Wolff v. McDonnell, 418 U.S. 539, 575-576, 94 S.Ct. 2963, 41 L. Ed. 2d 935 (1974) noted that although Procunier was based upon First Amendment rights of correspondents with prisoners, it had not yet recognized First Amendment rights of prisoners in the context of mail censorship. The Court specifically stated: "Furthermore, freedom from censorship is not equivalent to freedom from inspection or perusal. As to the Sixth Amendment, its reach is only to protect the attorney-client relationship from intrusion in the criminal setting. 418 U.S. at 576, 94 S. Ct. at 2984, 41 L. Ed. 2d at 962. In Wolff the prison authorities conceded that they could not read mail from attorneys to inmates but contended they could open letters from attorneys as long as it was done in the presence of the prisoner. The Court stated: "The possibility that contraband will be enclosed in letters, even those from apparent attorneys, surely warrants prison officials' opening the letters. 418 U.S. at 577, 94 S. Ct. at 2985, 41 L. Ed. 2d at 963. Significantly, the Court also stated: "[W]e think that petitioners, by acceding to a rule whereby the inmate is present when mail from attorneys is inspected, has done all, and perhaps even more, than the Constitution requires." Id.

་་

The district court's order permitting reading of incoming and outgoing general correspondence was affirmed in Guajardo v. Estelle, 580 F.2d 748 (5th Cir. 1978). Further, the district court had properly stricken down the requirement that prison officials give advance approval for a person to be added to a prisoner's correspondence list, and the limitation of forty letters to persons on the list. The court reversed the district court's order striking down regulations authorizing prison officials to reject a letter that "(1) concerned plans for violation of prison rules and (2) that contained a graphic presentation of sexual behavior that is in violation of the law." 580 F.2d at 757. The rule prohibiting friends and relatives from sending packages was not unconstitutional. The district court's holding that prison officials may not withhold mail to punish inmates for misconduct was not challenged. See Guajardo v. Estelle, 432 F.Supp. 1373 (S.D. Tex. 1977) at 1384.

An eighteen hour delay in delivering mail to prisoners, however, does not constitute a constitutional violation. Fore v. Godwin, 407 F.Supp. 1145 (E.D. Va. 1976). But in Bolding v. Holshouser, 575 F.2d 461 (4th Cir. 1978), the district court had improperly dismissed

a complaint alleging that the defendants had unreasonably delayed the delivery of incoming mail and the posting of outgoing mail. This applied to both general correspondence and attorney-client mail; plaintiffs further alleged that defendants sometimes failed or refused to deliver or post attorney-client mail.

Navarette v. Enomoto, 536 F.2d 277 (9th Cir. 1976) held that allegations that the defendants deliberately refused to mail certain of plaintiff's letters and to send certain others by registered mail stated a of action. Navarette was reversed by the Supreme Court in Procunier v. Navarette, 434 U.S. 555, 98 S.Ct. 855, 55 L.Ed.2d 24 (1978), on immunity grounds. However, the Court specifically noted that it would not address the First Amendment question. 434 U.S. at 566 n. 14, 98 S.Ct. at 862 n. 14, 55 L.Ed.2d at 33-34 n. 14.

Non-privileged mail (mail not addressed to the courts, attorneys, or elected officials) is not protected from inspection. Prison officials may interfere with mail where a substantial governmental interest unrelated to the suppression of expression is involved. However, the Fourteenth Amendment requires notice if mail is censored. Prison officials may inspect and peruse non-privileged mail for contraband as long as the intrusion is as minimal as possible. Helgemoe, 437 F.Supp. 269 (D. N.H. 1977).

Laamon v.

Rules and practices of a jail permitting unrestricted censorship of all incoming and outgoing correspondence are unconstitutional. Vest v. Lubbock Cty. Com'rs. Court, 444 F. Supp. 824 (N.D. Tex. 1977).81 In that case prisoners who refused to sign a waiver permitting censorship of their mail were not permitted to send or receive any mail except legal or official mail; mail was censored regardless of whether there was a reasonable belief of contraband; incoming letters containing abusive language were arbitrarily withheld from the inmate, who was not informed; and outgoing mail with abusive language was returned to the inmate

unsent.

