David Paul HAMMER, Plaintiff-Appellant, v. John D. ASHCROFT, et al., Defendants-Appellees, 570 F.3d 798

EASTERBROOK, Chief Judge. “[NJewsmen have no constitutional right of access to prisons or their inmates beyond that afforded to the general public.” Pell v. Procunier, 417 U.S. 817, 834 (1974). The Supreme Court applied that principle in Saxbe v. Washington Post Co., 417 U.S. 843, 94 S.Ct. 2811, 41 L.Ed.2d 514 (1974), when holding that the Federal Bureau of Prisons did not violate the Constitution by preventing face-to-face interviews between reporters and inmates. In the years after Washington Post the Bureau authorized some in-prison interviews.

By the late 1990s reporters could talk to prisoners throughout the federal system. See Program Statement 1480.05 (News Media Contacts) (promulgated Sept. 21, 2000, and in force since). That changed in 2001, however, for inmates housed in some of the Bureau’s most-secure locations—including the “Special Confinement Unit” at the prison in Terre Haute, Indiana, which houses most federal prisoners under sentence of death, plus some others in administrative detention for disciplinary or security reasons. Program statements generally applicable to federal prisons may be modified by institution-specific supplements.

See Program Statement 1480.05(13) (applying this exception-making power to media contacts in particular).

The Warden of Terre Haute proposed, and the Bureau’s Director approved, Institution Supplement THA 1480.05A, which bans person-to-person meetings between reporters and inmates of the Special Confinement Unit, though it allows phone calls and correspondence. (The current revision, THA 1480.05B, contains the same rule; for simplicity we refer only to THA 1480.05A.) Phone calls with reporters are subject to Program Statement 1480.05(7)(d), which provides that “[a] representative of the news media may not obtain and use personal information from one inmate about another inmate who refuses to be interviewed.” Correspondence is unlimited; an inmate’s letters to reporters are not subject to inspection or censorship. “All properly identified and labeled correspondence from an inmate who is not on restricted mail status to qualifying representatives of the news media shall be sealed and forwarded without inspection, directly and promptly.” Program Statement 5265.11(17)(a) (July 9,1999).

David Paul Hammer, who was sentenced to death for killing another federal prisoner, contends in this suit under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), that he is entitled to money damages from former Attorney General Ashcroft and other public officials who drafted or approved THA 1480.05A. Relying on Pell and Washington Post, the district court granted

summary judgment for the defendants. 2006 WL 456177, 2006 U.S. Dist. LEXIS 9306 (S.D.Ind. Feb. 23, 2006). A panel of this court reversed, 512 F.3d 961 (7th Cir.2008), and that decision was vacated in turn by the order granting defendants’ petition for rehearing en banc. Hammer’s attempt to obtain damages has complicated matters. The validity of federal administrative rules usually is resolved in actions under the Administrative Procedure Act seeking prospective relief, not in suits for money against officials whose positions and roles generally entitle them to qualified if not absolute immunity.

A district judge held the policy valid, after all. Although the panel thought that, on an enlarged record, Hammer might yet prevail, “[i]f judges ... disagree on a constitutional question, it is unfair to subject [public officials] to money damages for picking the losing side of the controversy.” Wilson v. Layne, 526 U.S. 603, 618, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999). Accord, Pearson v. Callahan, — U.S.-, 129 S.Ct. 808, 823, 172 L.Ed.2d 565 (2009). Indeed, a Bivens action is improper when statutes specify how administrative deeds are reviewed. See Wilkie v.

Robbins, 551 U.S. 537, 127 S.Ct. 2588, 2597-2605, 168 L.Ed.2d 389 (2007). But because we agree with the district court that THA 1480.05A is valid, we sidestep the complications introduced by Hammer’s quest for damages. (Hammer’s death sentence was set aside in 2005, United States v. Hammer, 404 F.Supp.2d 676 (M.D.Pa.2005), but he remains in the Special Confinement Unit pending appeal, now under advisement in the Third Circuit, and so has an ongoing interest in the rule’s constitutionality. His other sentences exceed 1,200 years’ imprisonment, so release is not imminent.) Pell v. Procunier and Saxbe v.

Washington Post establish that the Bureau of Prisons could enforce a system-wide rule against personal or video interviews between prisoners and reporters. Hammer contends, however, that by curtailing press access to some prisoners but not others, the Bureau offends the equal-protection component of the due process clause in the Constitution’s fifth amendment. Yet it is hard to understand why all prisoners should be treated the same. Some are in minimum-security prisons and others in more secure confinement; no one thinks these differences unconstitutional.

