Opinions of the United
1998 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-25-1998

Abu-Jamal v. Price
Precedential or Non-Precedential:

Docket 96-3756




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Filed August 25, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 96-3756

MUMIA ABU-JAMAL,
       Appellant

v.

JAMES PRICE,   in his official capacity as Superintendent
of the State   Correctional Institution at Greene; MARTIN
HORN, in his   official capacity as Commissioner of the
Pennsylvania   Department of Corrections; THOMAS
FULCOMER, in   his official capacity as Deputy
Commissioner   of the Pennsylvania Department of
Corrections

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
(D.C. Civil No. 95-cv-00618)

Argued: December 8, 1997

Before: NYGAARD, ALITO, and LAY,* Circuit Judges

(Opinion Filed: August 25, 1998)



_________________________________________________________________

* The Honorable Donald P. Lay, Circuit Judge for the United States Court
of Appeals for the Eighth Circuit, sitting by designation.
       Timothy P. O'Brien
       Mitchell, O'Brien & Krakoff
       429 Forbes Avenue
       1705 Allegheny Building
       Pittsburgh, PA 15219

       Jere Krakoff (Argued)
       Pennsylvania Institutional Law
        Project
       1705 Allegheny Building
       Pittsburgh, PA 15219

       Counsel for the Appellant

       Amy Zapp (Argued)
       Office of Attorney General of
        Pennsylvania
       Department of Justice
       Strawberry Square, 15th Floor
       Harrisburg, PA 17120

       Thomas F. Halloran, Jr.
       Office of Attorney General of
        Pennsylvania
       564 Forbes Avenue
       Manor Complex
       Pittsburgh, PA 15219

       Counsel for Appellees

OPINION OF THE COURT

NYGAARD, Circuit Judge.

Appellant Mumia Abu-Jamal was convicted of murdering
a Philadelphia police officer and is currently on death row
at the State Correctional Institute at Greene. The
Pennsylvania Department of Corrections has a rule that
prohibits inmates from carrying on a business or
profession. Jamal alleges that this rule is unconstitutional
and that the Department used this rule as a pretext to
retaliate against him for the content of his writings, radio
commentaries, and his book, Live From Death Row, which
he wrote while at the State Correctional Institution at

                               2
Huntingdon. He alleges that this retaliation included
opening, reading and distributing his legal mail by
Department officials and denying visits by his paralegals.

Jamal filed suit against the Department and
Superintendent James Price seeking declaratory and
injunctive relief under 42 U.S.C. S1983. He claims that the
Department violated his rights under the First and
Fourteenth Amendments, and challenges the business or
profession rule. He sought a preliminary injunction to
prevent the Department from investigating violations of,
and enforcing its business or profession rule against him.
When he made the motion, Jamal was serving a prison
disciplinary sentence for engaging in the profession of
journalism at S.C.I. Greene.

The district court denied Jamal's motion for a preliminary
injunction against the enforcement of the business or
profession rule, but granted a limited injunction against the
opening of Jamal's legal mail. The court held that the
disciplinary proceedings and the Department's decision to
open Jamal's mail were not motivated by retaliation for
Jamal's writings. Instead, the district court held that the
Department initiated these actions after it suspected that
Jamal had entered into a contract with a publisher for
compensation. The trial court also denied Jamal's motion to
rescind disciplinary action for violating the business or
profession rule. The court, however, enjoined the reading,
photocopying, distributing or collection of his legal mail,
except to "investigate the violation of prison regulations or
other misconduct." Finally, the court denied Jamal's motion
to enjoin the Department from requiring paralegals to be
trained or licensed and to work under contract with the
attorneys, concluding that the Department had valid,
nonretaliatory reasons for enforcing the visitation rule.1
Jamal appeals.
_________________________________________________________________

1. The Department also denied media requests for interviews from
February through June of 1995. During that time, the Department
granted media requests for other inmates. The district court found that
the Department's justifications for denying media access to Jamal were
not credible, and concluded that this action was clearly retaliatory. The
district court granted an injunction prohibiting further denials of media
access. This order is not challenged on appeal.

                                3
We conclude that Jamal has a reasonable probability of
demonstrating that the Department's actions violated his
rights under the First and Fourteenth Amendments, and
that Jamal has demonstrated that he will be subject to
irreparable harm if the injunction is not granted.
Accordingly, we will reverse, and remand the cause to the
district court with instructions to enjoin the investigation
and enforcement of the business or profession policy as it
pertains to Jamal. We affirm the district court's order
insofar as it denied Jamal's motion to enjoin the
Department's visitation restrictions.

