   special
    
    circumstances of the prison context, including recognition of the
    
    state's substantial interest in prison security and order and of
    
    the substantial deference due the judgment of prison officials with
    
    respect thereto.        Martinez, 416 U.S. at 404-05, 94 S.Ct. at 1807.
    
    The Court noted that although it was applying the compelling
    
    interest test,
    
         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.
    
    Id. at 414, 94 S.Ct. at 1812.10        Similarly, in Bell v. Wolfish, the
    
    Court reemphasized the "wide-ranging deference" to be accorded the
    
    judgment of prison officials.
    
         Such considerations are peculiarly within the province and
         professional expertise of corrections officials, and, in the
         absence of substantial evidence in the record to indicate that
    
         10
          We are aware that the result in Martinez has subsequently
    been limited by Thornburgh v. Abbott, 
    490 U.S. 401
    , 407-408, 
    109 S. Ct. 1874
    , 1878-1879, 
    104 L. Ed. 2d 459
     (1989). However, in order
    to elaborate on what Congress meant by using the term "least
    restrictive means," we must determine its meaning in the prison
    context, as construed by the courts.
         the officials have exaggerated their response to these
         considerations, courts should ordinarily defer to their expert
         judgment in such matters.
    
    Bell, 441 U.S. at 547-48, 99 S.Ct. at 1879 (quoting Pell, 417 U.S.
    
    at 827, 94 S.Ct. at 2806).
    
              We recognize that, following the Martinez decision, the
    
    constitutional standard employed by the Supreme Court continued to
                                                             11
    evolve in the direction of a rational basis standard.         We also
    
         11
          Both prongs of the Martinez standard have evolved in the
    direction of a simple rational basis standard. In Turner, the
    Supreme Court discussed in detail four cases which followed
    Martinez: Pell (1974), Jones (1977), Bell (1979), and Block
    (1984). The Court noted that "[i]n none of these four prisoners'
    rights cases did the Court apply a standard of heightened
    scrutiny, but instead inquired whether a prison regulation that
    burdens fundamental rights is reasonably related to legitimate
    penological objectives, or whether it represents an exaggerated
    response to those concerns." Turner, 482 U.S. at 87, 107 S.Ct.
    at 2260 (internal quotations omitted). The Court then concluded:
    
                 If Pell, Jones, and Bell have not already resolved the
                 question posed in Martinez, we resolve it now: when a
                 prison regulation impinges on inmates' constitutional
                 rights, the regulation is valid if it is reasonably
                 related to legitimate penological interests.
    
         Id. at 89, 107 S.Ct. at 2261. It is clear that the Turner
         Court contemplated that both prongs of the Martinez standard
         had so evolved. In discussing the "ready alternatives"
         factor, through which courts determine if there are
         available alternatives to the prison policy at issue that
         satisfy the legitimate interests of the prison
         administration, the Court asserted that the existence of
         such alternatives may be evidence that the policy is an
         "exaggerated response" rather than a reasonable regulation.
         But the Court was careful to note that,
    
                 This is not a "least restrictive alternative" test:
                 prison officials do not have to set up and then shoot
                 down every conceivable alternative method of
                 accommodating the claimants' constitutional complaint.
                 But if an inmate claimant can point to an alternative
                 that fully accommodates the prisoner's rights at de
                 minimis costs to valid penological interests, a court
                 may consider that as evidence that the regulation does
                 not satisfy the reasonable relationship standard.
    recognize that it is far from clear which precise point in this
    
    evolution Congress intended to select as the appropriate analysis
    
    for the application of RFRA in a prison context.           We need not in
    
    this case decide this precise point, because we can assume arguendo
    
    that the appropriate standard is the one set forth in Martinez,
    
    which articulates the appropriate standard in the formulation most
    
    favorable to the plaintiffs, as compared to the formulation found
    
    in the cases that followed Martinez.            Applying that standard,
    
    tempered by the deference due prison officials that Martinez
    
    commands, we readily conclude that Rule 33-3.012 passes muster
    
    under RFRA, as discussed more fully below.           Accordingly, we need
    
    not and do not in this case decide if Congress intended a somewhat
    
    less demanding standard like the one that evolved in the cases that
    
    follow Martinez and predate O'Lone.
    
    B. Facial Validity of Rule 33-3.012 Under RFRA
    
          Because RFRA provides statutory protection for religious
    
    practice   that   is   broader   than   the   core   constitutional   right
    
    explicated in O'Lone, and because Martinez represents the zenith of
    
    judicial scrutiny of prison regulations under the light of prisoner
    
    
         Id. at 90-91, 107 S.Ct. at 2262 (citations omitted). But
         see H.R.Rep. No. 88, 103d Cong., 1st Sess. 7-8 ("Pursuant to
         the Religious Freedom Restoration Act, the courts must
         review the claims of prisoners ... under the compelling
         governmental interest test ... [O]fficials must show that
         the relevant regulations are the least restrictive means of
         protecting a compelling governmental interest.").
    
