Subject: Full text of Appeals Court Decision in Mumia's Civil Suit
Date: Wed, 26 Aug 1998 19:15:51 -0400

U.S. 3rd Circuit Court of Appeals
ABU-JAMAL v PRICE
Filed August 25, 1998

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 96-3756
MUMIA ABU-JAMAL, Appellant v. JAMES PRICE, in his official capacity as Superintendent of the State Correctional Institution at Greene; MARTIN HORN, in his offi-cial capacity as Commissioner of the Pennsylvania Department of Corrections; THOMAS FULCOMER, in his official capacity as Deputy Commissioner of the
Pennsylvania Department of Corrections

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF
PENNSYLVANIA (D.C. Civil No. 95-cv-00618)
Argued: December 8, 1997
Before: NYGAARD, ALITO, and LAY,* Circuit Judges
(Opinion Filed: August 25, 1998)
* The Honorable Donald P. Lay, Circuit Judge for the United States Court 
of
Appeals for the Eighth Circuit, sitting by designation.

Timothy P. O'Brien Mitchell, O'Brien & Krakoff 429 Forbes Avenue 1705
Allegheny Building Pittsburgh, PA 15219
Jere Krakoff (Argued) Pennsylvania Institutional Law Project 1705 Allegheny
Building Pittsburgh, PA 15219
Counsel for the Appellant

Amy Zapp (Argued) Office of Attorney General of Pennsylvania Department of
Justice Strawberry Square, 15th Floor Harrisburg, PA 17120
Thomas F. Halloran, Jr. Office of Attorney General of Pennsylvania 564
Forbes Avenue Manor Complex Pittsburgh, PA 15219
Counsel for Appellees

OPINION OF THE COURT
NYGAARD, Circuit Judge.
Appellant Mumia Abu-Jamal was convicted of murdering a Philadelphia police
officer and is currently on death row at the State Correctional Institute
at
Greene. The Pennsylvania Department of Corrections has a rule that prohibits
inmates from carrying on a business or profession. Jamal alleges that this
rule is unconstitutional and that the Department used this rule as a pretext
to retaliate against him for the content of his writings, radio
commentaries, and his book, Live From Death Row, which he wrote while at 
the
State Correctional Inst0A

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U.S. 3rd Circuit Court of Appeals
ABU-JAMAL v PRICE
Filed August 25, 1998

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 96-3756
MUMIA ABU-JAMAL, Appellant
v.
JAMES PRICE, in his official capacity as Superintendent of the State
Correctional Institution at Greene; MARTIN HORN, in his offi-cial capacity
as Commissioner of the Pennsylvania Department of Corrections; THOMAS
FULCOMER, in his official capacity as Deputy Commissioner of the
Pennsylvania Department of Corrections

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT 
OF
PENNSYLVANIA (D.C. Civil No. 95-cv-00618)
Argued: December 8, 1997
Before: NYGAARD, ALITO, and LAY,* Circuit Judges
(Opinion Filed: August 25, 1998)
* The Honorable Donald P. Lay, Circuit Judge for the United States Court 
of
Appeals for the Eighth Circuit, sitting by designation.

Timothy P. O'Brien Mitchell, O'Brien & Krakoff 429 Forbes Avenue 1705
Allegheny Building Pittsburgh, PA 15219
Jere Krakoff (Argued) Pennsylvania Institutional Law Project 1705 Allegheny
Building Pittsburgh, PA 15219
Counsel for the Appellant

Amy Zapp (Argued) Office of Attorney General of Pennsylvania Department of
Justice Strawberry Square, 15th Floor Harrisburg, PA 17120
Thomas F. Halloran, Jr. Office of Attorney General of Pennsylvania 564
Forbes Avenue Manor Complex Pittsburgh, PA 15219
Counsel for Appellees

OPINION OF THE COURT
NYGAARD, Circuit Judge.
Appellant Mumia Abu-Jamal was convicted of murdering a Philadelphia police
officer and is currently on death row at the State Correctional Institute
at
Greene. The Pennsylvania Department of Corrections has a rule that prohibits
inmates from carrying on a business or profession. Jamal alleges that this
rule is unconstitutional and that the Department used this rule as a pretext
to retaliate against him for the content of his writings, radio
commentaries, and his book, Live From Death Row, which he wrote while at 
the
State Correctional Institution at Huntingdon. He alleges that this
retaliation included opening, reading and distributing his legal mail by
Department officials and denying visits by his paralegals.

