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"supportive or incidental to a theme not designed primarily to arouse sexual drives." The court noted that this regulation could prohibit pictures of nudes in a collection of works of art which failed to include an accompanying text which a censor would consider a theme. The court further held that the phrase "material that seriously degrades race or religion" was not narrow enough to reach only that material which encouraged violence, and invited prison officials to apply their own personal prejudices and opinions as standards. The court also disapproved of the phrase "having a substantially inflammatory effect on inmates," noting that the phrase was similar to the prohibition of "inflammatory political, racial, religious or other views" and "defamatory" matter held overbroad in Procunier v. Martinez, 416 U.S. at 415-16. The court noted that material which may reasonably be thought to encourage violence may be prohibited by a narrowly drawn regulation. The court also disapproved of the phrase "in any way subversive of institutional discipline" which could reasonably be interpreted by prison officials as authority to suppress unwelcome criticism. The court found that the following regulation, which would exclude many of the world's great books, was too broad:

Periodicals which deal with the details of criminal activity or behavior are not approved. This type of material includes stories, articles, or pictures glorifying criminals, discussing the modus operandi of a felon, or treating in a bizarre fashion the details or circumstances of a crime.

534 F.2d at 757.

The court commented that the state could minimize federal interference with its prison censorship regulations by including procedural rules permitting inmates to challenge censorship decisions in a prison administrative proceeding.

Thibodeaux v. State of South Dakota, 553 F.2d 558 (8th Cir. 1977) recognized that a finding that a publication is detrimental to the rehabilitative aims of the prison is a proper basis for censorship, but a finding that a publication has no rehabilitative value is not:

The lack of a .

finding

[that release of the materials
would have a detrimental effect
on rehabilitation] in this case
takes this case beyond the
scope of Carpenter and convinces
us that summary dismissal of
Thibodeaux's petition was pre-
mature and unwarranted. Since
we are dealing with sensitive
First Amendment rights, the
prison officials carry the burden
of proving the need for censorship
and, on the basis of the
present ambiguous record, they
have not discharged that burden.

553 F.2d at 559-60.

Carpenter v. State of South Dakota, 536 F.2d 759 (8th Cir. 1976), cert. denied, 431 U.S. 931, 97 S.Ct. 2636, 50 L.Ed.2d (1977) affirmed, with one dissent, the dismissal of an action challenging the censorship board's ban on the receipt by prisoners of mail containing sexually explicit material. The documents submitted with the complaint revealed that the plaintiffs had hearings and the Prison Board found the materials would inhibit rehabilitation. The court stated: "The decision of the board that receipt of the items described in this case would have a detrimental effect upon rehabilitation was well within the discretion of the board and requires no further review by the courts." 536 F.2d at 763.

Hopkins v. Collins, 548 F.2d 503 (4th Cir. 1977) reversed the district court, which had held that prisoners were entitled to full hearings on censorship of their magazines. magazines. The court of appeals held that under Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L. Ed. 2d 224 (1974), the required procedures were (1) appropriate notice, (2) a reasonable opportunity to challenge the initial determination, and (3) an ultimate decision by a disinterested party not privy to the initial censorship determination.

Blue v. Hogan, 553 F.2d 960 (5th Cir. 1977) held that the district court had erred in ordering the warden to deliver certain periodicals to the plaintiff. The test applied by the district court was whether the periodicals presented a clear and present danger or

contained advocacy which incited and was likely to produce imminent lawless action. The court of appeals noted that the standard of Procunier, supra, and not the clear and present danger standard should govern. The court remanded since the wrong legal standards were applied. 85

3. Restrictions on Visitors and Press Interviews

a.

