                Case: 12-11144       Date Filed: 09/23/2013       Page: 1 of 21


                                                                                   [PUBLISH]



                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 12-11144
                               ________________________

                       D.C. Docket No. 2:10-cv-00428-CEH-DNF



JAMES R. PESCI,

                                                                         Plaintiff - Appellant,

                                             versus

TIM BUDZ,

                                                                        Defendant - Appellee.

                               ________________________

                      Appeal from the United States District Court
                          for the Middle District of Florida
                            ________________________

                                    (September 23, 2013)

Before BARKETT and MARCUS, Circuit Judges, and HUCK, * District Judge.

MARCUS, Circuit Judge:



*
  Honorable Paul C. Huck, United States District Judge for the Southern District of Florida,
sitting by designation.
              Case: 12-11144     Date Filed: 09/23/2013    Page: 2 of 21


      Appellant James Pesci, a civil detainee at the Florida Civil Commitment

Center (FCCC), is involuntarily committed pursuant to Fla. Stat. § 394.910 et seq.,

the “Involuntary Civil Commitment of Sexually Violent Predators Act,” commonly

referred to as the “Jimmy Ryce Act.” The Act provides for involuntary civil

commitment of a sex offender who is determined to be a sexually violent predator

for the purposes of safeguarding the general public and rehabilitating the detainee.

Pesci and some 600 other residents of the FCCC are not prisoners; rather they are

civil detainees who have already served their terms of incarceration.

      For some years, Pesci has published a newsletter called “Duck Soup” at the

FCCC that is highly critical of the center, its policies, and its personnel. In April

2009, Timothy Budz, the facility director at the center, promulgated a policy

barring all residents from copying Duck Soup in order to limit its circulation, on

the rationale that Duck Soup had disrupted order and discipline at the FCCC as

well as had a powerful adverse effect on the facility’s capacity to rehabilitate its

civil detainees. Pro se, Pesci filed a § 1983 civil rights action against Budz in the

United States District Court for the Middle District of Florida. He claimed the

policy violated his expressive freedoms under the First and Fourteenth

Amendments and therefore sought both monetary and injunctive relief. In

November 2010, after the litigation had begun but notably before the district court

entered summary judgment for Budz, the facility director adopted a new, different,


                                           2
              Case: 12-11144     Date Filed: 09/23/2013    Page: 3 of 21


and stricter policy treating the newsletter as “contraband” and banning outright its

possession or distribution. In February 2012, the district court granted final

summary judgment in favor of the facility director, but only considered Pesci’s

First Amendment claim as to the April 2009 policy, offering no view about the

replacement policy banning Duck Soup. Pesci timely appealed, initially pro se, but

now with the assistance of appointed counsel.

      After thorough review, we vacate and remand for further proceedings

consistent with this opinion. In view of the peculiar posture of this case, we

believe the wiser course would be for the district court to consider the

constitutionality of the November 2010 policy banning Duck Soup along with the

April 2009 policy. The district court never had occasion to review the

constitutionality of this more restrictive policy -- a policy that mooted out any

possibility of injunctive relief based on the April 2009 policy. Moreover, the

record is limited and the plaintiff was uncounseled throughout the proceedings in

the district court. Accordingly, we remand the entire matter back to the district

court to engage in the necessarily fact-intensive review of the facility director’s

policies in the first instance. This course will avoid piecemeal adjudication of the

constitutionality of the two policies.

                                          I.




                                           3
              Case: 12-11144     Date Filed: 09/23/2013   Page: 4 of 21


      The complaint alleges that James Pesci has for “some years” published a

newsletter called “Duck Soup” in both hard copy and online formats. The

newsletter was available electronically for downloading and for printing and

copying in the Florida Civil Commitment Center’s computer lab. The record

contains three issues of Duck Soup from July, August, and September of 2009.

The newsletter primarily reported on FCCC matters and was often bitterly critical

of the FCCC’s staff, its management and the state contractor, GEO Group, Inc.,

that runs the facility. Thus, for example, in one issue Pesci described the Florida

Department of Children and Families and its contractor GEO as a “white collared

[sic], criminal enterprise” and encouraged FCCC staff to file lawsuits against GEO.