Jamal filed suit against the Department and Superintendent James Price
seeking declaratory and injunctive relief under 42 U.S.C. &sect;1983. He
claims that the Department violated his rights under the First and
Fourteenth Amendments, and challenges the business or profession rule. He
sought a preliminary injunction to prevent the Department from investigating
violations of, and enforcing its business or profession rule against him.
When he made the motion, Jamal was serving a prison disciplinary sentence
for engaging in the profession of journalism at S.C.I. Greene.

The district court denied Jamal's motion for a preliminary injunction
against the enforcement of the business or profession rule, but granted a
limited injunction against the opening of Jamal's legal mail. The court held
that the disciplinary proceedings and the Department's decision to open
Jamal's mail were not motivated by retaliation for Jamal's writings.
Instead, the district court held that the Department initiated these actions
after it suspected that Jamal had entered into a contract with a publisher
for compensation. The trial court also denied Jamal's motion to rescind
disciplinary action for violating the business or profession rule. The
court, however, enjoined the reading, photocopying, distributing or
collection of his legal mail, except to "investigate the violation of prison
regulations or other misconduct." Finally, the court denied Jamal's motion
to enjoin the Department from requiring paralegals to be trained or licensed
and to work under contract with the attorneys, concluding that the
Department had valid, nonretaliatory reasons for enforcing the visitation
rule.(1) Jamal appeals.

We conclude that Jamal has a reasonable probability of demonstrating that
the Department's actions violated his rights under the First and Fourteenth
Amendments, and that Jamal has demonstrated that he will be subject to
irreparable harm if the injunction is not granted. Accordingly, we will
reverse, and remand the cause to the district court with instructions to
enjoin the investigation and enforcement of the business or profession
policy as it pertains to Jamal. We affirm the district court's order inso
far
as it denied Jamal's motion to enjoin the Department's visitation
restrictions.

I.
Jamal worked as a journalist before his conviction, and he has continued 
to
write articles while incarcerated. Approximately forty publications carried
articles under Jamal's byline on a regular basis while he was incarcerated
at S.C.I. Huntingdon. Supporters would send copies of Jamal's published
articles via regular prison mail. S.C.I. Huntingdon corrections officers
opened and searched these articles as part of screening procedures. For
instance, on one occasion, the superintendent of S.C.I. Huntingdon commended
Jamal for a Yale Law Journal article. See Mumia Abu-Jamal, Teetering on the
Brink: Between Death and Life, 100 Yale L.J. 993 (1991). Jamal received
compensation for the Yale article, and for other articles published by The
Nation, Covert Action, and Against the Current. Department officials were
not aware, however, that Jamal was paid for any other publications.

In July of 1992, Jamal recorded an extensive interview with the Prison Radio
Project, which aired in segments featured as commentaries from Jamal. Jamal
did not receive compensation for these interviews. The Prison Radio Project
wrote a letter to the assistant superintendent in August of 1992 requesting
permission to regularly tape and air commentaries by Jamal, who would be
introduced as a correspondent. In the same letter, the Project informed the
Department that they were "in the process of approaching publishers with 
a
book proposal."

The Department denied the Project's request to tape regular commentaries,
stating that "it does not permit inmates to conduct or participate in
regularly scheduled news broadcasts or commentary." In April 1994, National
Public Radio also interviewed Jamal, and intended to use the recordings as
commentaries critical of prison life, among other topics. NPR paid Jamal 
for
these interviews, which focused considerable media attention on Jamal's
case. Several members of the public and the Fraternal Order of Police
contacted the Department to express outrage that a convicted murderer could
benefit from his status.

As a result of the complaints, the Department began to "investigate" whether
Jamal was violating the business or profession rule, despite the fact that
Jamal freely admitted that he was writing and publishing his works. It
instituted a "mail watch" in August of 1994, which is separate and distinct
from the routine search of incoming personal mail. Under a mail watch,
corrections officers were entitled to open Jamal's legal mail outside of 
his
presence.