              As noted in the text, resolution of this case does not
         require that we determine the extent to which the Martinez
         standard has evolved into a rational basis analysis. It is
         sufficient for the resolution of this case to apply the
         Martinez standard as written, moderated by the wide-ranging
         deference due the judgment of prison authorities which that
         opinion contemplated.
    constitutional claims, we analyze Rule 33-3.012 utilizing the
    
    Martinez standard articulated above.12               Whether the Rule comports
    
    with RFRA is a pure question of law, and is subject to                    de novo
    
    review by this Court.             See Christopher v. Cutter Laboratories, 
    53 F.3d 1184
    , 1190 (11th Cir.1995).
    
            It is well established that states have a compelling interest
    
    in security and order within their prisons. Harris v. Forsyth, 
    735 F.2d 1235
     (11th Cir.1984);             Sullivan v. Ford, 
    609 F.2d 197
     (5th
    
    Cir.), cert. denied, 
    446 U.S. 469
    , 
    100 S. Ct. 2950
    , 
    64 L. Ed. 2d 829
    
    (1980).     In the case at bar, the Hebrew Israelites concede that
    
    Florida has a compelling interest in prison security. At issue are
    
    the means chosen by the state of Florida to satisfy this interest,
    
    which necessarily implicates RFRA's least restrictive means prong.
    
    As explained above, we conclude that Congress intended this second
    
    RFRA    prong   to     be    no    more   vigorous    than   its   corresponding
    
    incarnation in Martinez.              Thus, Rule 33-3.012's "limitation of
    
    First Amendment freedoms must be no greater than is necessary or
    
    essential to the protection of the particular governmental interest
    
    involved."      Martinez, 416 U.S. at 413, 94 S.Ct. at 1811.               In the
    
    application of this standard, we must accord wide-ranging deference
    
    to   the    judgment    of    the     Department.      Moreover,    the   "prison
    
    
           12
          Because we find that Rule 33-3.012 passes muster under
    Martinez—which represents both the statutory standard under RFRA
    in the most favorable formulation for which the plaintiffs could
    reasonably hope and the historical summit of the Court's review
    of prisoner constitutional claims—we conclude a fortiori that the
    Rule is constitutional on its face. See O'Lone v. Estate of
    Shabazz, 
    482 U.S. 342
    , 349, 
    107 S. Ct. 2400
    , 2404-05, 
    96 L. Ed. 2d 282
     (1987) (holding that a prison regulation that impinges upon
    inmates' Free Exercise rights is constitutionally valid if it is
    reasonably related to legitimate penological interests).
    administrators ... [are not] required to show with certainty that
    
    adverse consequences would flow from the failure to censor" a
    
    particular publication.        Id. at 414, 94 S.Ct. at 1811-12.
    
         Applying the foregoing standard to Rule 33-3.012, we readily
    
    conclude that the Rule satisfies RFRA's least restrictive means
    
    test.     Indeed, it is hard to imagine a means more specifically or
    
    more narrowly addressed to the problem posed by passages of text
    
    which     the   Department   has   determined   may   lead   to   violence   or
    
    disruption, or which otherwise pose a threat to security.              Abbott
    
    v. Meese, 824 F.2d at 1172-1173.        The Rule is explicitly addressed
    
    to the penological interest at stake, namely security.              It is not
    
    vague or overbroad and it does not give unbridled discretion to
    
    prison administrators.13      See Vodicka v. Phelps, 
    624 F.2d 569
    , 570-
    
    571 (5th Cir.1980) (finding facially valid under Martinez a prison
    
    regulation allowing the withholding of prisoner mail that presents
    
    an "immediate threat" to security);        see also Abbott v. Meese, 
    824 F.2d 1166
    , 1172-1173 (D.C.Cir.1987), vacated by Thornburgh v.
    