Perhaps even more importantly, Pesci attacked the foundation and efficacy of the

FCCC’s treatment programs. He also said that FCCC residents should hold

“collective protests” and “demonstrations” and that they were “coward[s]” for not

doing so. In addition, he launched a series of personal attacks on several of

FCCC’s staff by name. He stated that a particular lieutenant liked watching

residents shower; he accused the facility director Budz of using illegal drugs; and

he claimed that the FCCC’s medical staff caused a resident’s death. Pesci was

fully aware of the newsletter’s inflammatory nature, writing in one month’s

newsletter that he had “every intention of hitting a lot of nerves in this month’s

edition.” He also acknowledged the palpable tension that arose from some of the


                                          4
                Case: 12-11144       Date Filed: 09/23/2013       Page: 5 of 21


content in Duck Soup, describing in one issue the hostility that he faced from some

staff in the FCCC’s medical department after publishing an earlier edition of the

newsletter that “exposed” the department.

       In April 2009, the facility director of the Florida Civil Commitment Center,

Timothy Budz, promulgated a policy (the first policy) preventing residents from

printing or copying Duck Soup in the FCCC’s computer lab.1 According to Budz,

the policy was designed to limit dissemination of the newsletter, which he claimed

had generated substantial hostility between the detainees and the FCCC’s staff,

undermined staff authority, and disrupted detainee treatment.

       In July 2010, Pesci, acting pro se, brought this civil rights action pursuant to

42 U.S.C. § 1983 against Budz, alleging that the first policy (the April 2009

policy) violated his First and Fourteenth Amendment rights. He sought both

monetary and injunctive relief In November 2010, some months after the litigation

had begun, Budz replaced the April 2009 policy with a second policy banning

outright the possession or distribution of Duck Soup, citing the increasingly

inflammatory nature of the newsletter and its continuing detrimental effect on

order and treatment at the facility. In April 2011, Budz moved for summary

1
  There is a factual dispute about the exact scope of the April 2009 policy. Budz claims the April
2009 policy only prevented detainees from using FCCC paper, and that they could print or copy
the newsletter with their own paper. Pesci, on the other hand, filed affidavits from a few FCCC
detainees saying they were forbidden from making any copies of Duck Soup in the computer lab,
no matter whose paper they were using. Because this factual dispute arises on summary
judgment, it cannot be resolved by the court on summary judgment. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 252-55 (1986).
                                                5
              Case: 12-11144     Date Filed: 09/23/2013   Page: 6 of 21


judgment. Along with the motion, Budz filed his own affidavit and the affidavit of

Dr. Robin Wilson, clinical director of the FCCC. In his affidavit, Budz explained

that staff members and residents named in Duck Soup had complained to him

about the newsletter, offering that Duck Soup had caused real tension between the

residents and the staff and among the facility’s employees as well. According to

Budz’s version, the staff could still view Duck Soup online after the promulgation

of the April 2009 policy and the residents could still make copies of the newsletter

if they used their own paper instead of the institution’s paper. Budz averred that

after promulgating the first policy in April 2009, Duck Soup became “increasingly

inflammatory, degrading and demeaning toward FCCC staff and administration,”

and that it “continued to raise animosity, hostility, and anger among staff and

residents by insulting certain staff and placing them in a false light amongst their

peers and residents.” For these reasons, in November 2010, Budz adopted the

second policy characterizing Duck Soup as “contraband” and forbidding its

possession or distribution.