The business or profession rule states, in relevant part:
"No inmate is permitted to incorporate or engage in a business or profession
while under the supervision of the Department of Corrections except as
indicated below.(2) An inmate who is engaged in a business or profession
prior to incarceration is expected to assign authority for the operation 
of
such business or profession to a person in the community."

(footnote added). The Department contends that it reviewed Jamal's legal
mail specifically to determine whether one of Jamal's attorneys was helping
him obtain compensation for his writing and commentaries, even though the
business or profession rule applies irrespective of whether Jamal is
compensated.

Department of Corrections officials opened Jamal's legal mail, copied it,
and sent it to David Horwitz, assistant general counsel of the Department
of
Corrections. Horwitz read the letters in their entirety, and concluded that
they were not relevant to the Department's investigation. In the face of
this conclusion, and even though Horwitz determined that the letters were
pertinent to Jamal's state appeals, Horwitz forwarded them to Chief Counsel
Young and to Brian Gottlieb, Deputy Counsel in the Office of the General
Counsel--the office charged with advising the Governor of Pennsylvania on,
among other things, signing death warrants.

The Department forwarded three letters from Jamal's attorneys to the
governor's office. Two of those letters, dated August 16, 1994 and August
23, 1994, were from Jamal's lead attorney in his state appeal and contained
a candid discussion of the merits of his claim and sensitive information
regarding the defense strategy. The third letter, dated August 25, 1994 had
been written by staff counsel on Jamal's state appeal, and also discussed
his case. The Department continued a "mail watch" on Jamal's legal mail from
August 1994, until Jamal filed this lawsuit, and confiscated and copied
various incoming and outgoing letters. When Jamal filed his motion for a
preliminary injunction, he had entered into a contract with Emerge Magazine
to submit an article. The Department continued its investigation of Jamal.

In September 1994, the Department became suspicious of the number of people
admitted as paralegals for legal visits with Jamal. Jamal's attorney
designated six legal assistants. Among these were Noelle Hanrahan, who was
also working with Jamal as part of the Prison Radio Project; Jeannette
Patton and Bobby Blocker, who were involved in fundraising for Jamal's legal
defense; and Jamila Levi, who calls herself Jamal's "spiritual sister" and
had visited Jamal in the past. Levi visited Jamal as a social visitor in
October 1993 and began visiting as a paralegal in October 1994. In January
of 1995, she was admitted as a social guest. In February of 1995, she was
admitted as a paralegal four times. Levi marked herself as "friend" in the
prison's visitors book even when she was admitted for legal visits, and had
written articles complaining of the limits imposed upon social visits for
death row inmates.

In a February 24, 1995 letter, the Department wrote to Jamal's attorney: "it
is not sufficient merely to designate persons as investigators and
paralegals unless the identified individuals can produce documentation that
they are, in fact, licensed investigators or credentialed paralegals acting
under contract with, or as employees of the attorney." These requirements
went beyond those set forth in prison regulations.(3) Levi was not licensed
as an investigator, had no legal training, was not employed by Jamal's
attorney, and was not receiving compensation for her visits. Levi was denied
admission as a paralegal on February 28, 1995.

II.
We must determine whether the district court erred as a matter of law when
it decided Jamal's motion for a preliminary injunction. Our review is
plenary. See Olde Discount Corp. v. W. Michael Tupman, 1 F.3d 202, 206 (3d
Cir. 1993). We review the district court's findings of fact for clear error.
Philadelphia Marine Trade Ass'n v. Local 1291, 909 F.2d 754, 756 (3d Cir.
1990). We first consider Jamal's request to enjoin the investigation and
enforcement of the business or profession rule against him.

