Lawson v. Singletary ( 1996 )

  •                                                           PUBLISH
                         FOR THE ELEVENTH CIRCUIT
                               No. 94-4663
                    D. C. Docket No. 83-8409-CIV-SMA
    ROBERT LEE LAWSON, on behalf of himself
    and all others similarly situated,
    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,
              Appeal from the United States District Court
                  for the Southern District of Florida
                             (May 29, 1996)
    Before ANDERSON and BARKETT, Circuit Judges, and YOUNG*, Senior
    District Judge.
    *Honorable George C. Young, Senior U.S. District Judge for the
    Middle District of Florida, sitting by designation.
         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 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. 1987)
    (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
     (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
     (1989) (hereinafter
    "Lawson III"). This Court in turn remanded to the district court. Lawson
    v. Dugger, No. 86-5774 (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.Sup. 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 it applies
    to this case.2 Two interrelated preliminary matters require discussion:
           RFRA was signed into law on November 16, 1993.
          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
    (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
    '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
     (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
     (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
     (1989)(same); Texas Monthly, Inc. v. Bullock,
    489 U.S. 1
    109 S. Ct. 890
     (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 (1994)("A proper respect for both the
    Free Exercise and the Establishment Clauses compels the State 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
     (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.
    Florida's new Rule 33-3.0123 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:
         (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
    See Ashwander v. Tennessee Valley Authority, 297 U.S 288, 341, 
    56 S. Ct. 466
     (1936)(Brandeis, J., concurring).
          FLA. ADMIN. CODE ANN. § 33-3.012 (1995).
          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
    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 §
          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 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
          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.
    construed to be an outright ban on the religious materials introduced at
             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 33-3.012, and its validity as applied.5 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
          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.
          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.
    failed to present an issue to the district court with sufficient clarity. We
    conclude that the district court abused its discretion in failing to
    consider the redaction issue.7
          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
          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.
    413 U.S. 15
    93 S. Ct. 2607
     (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
     (1974). There is clearly no per se bar to
    censorship of incoming prisoners' mail. See Thornburgh v.
    490 U.S. 401
    109 S. Ct. 1874
     (1989); Turner v. Safely,
    482 U.S. 78
    107 S. Ct. 2254
     (1987); Procunier v. Martinez, 
    416 U.S. 396
    94 S. Ct. 1800
     (1974); Abbott v. Meese, 
    824 F.2d 1166
    (D.C. Cir. 1987), vacated by Thornburgh v. Abbott, 
    490 U.S. 401
    109 S. Ct. 1874
     (1989); McCorkle v. Johnson, 
    881 F.2d 993
     (11th Cir. 1989).
         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
     (1960), and Wisconsin v. Yoder, 
    406 U.S. 205
    92 S. Ct. 1526
     (1972), which was substantially circumscribed by Employment Div.,
    Dep't of Human Resources v. Smith, 
    494 U.S. 872
    110 S. Ct. 1595
    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
     (1963), and
               Wisconsin v. Yoder, 
    406 U.S. 205
     (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
    (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
     (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
     (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
     (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.
         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
    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
     (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
     (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
     (1977). See also Cruz v. Beto,
    405 U.S. 319
    , 321, 
    92 S. Ct. 1079
     (1972); Price v. Johnston, 
    334 U.S. 266
    68 S. Ct. 1049
     (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,
          The cases discussed in the text involve First Amendment
    rights, including both Free Exercise and Free Speech. In the
    482 U.S. 78
    107 S. Ct. 2254
     (1987); Bell v. Wolfish, 
    441 U.S. 520
    99 S. Ct. 1861
     (1979); Jones, 
    433 U.S. 119
     (1977); Pell, 
    417 U.S. 817
    416 U.S. 396
     (1974); Cruz, 
    405 U.S. 319
     (1972).9 In evaluating
    prisoners' constitutional rights claims 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; accord Jones, 433 U.S. at 128; Martinez, 416 U.S. at 404-
    05; Cruz, 405 U.S. at 321. 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 ("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 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.
    498 U.S. 337
    , 342, 
    111 S. Ct. 807
           All of the cases cited were decided before O'Lone.
    prison officials, and the fact that courts are ill-equipped to deal with such
    problems. Martinez, 416 U.S. at 404-05.
          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. 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. 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 414.10 Similarly, in Bell v. Wolfish, the Court reemphasized the
    "wide-ranging deference" to be accorded the judgment of prison
          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
          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 (quoting Pell, 417 U.S. at 827).
          We recognize that, following the Martinez decision, the
    constitutional standard employed by the Supreme Court continued to
    evolve in the direction of a rational basis standard.11 We also recognize
          We are aware that the result in Martinez has subsequently
    been limited by Thornburgh v. Abbott, 
    490 U.S. 401
    , 4407-408, 
    109 S. Ct. 1874
     (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.
              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 (internal
    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,
    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. 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.
    Id. at 90-91 (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
         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
    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 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
              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
    (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).
    subject to de novo review by this Court. See Christopher v. Cutter
    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
     (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. In
    the application of this standard, we must accord wide-ranging deference
    to the judgment of the Department. Moreover, the "prison administrators
    . . . [are not] required to show with certainty that adverse consequences
    would flow from the failure to censor" a particular publication. Id. at 414.
          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.
    490 U.S. 401
    , 4407-408, 
    109 S. Ct. 1874
     (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 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
          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.
    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.
    490 U.S. 1078
    109 S. Ct. 2096
     (1989), with instructions to
    reconsider in light of Thornburgh v. Abbott, 
    490 U.S. 401
    , 4407-408, 
    109 S. Ct. 1874
     (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
          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.
          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
                                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.
    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
    constitutes insufficient deference to the judgment of the prison
    authorities with respect to security needs. See Procunier v.
    Martinez, 416 U.S. at 414 (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.").