      Dr. Wilson’s affidavit, in turn, detailed the effects of Duck Soup on the

treatment of the center’s detainees. He averred that Pesci used Duck Soup “to

make reports on the GEO staff and other residents and would specifically name

individuals.” Wilson observed that the newsletter created considerable tension

between residents and the treatment staff during the period that Pesci was allowed


                                          6
              Case: 12-11144     Date Filed: 09/23/2013     Page: 7 of 21


to publish the newsletter. He offered that the newsletter caused the residents to

lose confidence in the treatment staff and in the treatment itself, leading some

residents to believe that the treatment staff were incompetent, the treatment

program itself was a sham, and that they would never reach their ultimate goal of

release. Dr. Wilson also observed that the residents who pursued treatment were

often unwilling to share their thoughts or information about themselves during

group therapy sessions because they feared that what they said would wind up in

Pesci’s newsletter. He opined that the April 2009 policy limiting circulation of

Duck Soup did not improve the situation, but, notably, the effectiveness of the

treatment program returned to normal after Budz banned the newsletter entirely on

November 18, 2010.

      Opposing the summary judgment motion pro se, Pesci offered two sets of

largely identical affidavits from a total of eleven fellow detainees. In the first set,

eight detainees said the following:

   • Duck Soup has not caused me to be hostile to any person, staff or resident.

   • I have never been uncomfortable with the sharing of information with the
     Plaintiff James Pesci, and have been in group activity with Pesci.

   • I have never known any other residents to fear their treatment issues being
     published in Duck Soup.

   • The only parties I have ever heard complaint [sic] of Duck Soup were staff
     members employed at FCCC.

In the second set, three attested:
                                           7
             Case: 12-11144     Date Filed: 09/23/2013   Page: 8 of 21


   • While it may be true that the resident population is in a state of agitation it
     has nothing to do with Duck Soup, rather it is the prison like conditions of
     confinement that The Geo Group, Inc. is imposing on its mental health
     patients.

   • I am in treatment and as such I have never witnessed any impairment of the
     treatment process at the Florida Civil Commitment Center as a result [of] the
     publication of Duck Soup.

   • Per Tim Budz’s order no resident is allowed to print or copy Duck Soup in
     the facility computer lab. This standing order has never allowed such
     printing or copying to take place if a resident has his own paper. This
     simply is not true.

      In February 2012, sixteen months after the facility director adopted the

second policy, the district court entered final summary judgment for Budz,

concluding only that the first April 2009 policy was constitutional. The court

acknowledged the undisputed existence of the second November 2010 policy,

which was in effect at the time it granted summary judgment, but declined to

consider the second policy’s lawfulness because Pesci had not formally amended

his complaint.

                                        II.

      We review a district court’s order of summary judgment de novo, viewing

all evidence and drawing all reasonable inferences in favor of the nonmoving

party. Chapman v. AI Transp., 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc).

Summary judgment is appropriate where the moving party demonstrates, through




                                         8
              Case: 12-11144     Date Filed: 09/23/2013    Page: 9 of 21


materials in the record, that no genuine issue of material fact exists, and they are

entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a), (c).

      We begin with the question of whether the district court should have

considered the lawfulness of the second November 2010 policy banning the

newsletter outright at the same time it addressed the now-defunct first policy. The

district court declined to consider the second policy, offering only that Pesci’s

complaint had not been amended.

      As we see it, it makes far more sense to consider the second policy along

with the first. The new policy replaced in toto the 2009 policy, rendering moot any

discussion about whether injunctive relief could lie against the first policy.

Second, it banned outright all possession and distribution of the newsletter as

opposed to simply limiting the means of its propagation. Third, the record is

largely undeveloped and Pesci, although now counseled, was proceeding pro se

throughout the summary judgment proceedings. We add that the November 2010

policy, as a factual matter, was clearly placed before the district court. Indeed, in a

“Pretrial Narrative Statement” Pesci filed in June 2011, Pesci complained broadly

that Budz “unconstitutionally shut down the newsletter Duck Soup.” Pesci also put

the November 2010 policy before the court in the form of a motion for a

preliminary injunction. Moreover, there has been no factual dispute at any time

about the existence of the November 2010 policy which banned outright the


                                           9
              Case: 12-11144     Date Filed: 09/23/2013     Page: 10 of 21


newsletter, deeming it to be contraband. Indeed, Budz issued a memorandum to

that effect to all FCCC residents and staff on November 18, 2010. Accordingly,

we can see precious little reason for addressing and adjudicating piecemeal first the

April 2009 policy and then only later the 2010 policy, which swallowed up the first

one.