I.

Jamal worked as a journalist before his conviction, and
he has continued to write articles while incarcerated.
Approximately forty publications carried articles under
Jamal's byline on a regular basis while he was incarcerated
at S.C.I. Huntingdon. Supporters would send copies of
Jamal's published articles via regular prison mail. S.C.I.
Huntingdon corrections officers opened and searched these
articles as part of screening procedures. For instance, on
one occasion, the superintendent of S.C.I. Huntingdon
commended Jamal for a Yale Law Journal article. See
Mumia Abu-Jamal, Teetering on the Brink: Between Death
and Life, 100 Yale L.J. 993 (1991). Jamal received
compensation for the Yale article, and for other articles
published by The Nation, Covert Action, and Against the
Current. Department officials were not aware, however, that
Jamal was paid for any other publications.

In July of 1992, Jamal recorded an extensive interview
with the Prison Radio Project, which aired in segments
featured as commentaries from Jamal. Jamal did not
receive compensation for these interviews. The Prison Radio
Project wrote a letter to the assistant superintendent in
August of 1992 requesting permission to regularly tape and
air commentaries by Jamal, who would be introduced as a
correspondent. In the same letter, the Project informed the
Department that they were "in the process of approaching
publishers with a book proposal."

The Department denied the Project's request to tape
regular commentaries, stating that "it does not permit

                               4
inmates to conduct or participate in regularly scheduled
news broadcasts or commentary." In April 1994, National
Public Radio also interviewed Jamal, and intended to use
the recordings as commentaries critical of prison life,
among other topics. NPR paid Jamal for these interviews,
which focused considerable media attention on Jamal's
case. Several members of the public and the Fraternal
Order of Police contacted the Department to express
outrage that a convicted murderer could benefit from his
status.

As a result of the complaints, the Department began to
"investigate" whether Jamal was violating the business or
profession rule, despite the fact that Jamal freely admitted
that he was writing and publishing his works. It instituted
a "mail watch" in August of 1994, which is separate and
distinct from the routine search of incoming personal mail.
Under a mail watch, corrections officers were entitled to
open Jamal's legal mail outside of his presence.

The business or profession rule states, in relevant part:

       "No inmate is permitted to incorporate or engage in a
       business or profession while under the supervision of
       the Department of Corrections except as indicated
       below.2 An inmate who is engaged in a business or
       profession prior to incarceration is expected to assign
       authority for the operation of such business or
       profession to a person in the community."

(footnote added). The Department contends that it reviewed
Jamal's legal mail specifically to determine whether one of
Jamal's attorneys was helping him obtain compensation for
his writing and commentaries, even though the business or
profession rule applies irrespective of whether Jamal is
compensated.
_________________________________________________________________

2. The exceptions to this rule allow inmates to continue to make major
decisions, on occasion, that substantially affect their businesses; and
allow unsentenced inmates, inmates on work release, and inmates in
community corrections programs, to continue to practice a business or
profession provided their work does not impose a burden on prison
administration.

                               5
Department of Corrections officials opened Jamal's legal
mail, copied it, and sent it to David Horwitz, assistant
general counsel of the Department of Corrections. Horwitz
read the letters in their entirety, and concluded that they
were not relevant to the Department's investigation. In the
face of this conclusion, and even though Horwitz
determined that the letters were pertinent to Jamal's state
appeals, Horwitz forwarded them to Chief Counsel Young
and to Brian Gottlieb, Deputy Counsel in the Office of the
General Counsel--the office charged with advising the
Governor of Pennsylvania on, among other things, signing
death warrants.

The Department forwarded three letters from Jamal's
attorneys to the governor's office. Two of those letters, dated
August 16, 1994 and August 23, 1994, were from Jamal's
lead attorney in his state appeal and contained a candid
discussion of the merits of his claim and sensitive
information regarding the defense strategy. The third letter,
dated August 25, 1994 had been written by staff counsel on
Jamal's state appeal, and also discussed his case. The
Department continued a "mail watch" on Jamal's legal mail
from August 1994, until Jamal filed this lawsuit, and
confiscated and copied various incoming and outgoing
letters. When Jamal filed his motion for a preliminary
injunction, he had entered into a contract with Emerge
Magazine to submit an article. The Department continued
its investigation of Jamal.