The Justices observed in Pell and Washington Post that the principal reason for limiting press contacts is the maintenance of security; this implies that the greater the need for security at a given prison (or unit within' a prison), the easier it is to justify limits on meetings between reporters and prisoners. By the time the Court decided Washington Post, the Bureau of Prisons had begun to allow reporters to interview inmates of minimum-security prisons. See 417 U.S. at 844 & n. 2, 94 S.Ct. 2811. The Justices did not perceive any problem in this distinction.

It is easier to justify limiting press contacts at the few places holding the most incorrigible prisoners (USP Florence and the Special Confinement Unit at Terre Haute) than at all medium- and maximum-security prisons. Hammer’s argument amounts to a contention that, once a prison system starts to allow access more liberally, it must go all the way; any intermediate position violates equal-protection principles. That understanding is inconsistent with many established doctrines.

For example, thirty years ago a court held that Congress had violated equal-protection limits by subjecting members of the diplomatic service, but not other federal workers, to mandatory retirement. The Justices held, however, that it is possible to draw such lines as long as a rational basis for them may be imagined; the basis need not be supported in the record. Vance v. Bradley, 440 U.S. 93, 99 S.Ct. 939, 59 L.Ed.2d 171 (1979).

Just as it was possible to imagine a rational basis for distinguishing diplomats from postal carriers, so it is possible to imagine a rational basis for distinguishing the nation’s most secure institutions from others. Indeed, to state the distinction is to furnish the justification: security. The security justification that carried the day in Pell and Washington Post was that interviews with the press make celebrities of some inmates.

This increases tensions within prisons (those who don’t receive public attention may react with envy); and if some inmates use the press to disparage others (or their beliefs, or the organizations to which they belong), the tensions will be greater. More: the interviewed prisoners get swelled heads and “tend to become the source of substantial disciplinary problems that can engulf a large portion of the population at a prison.” Washington Post, 417 U.S. at 848-49, 94 S.Ct. 2811.

Prisons for tax evaders and credit-card forgers may tolerate such tensions; prisons for killers are more explosive, and the need to prevent lighting the fuse- to the powder keg is compelling. Hammer maintains that prisons must use the least-restrictive available options and that the Bureau’s experience since Washington Post shows that the risks associated with interviews are manageable. This line of argument marks a transition from equal protection to the first amendment, for it incorporates elements of both bodies of doctrine. But this, too, is a tired theme.

It has been made in several cases dealing with press interviews and correspondence among prisoners, and the Justices have rejected it. See, e.g., Thornburgh v. Abbott, 490 U.S. 401, 409-14, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989); cf. Shaw v. Murphy, 532 U.S. 223, 121 S.Ct. 1475, 149 L.Ed.2d 420 (2001). The question is not whether prisons could find ways to accommodate one or another change. It is whether the rule that the prison chooses to implement is “reasonably related to legitimate security interests.” Turner v. Safley, 482 U.S. 78, 91, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987).

And the Court has held in Pell and Washington Post that a no-interview policy is “reasonably related to legitimate security interests.” The Justices added that an attempt to be “less restrictive” by making individual decisions could undermine security: “such a selective policy would spawn serious discipline and morale problems of its own by engendering hostility and resentment among inmates who were refused interview privileges granted to their fellows.” Washington Post, 417 U.S. at 849, 94 S.Ct. 2811.

Hammer maintains, however, that the Bureau has engaged in content or viewpoint discrimination by silencing inmates on death row. This may well be true of a selective (or “less restrictive”) approach; wardens who allow some prisoners but not others to invite the press into their cells might well take account of what they expect the inmates to say or the reporters to relate to the public. But a blanket ban—no inmate in a given prison or unit may meet face-to-face with any reporter—is neutral with respect to both content and viewpoint.

This is one reason why the Justices approved the policies at issue in Pell and Washington Post, giving the exception-free quality of the policies as proof that the decisions were not based on content. See Pell, 417 U.S. at 825-26. Perhaps Hammer’s point is not that the rule employs content or viewpoint as a ground of decision, but that those who adopted or approved THA 1480.05A took content or viewpoint into account when deciding to change the rules for some federal prisoners but not others.

This line of argument starts with the fact that reporters freely interviewed inmates of the Special Confinement Unit, including Hammer himself, for the first nine months of the Unit’s existence—until shortly after an interview with Timothy McVeigh was broadcast by CBS on “60 Minutes” in March 2000. (The Special Confinement Unit was established in July 1999; Hammer and McVeigh were among its first inmates.) McVeigh had been sentenced to death for killing 168 people by bombing the Murrah Federal Building in Oklahoma City. He used the forum of national TV to justify and extol terrorism.