       Indeed, by the time summary judgment was entered by the district court,

consideration of the November 2010 policy’s constitutionality was the only way

the district court could meaningfully address Pesci’s request for injunctive relief.

The November 2010 ban supplanted in every respect the April 2009 policy. By

limiting its inquiry, however, only to the April 2009 policy, the district court

effectively mooted Pesci’s application for an injunction. Even if the district court

had been disposed to enter an injunction concerning the April 2009 policy, any

such order would have been wholly academic and advisory. While Pesci’s

application for monetary damages arising from the April 2009 policy was not

mooted by the adoption of the 2010 policy, Pesci specifically sought injunctive

relief as well. Thus, in the face of the procedural posture of the case, including the

unitary nature of the claims, the initial pro se status of the plaintiff, the limited

record, and the powerful prudential need to avoid piecemeal adjudication, we

conclude that the November 2010 policy should be considered along with the April

2009 policy in the first instance by the district court. While we offer no view about


                                            10
             Case: 12-11144      Date Filed: 09/23/2013    Page: 11 of 21


the merits, we believe the wiser course is to vacate the final order of summary

judgment and remand for proceedings consistent with this opinion.

                                          III.

      The central legal issue raised in this case concerns the appropriate legal

standard against which to measure Pesci’s First Amendment claim. The district

court applied the standard drawn from the Supreme Court’s landmark opinion in

Turner v. Safley, 482 U.S. 78 (1987), where the Court held that “when a prison

regulation impinges on inmates’ constitutional rights, the regulation is valid if it is

reasonably related to legitimate penological interests,” id. at 89. Pesci, however,

argues that since he is not a prison inmate -- rather only a civil detainee -- Turner

does not provide sufficient protection of his First Amendment rights, offering

instead a standard of intermediate scrutiny which he has drawn from United States

v. O’Brien, 391 U.S. 367 (1968). In light of the limited case precedent available,

and in order to provide further guidance to the district court, we address the

appropriate legal standard.

      In Turner, the Supreme Court recognized that “[p]rison walls do not form a

barrier separating prison inmates from the protections of the Constitution,” and that

federal courts must “discharge their duty to protect constitutional rights.” Id. at 84.

But the Court also recognized that “courts are ill equipped to deal with the

increasingly urgent problems of prison administration and reform.” Id. (quoting


                                           11
             Case: 12-11144     Date Filed: 09/23/2013    Page: 12 of 21


Procunier v. Martinez, 416 U.S. 396, 405 (1974), overruled on other grounds by

Thornburgh v. Abbott, 490 U.S. 401 (1989)). Prison administration “is an

inordinately difficult undertaking that requires expertise, planning, and the

commitment of resources, all of which are peculiarly within the province of the

legislative and executive branches of government.” Id. at 84-85. Because the task

of prison administration is committed to those branches, “separation of powers

concerns counsel a policy of judicial restraint.” Id. at 85. Recognizing these

competing concerns, the Court concluded that its task was “to formulate a standard

of review for prisoners’ constitutional claims that is responsive both to the policy

of judicial restraint regarding prisoner complaints and to the need to protect

constitutional rights.” Id. (internal quotation marks omitted); see also Bell v.

Wolfish, 441 U.S. 520, 546 (1979) (“The fact of confinement as well as the

legitimate goals and policies of the penal institution limits [inmates’] retained

constitutional rights. There must be a mutual accommodation between institutional

needs and objectives and the provisions of the Constitution that are of general

application.” (citations and internal quotation marks omitted)).

      The balance the Court struck was embodied in a four part inquiry:

      (1) whether there is a “valid, rational connection” between the
      regulation and a legitimate governmental interest put forward to
      justify it; (2) whether there are alternative means of exercising the
      asserted constitutional right that remain open to the inmates; (3)
      whether and the extent to which accommodation of the asserted right
      will have an impact on prison staff, inmates, and the allocation of
                                          12
             Case: 12-11144      Date Filed: 09/23/2013    Page: 13 of 21


      prison resources generally; and (4) whether the regulation represents
      an “exaggerated response” to prison concerns.