In September 1994, the Department became suspicious
of the number of people admitted as paralegals for legal
visits with Jamal. Jamal's attorney designated six legal
assistants. Among these were Noelle Hanrahan, who was
also working with Jamal as part of the Prison Radio Project;
Jeannette Patton and Bobby Blocker, who were involved in
fund-raising for Jamal's legal defense; and Jamila Levi, who
calls herself Jamal's "spiritual sister" and had visited Jamal
in the past. Levi visited Jamal as a social visitor in October
1993 and began visiting as a paralegal in October 1994. In
January of 1995, she was admitted as a social guest. In
February of 1995, she was admitted as a paralegal four
times. Levi marked herself as "friend" in the prison's
visitors book even when she was admitted for legal visits,

                               6
and had written articles complaining of the limits imposed
upon social visits for death row inmates.

In a February 24, 1995 letter, the Department wrote to
Jamal's attorney: "it is not sufficient merely to designate
persons as investigators and paralegals unless the
identified individuals can produce documentation that they
are, in fact, licensed investigators or credentialed paralegals
acting under contract with, or as employees of the
attorney." These requirements went beyond those set forth
in prison regulations.3 Levi was not licensed as an
investigator, had no legal training, was not employed by
Jamal's attorney, and was not receiving compensation for
her visits. Levi was denied admission as a paralegal on
February 28, 1995.

II.

We must determine whether the district court erred as a
matter of law when it decided Jamal's motion for a
preliminary injunction. Our review is plenary. See Olde
Discount Corp. v. W. Michael Tupman, 

, 206 (3d
Cir. 1993). We review the district court's findings of fact for
clear error. Philadelphia Marine Trade Ass'n v. Local 1291,

, 756 (3d Cir. 1990). We first consider Jamal's
request to enjoin the investigation and enforcement of the
business or profession rule against him.

Prison regulations that curtail an inmate's constitutional
rights are valid if reasonably related to legitimate
penological objectives. Turner v. Safley, 

, 89,

, 2261 (1987). The deference we accord to
the Department in establishing, interpreting and applying
prison regulations presents a formidable barrier to Jamal's
claim that the prison regulations are unconstitutional. See

, 107 S. Ct. at 2262 (noting that less
_________________________________________________________________

3. Under DCM-812, an inmate's attorney may designate persons, such as
law students, paralegals, or investigators to visit the inmate to act as
the
attorney's agent. The attorney is required to submit a "written statement
signed by the attorney on the letterhead of his or her firm identifying
each person as the attorney's agent and attesting that the visit is for
the
purpose of legal consultation."

                                7
stringent First Amendment scrutiny is appropriate in the
prison setting because "prison administrators . . . and not
the courts [are] to make the difficult judgments concerns
the institutional operations.") Incarceration, however,
necessitates that many rights and privileges, including
rights derived from the First Amendment, be eliminated or
curtailed. 

, 94 S. Ct. at 2804.

In Turner, the Supreme Court listed four factors to help
determine whether prison regulations and practices are
reasonable:

       "First, there must be a valid, rational connection
       between the prison regulation and the legitimate
       governmental interest put forward to justify it. Thus, a
       regulation cannot be sustained where the logical
       connection between the regulation and the asserted
       goal is so remote as to render the policy arbitrary or
       irrational. Moreover, the governmental objective must
       be a legitimate and neutral one. We have found it
       important to inquire whether prison regulations
       restricting inmates' First Amendment rights operated in
       a neutral fashion, without regard to the content of the
       expression.

       A second factor relevant in determining the
       reasonableness of a prison restriction, as Pell shows, is
       whether there are alternative means of exercising the
       right that remain open to prison inmates. Where other
       avenues remain available for the exercise of the
       asserted right, courts should be particularly conscious
       of the measure of judicial deference owed to corrections
       officials . . . in gauging the validity of the regulation.

       A third consideration is the impact accommodation of
       the asserted constitutional right will have on guards
       and other inmates, and on the allocation of prison
       resources generally. In the necessarily closed
       environment of the correctional institution, few changes
       will have no ramifications on the liberty of others or on
       the use of the prison's limited resources for preserving
       institutional order. When accommodation of an
       asserted right will have a significant ripple effect on
       fellow inmates or on prison staff, courts should be

                               8
       particularly deferential to the informed discretion of
       corrections officials.