Shortly after the interview was broadcast, Byron Dorgan, who represents North Dakota in the Senate, wrote to Kathleen Hawk-Sawyer, Director of the Bureau of Prisons, complaining about the interview. Senator Dorgan stated, among other things: The American people have a right to expect that the incarceration of a convicted killer will not only remove him physically from society, but will also prevent him from further intrusion in our lives through television interviews and from using those forums to advance his agenda of violence.

About a month after Senator Dorgan sent that letter, Attorney General Ashcroft and Director Hawk-Sawyer announced arrangements for closed-circuit telecasting of McVeigh’s execution and took some questions. Ashcroft also announced that the Bureau would replace its case-by-ease evaluation system with a prohibition on in-person interviews of inmates at the Special Confinement Unit. Hammer finds telling these statements: I am aware that several media outlets have requested access to interview inmate McVeigh. As an American who cares about our culture, I want to restrict a mass murderer’s access to the public podium.

On an issue of particular importance to me as Attorney General of the United States, I do not want anyone to be able to purchase access to the podium of America with the blood of 168 innocent victims. Pm concerned about irresponsible glamorization of a culture of violence, and that concern has shaped our approach to these issues profoundly. On April 15, 2001, three days after the press conference, Harley Lappin, the Warden of Terre Haute, issued Institution Supplement THA 1480.05A.

Hammer wants discovery during which former Attorney General Ashcroft, former Director Hawk-Sawyer, and former Warden Lappin must explain under oath why they adopted the policy in question. If a belief that terrorists should not be able to obtain publicity by committing murder played a role in the decision, Hammer contends, the motivation for the policy is infirm, and the policy itself would fall with the bad motive. It is not clear why one bad motive would spoil a rule that is adequately supported by good reasons. See Mueller v. Allen, 463 U.S. 388, 394-95, 103 S.Ct. 3062, 77 L.Ed.2d 721 (1983).

The Supreme Court did not search for “pretext” in Turner; it asked instead whether a rule is rationally related to a legitimate goal. That’s an objective inquiry.

If motive matters, why examine the thoughts of those who adopted the rule to the exclusion of those who have maintained it in force?—Attorney General Gonzales, Solicitor General Clement (who authorized the petition for rehearing en banc), Attorney General Mukasey (who was in office when the Department of Justice defended the policy before the en banc court), and Attorney General Holder, who could revoke THA 1480.05A with one sentence plus a signature but has not done so. (There is no special burden to justify a change of administrative policy. See FCC v.

Fox Television Stations, Inc., -U.S.-& n. 2, 129 S.Ct. 1800, 1810-11 & n. 2, 173 L.Ed.2d 738 (2009).) Nor do we see how a demand that a Cabinet officer give testimony about his thinking could be squared with United States v. Morgan, 313 U.S. 409, 61 S.Ct. 999, 85 L.Ed. 1429 (1941), and PBGC v. LTV Corp., 496 U.S. 633, 110 S.Ct. 2668, 110 L.Ed.2d 579 (1990). These decisions hold that courts evaluating the validity of an administrative action may not enlarge the administrative record by demanding that the people who proposed or approved the rule testify about their thinking. See also Richard J.

Pierce, Jr., I Administrative Law Treatise § 8.6 (2002). For current purposes, however, we assume that Attorney General Ashcroft’s successors share his views. There’s nothing unconstitutional about them, so we need not decide whether they led to the policy’s adoption and maintenance, how motivation could be proved consistent with Morgan, or what role it plays in evaluating a policy’s validity. Opposing a “culture of violence” is an ordinary, and desirable, goal for a criminal prosecutor.

Attorney General Ashcroft’s statements combine the idea that criminals should not be allowed to benefit from their deeds (see Simon & Schuster, Inc. v. New York Crime Victims Board, 502 U.S. 105, 112 S.Ct. 501, 116 L.Ed.2d 476 (1991) (a state may apply all of a criminal’s income, including royalties from books, to satisfy restitution awards, though it can’t pick and choose among books)) with variations of propositions that can be found in Pell and Washington Post.

One of the reasons that state and federal prison administrators gave for curtailing press access was that they did not want people to become celebrities by committing crimes. The Justices thought this a good basis to curtail press access, not a constitutionally infirm one. See Washington Post, 417 U.S. at 848-50, 94 S.Ct. 2811. This is a reason why prisoners are separated from society: Most prisons are remote, and access to them tightly controlled, not simply to make escape difficult, but because solitude is a legitimate part of punishment.