Pope v. Hightower, 101 F.3d 1382, 1384 (11th Cir. 1996) (quoting Turner, 482

U.S. at 89-91). This standard was necessary if “‘prison administrators . . ., and not

the courts, [are] to make the difficult judgments concerning institutional

operations.’” Turner, 482 U.S. at 89 (alterations in original) (quoting Jones v. N.

Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119, 128 (1977)). A more

heightened standard of review would inevitably make the courts “the primary

arbiters of what constitutes the best solution to every administrative problem,

thereby unnecessarily perpetuating the involvement of the federal courts in affairs

of prison administration.” Id. (alterations and internal quotation marks omitted).

       We determine that a similar balance should be struck in scrutinizing the

constitutional claims of civil detainees, but the standard must be modified to reflect

the salient differences between civil detention and criminal incarceration. As the

district court rightly noted, Pesci is not a prisoner and the Florida Civil

Commitment Center is not a prison. Application of the Turner standard in the civil

detention context must be tailored to reflect that the range of legitimate

governmental interests is narrower here than it is in a prison context. More

precisely, the “legitimate penological interests” highlighted by the Supreme Court

in Turner are not coextensive with the legitimate interests found in the civil

detention context. Thus, the government’s interests in retribution and general
                                           13
             Case: 12-11144      Date Filed: 09/23/2013    Page: 14 of 21


deterrence -- plainly legitimate justifications for prison regulations -- decidedly are

not a proper foundation for the restriction of civil detainees’ constitutional rights.

      The Supreme Court drew this distinction with clarity when it upheld a

Kansas statute similar to the Florida statute providing for civil commitment of

sexually violent predators. See Kansas v. Hendricks, 521 U.S. 346 (1997). In

Hendricks, the cross-petitioner challenged the constitutionality of the statute on

double jeopardy and ex post facto grounds. In rejecting these challenges, the Court

was “unpersuaded by Hendricks’ argument that Kansas has established criminal

proceedings.” Id. at 361. The Court noted that “commitment under the Act does

not implicate either of the two primary objectives of criminal punishment:

retribution or deterrence.” Id. at 361-62. The Court further emphasized that

“involuntary confinement pursuant to the Act is not punitive” and that

“commitment under the Act is not tantamount to ‘punishment.’” Id. at 369. These

were not mere asides; rather, the Court’s “conclusion that the Act is nonpunitive

thus remove[d] an essential prerequisite for both Hendricks’ double jeopardy and

ex post facto claims.” Id.; see also id. at 373 (Kennedy, J., concurring) (“On the

record before us, the Kansas civil statute conforms to our precedents. If, however,

civil confinement were to become a mechanism for retribution or general




                                           14
              Case: 12-11144      Date Filed: 09/23/2013     Page: 15 of 21


deterrence . . . our precedents would not suffice to validate it.”). 2 Thus, the

government undoubtedly may justify a civil detention regulation based on its valid,

rational connection to legitimate interests in institutional order, safety, and security

and in the rehabilitation and treatment of civil detainees, but it may not justify a

restraint on detainees’ constitutional rights for reasons related to punitive

conditions of confinement. See id. (Kennedy, J., concurring) (“[W]hile

incapacitation is a goal common to both the criminal and civil systems of

confinement, retribution and general deterrence are reserved for the criminal

system alone.”). In short, while there may be shared governmental interests

surrounding civil and criminal detention, they are not coextensive. Thus, in the

context of this case, the government may not justify a limitation on expressive

freedoms based on retribution or general deterrence.

       Pesci, however, asks this Court to go further than this modification to the

first Turner factor. He relies on Youngberg v. Romeo, 457 U.S. 307 (1982),

arguing that a more searching standard of review should apply. In Youngberg, the

Supreme Court observed that “[p]ersons who have been involuntarily committed

are entitled to more considerate treatment and conditions of confinement than

criminals whose conditions of confinement are designed to punish.” Id. at 321-22.