General Public and Family

[With respect to] the entry of
people into the prisons for face-
to-face communication with inmates,
it is obvious that institutional
considerations, such as security
and related administrative problems,
as well as the accepted and legiti-
mate policy objectives of the correc-
tions system itself, require that
some limitation be placed on such
visitations. So long as reasonable
and effective means of communication
remain open and no discrimination in
terms of content is involved, we
believe that, in drawing such lines,
"prison officials must be accorded
great latitude. "86

In Underwood v. Loving, 391 F.Supp. 1214 (W.D. Va. 1975), the plaintiff alleged that the defendant correctional officer refused to permit a female friend87 to visit him as punishment for being intoxicated,

85. See also Aikens v. Jenkins, 534 F.2d 751, 755 (7th Cir. 1976) where the court stated: "we pause to note, as the District Court correctly recognized, Procunier v. Martinez does not establish a clear and present danger criteria."

86. Pell v. Procunier, 417 U.S. 817, 826, 94 S.Ct. 2800, 2806, 41 L.Ed.2d 495, 503 (1974).

87. See also Hamilton v. Saxbe, 428 F.Supp. 1101, 1112 (N.D. Ga. 1976), aff'd sub nom. Hamilton v. Bell, 551 F.2d 1056 (5th Cir. 1977) (visitation rights with non-family members not absolute).

although no charges were brought against him. Plaintiff alleged that the prison's visitation regulations were being applied in a discriminatory manner. An affidavit submitted by another inmate stated that the prison policy was to refrain from enforcing the regulations unless the particular guard "has a beef with you, then you can expect to get hassleed [sic] and treated unequal." The court stated: "Although the weight of authority holds that visitation privileges are matters within the scope of internal prison administration, this does not permit discriminatory application of the regulations. However, absent extraordinary circumstances, internal concerns such as visiting regulations should be resolved by jail officials. 391 F.Supp. at 1215. Defendant's motion for summary judgment was granted after defendent produced a visiting list which indicated that the plaintiff's friend had been added to that list. The court found the issue of defendant's motivation was not of a severe enough quality to necessitate federal court intervention into an internal prison

concern.

Brenneman v. Madigan, 343 F. Supp 128 (N.D. Cal. 1972) stated:

The plaintiff class also has a constitutional right, protected by the First Amendment, to communicate with friends, relatives, attorneys and public officials by means of visit, correspondence and telephone calls Although un

restricted visiting might con-
stitute an intolerable interference
with orderly jail administration,
pre-trial detainees should be able
to visit with friends and relatives
for more than 15 minutes once a

week.
No compelling reason
appears to the court why a pre-
trial detainee may list only five
"authorized" visitors over the
age of 14 as Greystone's rules of
conduct now provide. As a general
proposition, a pre-trial detainee
should be able to visit with whom-
ever he pleases, especially his
children, for substantial periods
of time each week.

While a convicted

prisoner may have no right to make any telephone calls at all,

a pretrial detainee does.

343 F.Supp. at 141.

A proper basis for limiting plaintiff's visitors was found in United States ex rel. Raymond v. Rundle, 276 F.Supp. 637 (E.D. Pa. 1967), where plaintiff had been sentenced to death and the institution lacked sufficient personnel to supervise the visits:

It has been held by this Court

[W]hile

that Federal courts will not interfere
with uniformly applied prison regula-
tions designed to achieve discipline
indispensable to orderly operation of
state penal institutions
discipline is essential and certain
rights might be curtailed in order to
achieve it, the circumscription must
always reasonably relate to the main-
tenance of prison discipline and

never be rather an arbitrary and cap-
ricious disregard of human rights.

276 F.Supp. at 638. Newman v. Alabama, 559 F.2d 283 (5th Cir. 1977) stated:

The District Court directed that inmates should be allowed to receive visitors on at least a weekly basis. Under our decision in McCray v. Sullivan, we feel that visitation regulations should be left to the prison authorities, wisely adapted to individual circumstances if their sound discretion should so dictate, or included in general rules which will allow prisoners reasonable visitation.

Prison authorities have both the right and the duty by all reasonable means to see to it that visitors are not smuggling weapons or other objects which could be used in an effort to escape or to harm other prisoners.

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