The district court's prohibition against the random and routine reading of outgoing mail was approved

81. See also Minnesota Civil Liberties Union v. Schoen, 448 F.Supp. 960 (D. Minn. 1978), which involved similar challenges to a prison mail system.

in Wolfish v. Levi, 573 F.2d 118, 129-30 (2d Cir. 1978). The district court had observed that mail could still be inspected for contraband, and where good cause was shown, outgoing mail could be read. 573 F.2d at 130 n. 27. The court declined to follow the ruling of Smith v. Shrimp, 562 F.2d 423 (7th Cir. 1977), which upheld the practice of reading outgoing, non-privileged mail. 573 F.2d at 131 n. 28.

ii. Pretrial detainees. Feeley v. Sampson, 570 F.2d 364 (1st Cir. 1978) applied Smith, supra, to pretrial detainees and allowed prison officials to read outgoing non-privileged mail. Inmates of San Diego County Jail v. Duffy, 528 F.2d 954 (9th Cir. 1975) held that the standards for censorship and examination of mail set forth in Procunier, supra, did not apply to pre-trial detainees, but failed to specify the appropriate standards. Dillard v. Pitchess, 399 F.Supp. 1225 (C.D. Cal. 1975), another case involving pre-trial detainees, stated that "contrary to present regulations, [pre-trial detainees] should be allowed to receive from visitors, or through the mail, any newspapers, books, or magazines that may lawfully by delivered by the postal service. The obvious burden of inspection for contraband that would result is believed to be overweighed by the First Amendment . 399 F.Supp. at 1241.

Pre-trial detainees have the right to receive any publication available to the general public, whether from the mails or some other source. Opening non-legal mail to inspect for contraband does not violate the First Amendment as long as no censorship occurs after it is opened. O'Bryan v. County of Saginaw, Mich., 437 F.Supp. 582 (E.D. Mich. 1977).

Giampetruzzi v. Malcolm, 406 F.Supp. 836 (S.D. N.Y. 1975) permitted inspection of mail only in the pre-trial detainee's presence: "Thus, although a detainee must be held under the least restrictive means necessary to assure institutional security, those means may include the need to inspect a detainee's mail." 406 F.Supp. at 846.

Monitoring a pre-trial detainee's mail was prohibited in Vienneau v. Shanks, 425 F.Supp. 676 (W.D. Wis. 1977). The jail claimed that they were reading plaintiff's mail and forwarding copies to the district attorney, in order to prevent plaintiff from attempting suicide again. The court held that monitoring plaintiff's mail was not reasonably necessary to protect her from herself in light of the facts that she was in

isolation, under constant observation, subject to periodic searches and controlled visitation, and that all envelopes or packages addressed to her were subject to inspection.

Brenneman v. Madigan, 343 F.Supp. 128 (N.D. Cal. 1972) discussed the question of censorship: "While prison officials may inspect incoming correspondence for contraband . it is difficult to justify any restriction at all on the amount or extent of a pretrial detainee's outgoing correspondence." 343 F.Supp.

at 141. Jones v. Wittenberg, 330 F.Supp. 707 (N.D. Ohio 1971) prescribed the following standards for pretrial detainees:

330 F.Supp. at 719. The court noted that prison officials need not apply the second and fourth standards to convicted prisoners.

It is at least clear that between the extremes of wholesale censorship and unbridled enjoyment of First Amendment rights, there are various alternative methods

of regulating prison correspondence. The defendants must choose the least restrictive of those alternatives. Nolan v. Fitzpatrick, 451 F.2d 545 (1st Cir. 1971).

b.

Correspondence with Courts, Attorneys,
and Public Officials

Mail addressed to courts, attorneys, or elected officials is usually designated as privileged and is protected by the First Amendment from interference.

Bryan v. Werner, 516 F.2d 233 (3d Cir. 1975) involved a challenge to censorship of mail going out of the resident law clinic. The court approved the district court's conclusion that there was no constitutional violation in checking the mail sent from the clinic in order to assure that the clinic was not being used for improper purposes. However, under the facts of that case, a question was presented as to whether the prison officials were refusing to mail letters intended for the courts. The court specifically stated: "The counsellors supervising the clinic may, however, check outgoing mail to ensure that it is court-related and seeks legal relief."82

516 F.2d at 239. The court found that refusal to send court-directed mail was impermissible, whether or not sent through the law clinic. 83

Taylor v. Sterrett, 532 F.2d 462 (5th Cir. 1976) considered the First Amendment rights which were not answered by Wolff, supra, and Procunier, supra. The court concluded that incoming mail from the courts, attorneys, governmental agencies, and press could not be read but could be opened in the inmate's presence, when there was a reasonable possibility that contraband would be included. Outgoing mail to the courts, identifiable attorneys, and members of the press,

82. See also Mayberry v. Robinson, 427 F.Supp. 297 (M.D. Pa. 1977) (interference by prison officials with respect to communication with attorney was permissible where attorney's name was used by prisoner with third-party address; court prohibited all mail to attorney except at business office).

83. There is no violation, however, where delayed mailings were not legal documents for the court, but mere correspondence to a federal judge, since this sort of communication is improper. Coleman v. Crisp, 444 F.Supp. 31 (W.D. Okla. 1977).