But this observation does not warrant the wholesale departure from the Turner

2
  Justice Kennedy’s concurrence is especially relevant because Justice Kennedy also provided
the fifth vote for the Court’s opinion.
                                            15
             Case: 12-11144      Date Filed: 09/23/2013    Page: 16 of 21


standard that Pesci now urges on us. Indeed, Youngberg establishes that many of

the considerations upon which the Turner standard is grounded, including, notably,

judicial restraint and deference to the professional judgment of institutional

officials, remain relevant in a civil detention context as well.

      In Youngberg, the mother of an involuntarily committed civil detainee

brought a next friend § 1983 claim challenging her son’s conditions of

confinement. The Court held that civil detainees have a constitutionally protected

liberty interest under the Due Process Clause of the Fourteenth Amendment to

reasonably safe conditions of confinement, freedom from unreasonable bodily

restraints, and such minimally adequate training or “habilitation” as reasonably

may be required by these interests. Id. at 314-19. The Court noted that these rights

are not absolute, however, and may sometimes be drawn into conflict. Thus, the

Court recognized the need to articulate a standard of review that balanced the

detainee’s liberty interests against the relevant state interests. Id. at 321. The

standard the Supreme Court adopted requires only “that the courts make certain

that professional judgment in fact was exercised,” and that in determining what

minimally adequate habilitation may be reasonable, “courts must show deference

to the judgment exercised by a qualified professional.” Id. at 321-22. Plainly, as

the Supreme Court expressly recognized, this standard is lower than a

“compelling” or “substantial” governmental interests test, and such a heightened


                                           16
             Case: 12-11144      Date Filed: 09/23/2013    Page: 17 of 21


standard “would place an undue burden on the administration of institutions.” Id.

at 322; accord id. (“By so limiting judicial review of challenges to conditions in

state institutions, interference by the federal judiciary with the internal operations

of these institutions should be minimized.”). Just as it would do in Turner five

years later, the Court emphasized a principle of judicial deference to the

professional judgment of institutional officials. See id. at 322-23.

      There are parallels that may be drawn between the administration of an

institution like the FCCC and a prison that support the application of a modified

Turner standard we describe herein. Florida enacted a law providing that a person

determined by a court or jury to be a “sexually violent predator” is required,

following his term of incarceration, to be housed in a “secure facility” and

segregated from other detainees not committed under the law in order to receive

“control, care, and treatment until such time as the person’s mental abnormality or

personality disorder has so changed that it is safe for the person to be at large.”

Fla. Stat. § 394.917(2) (emphasis added). A “sexually violent predator,” in turn, is

defined as a person who “[h]as been convicted of a sexually violent offense” and

who “[s]uffers from a mental abnormality or personality disorder that makes the

person more likely to engage in acts of sexual violence if not confined in a secure

facility for long-term control, care, and treatment.” Id. § 394.912(10). As the

Florida Supreme Court has observed, the law was enacted for the “dual state


                                          17
             Case: 12-11144    Date Filed: 09/23/2013    Page: 18 of 21


interests of providing mental health treatment to sexually violent predators and

protecting the public from these individuals.” Westerheide v. State, 831 So. 2d 93,

112 (Fla. 2002).

      Although not a prison, the FCCC is a facility that houses approximately 600

persons involuntarily committed as sexually violent predators after their terms of

incarceration. Florida law commands both that the facility be secure and that it

serve a rehabilitative purpose, thus making those twin aims every bit as relevant

and legitimate here as in the prison context. Moreover, FCCC staff and the state

contractor GEO that manages the facility are the ones that “are best equipped to

make difficult decisions” regarding the administration of the facility in keeping

with these obligations. Washington v. Harper, 494 U.S. 210, 223-24 (1990) (citing

Turner, 482 U.S. at 84-85; Jones, 433 U.S. at 128). We can discern no salient

difference between a civil detention center like the FCCC and a prison on this

point, making the balance the Supreme Court struck in Turner equally applicable

here. At the same time, deference to the professional judgment of the facility

administration is not tantamount to carte blanche permission to deny the

fundamental rights of free speech and free expression. Care must be exercised to

examine each claim individually and particularly.