       Finally, the absence of ready alternatives is evidence
       of the reasonableness of a prison regulation. By the
       same token, the existence of obvious, easy alternatives
       may be evidence that the regulation is not reasonable,
       but is an exaggerated response to prison concerns. This
       is not a least restrictive alternative test prison officials
       do not have to set up and then shoot down every
       conceivable alternative method of accommodating the
       claimant's constitutional complaint. But if an inmate
       claimant can point to an alternative that fully
       accommodates the prisoner's rights at de minimis cost
       to valid penological interests, a court may consider that
       as evidence that the regulation does not satisfy the
       reasonable relationship standard."

-91, 107 S. Ct. at 2262 (citations and
internal quotation marks omitted).

Federal Rule of Civil Procedure 65 permits a court to
grant a preliminary injunction if the moving party
demonstrates a likelihood of success in the litigation, and
that he will suffer great or irreparable injury absent an
injunction. Fed. R. Civ. P. 65; Delaware River Port Auth. v.
Transamerican Trailer Tranp. Inc., 

, 919-20 (3d
Cir. 1974). Accordingly, to succeed on his motion for a
preliminary injunction, Jamal must first demonstrate that
the business or profession rule, as enforced against him, is
not reasonably related to any legitimate interests. We
conclude that Jamal has satisfied this requirement because
he is likely to show: first, that the Department enforced the
business or profession rule because of the content of his
writings; second, that his writing does not affect the
allocation of prison resources, other inmates, or the orderly
administration of the prison system any more than does the
writing of other inmates; and third, that there are obvious,
easy alternatives to address the Department's security
concerns.

A.

Prison regulations, like the business or profession rule,
which restrict an inmate's First Amendment rights must

                               9
operate in a neutral fashion, without regard to the content
of the expression. 

, 107 S. Ct. at
2262. We analyze content neutrality in the prison context
differently than we do for non-inmates. Jones v. North
Carolina Prisoners' Labor Union, Inc., 

, 133, 

, 2541 (1977). For example, limiting speech that
may include escape plans or incite other prisoners would
be a valid response to a potential security threat,"even
though the same showing might be unimpressive if . . .
submitted as justification for governmental restriction of
personal communication among members of the general
public." 

n. 

n. 9 (citation and
internal quotation marks omitted). Nevertheless, once
prison security is accomplished, "a prison inmate retains
those First Amendment rights that are not inconsistent
with his status as a prisoner or with the legitimate
penological objectives of the corrections system." Pell v.
Procunier, 

, 822, 

, 2804 (1974).

The superintendent of the S.C.I. Huntingdon was aware
of Jamal's writings when Jamal published the Yale article
in 1991. An August 16, 1992 letter to the Department
noted that Jamal was approaching publishers regarding a
book deal. Nevertheless, the Department did not begin to
investigate him until May 6, 1994, after National Public
Radio sought permission to broadcast Jamal's interviews as
regular commentaries. The district court determined that
"the investigation was initiated after public complaints
concerning Jamal's proposed NPR commentaries were made
by the Fraternal Order of Police" and concluded that any
delay in the Department's enforcement of the rule was
attributable to its investigatory procedures. As a result, it
held that Jamal was unlikely to succeed in showing that
the action was in retaliation against the content of his
writings. We disagree, and conclude that the district court
erred.

The Department began its investigation under public
pressure to do so, and because of the content of Jamal's
writing, not because he was being paid for it. Indeed, under
the Department's own regulations, compensation is
irrelevant in these circumstances. Furthermore, corrections
officers permitted another inmate at the S.C.I. Huntingdon

                               10
to publish, promote, and receive royalties for a novel
without punishment despite the business or profession
rule.

The Department states that the rule is justified by
"multifarious purposes and the impossibility of
accommodating the practice of a profession or business in
a penal setting." (Appellee's Br. at 25.) There is no evidence,
however, that Jamal's prison writing,4 any more so than
that of other inmates, has strained prison resources,
contributed to unrest among the inmate population, or
enhanced Jamal's stature as a prisoner, resulting in danger
to himself or others. To the contrary, the Department was
able to accommodate a live radio call-in show to promote
another inmate's book. From the record it appears that
Jamal's writing affected prison administration only when it
went through the mail screening system--just like the rest
of the inmates' mail. Until it imposed its "mail watch," the
Department did not have to make any special
accommodations for Jamal's writing. As for the
Department's remaining asserted interest -- ensuring that
prisoners are unable "to carry on with life as usual,"
Appellee's Br. At 8 -- the Department has failed to explain
how this interest is reasonably advanced by allowing some
prisoners to publish books but not allowing Jamal to do
likewise. Even if this interest might justify a rule that
precludes inmates from receiving compensation for their
writings, we need not resolve the issue whether this interest
can justify a rule preventing uncompensated (as opposed to
compensated) speech, because we conclude that it is likely
that Jamal can demonstrate that the Department's
enforcement of the business or profession rule against him,
was motivated, at least in part, by the content of his
articles and mounting public pressure to do something
about them, and hence, the actions were not content
neutral as required by 

