probation officers, and governmental agencies was to be free from all checks. This holding was reaffirmed in Guajardo v. Estelle, 580 F.2d 748, 757 (5th Cir. 1978) with the observation that this protection extends only to attorneys representing or being asked to represent an inmate in a criminal or civil matter.

Crowe v. Leeke, 550 F.2d 184 (4th Cir. 1977) reversed and remanded for consideration of the validity of prison mail procedures which allowed correspondence from attorneys to be opened and inspected outside the presence of inmate-addressees. The court directed the district court to conduct an evidentiary hearing and find facts with respect to:

(1) the present practice of opening
attorney mail addressed to inmates,
with particular reference to whether
letters are read and whether copies
are made for subsequent examination;
(2) whether such correspondence is
handled at a place and in such a
manner that it is subject to
observation by others; (3) what
basis, if any, there is for inmate
apprehension that their corres-
pondence from attorneys is being
read; (4) whether it is reasonably
practicable for the warden to permit
any form of random observation of the
opening procedure to quiet fears that
information is being gleaned from
such correspondence; and (5) whether
the search for contraband can be
accomplished in a less intrusive
manner by use of electronic or
photographic equipment or even by
examination of configuration and
thickness of envelopes. After
resolving factual questions such
as these and others that may occur
to counsel or to the court, the
district judge would then determine
whether or not it is reasonably
necessary in order to protect the
inmates' Sixth Amendment right to
counsel to alter the present practice
of handling incoming mail from

attorneys to insure that contraband
is not introduced into the prison.

550 F.2d at 188-89.

Wycoff v. Brewer, 572 F.2d 1260 (8th Cir. 1978) found that on three occasions prison personnel had opened letters addressed to plaintiff which were plainly marked either "attorney-client" or "court-client. Prior to July 1974, inmates were not permitted to send sealed letters addressed to anyone, including judges and lawyers. This rule was changed in July 1974, and letters to courts and attorneys were permitted to be sent sealed. In early 1974 prison officials had opened letters from plaintiff marked "attorney-client,' one of which was a letter addressed to a judge. Further, in July 1974, the prison staff refused to mail a letter properly marked from plaintiff to one of his attorneys. The district court determined that while some of the interceptions of plaintiff's correspondence were unjustified, no damage was sustained. The court stated that: "While the interferences with the correspondence of plaintiff were unconstitutional and unjustifiable, we agree with the district court that they did not inflict on plaintiff any damages with respect to which he would be entitled to monetary compensation." 572 F.2d at 1266.

The district court in Allen v. Aytch, 535 F.2d 817 (3d Cir. 1976), after hearing, entered judgment for the defendants, finding that even if the defendantwarden had opened the envelope addressed to the court and read the complaint, his actions would not constitute a violation of the plaintiff's federal rights. The court of appeals did not reach that issue, but observing that federal courts will not pass on a constitutional question if the issue presented in a case may be adjudicated on a non-constitutional ground, remanded for allowance to the plaintiff to amend his complaint to allege that the defendant had violated a contract between the Federal Bureau of Prisons and the City of Philadelphia (with respect to prisoners) and to allege that the defendants' actions were prohibited in the handbook of the Philadelphia prison system.

In Guajardo v. Estelle, 580 F.2d 748, 759 (5th Cir. 1978), the court affirmed the district court's order requiring that inmates be permitted to send media mail unopened and to receive media mail that has been opened only for the inspection of contraband and in the inmate's presence.

The First Amendment mailing rights of prisoners extend to receiving published materials. Woods v. Daggett, 541 F.2d 237 (10th Cir. 1976) upheld, for security reasons, a regulation banning from a maximum security institution all books except those received from a publisher. However, the court remanded for consideration of plaintiff's claim that he was not notified when books were refused. However, in Wolfish v. Levi, 573 F.2d 118, 130 (2d Cir. 1978), the court of appeals agreed with the district court that the institution's "publisher only" rule, which permitted pre-trial detainees to receive only books and other publications sent directly from a publisher or a book club, impermissibly restricted the reading material available to the inmates.

The "publisher only" rule was held unconstitutional in Zaczek v. Hutto, 448 F.Supp. 155 (W.D. Va. 1978), where the prisoner who received a package from his mother containing a book was told he could not have it since it was not sent from a publisher, even though he had received books from his mother in the past. 84 The institution justified the rule on the ground that contraband was less likely to be received in books sent directly from the publisher:

[A] rule that allows a particular
book if it is sent from the pub-
lisher and disallows the same
book if it comes from a friend
or relative imposes a burden on
the assertion of First Amendment
rights that is greater than
necessary to achieve the govern-
mental interests. Furthermore,
the rule works an extra hardship
on the poorer inmates because it
cuts off the supply of used books.
In reality, this rule allows
censorship of reading material
solely for administrative
convenience.

84. "Publishers only" rule upheld in Guajardo v. Estelle, 580 F.2d 748, 762 (5th Cir. 1978), together with rule prohibiting friends and relatives from sending packages to inmates, even though it placed indigent prisoners at some disadvantage.

448 F.Supp. at 155.

Guajardo v. Estelle, 580 F.2d 748 (5th Cir. 1978)

stated:

We hold that TDC authorities may not censor publications on the ground that they contain criticism of prison authorities .

They may censor portions of pub-
lications that contain information
regarding the manufacture of
explosives, weapons or drugs. They
may also censor portions of publi-
cations that a reasonable person
would construe as written solely
for the purpose of communicating
information designed to achieve the
breakdown of prisons through inmate
disruption such as strikes or riots.
They may not censor inmate publica-
tions that advocate the legitimate
use of prison grievance procedures
or that urge prisoners to contact
public representatives about
prison conditions.

580 F.2d at 761. The court of appeals found that the
district court had gone too far in ruling that prison
officials could not ban sexually explicit magazines
unless they had been judicially declared obscene.
F.2d at 761-62.

580

Owens v. Brierley, 452 F.2d 640 (3d Cir. 1971) held that the district court had improperly dismissed the complaint alleging that although one-half of the prison population was Negro, only two Negro magazines were allowed in the prison, while 123 magazines catering to the taste of white inmates were allowed. Plaintiff alleged that his request for leave to subscribe to the national magazine Sepia had been denied because the magazine was not on the official list of approved magazines. Plaintiff alleged that the official list was a result of racial discrimination and violated the First Amendment. The court of appeals noted that plaintiff was not seeking relief merely with respect to the publication Sepia, but also seeking relief from an allegedly arbitrary, capricious, and discriminatory method of selecting approved reading materials. Therefore, the fact that the defendant had

submitted an affidavit indicating that the magazines plaintiff sought had been placed on the approved list did not render plaintiff's action moot.

Morgan v. LaVallee, 526 F.2d 221 (2d Cir. 1975) held that the district court had improperly dismissed plaintiff's complaint alleging that the prison authorities refused to permit him to receive the January 1974 issue of the Midnight Special and that they directed him to tell his correspondents not to send him postage stamps. The court observed that prison officials must give affirmative justification for withholding a given publication and further stated:

526 F.2d at 224. The specific test referred to by the court was that prescribed in United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L. Ed. 2d 672 (1968):

[W]e think it clear that a

government regulation is sufficiently justified if it is within the

constitutional power of the government; if it furthers an important or substantial governmental interest; if the

governmental interest is unrelated to suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

391 U.S. at 377, 88 S. Ct. at 1679, 20 L.Ed.2d at

Aikens v. Jenkins, 534 F.2d 751 (7th Cir. 1976) held that a prison regulation was too restrictive in prohibiting nude photographs and paintings unless they were