Prison regulations that curtail an inmate's constitutional rights are valid
if reasonably related to legitimate penological objectives. Turner v.
Safley, 482 U.S. 78, 89, 107 S. Ct. 2254, 2261 (1987). The deference we
accord to the Department in establishing, interpreting and applying prison
regulations presents a formidable barrier to Jamal's claim that the prison
regulations are unconstitutional. See Turner, 482 U.S. at 89, 107 S. Ct. 
at
2262 (noting that less stringent First Amendment scrutiny is appropriate 
in
the prison setting because "prison administrators . . . and not the courts
[are] to make the difficult judgments concerns the institutional
operations.") Incarceration, however, necessitates that many rights and
privileges, including rights derived from the First Amendment, be eliminated
or curtailed. Pell, 417 U.S. at 822, 94 S. Ct. at 2804.

In Turner, the Supreme Court listed four factors to help determine whether
prison regulations and practices are reasonable:
"First, there must be a valid, rational connection between the prison
regulation and the legitimate governmental interest put forward to justify
it. Thus, a regulation cannot be sustained where the logical connection
between the regulation and the asserted goal is so remote as to render the
policy arbitrary or irrational. Moreover, the governmental objective must be
a legitimate and neutral one. We have found it important to inquire whether
prison regulations restricting inmates' First Amendment rights operated in a
neutral fashion, without regard to the content of the expression.

A second factor relevant in determining the reasonableness of a prison
restriction, as Pell shows, is whether there are alternative means of
exercising the right that remain open to prison inmates. Where other avenues
remain available for the exercise of the asserted right, courts should be
particularly conscious of the measure of judicial deference owed to
corrections officials . . . in gauging the validity of the regulation.

A third consideration is the impact accommodation of the asserted
constitutional right will have on guards and other inmates, and on the
allocation of prison resources generally. In the necessarily closed
environment of the correctional institution, few changes will have no
ramifications on the liberty of others or on the use of the prison's limited
resources for preserving institutional order. When accommodation of an
asserted right will have a significant ripple effect on fellow inmates or
on
prison staff, courts should be particularly deferential to the informed
discretion of corrections officials.

Finally, the absence of ready alternatives is evidence of the reasonableness
of a prison regulation. By the same token, the existence of obvious, easy
alternatives may be evidence that the regulation is not reasonable, but is
an exaggerated response to prison concerns. 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 claimant's
constitutional complaint. But if an inmate claimant can point to an
alternative that fully accommodates the prisoner's rights at de minimis cost
to valid penological interests, a court may consider that as evidence that
the regulation does not satisfy the reasonable relationship standard."
Turner, 482 U.S. at 89-91, 107 S. Ct. at 2262 (citations and internal
quotation marks omitted).

Federal Rule of Civil Procedure 65 permits a court to grant a preliminary
injunction if the moving party demonstrates a likelihood of success in the
litigation, and that he will suffer great or irreparable injury absent an
injunction. Fed. R. Civ. P. 65; Delaware River Port Auth. v. Transamerican
Trailer Tranp. Inc., 501 F.2d 917, 919-20 (3d Cir. 1974). Accordingly, to
succeed on his motion for a preliminary injunction, Jamal must first
demonstrate that the business or profession rule, as enforced against him,
is not reasonably related to any legitimate interests. We conclude that
Jamal has satisfied this requirement because he is likely to show: first,
that the Department enforced the business or profession rule because of the
content of his writings; second, that his writing does not affect the
allocation of prison resources, other inmates, or the orderly administration
of the prison system any more than does the writing of other inmates; and
third, that there are obvious, easy alternatives to address the Department's
security concerns.

A.
Prison regulations, like the business or profession rule, which restrict 
an
inmate's First Amendment rights must operate in a neutral fashion, without
regard to the content of the expression. Turner, 482 U.S. at 90, 107 S. Ct.
at 2262. We analyze content neutrality in the prison context differently
than we do for non-inmates. Jones v. North Carolina Prisoners' Labor Union,
Inc., 433 U.S. 119, 133, 97 S. Ct. 2532, 2541 (1977). For example, limiting
speech that may include escape plans or incite other prisoners would be a
valid response to a potential security threat,"even though the same showing
might be unimpressive if . . . submitted as justification for governmental
restriction of personal communication among members of the general public."
Id. at 133 n. 9, 97 S. Ct. at 2541 n. 9 (citation and internal quotation
marks omitted). Nevertheless, once prison security is accomplished, "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." Pell v. Procunier, 417 U.S. 817, 822, 94 S. Ct.
2800, 2804 (1974).