, 107 S. Ct. at
2262, and 

, 94 S. Ct. at 2804.
_________________________________________________________________

4. Writing also happens to have once been Jamal's profession, and he
began to write in prison as early as 1989.

                               11
B.

Jamal is likely to demonstrate that his writing neither
requires accommodation by prison officials, nor affects
other inmates or the allocation of prison resources. The
Supreme Court discussion in Turner bears repeating here:

       "In the necessarily closed environment of the
       correctional institution, few changes will have no
       ramifications on the liberty of others or on the use of
       the prison's limited resources for preserving
       institutional order. When accommodation of an
       asserted right will have a significant "ripple effect" on
       fellow inmates or on prison staff, courts should be
       particularly deferential to the informed discretion of
       corrections officials."

, 107 S. Ct. at 2262. The record
contains no evidence of such a "ripple effect." As explained
before, Jamal was acting as a journalist from 1986, and the
Department did not claim to be burdened by his actions
until the Fraternal Order of Police outcry in 1994.

C.

Naturally, an inmate relinquishes some First Amendment
rights that he would enjoy if not incarcerated. 

, 97 S. Ct. at 2538. "The concept of
incarceration itself entails a restriction on the freedom of
inmates to associate with those outside of the penal
institution. Equally as obvious, the inmate's `status as a
prisoner' and the operational realities of a prison dictate
restrictions on the associational rights among inmates." 

97 S. Ct. at 2538. Nonetheless, Jamal is likely to
show that the Department's discriminatory application of
the business or profession rule to his writing is an
exaggerated response to the Department's security
objectives because there are obvious, easy alternatives to
address the Department's concerns. 

"can point
to an alternative that fully accommodates [his] rights at de
minimis cost to valid penological interests, [we] may
consider that as evidence that the regulation does not
satisfy the reasonable relationship standard." 

could simply apply its rule in a content neutral

                               12
fashion. Without listing all the other possible alternative
rules, the Department could apply the business or
profession rule to those businesses that place a substantial
burden on the Department's staff, which would tend to
exclude writers, whether episodic or notorious. There are no
doubt many businesses or professions, which if practiced
within the prison, would necessarily burden prison officials
or other inmates. As long as the inmate/writer does not
attain a special status, threaten corrections officers, or
incite the inmate population, a more narrow rule could
sufficiently protect the Department's security interests.

The record does not show that the Department actions
were motivated by concerns about escape plans, plans
about ongoing criminal activity, or threats. To the contrary,
it appears that Jamal's activity has not heightened tensions
at the prison, and that his writings do not advocate
violence, have any impact on the prison population,
threaten corrections officers, or burden prison security
resources. See, e.g., Bell v. Wolfish, 

, 547, 

, 1878 (1979). Instead, the Department's
business or profession rule is a class two disciplinary
provision, and violations are punishable at the same level
as horseplay or smoking. Although, Jamal's articles, book,
and radio commentaries may have generated controversy
beyond prison walls, unless they amount to fraud,
extortion, or threats to those outside the prison, the valid
objectives dwindle. Hence, we conclude that Jamal is likely
to demonstrate that the Department's enforcement of the
business or profession rule with respect to him is too broad
to be justified by the concerns articulated by the
Department.

D.

Turning to the second prong of the Federal Rule of Civil
Procedure 65 test, the district court held that Jamal did not
face irreparable harm as a result of the investigation of the
business or profession rule. The court held that Jamal "is
and has been able to disseminate his ideas through the
written work to any and all outlets without direct
interference from [the Department]." We disagree.