      Moreover, we again observe that the Turner standard is a deferential one, but

it is not toothless. See Thornburgh, 490 U.S. at 414 (“We adopt the Turner


                                         18
             Case: 12-11144      Date Filed: 09/23/2013    Page: 19 of 21


standard in this case with confidence that, as petitioners here have asserted, ‘a

reasonableness standard is not toothless.’”). Turner itself illustrates the point. At

issue in Turner were two regulations: a restriction on inmate-to-inmate

correspondence between different institutions and a marriage regulation that

permitted inmates to marry only with the permission of the superintendent of the

prison, who, in turn, could only give approval when there were “compelling

reasons to do so.” Turner, 482 U.S. at 81-82. The inmate-to-inmate restriction

passed muster because of legitimate security concerns about the coordination of

escape plans and assaults and the need to curb gang communications and the

absence of any obvious alternatives. Id. at 91-93. But the marriage regulation --

which amounted to an “almost complete ban on the decision to marry” -- was not

reasonably related to the legitimate penological interests of either security or

rehabilitation, because there were obvious, easy alternatives that would

accommodate inmates’ right to marry with only a de minimis burden on security

objectives. Id. at 97-99. As an example, the Court cited the federal regulation

generally permitting federal prisoners to marry unless the warden finds that the

marriage presents a threat to the security or order of the institution or to public

safety. Id. at 98 (citing 28 C.F.R. § 551.10). Deference to facility administrators

and concerns relating to safety and security cannot be used as a pretext to silence

undesirable speech.


                                           19
              Case: 12-11144    Date Filed: 09/23/2013    Page: 20 of 21


      Finally, Pesci has not provided us with a satisfactory alternative standard.

He concedes that the governing standard must be less than strict scrutiny, because

civil detainees do not have all of the liberties afforded non-confined persons, but

urges that the standard be more restrictive than is found in Turner’s reasonableness

review. Thus, he recommends some form of intermediate scrutiny drawn from

United States v. O’Brien, 391 U.S. 367 (1968). In O’Brien, the Supreme Court

upheld a 1965 law criminalizing the destruction of Selective Service certificates.

The Court subjected the law to the following standard:

      [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 the 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.

Id. at 377.

      The problem with adopting this standard is that O’Brien had nothing to do

with detention centers -- whether penal or civil in nature -- and said nothing about

the balance of interests that must be weighed in those contexts. Indeed, adoption

of the O’Brien standard would mark a departure from the balance struck by the

Supreme Court in Turner and Youngberg. It would change the governmental

interest from “legitimate,” Turner, 482 U.S. at 89, to “important or substantial,”

O’Brien, 391 U.S. at 377, and it would require the restriction of First Amendment

rights to be “incidental” and “no greater than is essential to the furtherance” of the
                                          20
               Case: 12-11144       Date Filed: 09/23/2013      Page: 21 of 21


governmental interest, id., rather than being “reasonably related” to governmental

interests. The far more probing standard found in O’Brien would leave little room

for judicial restraint and the deference to institutional officials’ professional

judgment required in both the civil detention and prison contexts. Indeed, the

adoption of an “important or substantial” interests test would find itself in

considerable tension with the Supreme Court’s observation, in the civil detention

context, that a heightened standard would place an “undue burden” on institutional

officials and the administration of civil detention facilities. Youngberg, 457 U.S.

at 322.

       In short, we hold that a rational relation standard as described herein is the

appropriate standard against which to measure Pesci’s First Amendment claims.

The district court’s order of final summary judgment in favor of Budz is vacated,

and the case is remanded for further proceedings.3



              VACATED AND REMANDED.




3
 In light of our disposition of this case, Pesci’s pending motion for this Court to take judicial
notice of various media reports is DENIED as moot.

       We add that in our view counsel should be appointed at the trial level to represent Pesci
on remand, and observe that appointed appellate counsel has well and vigorously represented
Pesci on appeal.
                                               21