The superintendent of the S.C.I. Huntingdon was aware of Jamal's writings
when Jamal published the Yale article in 1991. An August 16, 1992 letter to
the Department noted that Jamal was approaching publishers regarding a book
deal. Nevertheless, the Department did not begin to investigate him until
May 6, 1994, after National Public Radio sought permission to broadcast
Jamal's interviews as regular commentaries. The district court determined
that "the investigation was initiated after public complaints concerning
Jamal's proposed NPR commentaries were made by the Fraternal Order of
Police" and concluded that any delay in the Department's enforcement of the
rule was attributable to its investigatory procedures. As a result, it held
that Jamal was unlikely to succeed in showing that the action was in
retaliation against the content of his writings. We disagree, and conclude
that the district court erred.

The Department began its investigation under public pressure to do so, and
because of the content of Jamal's writing, not because he was being paid for
it. Indeed, under the Department's own regulations, compensation is
irrelevant in these circumstances. Furthermore, corrections officers
permitted another inmate at the S.C.I. Huntingdon to publish, promote, and
receive royalties for a novel without punishment despite the business or
profession rule.

The Department states that the rule is justified by "multifarious purposes
and the impossibility of accommodating the practice of a profession or
business in a penal setting." (Appellee's Br. at 25.) There is no evidence,
however, that Jamal's prison writing,(4) any more so than that of other
inmates, has strained prison resources, contributed to unrest among the
inmate population, or enhanced Jamal's stature as a prisoner, resulting in
danger to himself or others. To the contrary, the Department was able to
accommodate a live radio call-in show to promote another inmate's book. From
the record it appears that Jamal's writing affected prison administration
only when it went through the mail screening system--just like the rest of
the inmates' mail. Until it imposed its "mail watch," the Department did not
have to make any special accommodations for Jamal's writing. As for the
Department's remaining asserted interest -- ensuring that prisoners are
unable "to carry on with life as usual," Appellee's Br. At 8 -- the
Department has failed to explain how this interest is reasonably advancedby
allowing some prisoners to publish books but not allowing Jamal to do
likewise. Even if this interest might justify a rule that precludes inmates
from receiving compensation for their writings, we need not resolve the
issue whether this interest can justify a rule preventing uncompensated (as
opposed to compensated) speech, because we conclude that it is likely that
Jamal can demonstrate that the Department's enforcement of the business or
profession rule against him, was motivated, at least in part, by the content
of his articles and mounting public pressure to do something about them, and
hence, the actions were not content neutral as required by Turner, 482 U.S.
at 90, 107 S. Ct. at 2262, and Pell, 417 U.S. at 822, 94 S. Ct. at 2804.

B.
Jamal is likely to demonstrate that his writing neither requires
accommodation by prison officials, nor affects other inmates or the
allocation of prison resources. The Supreme Court discussion in Turner bears
repeating here:

"In the necessarily closed environment of the correctional institution, few
changes will have no ramifications on the liberty of others or on the useof
the prison's limited resources for preserving institutional order. When
accommodation of an asserted right will have a significant "ripple effect"
on fellow inmates or on prison staff, courts should be particularly
deferential to the informed discretion of corrections officials." Turner,
482 U.S. at 90, 107 S. Ct. at 2262. The record contains no evidence of such
a "ripple effect." As explained before, Jamal was acting as a journalist
from 1986, and the Department did not claim to be burdened by his actions
until the Fraternal Order of Police outcry in 1994.