                               13
We have already concluded that Jamal has a reasonable
likelihood of success in showing that the Department
violated his First Amendment rights. "The loss of First
Amendment freedoms, for even minimal periods of time,
unquestionably constitutes irreparable injury." Elrod v.
Burns, 

, 373, 

, 2689 (1976).
This harm--the investigation for violations of the business
or profession rule--was both threatened and occurring at
the time of respondent's motion. Under Elrod, this is
sufficient to show irreparable harm because the timeliness
of speech is often critical. See 

Importantly, Jamal is a condemned man, whose only
time to speak and write is now. The Department has not
disavowed its intent to enforce the business or profession
rule, and Jamal has also unequivocally stated that he will
continue to write. Thus, there is no reason to believe that
the Department will not subject Jamal to the same
treatment in the future. The district court held that the
reading and copying Jamal's legal mail was acceptable if
the prison officials had "a reasonable suspicion that
plaintiff was violating an institutional regulation by
engaging in a business or profession in which wittingly or
not one or more of his attorneys was complicit." The
Department argues in support that its decision to open
Jamal's legal mail was necessitated by its investigation into
whether Jamal was conducting a business or profession.
This argument is nonsensical. We have difficulty seeing the
need to investigate an act that Jamal openly confesses he
is doing. Jamal's writing is published, and he freely admits
his intent to continue. Continued investigation and
enforcement of the rule invades the privacy of his legal mail
and thus directly interferes with his ability to communicate
with counsel.

The district court's injunction is too narrow to protect
Jamal from irreparable harm that results from opening his
confidential legal mail. We conclude that Jamal has a
reasonable likelihood of success in showing that the
Department's application of the business or profession rule
in this case violates his right to free speech. We will
therefore remand the cause to the district court with
instructions to grant Jamal's preliminary injunction,

                               14
preventing the Department from opening his mail on the
pretext that it is investigating violations of the business or
profession rule.

III.

Finally, we turn to Jamal's claim that the Department
retaliated against him by restricting paralegal visits. Here,
the facts show that Jamal is not likely to succeed on the
merits, because the Department has articulated a valid,
content neutral reason for applying more strict visitation
rules to Jamal's visitors. 

, 107 S. Ct.
at 2262.

Indeed, the facts show that the Department had a
legitimate reason to suspect that legal visitation privileges
were being abused so that Jamal could receive more than
the permitted number of social visits. Jamila Levi made a
personal visit to Jamal during October 1993, visited as a
paralegal in October 1994, as a social guest in January of
1995, and visited as a paralegal four times in February
1995. Levi marked herself as "friend" in the prison's visitors
book even when she was admitted for legal visits.

Jamal's visitation claim also implicates his constitutional
right of access to courts. In such a case we weigh the
extent to which his rights are burdened, against the
"legitimate interests of penal administration and the proper
regard that judges should give to the expertise and
discretionary authority of correctional officials." Procunier v.
Martinez, 

, 420, 

, 1815 (1974),
overruled in part on other grounds, Thornburgh v. Abbott,

, 

(1989). In Procunier, the
prison regulation absolutely prohibited the use of law
students and paraprofessionals. 

the
Department has only asked for verification that the legal
visitors are credentialed or employed by the attorney. Jamal
has not demonstrated that the paralegal visitation
restriction delayed or hindered his state court appeal.
Visitation--whether it is legal or personal--may jeopardize
the security of a facility. We must defer to the expertise of
prison officials to assess the security of the facilities and to
assure that legal visitors are properly admitted. Cf. Block v.

                               15
Rutherford, 

, 586, 

, 3234
(1984). Accordingly, we conclude that security concerns
outweigh any burdens placed on Jamal's state court appeal
and affirm the district court's denial of Jamal's motion to
enjoin the Department's visitation restrictions.

IV.

To summarize, we hold that Jamal is likely to
demonstrate first, that the Department enforced the
business or profession rule against him based upon the
content of his writings; second, that his writing does not
affect the allocation of prison resources, other inmates, or
the orderly administration of the prison system any more
than does writing of other inmates; and third, there exist
obvious, easy alternatives open to the Department to
address its security concerns. After considering all of these
factors,5 we conclude that Jamal is likely to demonstrate
that there is no valid, rational connection between the
Department's application of the business or profession rule
in this case and a legitimate penological interest. Thus, he
is likely to succeed in showing a First Amendment violation,
and we hold that he will suffer irreparable injury as a
result. Accordingly, we will reverse that portion of the
district court's order respecting this issue, and instruct it to
enjoin the investigation and enforcement of the business or
profession rule as it pertains to Jamal; and enjoin the
Department from opening Jamal's legal mail to investigate
whether he is violating the business or profession rule.

We also conclude that Jamal is not likely to succeed in
showing that the Department retaliated against him by
limiting paralegal visits, and on this issue we will affirm the
district court.
_________________________________________________________________

5. We note that neither party addressed the remaining Turner factor --
whether there are alternative means of exercising the right that remain
open to prison inmates, See 

-- and we have thus
considered this to be a neutral factor for purposes of our analysis.

                               16
A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               17