    Abbott, 
    490 U.S. 401
    , 407-408, 
    109 S. Ct. 1874
    , 1878-1879, 
    104 L. Ed. 2d 459
     (1989) ("If a regulation were to authorize the Warden
    
    to reject a portion of a publication only if he found that the
    
    material would "encourage' violence, or some other specified type
    
    of conduct breaching security or order ... we think that regulation
    
    could survive the minimum Martinez tests.");            Gaines v. Lane, 
    790 F.2d 1299
     (7th Cir.1986) (finding prison regulation, which only
    
         13
          Under Rule 33-3.012, inmates have a right to appeal
    decisions to redact certain sections from religious texts, and
    these appeals are heard by a literature review committee. The
    plaintiffs do not challenge the district court's ruling that the
    Rule does not violate the plaintiffs' due process rights.
    allows prison officials to censor mail which presents a threat to
    
    prison security, sufficiently narrowly-tailored to be facially
    
    valid under Martinez );       George v. Sullivan, 
    896 F. Supp. 895
    
    (W.D.Wis.1995) (upholding prison regulation permitting banning of
    
    white supremacist religious literature, even in light of RFRA's
    
    heightened standard of review).
    
          The    plaintiffs   argue,   relying    on    the   law   of   the   case
    
    doctrine, that this Court's decision in this matter is dictated by
    
    our prior decision in Lawson II, 
    840 F.2d 779
     (11th Cir.1987).              The
    
    law of the case doctrine does not apply in this instance for three
    
    reasons.    First, this Court's opinion in Lawson II was vacated by
    
    the Supreme Court in Dugger v. Lawson, 
    490 U.S. 1078
    , 
    109 S. Ct. 2096
    , 
    104 L. Ed. 2d 658
     (1989), with instructions to reconsider in
    
    light of Thornburgh v. Abbott, 
    490 U.S. 401
    , 407-408, 
    109 S. Ct. 1874
    , 1878-1879, 
    104 L. Ed. 2d 459
     (1989).           Accordingly, this Court
    
    is not bound by the vacated decision.        United States v. M.C.C. of
    
    Florida, 
    967 F.2d 1559
    , 1561-1562 (11th Cir.1992).               Second, the
    
    crux of the dispute in Lawson II, and indeed in the whole first
    
    round of this litigation, was a disagreement about the standard of
    
    review that should be applied to the Department's regulations.
    
    Thus, the focus of the briefs submitted to this Court in Lawson II,
    
    as well as the focus of our opinion, was not on the regulations
    
    themselves, but instead was on whether the trend in Supreme Court
    
    prisoner Free Exercise jurisprudence is one leading toward the
    
    application of a rational basis test.        Finally, Florida has in the
    
    interim changed its prison regulations governing the admissibility
    
    of religious materials. As written, Rule 33-3.012 is substantially
    different from its predecessor, which we considered in Lawson II.
    
    Not only has the law changed, but also the facts of the case have
    
    changed.14
    
    C. Rule 33-3.012 As Applied
    
         In this litigation, no court has been asked to determine which
    
    specific portions of any particular Hebrew Israelite publication
    
    can be redacted by the Department, operating under the authority of
    
    the new Rule 33-3.012, consistent with the Constitution and RFRA.
    
    Indeed, it appears that the Department may not have applied its new
    
    Rule because of this ongoing litigation.   It may be that there is
    
    no "as applied" issue in this case.   This is a question that will
    
    have to be determined on remand in the district court.        As a
    
    practical matter, an "as applied" issue will not arise until a
    
    prisoner challenges a particular Department action. The Department
    
    will have to identify those sections of the Hebrew Israelite
    
    publications that it has decided must be removed pursuant to the
    
    Rule, and the district court will then have to determine if the
    
    Department can redact those specific portions without running afoul
    
    of the United States Constitution and RFRA.15
    
         14
          As noted above, the validity of the Department's
    application of its previous policy to the religious texts
    introduced at trial is moot. The district court erred in
    focusing on that issue rather than the only viable issue in the
    case—the validity of Rule 33-3.012.
         15
          Because an "as applied" challenge might be ripe and might
    be presented on remand, we provide some limited guidance to avoid
    repetition of clear error. In Lawson I, 641 F.Supp. at 329, the
    district court may have labored under the misconception that the
    Department was required to adduce specific evidence of a causal
    link between text that it wants to remove and actual incidents of
    violence (or some other actual threat to security). To the
    extent that the district court did in fact labor under any such
    belief, it erred. Requiring proof of such a correlation
                             III. CONCLUSION
    
         Pursuant to the above discussion, we hold that Rule 33-3.012
    
    is facially valid under both the United States Constitution and
    
    RFRA. We therefore reverse the decision of the district court, and
    
    remand to that court for an exploration of any "as applied" issues
    
    that may be ripe.
    
         REVERSED and REMANDED.
    
    
    
    
    constitutes insufficient deference to the judgment of the prison
    authorities with respect to security needs. See Procunier v.
    Martinez, 416 U.S. at 414, 94 S.Ct. at 1812 (Prison authorities
    are not "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.").