C.
Naturally, an inmate relinquishes some First Amendment rights that he would
enjoy if not incarcerated. Jones, 433 U.S. at 125, 97 S. Ct. at 2538. "The
concept of incarceration itself entails a restriction on the freedom of
inmates to associate with those outside of the penal institution. Equallyas
obvious, the inmate's `status as a prisoner' and the operational realities
of a prison dictate restrictions on the associational rights among inmates."
Id. at 126, 97 S. Ct. at 2538. Nonetheless, Jamal is likely to show that the
Department's discriminatory application of the business or profession rule
to his writing is an exaggerated response to the Department's security
objectives because there are obvious, easy alternatives to address the
Department's concerns. Id. If Jamal "can point to an alternative that fully
accommodates [his] rights at de minimis cost to valid penological interests,
[we] may consider that as evidence that the regulation does not satisfy the
reasonable relationship standard." Id. The Department could simply apply its
rule in a content neutral fashion. Without listing all the other possible
alternative rules, the Department could apply the business or profession
rule to those businesses that place a substantial burden on the Department's
staff, which would tend to exclude writers, whether episodic or notorious.
There are no doubt many businesses or professions, which if practiced within
the prison, would necessarily burden prison officials or other inmates. As
long as the inmate/writer does not attain a special status, threaten
corrections officers, or incite the inmate population, a more narrow rule
could sufficiently protect the Department's security interests.

The record does not show that the Department actions were motivated by
concerns about escape plans, plans about ongoing criminal activity, or
threats. To the contrary, it appears that Jamal's activity has not
heightened tensions at the prison, and that his writings do not advocate
violence, have any impact on the prison population, threaten corrections
officers, or burden prison security resources. See, e.g., Bell v. Wolfish,
441 U.S. 520, 547, 99 S. Ct. 1861, 1878 (1979). Instead, the Department's
business or profession rule is a class two disciplinary provision, and
violations are punishable at the same level as horseplay or smoking.
Although, Jamal's articles, book, and radio commentaries may have generated
controversy beyond prison walls, unless they amount to fraud, extortion, or
threats to those outside the prison, the valid objectives dwindle. Hence,we
conclude that Jamal is likely to demonstrate that the Department's
enforcement of the business or profession rule with respect to him is too
broad to be justified by the concerns articulated by the Department.

D.
Turning to the second prong of the Federal Rule of Civil Procedure 65 test,
the district court held that Jamal did not face irreparable harm as a result
of the investigation of the business or profession rule. The court held that
Jamal "is and has been able to disseminate his ideas through the written
work to any and all outlets without direct interference from [the
Department]." We disagree. We have already concluded that Jamal has a
reasonable likelihood of success in showing that the Department violated his
First Amendment rights. "The loss of First Amendment freedoms, for even
minimal periods of time, unquestionably constitutes irreparable injury."
Elrod v. Burns, 427 U.S. 347, 373, 96 S. Ct. 2673, 2689 (1976). This
harm--the investigation for violations of the business or profession
rule--was both threatened and occurring at the time of respondent's motion.
Under Elrod, this is sufficient to show irreparable harm because the
timeliness of speech is often critical. See id. at n.29.

Importantly, Jamal is a condemned man, whose only time to speak and writeis
now. The Department has not disavowed its intent to enforce the business or
profession rule, and Jamal has also unequivocally stated that he will
continue to write. Thus, there is no reason to believe that the Department
will not subject Jamal to the same treatment in the future. The district
court held that the reading and copying Jamal's legal mail was acceptableif
the prison officials had "a reasonable suspicion that plaintiff was
violating an institutional regulation by engaging in a business or
profession in which wittingly or not one or more of his attorneys was
complicit." The Department argues in support that its decision to open
Jamal's legal mail was necessitated by its investigation into whether Jamal
was conducting a business or profession. This argument is nonsensical. We
have difficulty seeing the need to investigate an act that Jamal openly
confesses he is doing. Jamal's writing is published, and he freely admits
his intent to continue. Continued investigation and enforcement of the rule
invades the privacy of his legal mail and thus directly interferes with his
ability to communicate with counsel.
The district court's injunction is too narrow to protect Jamal from
irreparable harm that results from opening his confidential legal mail. We
conclude that Jamal has a reasonable likelihood of success in showing that
the Department's application of the business or profession rule in this case
violates his right to free speech. We will therefore remand the cause to the
district court with instructions to grant Jamal's preliminary injunction,
preventing the Department from opening his mail on the pretext that it is
investigating violations of the business or profession rule.

III.
Finally, we turn to Jamal's claim that the Department retaliated against him
by restricting paralegal visits. Here, the facts show that Jamal is not
likely to succeed on the merits, because the Department has articulated a
valid, content neutral reason for applying more strict visitation rules to
Jamal's visitors. Turner, 482 U.S. at 89, 107 S. Ct. at 2262.

