Thornburgh v. Abbott, 490 U.S. 401 (1989)

For prisoners, the 1987–1989 period represented a watershed: the Supreme Court decided three cases— Turner v. Safley (482 U.S. 78, 1987), O’Lone v. Estate of Chabazz (482 U.S. 342, 1987), and Thornburgh v. Abbott (1989)—each of which employed a reasonableness test ill equipped to protect prisoners’ First Amendment rights. Thornburgh, the last of the Turner trilogy of First Amendment cases, addressed prisoners’ rights to receive publications prepared by and directly mailed from the civilian community. The Thornburgh plaintiffs challenged Federal Bureau of Prisons rules that permitted wardens to reject an entire publication if they found it ‘‘detrimental to the security, discipline, or good order of the institution or if it might facilitate criminal activity.’’ The rules contained two caveats: (1) a publication could not be rejected ‘‘solely because its content is religious, philosophical, political, social or sexual or because its content is unpopular or repugnant’’; and (2) rejection triggered procedural safeguards.

In upholding the censorship rules, the Court applied the test first used in Turner v. Safley (‘‘the Turner test’’). This lax, deferential test uses the lowest degree of scrutiny by inquiring whether the rule or practice is ‘‘reasonably related to legitimate penological interests.’’ Moreover, the test assumes the rule or practice is reasonable. The Thornburgh Court concluded the challenged rules satisfied the Turner test after it balanced four factors that bring the reasonableness standard into operation. First, the censorship rules were ‘‘rationally related’’ to ‘‘the legitimate objectives of prison security, order and discipline.’’ Second, the availability of other publications provided an alternative means of free speech. Third, accommodating the asserted right to receive publications detrimental to safety would impair the rights of others. Finally, no ‘‘obvious, easy alternatives’’ to the challenged censorship rules existed at a ‘‘de minimis’’ cost.

The Thornburg Court insisted that the ‘‘reasonableness standard is not toothless.’’ In this regard, the majority opinion stressed that the Federal Bureau of Prisons rules in question required an individualized determination by the warden whether the publication constitutes ‘‘an intolerable risk of disorder ... [in] a particular prison at a particular time.’’ The dissent thought differently, calling the test ‘‘a ‘manipulable’ reasonableness standard ... that too easily may be interpreted to authorize arbitrary rejections of literature addressed to inmates.’’ Commentators largely agreed with the dissent. Application of the Turner/ Thornburgh reasonableness standard by the federal courts of appeal has shown that its ‘‘teeth’’ are actually ‘‘false teeth’’ that can be effectively worn if the court so chooses.

JAMES E. ROBERTSON

References and Further Reading

• Frankel, Geoffrey S., Untangling First Amendment Values: The Prisoners’ Dilemma, George Washington Law Review 59 (August 1991): 1614–1646.
• Kuby, Ronald, and William M. Kunstler, Silencing the Oppressed: No Freedom of Speech for Those Behind the Walls, Creighton Law Review 26 (June 1993): 1005–1025.
• Levine, Samuel J., Restricting the Right of Correspondence in the Prison Context: Thornburgh v. Abbott and Its Progeny, Fordham Intellectual Property, Media and Entertainment Law 4 (March 1994): 891–927.
• Mannetta, Jennifer A. ‘‘The Proper Approach to Prison Mail Regulations: Standards of Review.’’ New England Journal on Criminal and Civil Confinement 24 (Winter 1998): 209–248.
• Mushlin, Michael B. Rights of Prisoners, 3rd ed., vol. 1. St. Paul, MN: West Group, 2002.
• The Supreme Court, 1988 Term—Leading Cases, Harvard Law Review 103 (November 1989): 137, 239–249.

Cases and Statutes Cited

• O’Lone v. Estate of Chabazz, 482 U.S. 342 (1987)
• Turner v. Safley, 482 U.S. 78 (1987)

See also Abortion; Akron v. Akron Center for Reproductive Services, 462 U.S. 416 (1983); O’Lone v. Estate of Chabazz, 482 U.S. 342 (1987); Prisoners and Freedom of Speech; Reproductive Freedom; Turner v. Safley, 482 U.S. 78 (1987)