Becoming a celebrity makes crime more attractive—and if not so attractive as to outweigh the costs of prison, still anything that reduces the (effective) punishment for crime is of legitimate concern to Attorneys General and prison officials. For murderers on death row or serving life sentences, celebrity is especially attractive, as these persons do not expect to return to the civilian world. They will receive few other rewards in life. Some criminal acts are both costly to society and potentially attractive to imitators; the most notorious criminals can be trend-setters. Timothy McVeigh was such a person.

He had a following, and one of his admirers was recently convicted of threatening to blow up a federal building in Milwaukee. See United States v. Parr, 545 F.3d 491 (7th Cir.2008). Other “cause” criminals want to recruit; think of those who blow up abortion clinics and kill physicians. Social interests in curtailing and punishing crime support keeping these prisoners in seclusion.

No one doubts—at least, no one should doubt—that a person serving time for tax evasion may be prevented from using the prison print shop to run off tracts advocating the proposition that the sixteenth amendment is invalid and no one need pay a penny of taxes. See United States v. Benson, 561 F.3d 718 (7th Cir.2009) (affirming an injunction that prevents a convicted tax evader from selling a “16th Amendment Reliance Package” that purports to give other tax protesters a means to avoid both payment and criminal liability).

If what Attorney General Ashcroft said in April 2001 evinces an unconstitutional motive, much of what this court wrote in Benson suffers from the same failing. Naturally, Hammer insists that he is no McVeigh and would not use the press to promote murder. He wants to speak instead about prison conditions, his current professed respect for life, and what he sees as misconduct by guards and wardens. A system of rules that permitted prison administrators to conceal beatings or starvation of prisoners, violations of statutes and regulations, and other misconduct would be intolerable.

The Court said as much in Pell and Washington Post. It was important to both decisions that all prisoners could correspond freely with reporters, even though face-to-face interviews were impossible. See Pell, 417 U.S. at 824-28, 94 S.Ct. 2800; Washington Post, 417 U.S. at 847-48, 94 S.Ct. 2811. Hammer sees this as an opening, because (he says) the Bureau of Prisons does not allow any uncensored channel of communication to the press. This line of argument relies on Program Statement 1480.05(7)(d), which we quoted at the outset of this opinion.

It provides: “A representative of the news media may not obtain and use personal information from one inmate about another inmate who refuses to be interviewed.” As far as we can tell, this rule applies to interviews (in person or by telephone) but not to correspondence.

Program Statement 5265.11(17)(a), which sets out the rules for written exchanges, says that “[a]ll properly identified and labeled correspondence from an inmate who is not on restricted mail status to qualifying representatives of the news media shall be sealed and forwarded without inspection, directly and promptly.” That’s exactly the sort of uncensored outgoing correspondence that the Court deemed adequate in Pell and Washington Post. (Hammer does not contend that persons held in the Special Confinement Unit are “on restricted mail status” or that the prison has ever red-penciled any letter he sent to a reporter.) The limit on information about other inmates deals only with oral interviews.

And if Hammer were to prevail in this suit, he would not be rid of Program Statement 1480.05(7)(d), for it covers in-person and televised interviews as well as phone interviews. To the extent that Hammer may be contesting the validity of Program Statement 1480.05(7)(

d) as applied to phone calls with the press (the only way it affects him), he has not established any constitutional problem. The restriction is a rational one, for reasons covered in Pell and Washington Post. Telling tales about fellow inmates may make them angry (if the tales are defamatory) or may make yet other inmates envious (if the tales are flattering). In either event, disorder may follow.

As the district court put it, “insults or provocations, real or imagined, can result in inmate-on-inmate violence and thus can have dire consequences for inmates, penitentiary staff, and the public at large.” 2006 WL 456177 at *4, 2006 U.S. Dist. LEXIS 9306 at *11-*12. Defamation is less likely if the other inmate agrees to talk to the press; Hammer may discuss such inmates by phone with reporters. And if, to take the worst case, another inmate is beaten and unable to talk, Hammer remains free to send a letter informing a reporter about that event.

Pell and Washington Post held that free correspondence supplies the needed channel of communication; Hammer has that plus 15 minutes of telephone time a day. Correspondence is not the only way to expose misconduct by guards and administrators. Prisoners are free to file lawsuits, and papers sent to courts (or lawyers) cannot be censored. See Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977); Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974). So the limit in Program Statement 1480.05(7)(

d) is not going to conceal any misconduct in which the public has a legitimate interest. Institution Supplement THA 1480.05A is consistent with the Constitution, and the judgment of the district court is AFFIRMED.