Indeed, the facts show that the Department had a legitimate reason to
suspect that legal visitation privileges were being abused so that Jamal
could receive more than the permitted number of social visits. Jamila Levi
made a personal visit to Jamal during October 1993, visited as a paralegal
in October 1994, as a social guest in January of 1995, and visited as a
paralegal four times in February 1995. Levi marked herself as "friend" in
the prison's visitors book even when she was admitted for legal visits.

Jamal's visitation claim also implicates his constitutional right of access
to courts. In such a case we weigh the extent to which his rights are
burdened, against the "legitimate interests of penal administration and the
proper regard that judges should give to the expertise and discretionary
authority of correctional officials." Procunier v. Martinez, 416 U.S. 396,
420, 96 S. Ct. 1800, 1815 (1974), overruled in part on other grounds,
Thornburgh v. Abbott, 490 U.S. 401, 109 S. Ct. 1874 (1989). In Procunier,
the prison regulation absolutely prohibited the use of law students and
paraprofessionals. Id. Here, however, the Department has only asked for
verification that the legal visitors are credentialed or employed by the
attorney. Jamal has not demonstrated that the paralegal visitation
restriction delayed or hindered his state court appeal. Visitation--whether
it is legal or personal--may jeopardize the security of a facility. We must
defer to the expertise of prison officials to assess the security of the fac
ilities and to assure that legal visitors are properly admitted. Cf. Block
v. Rutherford, 468 U.S. 576, 586, 104 S. Ct. 3227, 3234 (1984). Accordingly,
we conclude that security concerns outweigh any burdens placed on Jamal's
state court appeal and affirm the district court's denial of Jamal's motion
to enjoin the Department's visitation restrictions.

IV.
To summarize, we hold that Jamal is likely to demonstrate first, that the
Department enforced the business or profession rule against him based upon
the content of his writings; second, that his writing does not affect the
allocation of prison resources, other inmates, or the orderly administration
of the prison system any more than does writing of other inmates; and third,
there exist obvious, easy alternatives open to the Department to address its
security concerns. After considering all of these factors,(5) we conclude
that Jamal is likely to demonstrate that there is no valid, rational
connection between the Department's application of the business or
profession rule in this case and a legitimate penological interest. Thus,he
is likely to succeed in showing a First Amendment violation, and we hold
that he will suffer irreparable injury as a result. Accordingly, we will
reverse that portion of the district court's order respecting this issue,
and instruct it to enjoin the investigation and enforcement of the business
or profession rule as it pertains to Jamal; and enjoin the Department from
opening Jamal's legal mail to investigate whether he is violating the
business or profession rule.
We also conclude that Jamal is not likely to succeed in showing that the
Department retaliated against him by limiting paralegal visits, and on this
issue we will affirm the district court.

A True Copy: Teste:
Clerk of the United States Court of Appeals for the Third Circuit
FOOTNOTES
1. The Department also denied media requests for interviews from February
through June of 1995. During that time, the Department granted media
requests for other inmates. The district court found that the Department's
justifications for denying media access to Jamal were not credible, and
concluded that this action was clearly retaliatory. The district court
granted an injunction prohibiting further denials of media access. This
order is not challenged on appeal.

2. The exceptions to this rule allow inmates to continue to make major
decisions, on occasion, that substantially affect their businesses; and
allow unsentenced inmates, inmates on work release, and inmates in community
corrections programs, to continue to practice a business or profession
provided their work does not impose a burden on prison administration.

3. Under DCM-812, an inmate's attorney may designate persons, such as law
students, paralegals, or investigators to visit the inmate to act as the
attorney's agent. The attorney is required to submit a "written statement
signed by the attorney on the letterhead of his or her firm identifying each
person as the attorney's agent and attesting that the visit is for the
purpose of legal consultation."

4. Writing also happens to have once been Jamal's profession, and he began
to write in prison as early as 1989.

5. We note that neither party addressed the remaining Turner factor --
whether there are alternative means of exercising the right that remain open
to prison inmates, See Turner, 492 U.S. at 90 -- and we have thus considered
this to be a neutral factor for purposes of our analysis.



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